[Federal Register Volume 82, Number 221 (Friday, November 17, 2017)]
[Rules and Regulations]
[Pages 54924-55022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24307]



[[Page 54923]]

Vol. 82

Friday,

No. 221

November 17, 2017

Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement





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30 CFR Parts 700, 701, 773, et al.





Congressional Nullification of the Stream Protection Rule Under the 
Congressional Review Act; Final Rule

Federal Register / Vol. 82 , No. 221 / Friday, November 17, 2017 / 
Rules and Regulations

[[Page 54924]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 700, 701, 773, 774, 777, 779, 780, 783, 784, 785, 800, 
816, 817, 824, and 827

[Docket ID: OSM-2010-0018; S1D1S SS08011000 SX064A000 178S180110; S2D2S 
SS08011000 SX064A000 17X501520]
RIN 1029-AC63


Congressional Nullification of the Stream Protection Rule Under 
the Congressional Review Act

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; CRA Revocation.

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SUMMARY: By operation of the Congressional Review Act, the Stream 
Protection Rule shall be treated as if it had never taken effect. The 
Office of Surface Mining Reclamation and Enforcement issues this 
document to effect the removal of any amendments, deletions or other 
modifications made by the nullified rule, and the reversion to the text 
of the regulations in effect immediately prior to the effective date of 
the Stream Protection Rule.

DATES: This rule is effective on November 17, 2017. The incorporation 
by reference of material listed in the rule was previously approved by 
the Director of the Federal Register.

ADDRESSES: Previous documents related to the Stream Protection Rule, 
published at 81 FR 93066 (Dec. 20, 2016), are available at 
www.regulations.gov in Docket No. OSM-2010-0018.

FOR FURTHER INFORMATION CONTACT: Kathleen Vello, Office of Surface 
Mining Reclamation and Enforcement, U.S. Department of the Interior, 
1849 C Street NW., Mail Stop 4550, MIB, Washington, DC 20240 Telephone: 
202-208-1908.

SUPPLEMENTARY INFORMATION: The Office of Surface Mining Reclamation and 
Enforcement published the Stream Protection Rule on December 20, 2016 
(81 FR 93066). The rule became effective on January 19, 2017. On 
February 1, 2017, the United States House of Representatives passed a 
joint resolution of disapproval (H.J. Res. 38) of the Stream Protection 
Rule in accordance with the Congressional Review Act, 5 U.S.C. 801 et 
seq. The Senate passed the joint resolution of disapproval on February 
2, 2017 (Cong. Rec. p. S611). President Trump then signed the 
resolution into law as Public Law 115-5 on February 16, 2017. Under the 
terms of the Congressional Review Act, the Office of Surface Mining 
Reclamation and Enforcement's Stream Protection Rule must be ``treated 
as though such rule had never taken effect.'' 5 U.S.C. 801(f).
    However, because the Congressional Review Act does not include 
direction regarding the removal, by the Office of the Federal Register 
or otherwise, of the voided language from the Code of Federal 
Regulations, the Office of Surface Mining Reclamation and Enforcement 
must publish this document to effect the removal of the voided text. 
This document will enable the Office of the Federal Register to 
effectuate congressional intent to remove the voided text of the Stream 
Protection Rule which is to be treated as if it had never taken effect 
and to restore the previous language and prior state of the Code of 
Federal Regulations.
    This action is not an exercise of the Department's rulemaking 
authority under the Administrative Procedure Act because the Department 
is not ``formulating, amending, or repealing a rule'' under 5 U.S.C. 
551(5). Rather, the Department is effectuating changes to the Code of 
Federal Regulations to reflect what congressional action has already 
accomplished--namely, the nullification of any changes purported to 
have been made to the Code of Federal Regulations by the Stream 
Protection Rule and the reversion to the regulatory text in effect 
immediately prior to January 19, 2017, the effective date of the Stream 
Protection Rule. Accordingly, the Department is not soliciting comments 
on this action. Moreover, this action is not a final agency action 
subject to judicial review.

List of Subjects

30 CFR Part 700

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Surface mining, Underground mining.

30 CFR Part 701

    Law enforcement, Surface mining, Underground mining.

30 CFR Part 773

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Surface mining, Underground mining.

30 CFR Part 774

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining.

30 CFR Part 777

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining.

30 CFR Part 779

    Environmental protection, Reporting and recordkeeping requirements, 
Surface mining.

30 CFR Part 780

    Incorporation by reference, Reporting and recordkeeping 
requirements, Surface mining.

30 CFR Part 783

    Environmental protection, Reporting and recordkeeping requirements, 
Underground mining.

30 CFR Part 784

    Reporting and recordkeeping requirements, Underground mining.

30 CFR Part 785

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining.

30 CFR Part 800

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

30 CFR Part 816

    Environmental protection, Incorporation by reference, Reporting and 
recordkeeping requirements, Surface mining.

30 CFR Part 817

    Environmental protection, Incorporation by reference, Reporting and 
recordkeeping requirements, Underground mining.

30 CFR Part 824

    Environmental protection, Surface mining.

30 CFR Part 827

    Environmental protection, Surface mining, Underground mining.

0
For the reasons given in the preamble, and under the authority of the 
Congressional Review Act (5 U.S.C. 801 et seq.) and Public Law 115-5 
(February 16, 2017), the Department of the Interior, Office of Surface 
Mining Reclamation and Enforcement amends parts 700, 701, 773, 774, 
777, 779, 780, 783, 784, 785, 800, 816, 817, 824, and 827 of chapter 
VII of title 30 of the Code of Federal Regulations as follows:

0
1. Revise part 700 to read as follows:

PART 700--GENERAL

Sec.
700.1 Scope.
700.2 Objective.
700.3 Authority.
700.4 Responsibility.
700.5 Definitions.

[[Page 54925]]

700.10 Information collection.
700.11 Applicability.
700.12 Petitions to initiate rulemaking.
700.13 Notice of citizen suits.
700.14 Availability of records.
700.15 Computation of time.

    Authority: 30 U.S.C. 1201 et seq.


Sec.  700.1  Scope.

    The regulations in chapter VII of 30 CFR, consisting of parts 700 
through 899, establish the procedures through which the Secretary of 
the Interior will implement the Surface Mining Control and Reclamation 
Act of 1977 (Pub. L. 95-87, 91 Stat. 445 (30 U.S.C. 1201 et. seq.)). 
Chapter VII is divided into 13 subchapters.
    (a) Subchapter A contains introductory information intended to 
serve as a guide to the rest of the chapter and to the regulatory 
requirements and definitions generally applicable to the programs and 
persons covered by the Act.
    (b) Subchapter B contains regulations covering the initial 
regulatory program which apply before the applicability of permanent 
program regulations to persons conducting surface coal mining and 
reclamation operations and other persons covered by the Act.
    (c) Subchapter C sets forth regulations covering applications for 
and decisions on permanent State programs; the process to be followed 
for substituting a Federal program for an approved State program, if 
necessary; the process for assuming temporary Federal enforcement of an 
approved State program; and the process for implementing a Federal 
program in a State when required by the Act.
    (d) Subchapter D of this chapter identifies the procedures that 
apply to surface coal mining and reclamation operations conducted on 
Federal lands rather than State or private lands and incorporates by 
reference the requirements of the applicable regulatory program and the 
inspection and enforcement requirements of subchapter L of this 
chapter.
    (e) Subchapter E of this chapter contains regulations that apply to 
surface coal mining and reclamation operations conducted on Indian 
lands.
    (f)(1) Subchapter F implements the requirements of the Act for--
    (i) Designating lands which are unsuitable for all or certain types 
of surface coal mining operations;
    (ii) Terminating designations no longer found to be appropriate; 
and
    (iii) Prohibiting surface coal mining and reclamation operations on 
those lands or areas where the Act states that surface coal mining 
operations should not be permitted or should be permitted only after 
specified determinations are made.
    (2) Subchapter F does not include regulations governing designation 
of areas unsuitable for noncoal mining under the terms of section 601 
of the Act or the designation of Federal lands under the Federal lands 
review provisions of section 522(b) of the Act. The Bureau of Land 
Management of the Department of the Interior is responsible for these 
provisions which will be implemented when promulgated by regulations in 
title 43 of the Code of Federal Regulations.
    (g) Subchapter G governs applications for and decisions on permits 
for surface coal mining and reclamation operations on non-Indian and 
non-Federal lands under a State or Federal program. It also governs 
coal exploration and permit application and decisions on permits for 
special categories of coal mining on non-Indian and non-Federal lands 
under a State or Federal program. Regulations implementing the 
experimental practices provision of the Act are also included in 
subchapter G.
    (h) Subchapter J sets forth requirements for performance bonds and 
public liability insurance for both surface mining and underground 
mining activities.
    (i) Subchapter K sets forth the environmental and other performance 
standards which apply to coal exploration and to surface coal mining 
and reclamation operations during the permanent regulatory program. The 
regulations establish the minimum requirements for operations under 
State and Federal programs. Performance standards applicable to special 
mining situations such as anthracite mines, steep slope mining, 
alluvial valley floors, and prime farmlands are included.
    (j) Subchapter L sets forth the inspection, enforcement, and civil 
penalty provisions that apply to a State, Federal, or Federal lands 
program.
    (k) Subchapter M sets forth the requirements for the training, 
examination, and certification of blasters.
    (l) Subchapter P sets forth the provisions for protection of 
employees who initiate proceedings under the Act or testify in any 
proceedings resulting from the administration or enforcement of the 
Act.
    (m) Subchapter R sets forth the regulations for the abandoned mine 
land reclamation program. These regulations include the fee collection 
requirements and the mechanisms for implementing the State and Federal 
portions of the abandoned mine land reclamation program.
    (n) Subchapter S sets forth the regulations that apply to grants 
for mining and mineral research institutes and grants for mineral 
research projects.


Sec.  700.2  Objective.

    The objective of chapter VII is to fulfill the purposes of the Act 
found in section 102 in a manner which is consistent with the language 
of the Act, its legislative history, other applicable laws, and 
judicial interpretations.


Sec.  700.3  Authority.

    The Secretary is authorized to administer the requirements of the 
Act, except the following:
    (a) Provisions of the Act that authorize the Secretary of 
Agriculture to establish programs for the reclamation of rural lands, 
identification of prime agricultural lands, and other responsibilities 
described in the Act. Regulations promulgated by the Secretary of 
Agriculture are in 7 CFR;
    (b) Provisions of the Act for which responsibility is specifically 
assigned to other Federal agencies, including the Department of Labor, 
the Environmental Protection Agency, the Corps of Engineers, the 
Council on Environmental Quality, and the Department of Energy; and
    (c) Authority retained by the States to enforce State laws or 
regulations which are not inconsistent with the Act and this chapter, 
including the authority to enforce more stringent land use and 
environmental controls and regulations.


Sec.  700.4  Responsibility.

    (a) The Director of the Office of Surface Mining Reclamation and 
Enforcement, under the general direction of the Assistant Secretary, 
Energy and Minerals, is responsible for exercising the authority of the 
Secretary, except for the following:
    (1) Approval, disapproval or withdrawal of approval of a State 
program and implementation of a Federal program. The Director is 
responsible for exercising the authority of the Secretary to substitute 
Federal enforcement of a State program under section 521(b) of the Act.
    (2) Designation of non-Federal lands or Federal lands without the 
concurrence of the Federal surface managing agency as unsuitable for 
all or certain types of surface coal mining operations under section 
522 of the Act and as unsuitable for non-coal mining under section 601 
of the Act; and
    (3) Authority to approve or disapprove mining plans to conduct 
surface coal mining and reclamation operations on Federal lands.
    (b) The Director is responsible for consulting with Federal land-
managing

[[Page 54926]]

agencies and Federal agencies with responsibility for natural and 
historic resources on Federal lands on actions which may have an effect 
on their responsibilities.
    (c) The States are responsible for the regulation of surface coal 
mining and reclamation operations under the initial regulatory program 
and surface coal mining and reclamation operations and coal exploration 
under an approved State program and the reclamation of abandoned mine 
lands under an approved State Reclamation Plan on non-Federal and non-
Indian lands in accordance with procedures in this chapter.
    (d) The Secretary may delegate to a State through a cooperative 
agreement certain authority relating to the regulation of surface coal 
mining and reclamation operations on Federal lands in accordance with 
30 CFR part 745.
    (e) The Director, Office of Hearings and Appeals, U.S. Department 
of the Interior, is responsible for the administration of 
administrative hearings and appeals required or authorized by the Act 
pursuant to the regulations in 43 CFR part 4.


Sec.  700.5  Definitions.

    As used throughout this chapter, the following terms have the 
specified meaning except where otherwise indicated--
    Act means the Surface Mining Control and Reclamation Act of 1977 
(Pub. L. 95-87).
    AML means abandoned mine land(s).
    AML inventory means OSM's listing of abandoned mine land problems 
eligible to be reclaimed using moneys from the Abandoned Mine 
Reclamation Fund or the Treasury as appropriate.
    Anthracite means coal classified as anthracite in ASTM Standard D 
388-77. Coal classifications are published by the American Society of 
Testing and Materials under the title, Standard Specification for 
Classification of Coals by Rank, ASTM D 388-77, on pages 220 through 
224. Table 1 which classifies the coals by rank is presented on page 
223. This publication is hereby incorporated by reference as it exists 
on the date of adoption of these regulations. Notices of changes made 
to this publication will be periodically published by the Office of 
Surface Mining in the Federal Register. This ASTM Standard is on file 
and available for inspection at the OSM Office, U.S. Department of the 
Interior, South Interior Building, Washington, DC 20240, at each OSM 
Regional Office, District Office and Field Office, and at the central 
office of the applicable State Regulatory Authority, if any. Copies of 
this publication may also be obtained by writing to the above 
locations. A copy of this publication will also be on file for public 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Incorporation by 
reference provisions approved by the Director of the Federal Register 
February 7, 1979. The Director's approval of this incorporation by 
reference expires on July 1, 1981.
    Coal means combustible carbonaceous rock, classified as anthracite, 
bituminous, subbituminous, or lignite by ASTM Standard D 388-77, 
referred to and incorporated by reference in the definition of 
Anthracite immediately above.
    Department means the Department of the Interior.
    Director means the Director, Office of Surface Mining Reclamation 
and Enforcement, or the Director's representative.
    Eligible lands and water means lands and water eligible for 
expenditures under title IV of SMCRA and this chapter. Eligible lands 
and water for reclamation or drainage abatement expenditures under the 
Abandoned Mine Land program contained in this chapter are those which 
were mined for coal or which were affected by such mining, wastebanks, 
coal processing, or other coal mining processes and left or abandoned 
in either an unreclaimed or inadequately reclaimed condition prior to 
August 3, 1977, and for which there is no continuing reclamation 
responsibility. However, lands and water damaged by coal mining 
operations after that date and on or before November 5, 1990, may also 
be eligible for reclamation if they meet the requirements specified in 
Sec.  874.12(d) and (e) of this chapter. Following certification of the 
completion of all known coal problems, eligible lands and water for 
noncoal reclamation purposes are those sites that meet the eligibility 
requirements specified in Sec.  875.14 of this chapter. For additional 
eligibility requirements for water projects, see Sec.  874.14 of this 
chapter, and for lands affected by remining operations, see section 404 
of SMCRA.
    Emergency means a sudden danger or impairment that presents a high 
probability of substantial physical harm to the health, safety, or 
general welfare of people before the danger can be abated under normal 
program operation procedures.
    Expended means that moneys have been obligated, encumbered, or 
committed by contract by the State, Tribe, or us for work to be 
accomplished or services to be rendered.
    Extreme danger means a condition that could reasonably be expected 
to cause substantial physical harm to persons, property, or the 
environment and to which persons or improvements on real property are 
currently exposed.
    Federal lands means any land, including mineral interests, owned by 
the United States, without regard to how the United States acquired 
ownership of the lands or which agency manages the lands. It does not 
include Indian lands. However, lands or mineral interests east of the 
100th meridian west longitude owned by the United States and entrusted 
to or managed by the Tennessee Valley Authority are not subject to 
sections 714 (surface owner protection) and 715 (Federal lessee 
protection) of the Act.
    Federal lands program means a program established by the Secretary 
pursuant to section 523 of the Act to regulate surface coal mining and 
reclamation operations on Federal lands.
    Fund means the Abandoned Mine Reclamation Fund established on the 
books of the U.S. Treasury for the purpose of accumulating revenues 
designated for reclamation of abandoned mine lands and other activities 
authorized by section 401 of SMCRA.
    Indian lands means all lands, including mineral interests, within 
the exterior boundaries of any Federal Indian reservation, 
notwithstanding the issuance of any patent, and including rights-of-
way, and all lands including mineral interests held in trust for or 
supervised by an Indian tribe.
    Indian tribe means any Indian tribe, band, group, or community 
having a governing body recognized by the Secretary.
    Office means the Office of Surface Mining Reclamation and 
Enforcement established under title II of the Act.
    Left or abandoned in either an unreclaimed or inadequately 
reclaimed condition means, for Abandoned Mine Land programs, lands and 
water:
    (1) Which were mined or which were affected by such mining, 
wastebanks, processing or other mining processes prior to August 3, 
1977, or between August 3, 1977, and November 5, 1990, as authorized 
pursuant to section 402(g)(4) of SMCRA, and on which all mining has 
ceased;
    (2) Which continue, in their present condition, to degrade 
substantially the quality of the environment, prevent or

[[Page 54927]]

damage the beneficial use of land or water resources, or endanger the 
health and safety of the public; and
    (3) For which there is no continuing reclamation responsibility 
under State or Federal laws, except as provided in sections 402(g)(4) 
and 403(b)(2) of SMCRA.
    OSM and OSMRE mean the Office of Surface Mining Reclamation and 
Enforcement established under title II of the Act.
    Person means an individual, Indian tribe when conducting surface 
coal mining and reclamation operations on non-Indian lands, 
partnership, association, society, joint venture, joint stock company, 
firm, company, corporation, cooperative or other business organization 
and any agency, unit, or instrumentality of Federal, State or local 
government including any publicly owned utility or publicly owned 
corporation of Federal State or local government.
    Person having an interest which is or may be adversely affected or 
person with a valid legal interest shall include any person--
    (a) Who uses any resource of economic, recreational, esthetic, or 
environmental value that may be adversely affected by coal exploration 
or surface coal mining and reclamation operations or any related action 
of the Secretary or the State regulatory authority; or
    (b) Whose property is or may be adversely affected by coal 
exploration or surface coal mining and reclamation operations or any 
related action of the Secretary or the State regulatory authority.
    Project means a delineated area containing one or more abandoned 
mine land problems. A project may be a group of related reclamation 
activities with a common objective within a political subdivision of a 
State or within a logical, geographically defined area, such as a 
watershed, conservation district, or county planning area.
    Public office means a facility under the direction and control of a 
governmental entity which is open to public access on a regular basis 
during reasonable business hours.
    Reclamation activity means the reclamation, abatement, control, or 
prevention of adverse effects of past mining by an Abandoned Mine Land 
program.
    Reclamation program means a program established by a State or an 
Indian tribe in accordance with Title IV of SMCRA for reclamation of 
lands and water adversely affected by past mining, including the 
reclamation plan and annual applications for grants under the plan.
    Regional Director means a Regional Director of the Office or a 
Regional Director's representative.
    Regulatory authority means the department or agency in each State 
which has primary responsibility at the State level for administering 
the Act in the initial program, or the State regulatory authority where 
the State is administering the Act under a State regulatory program, or 
the Secretary in the initial or permanent program where the Secretary 
is administering the Act, or the Secretary when administering a Federal 
program or Federal lands program or when enforcing a State program 
pursuant to section 521(b) of the Act.
    Regulatory program means any approved State or Federal program or, 
in a State with no approved State or Federal program and coal 
exploration and surface coal mining and reclamation operations are on 
Federal lands, the requirements of subchapters A, F, G, J, K, L, M, and 
P of this chapter.
    Secretary means the Secretary of the Interior or the Secretary's 
representative.
    SMCRA means the Surface Mining Control and Reclamation Act of 1977, 
30 U.S.C. 1201 et seq., as amended.
    State regulatory authority means the department or agency in each 
State which has primary responsibility at the State level for 
administering the initial or permanent State regulatory program.
    Surface coal mining operations mean--
    (a) Activities conducted on the surface of lands in connection with 
a surface coal mine or, subject to the requirements of section 516 of 
the Act, surface operations and surface impacts incident to an 
underground coal mine, the products of which enter commerce or the 
operations of which directly or indirectly affect interstate commerce. 
Such activities include excavation for the purpose of obtaining coal, 
including such common methods as contour, strip, auger, mountain top 
removal, box cut, open pit, and area mining; the use of explosives and 
blasting; in situ distillation or retorting; leaching or other chemical 
or physical processing; and the cleaning, concentrating, or other 
processing or preparation of coal. Such activities also include the 
loading of coal for interstate commerce at or near the mine site. 
Provided, these activities do not include the extraction of coal 
incidental to the extraction of other minerals, where coal does not 
exceed 16\2/3\ percent of the tonnage of minerals removed for purposes 
of commercial use or sale, or coal exploration subject to section 512 
of the Act; and, Provided further, that excavation for the purpose of 
obtaining coal includes extraction of coal from coal refuse piles; and
    (b) The areas upon which the activities described in paragraph (a) 
of this definition occur or where such activities disturb the natural 
land surface. These areas shall also include any adjacent land the use 
of which is incidental to any such activities, all lands affected by 
the construction of new roads or the improvement or use of existing 
roads to gain access to the site of those activities and for haulage 
and excavation, workings, impoundments, dams, ventilation shafts, 
entryways, refuse banks, dumps, stockpiles, overburden piles, spoil 
banks, culm banks, tailings, holes or depressions, repair areas, 
storage areas, processing areas, shipping areas, and other areas upon 
which are sited structures, facilities, or other property or material 
on the surface, resulting from or incident to those activities.
    Surface coal mining and reclamation operations means surface coal 
mining operations and all activities necessary or incidental to the 
reclamation of such operations. This term includes the term surface 
coal mining operations.
    Ton means 2000 pounds avoirdupois (.90718 metric ton).


Sec.  700.10  Information collection.

    The collection of information, and recordkeeping requirements, 
contained in 30 CFR 700.11(d), 700.12(b) and 700.13 has approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1029-0094. The information collected in Sec.  
700.11(d) is used by OSMRE and States to establish standards for 
determining when a mine site is no longer a surface coal mining and 
reclamation operation and thereby when regulatory jurisdiction may end. 
The information collection under Sec.  700.12(b) is used by OSMRE to 
consider need, costs, and benefits of a proposed regulatory change in 
order to grant or deny a petition that has been submitted. Information 
collected in Sec.  700.13 identifies the person and nature of a 
citizen's suit, so that OSMRE or a state can respond appropriately.


Sec.  700.11  Applicability.

    (a) Except as provided in paragraph (b) of this section, this 
chapter applies to all coal exploration and surface coal mining and 
reclamation operations, except:
    (1) The extraction of coal by a landowner for his or her own 
noncommercial use from land owned or leased by him or her. 
Noncommercial

[[Page 54928]]

use does not include the extraction of coal by one unit of an 
integrated company or other business or nonprofit entity which uses the 
coal in its own manufacturing or power plants;
    (2) The extraction of 250 tons of coal or less by a person 
conducting a surface coal mining and reclamation operation. A person 
who intends to remove more than 250 tons is not exempted;
    (3) The extraction of coal as an incidental part of Federal, State 
or local government-financed highway or other construction in 
accordance with part 707 of this chapter;
    (4) The extraction of coal incidental to the extraction of other 
minerals where coal does not exceed 16\2/3\ percent of the total 
tonnage of coal and other minerals removed for purposes of commercial 
use or sale in accordance with part 702 of this chapter.
    (5) Coal exploration on lands subject to the requirement of 43 CFR 
parts 3480-3487.
    (b) This chapter does not apply to the extraction of coal for 
commercial purposes where the surface coal mining and reclamation 
operation, together with any related operations, has or will have an 
affected area of two acres or less. For purposes of this paragraph:
    (1) Where a segment of a road is used for access or coal haulage by 
more than one surface coal mining operation, the entire segment shall 
be included in the affected area of each of those operations; provided, 
that two or more operations which are deemed related pursuant to 
paragraph (b)(2) of this section shall be considered as one operation 
for purposes of this paragraph.
    (2) Except as provided in paragraph (b)(3) of this section, surface 
coal mining operations shall be deemed related if they occur within 
twelve months of each other, are physically related, and are under 
common ownership or control.
    (i) Operations shall be deemed physically related if drainage from 
both operations flows into the same watershed at or before a point 
within five aerial miles of either operation.
    (ii) Operations shall be deemed under common ownership or control 
if they are owned or controlled, directly or indirectly, by or on 
behalf of:
    (A) The same person;
    (B) Two or more persons, one of whom controls, is under common 
control with, or is controlled by the other; or
    (C) Members of the same family and their relatives, unless it is 
established that there is no direct or indirect business relationship 
between or among them;
    (iii) For purposes of this paragraph, control means: Ownership of 
50 percent or more of the voting shares of, or general partnership in, 
an entity; any relationship which gives one person the ability in fact 
or law to direct what the other does; or any relationship which gives 
one person express or implied authority to determine the manner in 
which coal at different sites will be mined, handled, sold or disposed 
of.
    (3) Notwithstanding the provisions of paragraph (b)(2) of this 
section, the regulatory authority may determine, in accordance with the 
procedures applicable to requests for determination of exemption 
pursuant to paragraph (c) of this section, that two or more surface 
coal mining operations shall not be deemed related if, considering the 
history and circumstances relating to the coal, its location, the 
operations at the sites in question, all related operations and all 
persons mentioned in paragraph (b)(2)(ii) of this section, the 
regulatory authority concludes in writing that the operations are not 
of the type which the Act was intended to regulate and that there is no 
intention on the part of such operations or persons to evade the 
requirements of the Act or the applicable regulatory program.
    (4) The exemption provided by paragraph (b) of this section applies 
only to operations with an affected area of less than two acres where 
coal is being extracted for commercial purposes and to surface coal 
mining operations within that affected area incidental to such 
operations.
    (c) The regulatory authority may on its own initiative and shall, 
within a reasonable time of a request from any person who intends to 
conduct surface coal mining operations, make a written determination 
whether the operation is exempt under this section. The regulatory 
authority shall give reasonable notice of the request to interested 
persons. Prior to the time a determination is made, any person may 
submit, and the regulatory authority shall consider, any written 
information relevant to the determination. A person requesting that an 
operation be declared exempt shall have the burden of establishing the 
exemption. If a written determination of exemption is reversed through 
subsequent administrative or judicial action, any person who, in good 
faith, has made a complete and accurate request for an exemption and 
relied upon the determination, shall not be cited for violations which 
occurred prior to the date of the reversal.
    (d)(1) A regulatory authority may terminate its jurisdiction under 
the regulatory program over the reclaimed site of a completed surface 
coal mining and reclamation operation, or increment thereof, when:
    (i) The regulatory authority determines in writing that under the 
initial program, all requirements imposed under subchapter B of this 
chapter have been successfully completed; or
    (ii) The regulatory authority determines in writing that under the 
permanent program, all requirements imposed under the applicable 
regulatory program have been successfully completed or, where a 
performance bond was required, the regulatory authority has made a 
final decision in accordance with the State or Federal program 
counterpart to part 800 of this chapter to release the performance bond 
fully.
    (2) Following a termination under paragraph (d)(1) of this section, 
the regulatory authority shall reassert jurisdiction under the 
regulatory program over a site if it is demonstrated that the bond 
release or written determination referred to in paragraph (d)(1) of 
this section was based upon fraud, collusion, or misrepresentation of a 
material fact.


Sec.  700.12  Petitions to initiate rulemaking.

    (a) Any person may petition the Director to initiate a proceeding 
for the issuance, amendment, or repeal of any regulation under the Act. 
The petition shall be submitted to the Office of the Director, Office 
of Surface Mining Reclamation and Enforcement, Department of the 
Interior, Washington, DC 20240.
    (b) The petition shall be a concise statement of the facts, 
technical justification, and law which require issuance, amendment, or 
repeal of a regulation under the Act and shall indicate whether the 
petitioner desires a public hearing.
    (c) Upon receipt of the petition, the Director shall determine if 
the petition sets forth facts, technical justification and law which 
may provide a reasonable basis for issuance, amendment or repeal of a 
regulation. Facts, technical justification or law previously considered 
in a petition or rulemaking on the same issue shall not provide a 
reasonable basis. If the Director determines that the petition has a 
reasonable basis, a notice shall be published in the Federal Register 
seeking comments from the public on the proposed change. The Director 
may hold a public hearing, may conduct an investigation or take other 
action to determine whether the petition should be granted.

[[Page 54929]]

    (d) Within 90 days from receipt of the petition, the Director shall 
issue a written decision either granting or denying the petition. The 
Director's decision shall constitute the final decision for the 
Department.
    (1) If the petition is granted, the Director shall initiate a 
rulemaking proceeding.
    (2) If the petition is denied, the Director shall notify the 
petitioner in writing, setting forth the reasons for denial.


Sec.  700.13  Notice of citizen suits.

    (a) A person who intends to initiate a civil action on his or her 
own behalf under section 520 of the Act shall give notice of intent to 
do so, in accordance with this section.
    (b) Notice shall be given by certified mail to the Secretary and 
the Director in all cases and to the head of the State regulatory 
authority, if a complaint involves or relates to a specific State. A 
copy of the notice shall be sent by first class mail to the Regional 
Director, if the complaint involves or relates to surface coal mining 
and reclamation operations in a specific region of the Office.
    (c) Notice shall be given by certified mail to the alleged 
violator, if the complaint alleges a violation of the Act or any 
regulation, order, or permit issued under the Act.
    (d) Service of notice under this section is complete upon mailing 
to the last known address of the person being notified.
    (e) A person giving notice regarding an alleged violation shall 
state, to the extent known--
    (1) Sufficient information to identify the provision of the Act, 
regulation, order, or permit allegedly violated;
    (2) The act or omission alleged to constitute a violation;
    (3) The name, address, and telephone numbers of the person or 
persons responsible for the alleged violation;
    (4) The date, time, and location of the alleged violation;
    (5) The name, address, and telephone number of the person giving 
notice; and
    (6) The name, address, and telephone number of legal counsel, if 
any, of the person giving notice.
    (f) A person giving notice of an alleged failure by the Secretary 
or a State regulatory authority to perform a mandatory act or duty 
under the Act shall state, to the extent known:
    (1) The provision of the Act containing the mandatory act or duty 
allegedly not performed;
    (2) Sufficient information to identify the omission alleged to 
constitute the failure to perform a mandatory act or duty under the 
Act;
    (3) The name, address, and telephone number of the person giving 
notice; and
    (4) The name, address, and telephone number of legal counsel, if 
any, of the person giving notice.


Sec.  700.14  Availability of records.

    (a) Records required by the Act to be made available locally to the 
public shall be retained at the geographically closest office of the 
State or Federal regulatory authority having jurisdiction over the area 
involved.
    (b) Other records or documents in the possession of the Office may 
be requested under 43 CFR part 2, which implements the Freedom of 
Information Act and the Privacy Act.


Sec.  700.15  Computation of time.

    (a) Except as otherwise provided, computation of time under this 
chapter is based on calendar days.
    (b) In computing any period of prescribed time, the day on which 
the designated period of time begins is not included. The last day of 
the period is included unless it is a Saturday, Sunday, or legal 
holiday on which the regulatory authority is not open for business, in 
which event the period runs until the end of the next day which is not 
a Saturday, Sunday, or legal holiday.
    (c) Intermediate Saturdays, Sundays, and legal holidays are 
excluded from the computation when the period of prescribed time is 7 
days or less.

0
2. Revise part 701 to read as follows:

PART 701--PERMANENT REGULATORY PROGRAM

Sec.
701.1 Scope.
701.2 Objective.
701.3 Authority.
701.4 Responsibility.
701.5 Definitions.
701.11 Applicability.

    Authority:  30 U.S.C. 1201 et seq.


Sec.  701.1  Scope.

    (a) This part provides general introductory material for the 
permanent regulatory program required by the Act.
    (b) The following regulations apply to the permanent regulatory 
program:
    (1) Subchapter C on State program application, approval, 
withdrawal, and grants, and Federal program implementation;
    (2) Subchapter D on surface coal mining and reclamation operations 
on Federal lands;
    (3) Subchapter E on surface coal mining and reclamation operations 
on Indian lands.
    (4) Subchapter F on criteria for designating lands unsuitable for 
surface coal mining operations and the process for designating these 
lands or withdrawing the designation by the regulatory authority; 
Provided, That, part 761 is applicable during the initial regulatory 
program under subchapter B of this chapter and 30 CFR part 211\1\ and 
that part 769 and other parts incorporated therein are applicable to 
the initial Federal lands program under 30 CFR part 211;
    (5) Subchapter G on the process for application, approval, denial, 
revision, and renewal of permits for surface coal mining and 
reclamation operations, including the small operator assistance 
program, requirements for special categories of these operations, and 
requirements for coal exploration;
    (6) Subchapter J on public liability insurance and performance 
bonds or other assurances of performance for surface coal mining and 
reclamation operations;
    (7) Subchapter K on performance standards which apply to coal 
exploration, surface coal mining and reclamation operations, and 
special categories of these operations;
    (8) Subchapter L on inspection and enforcement responsibilities and 
civil penalties; and
    (9) Subchapter M on the training, examination, and certification of 
blasters.


Sec.  701.2  Objective.

    The regulations in this part give--
    (a) A general overview of the regulatory program to be implemented 
by the State or Federal regulatory authority;
    (b) The applicability of that program to coal exploration and 
surface coal mining and reclamation operations; and
    (c) The definitions that apply to the regulation of coal 
exploration and surface coal mining and reclamation operations.


Sec.  701.3  Authority.

    The Secretary is required by section 501(b) of the Act to 
promulgate regulations which establish the permanent regulatory 
program; by section 523 of the Act to promulgate regulations which 
establish the Federal lands programs; and is authorized by section 710 
of the Act to promulgate regulations which establish a Federal program 
for Indian lands.


Sec.  701.4  Responsibility.

    (a) A State regulatory authority shall assume primary 
responsibility for regulation of coal exploration and surface coal 
mining and reclamation operations during the permanent regulatory 
program upon submission to

[[Page 54930]]

and approval by the Secretary of a State program meeting all applicable 
requirements of the Act and this chapter. After approval of the State 
program, the State regulatory authority has responsibility for review 
of and decisions on permits and bonding for surface coal mining and 
reclamation operations, approval of coal exploration which 
substantially disturbs the natural land surface and removes more than 
250 tons of coal from the earth in any one location, inspection of coal 
exploration and surface coal mining and reclamation operations for 
compliance with the Act, this chapter, the State program, permits and 
exploration approvals, and for enforcement of the State program.
    (b) While a State regulatory program is in effect, the Office's 
responsibility includes, but is not limited to--
    (1) Evaluating the administration of the State program through such 
means as periodic inspections of coal exploration and surface coal 
mining and reclamation operations in the State and review of 
exploration approvals, permits, inspection reports, and other documents 
required to be made available to the Office;
    (2) Referring to the State regulatory authority information which 
creates reasonable belief that a person is in violation of the Act, 
this chapter, the State regulatory program, a permit condition, or coal 
exploration approval condition, and initiating an inspection when 
authorized by the Act or this chapter;
    (3) Issuing notices of violation when a State regulatory authority 
fails to take appropriate action to cause a violation to be corrected; 
and
    (4) Issuing cessation orders, including imposing affirmative 
obligations, when a condition, practice, or violation exists which 
creates an imminent danger to the health or safety of the public, or is 
causing or could reasonably be expected to cause significant, imminent 
environmental harm to land, air, or water resources.
    (c) The Office shall implement a Federal program in a State, if 
that State does not have an approved State program by June 3, 1980. The 
Office shall not implement a Federal program in a State for a period of 
up to 1 year following that date if the State's failure to have an 
approved program by that date is due to an injunction imposed by a 
court of competent jurisdiction.
    (d) Under a Federal program, the Office shall be the regulatory 
authority for all coal exploration and surface coal mining and 
reclamation operations in that State and shall perform the functions 
that a State regulatory authority would perform under an approved State 
program.
    (e) During the period in which a State program is in effect, the 
Office shall assume responsibility for enforcing permit conditions, 
issuing new or revised permits, and issuing necessary notices and 
orders, when required by 30 CFR part 733.
    (f) The Secretary shall substitute a Federal program under 30 CFR 
part 736 for an approved State program, when required by 30 CFR part 
733.
    (g) The Secretary shall have the responsibility for administration 
of the Federal lands program. The Director and other Federal 
authorities shall have the responsibilities under a Federal lands 
program as are provided for under subchapter D of this chapter. In 
addition, State regulatory authorities shall have responsibilities to 
administer the Federal lands program as provided for under cooperative 
agreements approved by the Secretary in accordance with 30 CFR part 
745.
    (h) The Secretary shall have the responsibility for the 
administration of the Federal program for Indian lands, as provided for 
under subchapter E of this chapter. The Director and other Federal 
authorities have the responsibilities under the Indian lands program as 
are provided for under subchapter E of this chapter.


Sec.  701.5  Definitions.

    As used in this chapter, the following terms have the specified 
meanings, except where otherwise indicated:
    Acid drainage means water with a pH of less than 6.0 and in which 
total acidity exceeds total alkalinity, discharged from an active, 
inactive or abandoned surface coal mine and reclamation operation or 
from an area affected by surface coal mining and reclamation 
operations.
    Acid-forming materials means earth materials that contain sulfide 
minerals or other materials which, if exposed to air, water, or 
weathering processes, form acids that may create acid drainage.
    Adjacent area means the area outside the permit area where a 
resource or resources, determined according to the context in which 
adjacent area is used, are or reasonably could be expected to be 
adversely impacted by proposed mining operations, including probable 
impacts from underground workings.
    Administratively complete application means an application for 
permit approval or approval for coal exploration where required, which 
the regulatory authority determines to contain information addressing 
each application requirement of the regulatory program and to contain 
all information necessary to initiate processing and public review.
    Affected area means any land or water surface area which is used to 
facilitate, or is physically altered by, surface coal mining and 
reclamation operations. The affected area includes the disturbed area; 
any area upon which surface coal mining and reclamation operations are 
conducted; any adjacent lands the use of which is incidental to surface 
coal mining and reclamation operations; all areas covered by new or 
existing roads used to gain access to, or for hauling coal to or from, 
surface coal mining and reclamation operations, except as provided in 
this definition; any area covered by surface excavations, workings, 
impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, 
stockpiles, overburden piles, spoil banks, culm banks, tailings, holes 
or depressions, repair areas, storage areas, shipping areas; any areas 
upon which are sited structures, facilities, or other property material 
on the surface resulting from, or incident to, surface coal mining and 
reclamation operations; and the area located above underground 
workings. The affected area shall include every road used for purposes 
of access to, or for hauling coal to or from, surface coal mining and 
reclamation operations, unless the road (a) was designated as a public 
road pursuant to the laws of the jurisdiction in which it is located; 
(b) is maintained with public funds, and constructed, in a manner 
similar to other public roads of the same classification within the 
jurisdiction; and (c) there is substantial (more than incidental) 
public use.
    Agricultural activities means, with respect to alluvial valley 
floors, the use of any tract of land for the production of animal or 
vegetable life, based on regional agricultural practices, where the use 
is enhanced or facilitated by subirrigation or flood irrigation. These 
uses include, but are not limited to, farming and the pasturing or 
grazing of livestock. These uses do not include agricultural activities 
which have no relationship to the availability of water from 
subirrigation or flood irrigation practices.
    Agricultural use means the use of any tract of land for the 
production of animal or vegetable life. The uses include, but are not 
limited to, the pasturing, grazing, and watering of livestock, and the 
cropping, cultivation, and harvesting of plants.
    Alluvial valley floors means the unconsolidated stream-laid 
deposits holding streams with water availability sufficient for 
subirrigation or flood irrigation agricultural activities but does not 
include upland areas which are

[[Page 54931]]

generally overlain by a thin veneer of colluvial deposits composed 
chiefly of debris from sheet erosion, deposits formed by unconcentrated 
runoff or slope wash, together with talus, or other mass-movement 
accumulations, and windblown deposits.
    Applicant means any person seeking a permit, permit revision, 
renewal, and transfer, assignment, or sale of permit rights from a 
regulatory authority to conduct surface coal mining and reclamation 
operations or, where required, seeking approval for coal exploration.
    Applicant/Violator System or AVS means an automated information 
system of applicant, permittee, operator, violation and related data 
OSM maintains to assist in implementing the Act.
    Application means the documents and other information filed with 
the regulatory authority under this chapter for the issuance of 
permits; revisions; renewals; and transfer, assignment, or sale of 
permit rights for surface coal mining and reclamation operations or, 
where required, for coal exploration.
    Approximate original contour means that surface configuration 
achieved by backfilling and grading of the mined areas so that the 
reclaimed area, including any terracing or access roads, closely 
resembles the general surface configuration of the land prior to mining 
and blends into and complements the drainage pattern of the surrounding 
terrain, with all highwalls, spoil piles and coal refuse piles 
eliminated. Permanent water impoundments may be permitted where the 
regulatory authority has determined that they comply with 30 CFR 816.49 
and 816.56, 816.133 or 817.49, 817.56, and 817.133.
    Aquifer means a zone, stratum, or group of strata that can store 
and transmit water in sufficient quantities for a specific use.
    Arid and semiarid area means, in the context of alluvial valley 
floors, an area of the interior western United States, west of the 
100th meridian west longitude, experiencing water deficits, where water 
use by native vegetation equals or exceeds that supplied by 
precipitation. All coalfields located in North Dakota west of the 100th 
meridian west longitude, all coalfields in Montana, Wyoming, Utah, 
Colorado, New Mexico, Idaho, Nevada, and Arizona, the Eagle Pass field 
in Texas, and the Stone Canyon and the Ione fields in California are in 
arid and semiarid areas.
    Auger mining means a method of mining coal at a cliff or highwall 
by drilling holes into an exposed coal seam from the highwall and 
transporting the coal along an auger bit to the surface.
    Best technology currently available means equipment, devices, 
systems, methods, or techniques which will (a) prevent, to the extent 
possible, additional contributions of suspended solids to stream flow 
or runoff outside the permit area, but in no event result in 
contributions of suspended solids in excess of requirements set by 
applicable State or Federal laws; and (b) minimize, to the extent 
possible, disturbances and adverse impacts on fish, wildlife and 
related environmental values, and achieve enhancement of those 
resources where practicable. The term includes equipment, devices, 
systems, methods, or techniques which are currently available anywhere 
as determined by the Director, even if they are not in routine use. The 
term includes, but is not limited to, construction practices, siting 
requirements, vegetative selection and planting requirements, animal 
stocking requirements, scheduling of activities and design of 
sedimentation ponds in accordance with 30 CFR parts 816 and 817. Within 
the constraints of the permanent program, the regulatory authority 
shall have the discretion to determine the best technology currently 
available on a case-by-case basis, as authorized by the Act and this 
chapter.
    Coal exploration means the field gathering of:
    (a) surface or subsurface geologic, physical, or chemical data by 
mapping, trenching, drilling, geophysical, or other techniques 
necessary to determine the quality and quantity of overburden and coal 
of an area; or
    (b) the gathering of environmental data to establish the conditions 
of an area before beginning surface coal mining and reclamation 
operations under the requirements of this chapter.
    Coal mine waste means coal processing waste and underground 
development waste.
    Coal preparation means chemical or physical processing and the 
cleaning, concentrating, or other processing or preparation of coal.
    Coal preparation plant means a facility where coal is subjected to 
chemical or physical processing or cleaning, concentrating, or other 
processing or preparation. It includes facilities associated with coal 
preparation activities, including, but not limited to the following: 
loading facilities; storage and stockpile facilities; sheds; shops, and 
other buildings; water-treatment and water-storage facilities; settling 
basins and impoundments; and coal processing and other waste disposal 
areas.
    Coal processing waste means earth materials which are separated and 
wasted from the product coal during cleaning, concentrating, or other 
processing or preparation of coal.
    Combustible material means organic material that is capable of 
burning, either by fire or through oxidation, accompanied by the 
evolution of heat and a significant temperature rise.
    Compaction means increasing the density of a material by reducing 
the voids between the particles and is generally accomplished by 
controlled placement and mechanical effort such as from repeated 
application of wheel, track, or roller loads from heavy equipment.
    Complete and accurate application means an application for permit 
approval or approval for coal exploration where required, which the 
regulatory authority determines to contain all information required 
under the Act, this subchapter, and the regulatory program that is 
necessary to make a decision on permit issuance.
    Control or controller, when used in parts 773, 774, and 778 of this 
chapter, refers to or means--
    (a) A permittee of a surface coal mining operation;
    (b) An operator of a surface coal mining operation; or
    (c) Any person who has the ability to determine the manner in which 
a surface coal mining operation is conducted.
    Cropland means land used for the production of adapted crops for 
harvest, alone or in a rotation with grasses and legumes, and includes 
row crops, small grain crops, hay crops, nursery crops, orchard crops, 
and other similar specialty crops.
    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 releases 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.
    Disturbed area means an area where vegetation, topsoil, or 
overburden is removed or upon which topsoil, spoil, coal processing 
waste, underground development waste, or noncoal waste is

[[Page 54932]]

placed by surface coal mining operations. Those areas are classified as 
disturbed until reclamation is complete and the performance bond or 
other assurance of performance required by subchapter J of this chapter 
is released.
    Diversion means a channel, embankment, or other manmade structure 
constructed to divert water from one area to another.
    Downslope means the land surface between the projected outcrop of 
the lowest coalbed being mined along each highwall and a valley floor.
    Drinking, domestic or residential water supply means water received 
from a well or spring and any appurtenant delivery system that provides 
water for direct human consumption or household use. Wells and springs 
that serve only agricultural, commercial or industrial enterprises are 
not included except to the extent the water supply is for direct human 
consumption or human sanitation, or domestic use.
    Embankment means an artificial deposit of material that is raised 
above the natural surface of the land and used to contain, divert, or 
store water, support roads or railways, or for other similar purposes.
    Ephemeral stream means a stream which flows only in direct response 
to precipitation in the immediate watershed or in response to the 
melting of a cover of snow and ice, and which has a channel bottom that 
is always above the local water table.
    Essential hydrologic functions means the role of an alluvial valley 
floor in collecting, storing, regulating, and making the natural flow 
of surface or ground water, or both, usefully available for 
agricultural activities by reason of the valley floor's topographic 
position, the landscape, and the physical properties of its underlying 
materials. A combination of these functions provides a water supply 
during extended periods of low precipitation.
    Excess spoil means spoil material disposed of in a location other 
than the mined-out area; provided that spoil material used to achieve 
the approximate original contour or to blend the mined-out area with 
the surrounding terrain in accordance with Sec. Sec.  816.102(d) and 
817.102(d) of this chapter in non-steep slope areas shall not be 
considered excess spoil.
    Existing structure means a structure or facility used in connection 
with or to facilitate surface coal mining and reclamation operations 
for which construction begins prior to the approval of a State program 
or implementation of a Federal program or Federal lands program, 
whichever occurs first.
    Farming means, with respect to alluvial valley floors, the primary 
use of those areas for the cultivation, cropping or harvesting of 
plants which benefit from irrigation, or natural subirrigation, that 
results from the increased moisture content in the alluvium of the 
valley floors. For purposes of this definition, harvesting does not 
include the grazing of livestock.
    Federal program means a program established by the Secretary 
pursuant to section 504 of the Act to regulate coal exploration and 
surface coal mining and reclamation operations on non-Federal and non-
Indian lands within a State in accordance with the Act and this 
chapter.
    (a) Complete Federal program means a program established by the 
Secretary pursuant to section 504 of the Act before June 3, 1980, or 
upon the complete withdrawal of a State program after June 3, 1980, by 
which the Director regulates all coal exploration and surface coal 
mining and reclamation operations.
    (b) Partial Federal program means a program established by the 
Secretary pursuant to sections 102, 201 and 504 of the Act upon the 
partial withdrawal of a State program, by which the Director may 
regulate appropriate portions of coal exploration and surface coal 
mining and reclamation operations.
    Flood irrigation means, with respect to alluvial valley floors, 
supplying water to plants by natural overflow or the diversion of 
flows, so that the irrigated surface is largely covered by a sheet of 
water.
    Fugitive dust means that particulate matter not emitted from a duct 
or stack which becomes airborne due to the forces of wind or surface 
coal mining and reclamation operations or both. During surface coal 
mining and reclamation operations it may include emissions from haul 
roads; wind erosion of exposed surfaces, storage piles, and spoil 
piles; reclamation operations; and other activities in which material 
is either removed, stored, transported, or redistributed.
    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.
    Ground cover means the area of ground covered by the combined 
aerial parts of vegetation and the litter that is produced naturally 
onsite, expressed as a percentage of the total area of measurement.
    Ground water means subsurface water that fills available openings 
in rock or soil materials to the extent that they are considered water 
saturated.
    Half-shrub means a perennial plant with a woody base whose annually 
produced stems die back each year.
    Head-of-hollow fill means a fill structure consisting of any 
material, other than organic material, placed in the uppermost reaches 
of a hollow where side slopes of the existing hollow, measured at the 
steepest point, are greater than 20 degrees or the average slope of the 
profile of the hollow from the toe of the fill to the top of the fill 
is greater than 10 degrees. In head-of-hollow fills the top surface of 
the fill, when completed, is at approximately the same elevation as the 
adjacent ridge line, and no significant area of natural drainage occurs 
above the fill draining into the fill area.
    Higher or better uses means postmining land uses that have a higher 
economic value or nonmonetary benefit to the landowner or the community 
than the premining land uses.
    Highwall means the face of exposed overburden and coal in an open 
cut of a surface coal mining activity or for entry to underground 
mining activities.
    Highwall remnant means that portion of highwall that remains after 
backfilling and grading of a remining permit area.
    Historically used for cropland means
    (a) lands that have been used for cropland for any 5 years or more 
out of the 10 years immediately preceding the acquisition, including 
purchase, lease, or option, of the land for the purpose of conducting 
or allowing through resale, lease or option the conduct of surface coal 
mining and reclamation operations;
    (b) lands that the regulatory authority determines, on the basis of 
additional cropland history of the surrounding lands and the lands 
under consideration, that the permit area is clearly cropland but falls 
outside the specific 5-years-in-10 criterion, in which case the 
regulations for prime farmland may be applied to include more years of 
cropland history only to increase the prime farmland acreage to be 
preserved; or
    (c) lands that would likely have been used as cropland for any 5 
out of the last 10 years, immediately preceding such acquisition but 
for the same fact of ownership or control of the land unrelated to the 
productivity of the land.
    Hydrologic balance means the relationship between the quality and 
quantity of water inflow to, water outflow from, and water storage in a 
hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or 
reservoir. It encompasses the dynamic

[[Page 54933]]

relationships among precipitation, runoff, evaporation, and changes in 
ground and surface water storage.
    Hydrologic regime means the entire state of water movement in a 
given area. It is a function of the climate and includes the phenomena 
by which water first occurs as atmospheric water vapor, passes into a 
liquid or solid form, falls as precipitation, moves along or into the 
ground surface, and returns to the atmosphere as vapor by means of 
evaporation and transpiration.
    Imminent danger to the health and safety of the public means the 
existence of any condition or practice, or any violation of a permit or 
other requirements of the Act in a surface coal mining and reclamation 
operation, which could reasonably be expected to cause substantial 
physical harm to persons outside the permit area before the condition, 
practice, or violation can be abated. A reasonable expectation of death 
or serious injury before abatement exists if a rational person, 
subjected to the same condition or practice giving rise to the peril, 
would avoid exposure to the danger during the time necessary for 
abatement.
    Impounding structure means a dam, embankment or other structure 
used to impound water, slurry, or other liquid or semi-liquid material.
    Impoundments means all water, sediment, slurry or other liquid or 
semi-liquid holding structures and depressions, either naturally formed 
or artificially built.
    In situ processes means activities conducted on the surface or 
underground in connection with in-place distillation, retorting, 
leaching, or other chemical or physical processing of coal. The term 
includes, but is not limited to, in situ gasification, in situ 
leaching, slurry mining, solution mining, borehole mining, and fluid 
recovery mining.
    Intermittent stream means--
    (a) A stream or reach of a stream that drains a watershed of at 
least one square mile, or
    (b) A stream or reach of a stream that is below the local water 
table for at least some part of the year, and obtains its flow from 
both surface runoff and ground water discharge.
    Irreparable damage to the environment means any damage to the 
environment, in violation of the Act, the regulatory program, or this 
chapter, that cannot be corrected by actions of the applicant.
    Knowing or knowingly means that a person who authorized, ordered, 
or carried out an act or omission knew or had reason to know that the 
act or omission would result in either a violation or a failure to 
abate or correct a violation.
    Land use means specific uses or management-related activities, 
rather than the vegetation or cover of the land. Land uses may be 
identified in combination when joint or seasonal uses occur and may 
include land used for support facilities that are an integral part of 
the use. Changes of land use from one of the following categories to 
another shall be considered as a change to an alternative land use 
which is subject to approval by the regulatory authority.
    (a) Cropland. Land used for the production of adapted crops for 
harvest, alone or in rotation with grasses and legumes, that include 
row crops, small grain crops, hay crops, nursery crops, orchard crops, 
and other similar crops.
    (b) Pastureland or land occasionally cut for hay. Land used 
primarily for the long-term production of adapted, domesticated forage 
plants to be grazed by livestock or occasionally cut and cured for 
livestock feed.
    (c) Grazingland. Land used for grasslands and forest lands where 
the indigenous vegetation is actively managed for grazing, browsing, or 
occasional hay production.
    (d) Forestry. Land used or managed for the long-term production of 
wood, wood fiber, or wood-derived products.
    (e) Residential. Land used for single-and multiple-family housing, 
mobile home parks, or other residential lodgings.
    (f) Industrial/Commercial. Land used for--
    (1) Extraction or transformation of materials for fabrication of 
products, wholesaling of products, or long-term storage of products. 
This includes all heavy and light manufacturing facilities.
    (2) Retail or trade of goods or services, including hotels, motels, 
stores, restaurants, and other commercial establishments.
    (g) Recreation. Land used for public or private leisure-time 
activities, including developed recreation facilities such as parks, 
camps, and amusement areas, as well as areas for less intensive uses 
such as hiking, canoeing, and other undeveloped recreational uses.
    (h) Fish and wildlife habitat. Land dedicated wholly or partially 
to the production, protection, or management of species of fish or 
wildlife.
    (i) Developed water resources. Land used for storing water for 
beneficial uses, such as stockponds, irrigation, fire protection, flood 
control, and water supply.
    (j) Undeveloped land or no current use or land management. Land 
that is undeveloped or, if previously developed, land that has been 
allowed to return naturally to an undeveloped state or has been allowed 
to return to forest through natural succession.
    Lands eligible for remining means those lands that would otherwise 
be eligible for expenditures under section 404 or under section 
402(g)(4) of the Act.
    Material damage, in the context of Sec. Sec.  784.20 and 817.121 of 
this chapter, means:
    (a) Any functional impairment of surface lands, features, 
structures or facilities;
    (b) Any physical change that has a significant adverse impact on 
the affected land's capability to support any current or reasonably 
foreseeable uses or causes significant loss in production or income; or
    (c) Any significant change in the condition, appearance or utility 
of any structure or facility from its pre-subsidence condition.
    Materially damage the quantity or quality of water means, with 
respect to alluvial valley floors, to degrade or reduce by surface coal 
mining and reclamation operations the water quantity or quality 
supplied to the alluvial valley floor to the extent that resulting 
changes would signficantly decrease the capability of the alluvial 
valley floor to support farming.
    MSHA means the Mine Safety and Health Administration.
    Moist bulk density means the weight of soil (oven dry) per unit 
volume. Volume is measured when the soil is at field moisture capacity 
(\1/3\ bar moisture tension). Weight is determined after drying the 
soil at 105 [deg]C.
    Mulch means vegetation residues or other suitable materials that 
aid in soil stabilization and soil moisture conservation, thus 
providing micro-climatic conditions suitable for germination and 
growth.
    Non-commercial building means any building, other than an occupied 
residential dwelling, that, at the time the subsidence occurs, is used 
on a regular or temporary basis as a public building or community or 
institutional building as those terms are defined in Sec.  761.5 of 
this chapter. Any building used only for commercial agricultural, 
industrial, retail or other commercial enterprises is excluded.
    Noxious plants means species that have been included on official 
State lists of noxious plants for the State in which the surface coal 
mining and reclamation operation occurs.
    Occupied residential dwelling and structures related thereto means, 
for purposes of Sec. Sec.  784.20 and 817.121, any building or other 
structure that, at the

[[Page 54934]]

time the subsidence occurs, is used either temporarily, occasionally, 
seasonally, or permanently for human habitation. This term also 
includes any building, structure or facility installed on, above or 
below, or a combination thereof, the land surface if that building, 
structure or facility is adjunct to or used in connection with an 
occupied residential dwelling. Examples of such structures include, but 
are not limited to, garages; storage sheds and barns; greenhouses and 
related buildings; utilities and cables; fences and other enclosures; 
retaining walls; paved or improved patios, walks and driveways; septic 
sewage treatment facilities; and lot drainage and lawn and garden 
irrigation systems. Any structure used only for commercial 
agricultural, industrial, retail or other commercial purposes is 
excluded.
    Operator means any person engaged in coal mining who removes or 
intends to remove more than 250 tons of coal from the earth or from 
coal refuse piles by mining within 12 consecutive calendar months in 
any one location.
    Other treatment facilities mean any chemical treatments, such as 
flocculation or neutralization, or mechanical structures, such as 
clarifiers or precipitators, that have a point source discharge and are 
utilized:
    (a) To prevent additional contributions of dissolved or suspended 
solids to streamflow or runoff outside the permit area, or
    (b) To comply with all applicable State and Federal water-quality 
laws and regulations.
    Outslope means the face of the spoil or embankment sloping downward 
from the highest elevation to the toe.
    Overburden means material of any nature, consolidated or 
unconsolidated, that overlies a coal deposit, excluding topsoil.
    Own, owner, or ownership, as used in parts 773, 774, and 778 of 
this chapter (except when used in the context of ownership of real 
property), means being a sole proprietor or owning of record in excess 
of 50 percent of the voting securities or other instruments of 
ownership of an entity.
    Perennial stream means a stream or part of a stream that flows 
continuously during all of the calendar year as a result of ground-
water discharge or surface runoff. The term does not include 
intermittent stream or ephemeral stream.
    Performance bond means a surety bond, collateral bond or self-bond 
or a combination thereof, by which a permittee assures faithful 
performance of all the requirements of the Act, this chapter, a State, 
Federal or Federal lands program, and the requirements of the permit 
and reclamation plan.
    Permanent diversion means a diversion remaining after surface coal 
mining and reclamation operations are completed which has been approved 
for retention by the regulatory authority and other appropriate State 
and Federal agencies.
    Permanent impoundment means an impoundment which is approved by the 
regulatory authority and, if required, by other State and Federal 
agencies for retention as part of the postmining land use.
    Permit means a permit to conduct surface coal mining and 
reclamation operations issued by the State regulatory authority 
pursuant to a State program or by the Secretary pursuant to a Federal 
program. For purposes of the Federal lands program, permit means a 
permit issued by the State regulatory authority under a cooperative 
agreement or by OSM where there is no cooperative agreement.
    Permit area means the area of land, indicated on the approved map 
submitted by the operator with his or her application, required to be 
covered by the operator's performance bond under subchapter J of this 
chapter and which shall include the area of land upon which the 
operator proposes to conduct surface coal mining and reclamation 
operations under the permit, including all disturbed areas; provided 
that areas adequately bonded under another valid permit may be excluded 
from the permit area.
    Permittee means a person holding or required by the Act or this 
chapter to hold a permit to conduct surface coal mining and reclamation 
operations issued by a State regulatory authority pursuant to a State 
program, by the Director pursuant to a Federal program, by the Director 
pursuant to a Federal lands program, or, where a cooperative agreement 
pursuant to section 523 of the Act has been executed, by the Director 
and the State regulatory authority.
    Precipitation event means a quantity of water resulting from 
drizzle, rain, snow, sleet, or hail in a limited period of time. It may 
be expressed in terms of recurrence interval. As used in these 
regulations, precipitation event also includes that quantity of water 
emanating from snow cover as snowmelt in a limited period of time.
    Previously mined area means land affected by surface coal mining 
operations prior to August 3, 1977, that has not been reclaimed to the 
standards of 30 CFR chapter VII.
    Prime farmland means those lands which are defined by the Secretary 
of Agriculture in 7 CFR part 657 (Federal Register Vol. 4 No. 21) and 
which have historically been used for cropland as that phrase is 
defined above.
    Principal shareholder means any person who is the record or 
beneficial owner of 10 percent or more of any class of voting stock.
    Property to be mined means both the surface estates and mineral 
estates within the permit area and the area covered by underground 
workings.
    Rangeland means land on which the natural potential (climax) plant 
cover is principally native grasses, forbs, and shrubs valuable for 
forage. This land includes natural grasslands and savannahs, such as 
prairies, and juniper savannahs, such as brushlands. Except for brush 
control, management is primarily achieved by regulating the intensity 
of grazing and season of use.
    Reasonably available spoil means spoil and suitable coal mine waste 
material generated by the remining operation or other spoil or suitable 
coal mine waste material located in the permit area that is accessible 
and available for use and that when rehandled will not cause a hazard 
to public safety or significant damage to the environment.
    Recharge capacity means the ability of the soils and underlying 
materials to allow precipitation and runoff to infiltrate and reach the 
zone of saturation.
    Reclamation means those actions taken to restore mined land as 
required by this chapter to a postmining land use approved by the 
regulatory authority.
    Recurrence interval means the interval of time in which a 
precipitation event is expected to occur once, on the average. For 
example, the 10-year 24-hour precipitation event would be that 24-hour 
precipitation event expected to occur on the average once in 10 years.
    Reference area means a land unit maintained under appropriate 
management for the purpose of measuring vegetation ground cover, 
productivity and plant species diversity that are produced naturally or 
by crop production methods approved by the regulatory authority. 
Reference areas must be representative of geology, soil, slope, and 
vegetation in the permit area.
    Refuse pile means a surface deposit of coal mine waste that does 
not impound water, slurry, or other liquid or semi-liquid material.
    Remining means conducting surface coal mining and reclamation 
operations which affect previously mined areas.
    Renewable resource lands means aquifers and areas for the recharge 
of aquifers and other underground waters, areas for agricultural or 
silvicultural

[[Page 54935]]

production of food and fiber, and grazinglands.
    Replacement of water supply means, with respect to protected water 
supplies contaminated, diminished, or interrupted by coal mining 
operations, provision of water supply on both a temporary and permanent 
basis equivalent to premining quantity and quality. Replacement 
includes provision of an equivalent water delivery system and payment 
of operation and maintenance costs in excess of customary and 
reasonable delivery costs for premining water supplies.
    (a) Upon agreement by the permittee and the water supply owner, the 
obligation to pay such operation and maintenance costs may be satisfied 
by a one-time payment in an amount which covers the present worth of 
the increased annual operation and maintenance costs for a period 
agreed to by the permittee and the water supply owner.
    (b) If the affected water supply was not needed for the land use in 
existence at the time of loss, contamination, or diminution, and if the 
supply is not needed to achieve the postmining land use, replacement 
requirements may be satisfied by demonstrating that a suitable 
alternative water source is available and could feasibly be developed. 
If the latter approach is selected, written concurrence must be 
obtained from the water supply owner.
    Road means a surface right-of-way for purposes of travel by land 
vehicles used in surface coal mining and reclamation operations or coal 
exploration. A road consists of the entire area within the right-of-
way, including the roadbed, shoulders, parking and side areas, 
approaches, structures, ditches, and surface. The term includes access 
and haulroads constructed, used, reconstructed, improved, or maintained 
for use in surface coal mining and reclamation operations or coal 
exploration, including use by coal hauling vehicles to and from 
transfer, processing, or storage areas. The term does not include ramps 
and routes of travel within the immediate mining area or within spoil 
or coal mine waste disposal areas.
    Safety factor means the ratio of the available shear strength to 
the developed shear stress, or the ratio of the sum of the resisting 
forces to the sum of the loading or driving forces, as determined by 
accepted engineering practices.
    Sedimentation pond means an impoundment used to remove solids from 
water in order to meet water quality standards or effluent limitations 
before the water leaves the permit area.
    Significant, imminent environmental harm to land, air or water 
resources means--
    (a) An environmental harm is an adverse impact on land, air, or 
water resources which resources include, but are not limited to, plant 
and animal life.
    (b) An environmental harm is imminent, if a condition, practice, or 
violation exists which--
    (1) Is causing such harm; or,
    (2) May reasonably be expected to cause such harm at any time 
before the end of the reasonable abatement time that would be set under 
section 521(a)(3) of the Act.
    (c) An environmental harm is significant if that harm is 
appreciable and not immediately reparable.
    Siltation structure means a sedimentation pond, a series of 
sedimentation ponds, or other treatment facility.
    Slope means average inclination of a surface, measured from the 
horizontal, generally expressed as the ratio of a unit of vertical 
distance to a given number of units of horizontal distance (e.g., 1v: 
5h). It may also be expressed as a percent or in degrees.
    Soil horizons means contrasting layers of soil parallel or nearly 
parallel to the land surface. Soil horizons are differentiated on the 
basis of field characteristics and laboratory data. The four master 
soil horizons are--
    (a) A horizon. The uppermost mineral layer, often called the 
surface soil. It is the part of the soil in which organic matter is 
most abundant, and leaching of soluble or suspended particles is 
typically the greatest;
    (b) E horizon. The layer commonly near the surface below an A 
horizon and above a B horizon. An E horizon is most commonly 
differentiated from an overlying A horizon by lighter color and 
generally has measurably less organic matter than the A horizon. An E 
horizon is most commonly differentiated from an underlying B horizon in 
the same sequum by color of higher value or lower chroma, by coarser 
texture, or by a combination of theses properties;
    (c) B horizon. The layer that typically is immediately beneath the 
E horizon and often called the subsoil. This middle layer commonly 
contains more clay, iron, or aluminum than the A, E, or C horizons; and
    (d) C horizon. The deepest layer of soil profile. It consists of 
loose material or weathered rock that is relatively unaffected by 
biologic activity.
    Soil survey means a field and other investigation, resulting in a 
map showing the geographic distribution of different kinds of soils and 
an accompanying report that describes, classifies, and interprets such 
soils for use. Soil surveys must meet the standards of the National 
Cooperative Soil Survey as incorporated by reference in 30 CFR 
785.17(c)(1).
    Special bituminous coal mines means those mines in existence on 
January 1, 1972, or mines adjoining or having a common boundary with 
those mines for which development began after August 3, 1977, that are 
located in the State of Wyoming and that are being mined or will be 
mined according to the following criteria:
    (a) Surface mining takes place on a relatively limited site for an 
extended period of time. The surface opening of the excavation is at 
least the full size of the excavation and has a continuous border.
    (b) Excavation of the mine pit follows a coal seam that inclines 
15[deg] or more from the horizontal, and as the excavation proceeds 
downward it expands laterally to maintain stability of the pitwall or 
as necessary to accommodate the orderly expansion of the total mining 
operation.
    (c) The amount of material removed from the pit is large in 
comparison to the surface area disturbed.
    (d) There is no practicable alternative to the deep open-pit method 
of mining the coal.
    (e) There is no practicable way to reclaim the land as required in 
subchapter K.
    Spoil means overburden that has been removed during surface coal 
mining operations.
    Stabilize means to control movement of soil, spoil piles, or areas 
of disturbed earth by modifying the geometry of the mass, or by 
otherwise modifying physical or chemical properties, such as by 
providing a protective surface coating.
    State program means a program established by a State and approved 
by the Secretary pursuant to section 503 of the Act to regulate surface 
coal mining and reclamation operations on non-Indian and non-Federal 
lands within that State, according to the requirements of the Act and 
this chapter. If a cooperative agreement under part 745 has been 
entered into, a State program may apply to Federal lands, in accordance 
with the terms of the cooperative agreement.
    Steep slope means any slope of more than 20[deg] or such lesser 
slope as may be designated by the regulatory authority after 
consideration of soil, climate, and other characteristics of a region 
or State.
    Subirrigation means, with respect to alluvial valley floors, the 
supplying of water to plants from underneath or from a semisaturated or 
saturated subsurface

[[Page 54936]]

zone where water is available for use by vegetation.
    Substantially disturb means, for purposes of coal exploration, to 
significantly impact land or water resources by blasting; by removal of 
vegetation, topsoil, or overburden; by construction of roads or other 
access routes; by placement of excavated earth or waste material on the 
natural land surface or by other such activities; or to remove more 
than 250 tons of coal.
    Successor in interest means any person who succeeds to rights 
granted under a permit, by transfer, assignment, or sale of those 
rights.
    Surface mining activities means those surface coal mining and 
reclamation operations incident to the extraction of coal from the 
earth by removing the materials over a coal seam, before recovering the 
coal, by auger coal mining, or by recovery of coal from a deposit that 
is not in its original geologic location.
    Suspended solids or nonfilterable residue, expressed as milligrams 
per liter, means organic or inorganic materials carried or held in 
suspension in water which are retained by a standard glass fiber filter 
in the procedure outlined by the Environmental Protection Agency's 
regulations for waste water and analyses (40 CFR part 136).
    Temporary diversion means a diversion of a stream or overland flow 
which is used during coal exploration or surface coal mining and 
reclamation operations and not approved by the regulatory authority to 
remain after reclamation as part of the approved postmining land use.
    Temporary impoundment means an impoundment used during surface coal 
mining and reclamation operations, but not approved by the regulatory 
authority to remain as part of the approved postmining land use.
    Topsoil means the A and E soil horizon layers of the four master 
soil horizons.
    Toxic-forming materials means earth materials or wastes which, if 
acted upon by air, water, weathering, or microbiological processes, are 
likely to produce chemical or physical conditions in soils or water 
that are detrimental to biota or uses of water.
    Toxic mine drainage means water that is discharged from active or 
abandoned mines or other areas affected by coal exploration or surface 
coal mining and reclamation operations, which contains a substance that 
through chemical action or physical effects is likely to kill, injure, 
or impair biota commonly present in the area that might be exposed to 
it.
    Transfer, assignment, or sale of permit rights means a change of a 
permittee.
    Unanticipated event or condition, as used in Sec.  773.13 of this 
chapter, means an event or condition related to prior mining activity 
which arises from a surface coal mining and reclamation operation on 
lands eligible for remining and was not contemplated by the applicable 
permit.
    Underground development waste means waste-rock mixtures of coal, 
shale, claystone, siltstone, sandstone, limestone, or related materials 
that are excavated, moved, and disposed of from underground workings in 
connection with underground mining activities.
    Underground mining activities means a combination of--
    (a) Surface operations incident to underground extraction of coal 
or in situ processing, such as construction, use, maintenance, and 
reclamation of roads, above-ground repair areas, storage areas, 
processing areas, shipping areas, areas upon which are sited support 
facilities including hoist and ventilating ducts, areas utilized for 
the disposal and storage of waste, and areas on which materials 
incident to underground mining operations are placed; and
    (b) Underground operations such as underground construction, 
operation, and reclamation of shafts, adits, underground support 
facilities, in situ processing, and underground mining, hauling, 
storage, and blasting.
    Undeveloped rangeland means, for purposes of alluvial valley 
floors, lands where the use is not specifically controlled and managed.
    Upland areas means, with respect to alluvial valley floors, those 
geomorphic features located outside the floodplain and terrace complex, 
such as isolated higher terraces, alluvial fans, pediment surfaces, 
landslide deposits, and surfaces covered with residuum, mud flows or 
debris flows, as well as highland areas underlain by bedrock and 
covered by residual weathered material or debris deposited by 
sheetwash, rillwash, or windblown material.
    Valley fill means a fill structure consisting of any material, 
other than organic material, that is placed in a valley where side 
slopes of the existing valley, measured at the steepest point, are 
greater than 20 degrees, or where the average slope of the profile of 
the valley from the toe of the fill to the top of the fill is greater 
than 10 degrees.
    Violation, when used in the context of the permit application 
information or permit eligibility requirements of sections 507 and 
510(c) of the Act and related regulations, means--
    (1) A failure to comply with an applicable provision of a Federal 
or State law or regulation pertaining to air or water environmental 
protection, as evidenced by a written notification from a governmental 
entity to the responsible person; or
    (2) A noncompliance for which OSM has provided one or more of the 
following types of notice or a State regulatory authority has provided 
equivalent notice under corresponding provisions of a State regulatory 
program--
    (i) A notice of violation under Sec.  843.12 of this chapter.
    (ii) A cessation order under Sec.  843.11 of this chapter.
    (iii) A final order, bill, or demand letter pertaining to a 
delinquent civil penalty assessed under part 845 or 846 of this 
chapter.
    (iv) A bill or demand letter pertaining to delinquent reclamation 
fees owed under part 870 of this chapter.
    (v) A notice of bond forfeiture under Sec.  800.50 of this chapter 
when--
    (A) One or more violations upon which the forfeiture was based have 
not been abated or corrected;
    (B) The amount forfeited and collected is insufficient for full 
reclamation under Sec.  800.50(d)(1) of this chapter, the regulatory 
authority orders reimbursement for additional reclamation costs, and 
the person has not complied with the reimbursement order; or
    (C) The site is covered by an alternative bonding system approved 
under Sec.  800.11(e) of this chapter, that system requires 
reimbursement of any reclamation costs incurred by the system above 
those covered by any site-specific bond, and the person has not 
complied with the reimbursement requirement and paid any associated 
penalties.
    Violation, failure or refusal, for purposes of parts 724 and 846 of 
this chapter, means--
    (1) A failure to comply with a condition of a Federally-issued 
permit or of any other permit that OSM is directly enforcing under 
section 502 or 521 of the Act or the regulations implementing those 
sections; or
    (2) A failure or refusal to comply with any order issued under 
section 521 of the Act, or any order incorporated in a final decision 
issued by the Secretary under the Act, except an order incorporated in 
a decision issued under section 518(b) or section 703 of the Act.
    Violation notice means any written notification from a regulatory 
authority or other governmental entity, as specified in the definition 
of violation in this section.

[[Page 54937]]

    Water table means the upper surface of a zone of saturation, where 
the body of ground water is not confined by an overlying impermeable 
zone.
    Willful or willfully means that a person who authorized, ordered or 
carried out an act or omission that resulted in either a violation or 
the failure to abate or correct a violation acted--
    (1) Intentionally, voluntarily, or consciously; and
    (2) With intentional disregard or plain indifference to legal 
requirements.


Sec.  701.11  Applicability.

    (a) Any person who conducts surface coal mining operations on non-
Indian or non-Federal lands on or after 8 months from the date of 
approval of a State program or implementation of a Federal program 
shall have a permit issued pursuant to the applicable State or Federal 
program. However, under conditions specified in 30 CFR 773.4(b) of this 
chapter, a person may continue operations under a previously issued 
permit after 8 months from the date of approval of a State program or 
implementation of a Federal program.
    (b) Any person who conducts surface coal mining operations on 
Federal lands on or after 8 months from the date of approval of a State 
program or implementation of a Federal program for the State in which 
the Federal lands are located shall have a permit issued pursuant to 
part 740 of this chapter. However, under conditions specified in Sec.  
740.13(a)(3) of this chapter, a person may continue such operations 
under a mining plan previously approved pursuant to 43 CFR part 3480 or 
a permit issued by the State under the interim State program after 8 
months after the date of approval of a State program or implementation 
of a Federal program.
    (c) Any person who conducts surface coal mining operations on 
Indian lands on or after eight months from the effective date of the 
Federal program for Indian lands shall have a permit issued pursuant to 
part 750 of this chapter. However, a person who is authorized to 
conduct surface coal mining operations may continue to conduct those 
operations beyond eight months from the effective date of the Federal 
program for Indian lands if the following conditions are met:
    (1) An application for a permit to conduct those operations has 
been made to the Director within two months after the effective date of 
the Federal program for Indian lands and the initial administrative 
decision on that application has not been issued; and
    (2) Those operations are conducted in compliance with all terms and 
conditions of the existing authorization to mine, the requirements of 
the Act, 25 CFR part 216, and the requirements of all applicable 
mineral agreements, leases or licenses.
    (d) The requirements of subchapter K of this chapter shall be 
effective and shall apply to each surface coal mining and reclamation 
operation for which the surface coal mining operation is required to 
obtain a permit under the Act, on the earliest date upon which the Act 
and this chapter require a permit to be obtained, except as provided in 
paragraph (e) of this section.
    (e)(1) Each structure used in connection with or to facilitate a 
coal exploration or surface coal mining and reclamation operation shall 
comply with the performance standards and the design requirements of 
subchapter K of this chapter, except that--
    (i) An existing structure which meets the performance standards of 
subchapter K of this chapter but does not meet the design requirements 
of subchapter K of this chapter may be exempted from meeting those 
design requirements by the regulatory authority. The regulatory 
authority may grant this exemption only as part of the permit 
application process after obtaining the information required by 30 CFR 
780.12 or 784.12 and after making the findings required in 30 CFR 
773.15;
    (ii) If the performance standard of subchapter B of this chapter is 
at least as stringent as the comparable performance standard of 
subchapter K of this chapter, an existing structure which meets the 
performance standards of subchapter B of this chapter may be exempted 
by the regulatory authority from meeting the design requirements of 
subchapter K of this chapter. The regulatory authority may grant this 
exemption only as part of the permit application process after 
obtaining the information required by 30 CFR 780.12 or 784.12 and after 
making the findings required in 30 CFR 773.15;
    (iii) An existing structure which meets a performance standard of 
subchapter B of this chapter which is less stringent than the 
comparable performance standards of subchapter K of this chapter or 
which does not meet a performance standard of subchapter K of this 
chapter, for which there was no equivalent performance standards in 
subchapter B of this chapter, shall be modified or reconstructed to 
meet the performance and design standard of subchapter K of this 
chapter pursuant to a compliance plan approved by the regulatory 
authority only as part of the permit application as required in 30 CFR 
780.12 or 784.12 and according to the findings required by 30 CFR 
773.15;
    (iv) An existing structure which does not meet the performance 
standards of subchapter B of this chapter and which the applicant 
proposes to use in connection with or to facilitate the coal 
exploration or surface coal mining and reclamation operation shall be 
modified or reconstructed to meet the performance and design standards 
of subchapter K prior to issuance of the permit.
    (2) The exemptions provided in paragraphs (e)(1)(i) and (e)(1)(ii) 
of this section shall not apply to--
    (i) The requirements for existing and new coal mine waste disposal 
facilities; and
    (ii) The requirements to restore the approximate original contour 
of the land.
    (f)(1) Any person conducting coal exploration on non-Federal and 
non-Indian lands on or after the date on which a State program is 
approved or a Federal program implemented, shall either file a notice 
of intention to explore or obtain approval of the regulatory authority, 
as required by 30 CFR part 772.
    (2) Coal exploration performance standards in 30 CFR part 815 shall 
apply to coal exploration on non-Federal and non-Indian lands which 
substantially disturbs the natural land surface 2 months after approval 
of a State program or implementation of a Federal program.

0
3. Revise part 773 to read as follows:

PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING

Sec.
773.1 Scope and purpose.
773.3 Information collection.
773.4 Requirements to obtain permits.
773.5 Regulatory coordination with requirements under other laws.
773.6 Public participation in permit processing.
773.7 Review of permit applications.
773.8 General provisions for review of permit application 
information and entry of information into AVS.
773.9 Review of applicant and operator information.
773.10 Review of permit history.
773.11 Review of compliance history.
773.12 Permit eligibility determination.
773.13 Unanticipated events or conditions at remaining sites.
773.14 Eligibility for provisionally issued permits.
773.15 Written findings for permit application approval.
773.16 Performance bond submittal.
773.17 Permit conditions.
773.19 Permit issuance and right of renewal.

[[Page 54938]]

773.21 Initial review and finding requirements for improvidently 
issued permits.
773.22 Notice requirements for improvidently issued permits.
773.23 Suspension or rescission requirements for improvidently 
issued permits.
773.25 Who may challenge ownership or control listings and findings.
773.26 How to challenge an ownership or control listing or finding.
773.27 Burden of proof for ownership or control challenges.
773.28 Written agency decision on challenges to ownership or control 
listings or findings.


    Authority: 30 U.S.C. 1201 et seq., 16 U.S.C. 470 et seq., 16 
U.S.C. 661 et seq., 16 U.S.C. 703 et seq., 16 U.S.C. 668a et seq., 
16 U.S.C. 469 et seq., and 16 U.S.C. 1531 et seq.


Sec.  773.1  Scope and purpose.

    This part provides minimum requirements for permits and permit 
processing and covers obtaining and reviewing permits; coordinating 
with other laws; public participation; permit decision and 
notification; permit conditions; and permit term and right of renewal.


Sec.  773.3  Information collection.

    The collections of information contained in part 773 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0115. The information collected 
will be used by the regulatory authority in processing surface coal 
mining permit applications. Persons intending to conduct surface coal 
mining operations must respond to obtain a benefit. A Federal agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number. Response is required to obtain a benefit in accordance 
with SMCRA. Send comments regarding burden estimates or any other 
aspect of this collection of information, including suggestions for 
reducing the burden, to the Office of Surface Mining Reclamation and 
Enforcement, Information Collection Clearance Officer, Room 202--SIB, 
1951 Constitution Avenue NW., Washington, DC 20240.


Sec.  773.4  Requirements to obtain permits.

    (a) All operations. On and after 8 months from the effective date 
of a permanent regulatory program within a State, no person shall 
engage in or carry out any surface coal mining operations, unless such 
person has first obtained a permit issued by the regulatory authority 
except as provided for in paragraph (b) of this section. A permittee 
need not renew the permit if no surface coal mining operations will be 
conducted under the permit and solely reclamation activities remain to 
be done. Obligations established under a permit continue until 
completion of surface coal mining and reclamation operations, 
regardless of whether the authorization to conduct surface coal mining 
operations has expired or has been terminated, revoked, or suspended.
    (b) Continuation of initial program operations. (1) If a State 
program receives final disapproval under part 732 of this chapter, 
including judicial review of the disapproval, existing surface coal 
mining and reclamation operations may continue pursuant to the 
provisions of subchapter B of this chapter and section 502 of the Act 
until promulgation of a complete Federal program for the State. During 
this period, no new permits for surface coal mining and reclamation 
operations shall be issued by the State. Permits that lapse during this 
period may continue in full force and effect within the specified 
permit area until promulgation of a Federal program for the State.
    (2) Except for coal preparation plants separately authorized to 
operate under 30 CFR 785.21(e), a person conducting surface coal mining 
operations, under a permit issued or amended by the regulatory 
authority in accordance with the requirements of section 502 of the 
Act, may conduct such operations beyond the period prescribed in 
paragraph (a) of this section if--
    (i) Not later than 2 months following the effective date of a 
permanent regulatory program, regardless of litigation contesting that 
program, an application for a permanent regulatory program permit is 
filed for any operation to be conducted after the expiration of 8 
months from such effective date in accordance with the provisions of 
the regulatory program;
    (ii) The regulatory authority has not yet rendered an initial 
administrative decision approving or disapproving the permit; and
    (iii) The surface coal mining and reclamation operation is 
conducted in compliance with the requirements of the Act, subchapter B 
of this chapter, applicable State statutes and regulations, and all 
terms and conditions of the initial program authorization or permit.
    (3) No new initial program permits may be issued after the 
effective date of a State program unless the application was received 
prior to such date.
    (c) Continued operations under Federal program permits. (1) A 
permit issued by the Director pursuant to a Federal program for a State 
shall be valid under any superseding State program approved by the 
Secretary.
    (2) The Federal permittee shall have the right to apply to the 
State regulatory authority for a State permit to supersede the Federal 
permit.
    (3) The State regulatory authority may review a permit issued 
pursuant to the superseded Federal program to determine that the 
requirements of the Act and the approved State program are not violated 
by the Federal permit, and to the extent that the approved State 
program contains additional requirements not contained in the Federal 
program for the State, the State regulatory authority shall--
    (i) Inform the permittee in writing;
    (ii) Provide the permittee an opportunity for a hearing;
    (iii) Provide the permittee a reasonable opportunity to resubmit 
the permit application in whole or in part, as appropriate; and
    (iv) Provide the permittee a reasonable time to conform ongoing 
surface coal mining and reclamation operations to the requirements of 
the State program.
    (d) Continued operations under State program permits. (1) A permit 
issued pursuant to a previously approved or conditionally approved 
State program shall be valid under a superseding Federal program.
    (2) Immediately following promulgation of a Federal program, the 
Director shall review the permits issued under the previously approved 
State program to determine that the requirements of the Act, this 
chapter, and the Federal program are not violated. If the Director 
determines that a permit was granted contrary to the requirments of 
this Act, the Director shall--
    (i) Inform the permittee in writing;
    (ii) Provide the permittee an opportunity for a hearing;
    (iii) Provide the permittee a reasonable opportunity to resubmit 
the permit application in whole or in part, as appropriate; and
    (iv) Provide the permittee a reasonable time to conform ongoing 
surface coal mining and reclamation operations to the requirements of 
the Federal program, as prescribed in the Federal program for the 
State.


Sec.  773.5  Regulatory coordination with requirements under other 
laws.

    Each regulatory program shall, to avoid duplication, provide for 
the coordination of review and issuance of permits for surface coal 
mining and reclamation operations with applicable requirements of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531

[[Page 54939]]

et seq.); the Fish and Wildlife Coordination Act, as amended (16 U.S.C. 
661 et seq.); the Migratory Bird Treaty Act of 1918, as amended (16 
U.S.C. 703 et seq.); The National Historic Preservation Act of 1966, as 
amended (16 U.S.C. 470 et seq.); the Bald Eagle Protection Act, as 
amended (16 U.S.C. 668a); for Federal programs only, the Archeological 
and Historic Preservation Act of 1974 (16 U.S.C. 469 et seq.); and the 
Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et 
seq.) where Federal and Indian lands covered by that Act are involved.


Sec.  773.6  Public participation in permit processing.

    (a) Filing and public notice. (1) Upon submission of an 
administratively complete application, an applicant for a permit, 
significant revision of a permit under Sec.  774.13, or renewal of a 
permit under Sec.  774.15, shall place an advertisement in a local 
newspaper of general circulation in the locality of the proposed 
surface coal mining and reclamation operation at least once a week for 
four consecutive weeks. A copy of the advertisement as it will appear 
in the newspaper shall be submitted to the regulatory authority. The 
advertisement shall contain, at a minimum, the following:
    (i) The name and business address of the applicant.
    (ii) A map or description which clearly shows or describes the 
precise location and boundaries of the proposed permit area and is 
sufficient to enable local residents to readily identify the proposed 
permit area. It may include towns, bodies of water, local landmarks, 
and any other information which would identify the location. If a map 
is used, it shall indicate the north direction.
    (iii) The location where a copy of the application is available for 
public inspection.
    (iv) The name and address of the regulatory authority where written 
comments, objections, or requests for informal conferences on the 
application may be submitted under paragraphs (b) and (c) of this 
section.
    (v) If an applicant seeks a permit to mine within 100 feet of the 
outside right-of-way of a public road or to relocate or close a public 
road, except where public notice and hearing have previously been 
provided for this particular part of the road in accordance with Sec.  
761.14 of this chapter; a concise statement describing the public road, 
the particular part to be relocated or closed, and the approximate 
timing and duration of the relocation or closing.
    (vi) If the application includes a request for an experimental 
practice under Sec.  785.13, a statement indicating that an 
experimental practice is requested and identifying the regulatory 
provisions for which a variance is requested.
    (2) The applicant shall make an application for a permit, 
significant revision under Sec.  774.13, or renewal of a permit under 
Sec.  774.15 available for the public to inspect and copy by filing a 
full copy of the application with the recorder at the courthouse of the 
county where the mining is proposed to occur, or an accessible public 
office approved by the regulatory authority. This copy of the 
application need not include confidential information exempt from 
disclosure under paragraph (d) of this section. The application 
required by this paragraph shall be filed by the first date of 
newspaper advertisement of the application. The applicant shall file 
any changes to the application with the public office at the same time 
the change is submitted to the regulatory authority.
    (3) Upon receipt of an administratively complete application for a 
permit, a significant revision to a permit under Sec.  774.13, or a 
renewal of a permit under Sec.  774.15, the regulatory authority shall 
issue written notification indicating the applicant's intention to mine 
the described tract of land, the application number or other 
identifier, the location where the copy of the application may be 
inspected, and the location where comments on the application may be 
submitted. The notification shall be sent to--
    (i) Local governmental agencies with jurisdiction over or an 
interest in the area of the proposed surface coal mining and 
reclamation operation, including but not limited to planning agencies, 
sewage and water treatment authorities, water companies; and
    (ii) All Federal or State governmental agencies with authority to 
issue permits and licenses applicable to the proposed surface coal 
mining and reclamation operation and which are part of the permit 
coordinating process developed in accordance with section 503(a)(6) or 
section 504(h) of the Act, or Sec.  773.5; or those agencies with an 
interest in the proposed operation, including the U.S. Department of 
Agriculture Soil Conservation Service district office, the local U.S. 
Army Corps of Engineers district engineer, the National Park Service, 
State and Federal fish and wildlife agencies, and the historic 
preservation officer.
    (b) Comments and objections on permit applications. (1) Within a 
reasonable time established by the regulatory authority, written 
comments or objections on an application for a permit, significant 
revision to a permit under Sec.  774.13, or renewal of a permit under 
Sec.  774.15 may be submitted to the regulatory authority by public 
entities notified under paragraph (a)(3) of this section with respect 
to the effects of the proposed mining operations on the environment 
within their areas of responsibility.
    (2) Written objections to an application for a permit, significant 
revision to a permit under Sec.  774.13, or renewal of a permit under 
Sec.  774.15 may be submitted to the regulatory authority by any person 
having an interest which is or may be adversely affected by the 
decision on the application, or by an officer or head of any Federal, 
State, or local government agency or authority, within 30 days after 
the last publication of the newspaper notice required by paragraph (a) 
of this section.
    (3) The regulatory authority shall upon receipt of such written 
comments or objections--
    (i) Transmit a copy of the comments or objections to the 
applicants; and
    (ii) File a copy for public inspection at the same public office 
where the application is filed.
    (c) Informal conferences. (1) Any person having an interest which 
is or may be adversely affected by the decision on the application, or 
an officer or a head of a Federal, State, or local government agency, 
may request in writing that the regulatory authority hold an informal 
conference on the application for a permit, significant revision to a 
permit under Sec.  774.13, or renewal of a permit under Sec.  774.15. 
The request shall--
    (i) Briefly summarize the issues to be raised by the requestor at 
the conference;
    (ii) State whether the requestor desires to have the conference 
conducted in the locality of the proposed operation; and
    (iii) Be filed with the regulatory authority no later than 30 days 
after the last publication of the newspaper advertisement required 
under paragraph (a) of this section.
    (2) Except as provided in paragraph (c)(3) of this section, if an 
informal conference is requested in accordance with paragraph (c)(1) of 
this section, the regulatory authority shall hold an informal 
conference within a reasonable time following the receipt of the 
request. The informal conference shall be conducted as follows:
    (i) If requested under paragraph (c)(1)(ii) of this section, it 
shall be held in the locality of the proposed surface coal mining and 
reclamation operation.

[[Page 54940]]

    (ii) The date, time, and location of the informal conference shall 
be sent to the applicant and other parties to the conference and 
advertised by the regulatory authority in a newspaper of general 
circulation in the locality of the proposed surface coal mining and 
reclamation operation at least 2 weeks before the scheduled conference.
    (iii) If requested in writing by a conference requestor at a 
reasonable time before the conference, the regulatory authority may 
arrange with the applicant to grant parties to the conference access to 
the proposed permit area and, to the extent that the applicant has the 
right to grant access to it, to the adjacent area prior to the 
established date of the conference for the purpose of gathering 
information relevant to the conference.
    (iv) The requirements of section 5 of the Administrative Procedure 
Act, as amended (5 U.S.C. 554), shall not apply to the conduct of the 
informal conference. The conference shall be conducted by a 
representative of the regulatory authority, who may accept oral or 
written statements and any other relevant information from any party to 
the conference. An electronic or stenographic record shall be made of 
the conference, unless waived by all the parties. The record shall be 
maintained and shall be accessible to the parties of the conference 
until final release of the applicant's performance bond or other 
equivalent guarantee pursuant to subchapter J of this chapter.
    (3) If all parties requesting the informal conference withdraw 
their request before the conference is held, the informal conference 
may be canceled.
    (4) Informal conferences held in accordance with this section may 
be used by the regulatory authority as the public hearing required 
under Sec.  761.14(c) of this chapter on proposed relocation or closing 
of public roads.
    (d) Public availability of permit applications--(1) General 
availability. Except as provided in paragraph (d)(2) or (d)(3) of this 
section, all applications for permits; revisions; renewals; and 
transfers, assignments or sales of permit rights on file with the 
regulatory authority shall be available, at reasonable times, for 
public inspection and copying.
    (2) Limited availability. Except as provided in paragraph (d)(3)(i) 
of this section, information pertaining to coal seams, test borings, 
core samplings, or soil samples in an application shall be made 
available to any person with an interest which is or may be adversely 
affected. Information subject to this paragraph shall be made available 
to the public when such information is required to be on public file 
pursuant to State law.
    (3) Confidentiality. The regulatory authority shall provide 
procedures, including notice and opportunity to be heard for persons 
both seeking and opposing disclosure, to ensure confidentiality of 
qualified confidential information, which shall be clearly identified 
by the applicant and submitted separately from the remainder of the 
application. Confidential information is limited to--
    (i) Information that pertains only to the analysis of the chemical 
and physical properties of the coal to be mined, except information on 
components of such coal which are potentially toxic in the environment;
    (ii) Information required under section 508 of the Act that is not 
on public file pursuant to State law and that the applicant has 
requested in writing to be held confidential;
    (iii) Information on the nature and location of archeological 
resources on public land and Indian land as required under the 
Archeological Resources Protection Act of 1979 (Pub. L. 96-95, 93 Stat. 
721, 16 U.S.C. 470).


Sec.  773.7  Review of permit applications.

    (a) The regulatory authority will review an application for a 
permit, revision, or renewal; written comments and objections 
submitted; and records of any informal conference or hearing held on 
the application and issue a written decision, within a reasonable time 
set by the regulatory authority, either granting, requiring 
modification of, or denying the application. If an informal conference 
is held under Sec.  773.6(c) of this part, the decision will be made 
within 60 days of the close of the conference.
    (b) The applicant for a permit or revision of a permit shall have 
the burden of establishing that his application is in compliance with 
all the requirements of the regulatory program.


Sec.  773.8  General provisions for review of permit application 
information and entry of information into AVS.

    (a) Based on an administratively complete application, we, the 
regulatory authority, must undertake the reviews required under 
Sec. Sec.  773.9 through 773.11 of this part.
    (b) We will enter into AVS--
    (1) The information you are required to submit under Sec. Sec.  
778.11 and 778.12(c) of this subchapter.
    (2) The information you submit under Sec.  778.14 of this 
subchapter pertaining to violations which are unabated or uncorrected 
after the abatement or correction period has expired.
    (c) We must update the information referred to in paragraph (b) of 
this section in AVS upon our verification of any additional information 
submitted or discovered during our permit application review.


Sec.  773.9  Review of applicant and operator information.

    (a) We, the regulatory authority, will rely upon the information 
that you, the applicant, are required to submit under Sec.  778.11 of 
this subchapter, information from AVS, and any other available 
information, to review your and your operator's organizational 
structure and ownership or control relationships.
    (b) We must conduct the review required under paragraph (a) of this 
section before making a permit eligibility determination under Sec.  
773.12 of this part.


Sec.  773.10  Review of permit history.

    (a) We, the regulatory authority, will rely upon the permit history 
information you, the applicant, submit under Sec.  778.12 of this 
subchapter, information from AVS, and any other available information 
to review your and your operator's permit histories. We must conduct 
this review before making a permit eligibility determination under 
Sec.  773.12 of this part.
    (b) We will also determine if you or your operator have previous 
mining experience.
    (c) If you or your operator do not have any previous mining 
experience, we may conduct an additional review under Sec.  774.11(f) 
of this subchapter. The purpose of this review will be to determine if 
someone else with mining experience controls the mining operation.


Sec.  773.11  Review of compliance history.

    (a) We, the regulatory authority, will rely upon the violation 
information supplied by you, the applicant, under Sec.  778.14 of this 
subchapter, a report from AVS, and any other available information to 
review histories of compliance with the Act or the applicable State 
regulatory program, and any other applicable air or water quality laws, 
for--
    (1) You;
    (2) Your operator;
    (3) Operations you own or control; and
    (4) Operations your operator owns or controls.
    (b) We must conduct the review required under paragraph (a) of this 
section before making a permit eligibility determination under Sec.  
773.12 of this part.

[[Page 54941]]

Sec.  773.12  Permit eligibility determination.

    Based on the reviews required under Sec. Sec.  773.9 through 773.11 
of this part, we, the regulatory authority, will determine whether you, 
the applicant, are eligible for a permit under section 510(c) of the 
Act.
    (a) Except as provided in Sec. Sec.  773.13 and 773.14 of this 
part, you are not eligible for a permit if we find that any surface 
coal mining operation that--
    (1) You directly own or control has an unabated or uncorrected 
violation; or
    (2) You or your operator indirectly control has an unabated or 
uncorrected violation and your control was established or the violation 
was cited after November 2, 1988.
    (b) We will not issue you a permit if you or your operator are 
permanently ineligible to receive a permit under Sec.  774.11(c) of 
this subchapter.
    (c) After we approve your permit under Sec.  773.15 of this part, 
we will not issue the permit until you comply with the information 
update and certification requirement of Sec.  778.9(d) of this 
subchapter. After you complete that requirement, we will again request 
a compliance history report from AVS to determine if there are any 
unabated or uncorrected violations which affect your permit eligibility 
under paragraphs (a) and (b) of this section. We will request this 
report no more than five business days before permit issuance under 
Sec.  773.19 of this part.
    (d) If you are ineligible for a permit under this section, we will 
send you written notification of our decision. The notice will tell you 
why you are ineligible and include notice of your appeal rights under 
part 775 of this subchapter and 43 CFR 4.1360 through 4.1369.


Sec.  773.13  Unanticipated events or conditions at remining sites.

    (a) You, the applicant, are eligible for a permit under Sec.  
773.12 if an unabated violation--
    (1) Occurred after October 24, 1992; and
    (2) Resulted from an unanticipated event or condition at a surface 
coal mining and reclamation operation on lands that are eligible for 
remining under a permit that was held by the person applying for the 
new permit.
    (b) For permits issued under Sec.  785.25 of this subchapter, an 
event or condition is presumed to be unanticipated for the purpose of 
this section if it--
    (1) Arose after permit issuance;
    (2) Was related to prior mining; and
    (3) Was not identified in the permit application.


Sec.  773.14  Eligibility for provisionally issued permits.

    (a) This section applies to you if you are an applicant who owns or 
controls a surface coal mining and reclamation operation with--
    (1) A notice of violation issued under Sec.  843.12 of this chapter 
or the State regulatory program equivalent for which the abatement 
period has not yet expired; or
    (2) A violation that is unabated or uncorrected beyond the 
abatement or correction period.
    (b) We, the regulatory authority, will find you eligible for a 
provisionally issued permit under this section if you demonstrate that 
one or more of the following circumstances exists with respect to all 
violations listed in paragraph (a) of this section--
    (1) For violations meeting the criteria of paragraph (a)(1) of this 
section, you certify that the violation is being abated to the 
satisfaction of the regulatory authority with jurisdiction over the 
violation, and we have no evidence to the contrary.
    (2) As applicable, you, your operator, and operations that you or 
your operator own or control are in compliance with the terms of any 
abatement plan (or, for delinquent fees or penalties, a payment 
schedule) approved by the agency with jurisdiction over the violation.
    (3) You are pursuing a good faith--
    (i) Challenge to all pertinent ownership or control listings or 
findings under Sec. Sec.  773.25 through 773.27 of this part; or
    (ii) Administrative or judicial appeal of all pertinent ownership 
or control listings or findings, unless there is an initial judicial 
decision affirming the listing or finding and that decision remains in 
force.
    (4) The violation is the subject of a good faith administrative or 
judicial appeal contesting the validity of the violation, unless there 
is an initial judicial decision affirming the violation and that 
decision remains in force.
    (c) We will consider a provisionally issued permit to be 
improvidently issued, and we must immediately initiate procedures under 
Sec. Sec.  773.22 and 773.23 of this part to suspend or rescind that 
permit, if--
    (1) Violations included in paragraph (b)(1) of this section are not 
abated within the specified abatement period;
    (2) You, your operator, or operations that you or your operator own 
or control do not comply with the terms of an abatement plan or payment 
schedule mentioned in paragraph (b)(2) of this section;
    (3) In the absence of a request for judicial review, the 
disposition of a challenge and any subsequent administrative review 
referenced in paragraph (b)(3) or (4) of this section affirms the 
validity of the violation or the ownership or control listing or 
finding; or
    (4) The initial judicial review decision referenced in paragraph 
(b)(3)(ii) or (4) of this section affirms the validity of the violation 
or the ownership or control listing or finding.


Sec.  773.15  Written findings for permit application approval.

    No permit application or application for a significant revision of 
a permit shall be approved unless the application affirmatively 
demonstrates and the regulatory authority finds, in writing, on the 
basis of information set forth in the application or from information 
otherwise available that is documented in the approval, the following:
    (a) The application is accurate and complete and the applicant has 
complied with all requirements of the Act and the regulatory program.
    (b) The applicant has demonstrated that reclamation as required by 
the Act and the regulatory program can be accomplished under the 
reclamation plan contained in the permit application.
    (c) The proposed permit area is--
    (1) Not within an area under study or administrative proceedings 
under a petition, filed pursuant to parts 764 and 769 of this chapter, 
to have an area designated as unsuitable for surface coal mining 
operations, unless the applicant demonstrates that before January 4, 
1977, he has made substantial legal and financial commitments in 
relation to the operation covered by the permit application; or
    (2) Not within an area designated as unsuitable for surface coal 
mining operations under parts 762 and 764 or 769 of this chapter or 
within an area subject to the prohibitions of Sec.  761.11 of this 
chapter.
    (d) For mining operations where the private mineral estate to be 
mined has been severed from the private surface estate, the applicant 
has submitted to the regulatory authority the documentation required 
under Sec.  778.15(b) of this chapter.
    (e) The regulatory authority has made an assessment of the probable 
cumulative impacts of all anticipated coal mining on the hydrologic 
balance in the cumulative impact area and has determined that the 
proposed operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area.
    (f) The applicant has demonstrated that any existing structure will 
comply

[[Page 54942]]

with Sec.  701.11(d), and the applicable performance standards of 
subchapter B or K of this chapter.
    (g) The applicant has paid all reclamation fees from previous and 
existing operations as required by subchapter R of this chapter.
    (h) The applicant has satisfied the applicable requirements of part 
785 of this chapter.
    (i) The applicant has, if applicable, satisfied the requirements 
for approval of a long-term, intensive agricultural postmining land 
use, in accordance with the requirements of Sec.  816.111(d) or Sec.  
817.111(d).
    (j) The operation would not affect the continued existence of 
endangered or threatened species or result in destruction or adverse 
modification of their critical habitats, as determined under the 
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
    (k) The regulatory authority has taken into account the effect of 
the proposed permitting action on properties listed on and eligible for 
listing on the National Register of Historic Places. This finding may 
be supported in part by inclusion of appropriate permit conditions or 
changes in the operation plan protecting historic resources, or a 
documented decision that the regulatory authority has determined that 
no additional protection measures are necessary.
    (l) For a proposed remining operation where the applicant intends 
to reclaim in accordance with the requirements of Sec.  816.106 or 
Sec.  817.106 of this chapter, the site of the operation is a 
previously mined area as defined in Sec.  701.5 of this chapter.
    (m) For permits to be issued under Sec.  785.25 of this chapter, 
the permit application must contain:
    (i) Lands eligible for remining;
    (ii) An identification of the potential environmental and safety 
problems related to prior mining activity which could reasonably be 
anticipated to occur at the site; and
    (iii) Mitigation plans to sufficiently address these potential 
environmental and safety problems so that reclamation as required by 
the applicable requirements of the regulatory program can be 
accomplished.
    (n) The applicant is eligible to receive a permit, based on the 
reviews under Sec. Sec.  773.7 through 773.14 of this part.


Sec.  773.16  Performance bond submittal.

    If the regulatory authority decides to approve the application, it 
shall require that the applicant file the performance bond or provide 
other equivalent guarantee before the permit is issued, in accordance 
with the provisions of subchapter J of this chapter.


Sec.  773.17  Permit conditions.

    Each permit issued by the regulatory authority shall be subject to 
the following conditions:
    (a) The permittee shall conduct surface coal mining and reclamation 
operations only on those lands that are specifically designated as the 
permit area on the maps submitted with the application and authorized 
for the term of the permit and that are subject to the performance bond 
or other equivalent guarantee in effect pursuant to subchapter J of 
this chapter.
    (b) The permittee shall conduct all surface coal mining and 
reclamation operations only as described in the approved application, 
except to the extent that the regulatory authority otherwise directs in 
the permit.
    (c) The permittee shall comply with the terms and conditions of the 
permit, all applicable performance standards of the Act, and the 
requirements of the regulatory program.
    (d) Without advance notice, delay, or a search warrant, upon 
presentation of appropriate credentials, the permittee shall allow the 
authorized representatives of the Secretary and the State regulatory 
authority to--
    (1) Have the right of entry provided for in Sec. Sec.  842.13 and 
840.12 of this chapter; and
    (2) Be accompanied by private persons for the purpose of conducting 
an inspection in accordance with parts 840 and 842, when the inspection 
is in response to an alleged violation reported to the regulatory 
authority by the private person.
    (e) The permittee shall take all possible steps to minimize any 
adverse impact to the environment or public health and safety resulting 
from noncompliance with any term or condition or the permit, including, 
but not limited to--
    (1) Any accelerated or additional monitoring necessary to determine 
the nature and extent of noncompliance and the results of the 
noncompliance;
    (2) Immediate implementation of measures necessary to comply; and
    (3) Warning, as soon as possible after learning of such 
noncompliance, any person whose health and safety is in imminent danger 
due to the noncompliance.
    (f) As applicable, the permittee shall comply with Sec.  701.11(d) 
and subchapter B or K of this chapter for compliance, modification, or 
abandonment of existing structures.
    (g) The operator shall pay all reclamation fees required by 
subchapter R of this chapter for coal produced under the permit for 
sale, transfer or use, in the manner required by that subchapter.


Sec.  773.19  Permit issuance and right of renewal.

    (a) Decision. If the application is approved, the permit shall be 
issued upon submittal of a performance bond in accordance with 
subchapter J. If the application is disapproved, specific reasons 
therefore shall be set forth in the notification required by paragraph 
(b) of this section.
    (b) Notification. The regulatory authority shall issue written 
notification of the decision to the following persons and entities:
    (1) The applicant, each person who files comments or objections to 
the permit application, and each party to an informal conference.
    (2) The local governmental officials in the local political 
subdivision in which the land to be affected is located within 10 days 
after the issuance of a permit, including a description of the location 
of the land.
    (3) If the regulatory authority is a State agency, the local OSM 
office.
    (c) Permit term. Each permit shall be issued for a fixed term of 5 
years or less, unless the requirements of Sec.  778.17 of this chapter 
are met.
    (d) Right of renewal. Permit application approval shall apply to 
those lands that are specifically designated as the permit area on the 
maps submitted with the application and for which the application is 
complete and accurate. Any valid permit issued in accordance with 
paragraph (a) of this section shall carry with it the right of 
successive renewal, within the approved boundaries of the existing 
permit, upon expiration of the term of the permit, in accordance with 
Sec.  774.15.
    (e) Initiation of operations. (1) A permit shall terminate if the 
permittee has not begun the surface coal mining and reclamation 
operation covered by the permit within 3 years of the issuance of the 
permit.
    (2) The regulatory authority may grant a reasonable extension of 
time for commencement of these operations, upon receipt of a written 
statement showing that such an extension of time is necessary, if--
    (i) Litigation precludes the commencement or threatens substantial 
economic loss to the permittee; or
    (ii) There are conditions beyond the control and without the fault 
or negligence of the permittee.
    (3) With respect to coal to be mined for use in a synthetic fuel 
facility or specified major electric generating facility, the permittee 
shall be deemed

[[Page 54943]]

to have commenced surface mining operations at the time that the 
construction of the synthetic fuel or generating facility is initiated.
    (4) Extensions of time granted by the regulatory authority under 
this paragraph shall be specifically set forth in the permit, and 
notice of the extension shall be made public by the regulatory 
authority.


Sec.  773.21  Initial review and finding requirements for improvidently 
issued permits.

    (a) If we, the regulatory authority, have reason to believe that we 
improvidently issued a permit to you, the permittee, we must review the 
circumstances under which the permit was issued. We will make a 
preliminary finding that your permit was improvidently issued if, under 
the permit eligibility criteria of the applicable regulations 
implementing section 510(c) of the Act in effect at the time of permit 
issuance, your permit should not have been issued because you or your 
operator owned or controlled a surface coal mining and reclamation 
operation with an unabated or uncorrected violation.
    (b) We will make a finding under paragraph (a) of this section only 
if you or your operator--
    (1) Continue to own or control the operation with the unabated or 
uncorrected violation;
    (2) The violation remains unabated or uncorrected; and
    (3) The violation would cause you to be ineligible under the permit 
eligibility criteria in our current regulations.
    (c) When we make a preliminary finding under paragraph (a) of this 
section, we must serve you with a written notice of the preliminary 
finding, which must be based on evidence sufficient to establish a 
prima facie case that your permit was improvidently issued.
    (d) Within 30 days of receiving a notice under paragraph (c) of 
this section, you may challenge the preliminary finding by providing us 
with evidence as to why the permit was not improvidently issued under 
the criteria in paragraphs (a) and (b) of this section.
    (e) The provisions of Sec. Sec.  773.25 through 773.27 of this part 
apply when a challenge under paragraph (d) of this section concerns a 
preliminary finding under paragraphs (a) and (b)(1) of this section 
that you or your operator currently own or control, or owned or 
controlled, a surface coal mining operation.


Sec.  773.22  Notice requirements for improvidently issued permits.

    (a) We, the regulatory authority, must serve you, the permittee, 
with a written notice of proposed suspension or rescission, together 
with a statement of the reasons for the proposed suspension or 
rescission, if--
    (1) After considering any evidence submitted under Sec.  773.21(d) 
of this part, we find that a permit was improvidently issued under the 
criteria in Sec.  773.21 paragraphs (a) and (b) of Sec.  773.21 of this 
part; or
    (2) Your permit was provisionally issued under Sec.  773.14(b) of 
this part and one or more of the conditions in Sec. Sec.  773.14(c)(1) 
through (4) exists.
    (b) If we propose to suspend your permit, we will provide 60 days 
notice.
    (c) If we propose to rescind your permit, we will provide 120 days 
notice.
    (d) If you wish to appeal the notice, you must exhaust 
administrative remedies under the procedures at 43 CFR 4.1370 through 
4.1377 (when OSM is the regulatory authority) or under the State 
regulatory program equivalent (when a State is the regulatory 
authority).
    (e) After we serve you with a notice of proposed suspension or 
rescission under this section, we will take action under Sec.  773.23 
of this part.
    (f) The regulations for service at Sec.  843.14 of this chapter, or 
the State regulatory program equivalent, will govern service under this 
section.
    (g) The times specified in paragraphs (b) and (c) of this section 
will apply unless you obtain temporary relief under the procedures at 
43 CFR 4.1376 or the State regulatory program equivalent.


Sec.  773.23  Suspension or rescission requirements for improvidently 
issued permits.

    (a) Except as provided in paragraph (b) of this section, we, the 
regulatory authority, must suspend or rescind your permit upon 
expiration of the time specified in Sec.  773.22(b) or (c) of this part 
unless you submit evidence and we find that--
    (1) The violation has been abated or corrected to the satisfaction 
of the agency with jurisdiction over the violation;
    (2) You or your operator no longer own or control the relevant 
operation;
    (3) Our finding for suspension or rescission was in error;
    (4) The violation is the subject of a good faith administrative or 
judicial appeal (unless there is an initial judicial decision affirming 
the violation, and that decision remains in force);
    (5) The violation is the subject of an abatement plan or payment 
schedule that is being met to the satisfaction of the agency with 
jurisdiction over the violation; or
    (6) You are pursuing a good faith challenge or administrative or 
judicial appeal of the relevant ownership or control listing or finding 
(unless there is an initial judicial decision affirming the listing or 
finding, and that decision remains in force).
    (b) If you have requested administrative review of a notice of 
proposed suspension or rescission under Sec.  773.22(e) of this part, 
we will not suspend or rescind your permit unless and until the Office 
of Hearings and Appeals or its State counterpart affirms our finding 
that your permit was improvidently issued.
    (c) When we suspend or rescind your permit under this section, we 
must--
    (1) Issue you a written notice requiring you to cease all surface 
coal mining operations under the permit; and
    (2) Post the notice at our office closest to the permit area.
    (d) If we suspend or rescind your permit under this section, you 
may request administrative review of the notice under the procedures at 
43 CFR 4.1370 through 4.1377 (when OSM is the regulatory authority) or 
under the State regulatory program equivalent (when a State is the 
regulatory authority). Alternatively, you may seek judicial review of 
the notice.


Sec.  773.25  Who may challenge ownership or control listings and 
findings.

    You may challenge a listing or finding of ownership or control 
using the provisions under Sec. Sec.  773.26 and 773.27 of this part if 
you are--
    (a) Listed in a permit application or AVS as an owner or controller 
of an entire surface coal mining operation, or any portion or aspect 
thereof:
    (b) Found to be an owner or controller of an entire surface coal 
mining operation, or any portion or aspect thereof, under Sec. Sec.  
773.21 or 774.11(g) of this subchapter; or
    (c) An applicant or permittee affected by an ownership or control 
listing or finding.


Sec.  773.26  How to challenge an ownership or control listing or 
finding.

    This section applies to you if you challenge an ownership or 
control listing or finding.
    (a) To challenge an ownership or control listing or finding, you 
must submit a written explanation of the basis for the challenge, along 
with any evidence or explanatory materials you wish to provide under 
Sec.  773.27(b) of this part, to the regulatory authority, as 
identified in the following table.

[[Page 54944]]



------------------------------------------------------------------------
                                          Then you must submit a written
    If the challenge concerns . . .            explanation to . . .
------------------------------------------------------------------------
(1) a pending State or Federal permit    the regulatory authority with
 application.                             jurisdiction over the
                                          application.
(2) your ownership or control of a       the regulatory authority with
 surface coal mining operation, and you   jurisdiction over the surface
 are not currently seeking a permit.      coal mining operation.
------------------------------------------------------------------------

    (b) The provisions of this section and of Sec. Sec.  773.27 and 
773.28 of this part apply only to challenges to ownership or control 
listings or findings. You may not use these provisions to challenge 
your liability or responsibility under any other provision of the Act 
or its implementing regulations.
    (c) When the challenge concerns a violation under the jurisdiction 
of a different regulatory authority, the regulatory authority with 
jurisdiction over the permit application or permit must consult the 
regulatory authority with jurisdiction over the violation and the AVS 
Office to obtain additional information.
    (d) A regulatory authority responsible for deciding a challenge 
under paragraph (a) of this section may request an investigation by the 
AVS Office.
    (e) At any time, you, a person listed in AVS as an owner or 
controller of a surface coal mining operation, may request an informal 
explanation from the AVS Office as to the reason you are shown in AVS 
in an ownership or control capacity. Within 14 days of your request, 
the AVS Office will provide a response describing why you are listed in 
AVS.


Sec.  773.27  Burden of proof for ownership or control challenges.

    This section applies to you if you challenge an ownership or 
control listing or finding.
    (a) When you challenge a listing of ownership or control, or a 
finding of ownership or control made under Sec.  774.11(g) of this 
subchapter, you must prove by a preponderance of the evidence that you 
either--
    (1) Do not own or control the entire surface coal mining operation 
or relevant portion or aspect thereof; or
    (2) Did not own or control the entire surface coal mining operation 
or relevant portion or aspect thereof during the relevant time period.
    (b) In meeting your burden of proof, you must present reliable, 
credible, and substantial evidence and any explanatory materials to the 
regulatory authority. The materials presented in connection with your 
challenge will become part of the permit file, an investigation file, 
or another public file. If you request, we will hold as confidential 
any information you submit under this paragraph which is not required 
to be made available to the public under Sec.  842.16 of this chapter 
(when OSM is the regulatory authority) or under Sec.  840.14 of this 
chapter (when a State is the regulatory authority).
    (c) Materials you may submit in response to the requirements of 
paragraph (b) of this section include, but are not limited to--
    (1) Notarized affidavits containing specific facts concerning the 
duties that you performed for the relevant operation, the beginning and 
ending dates of your ownership or control of the operation, and the 
nature and details of any transaction creating or severing your 
ownership or control of the operation.
    (2) Certified copies of corporate minutes, stock ledgers, 
contracts, purchase and sale agreements, leases, correspondence, or 
other relevant company records.
    (3) Certified copies of documents filed with or issued by any 
State, municipal, or Federal governmental agency.
    (4) An opinion of counsel, when supported by--
    (i) Evidentiary materials;
    (ii) A statement by counsel that he or she is qualified to render 
the opinion; and
    (iii) A statement that counsel has personally and diligently 
investigated the facts of the matter.


Sec.  773.28  Written agency decision on challenges to ownership or 
control listings or findings.

    (a) Within 60 days of receipt of your challenge under Sec.  
773.26(a) of this part, we, the regulatory authority identified under 
Sec.  773.26(a) of this part, will review and investigate the evidence 
and explanatory materials you submit and any other reasonably available 
information bearing on your challenge and issue a written decision. Our 
decision must state whether you own or control the relevant surface 
coal mining operation, or owned or controlled the operation, during the 
relevant time period.
    (b) We will promptly provide you with a copy of our decision by 
either--
    (1) Certified mail, return receipt requested; or
    (2) Any means consistent with the rules governing service of a 
summons and complaint under Rule 4 of the Federal Rules of Civil 
Procedure, or its State regulatory program counterparts.
    (c) Service of the decision on you is complete upon delivery and is 
not incomplete if you refuse to accept delivery.
    (d) We will post all decisions made under this section on AVS.
    (e) Any person who receives a written decision under this section, 
and who wishes to appeal that decision, must exhaust administrative 
remedies under the procedures at 43 CFR 4.1380 through 4.1387 or, when 
a State is the regulatory authority, the State regulatory program 
counterparts, before seeking judicial review.
    (f) Following our written decision or any decision by a reviewing 
administrative or judicial tribunal, we must review the information in 
AVS to determine if it is consistent with the decision. If it is not, 
we must promptly revise the information in AVS to reflect the decision.


0
4. Revise part 774 to read as follows:

PART 774--REVISION; RENEWAL; TRANSFER, ASSIGNMENT, OR SALE OF 
PERMIT RIGHTS; POST-PERMIT ISSUANCE REQUIREMENTS; AND OTHER ACTIONS 
BASED ON OWNERSHIP, CONTROL, AND VIOLATION INFORMATION

Sec.
774.1 Scope and purpose.
774.9 Information collection.
774.10 Regulatory authority review of permits.
774.11 Post-permit issuance requirements for regulatory authorities 
and other actions based on ownership, control, and violation 
information.
774.12 Post-permit issuance information requirements for permittees.
774.13 Permit revisions.
774.15 Permit renewals.
774.17 Transfer, assignment, or sale of permit rights.


    Authority:  30 U.S.C. 1201 et seq.


Sec.  774.1  Scope and purpose.

    This part provides requirements for revision; renewal; transfer, 
assignment, or sale of permit rights; entering and updating information 
in AVS following the issuance of a permit; post-permit issuance 
requirements for regulatory authorities and permittees; and other 
actions based on ownership, control, and violation information.


Sec.  774.9  Information collection.

    (a) The collections of information contained in part 774 have been 
approved by the Office of Management

[[Page 54945]]

and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 
1029-0116. Regulatory authorities will use this information to:
    (1) Determine if the applicant meets the requirements for revision; 
renewal; transfer, assignment, or sale of permit rights;
    (2) Enter and update information in AVS following the issuance of a 
permit; and
    (3) Fulfill post-permit issuance requirements and other obligations 
based on ownership, control, and violation information.
    (b) A Federal agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number. Response is required to 
obtain a benefit in accordance with SMCRA. Send comments regarding 
burden estimates or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer, Room 202-SIB, 1951 Constitution Avenue NW., Washington, DC 
20240.


Sec.  774.10  Regulatory authority review of permits.

    (a) The regulatory authority shall review each permit issued and 
outstanding under an approved regulatory program during the term of the 
permit. This review shall occur not later than the middle of each 
permit term and as follows:
    (1) Permits with a term longer than 5 years shall be reviewed no 
less frequently than the permit midterm or every 5 years, whichever is 
more frequent.
    (2) Permits with variances granted in accordance with Sec.  785.14 
of this chapter (mountaintop removal) and Sec.  785.18 of this chapter 
(variance for delay in contemporaneous reclamation requirement in 
combined surface and underground mining operations) of this chapter 
shall be reviewed no later than 3 years from the date of issuance of 
the permit unless, for variances issued in accordance with Sec.  785.14 
of this chapter, the permittee affirmatively demonstrates that the 
proposed development is proceeding in accordance with the terms of the 
permit.
    (3) Permits containing experimental practices issued in accordance 
with Sec.  785.13 of this chapter and permits with a variance from 
approximate original contour requirements in accordance with Sec.  
785.16 shall be reviewed as set forth in the permit or at least every 
2\1/2\ years from the date of issuance as required by the regulatory 
authority, in accordance with Sec. Sec.  785.13(g) and 785.16(c) of 
this chapter, respectively.
    (b) After the review required by paragraph (a) of this section, or 
at any time, the regulatory authority may, by order, require reasonable 
revision of a permit in accordance with Sec.  774.13 to ensure 
compliance with the Act and the regulatory program.
    (c) Any order of the regulatory authority requiring revision of a 
permit shall be based upon written findings and shall be subject to the 
provisions for administrative and judicial review in part 775 of this 
chapter. Copies of the order shall be sent to the permittee.
    (d) Permits may be suspended or revoked in accordance with 
subchapter L of this chapter.


Sec.  774.11  Post-permit issuance requirements for regulatory 
authorities and other actions based on ownership, control, and 
violation information.

    (a) For the purposes of future permit eligibility determinations 
and enforcement actions, we, the regulatory authority, must enter into 
AVS the data shown in the following table--

------------------------------------------------------------------------
    We must enter into AVS all . . .        Within 30 days after . . .
------------------------------------------------------------------------
(1) permit records.....................  the permit is issued or
                                          subsequent changes made.
(2) unabated or uncorrected violations.  the abatement or correction
                                          period for a violation
                                          expires.
(3) changes to information initially     receiving notice of a change.
 required to be provided by an
 applicant under 30 CFR 778.11.
(4) changes in violation status........  abatement, correction, or
                                          termination of a violation, or
                                          a decision from an
                                          administrative or judicial
                                          tribunal.
------------------------------------------------------------------------

    (b) If, at any time, we discover that any person owns or controls 
an operation with an unabated or uncorrected violation, we will 
determine whether enforcement action is appropriate under part 843, 846 
or 847 of this chapter. We must enter the results of each enforcement 
action, including administrative and judicial decisions, into AVS.
    (c) We must serve a preliminary finding of permanent permit 
ineligibility under section 510(c) of the Act on you, an applicant or 
operator, if the criteria in paragraphs (c)(1) and (c)(2) are met. In 
making a finding under this paragraph, we will only consider control 
relationships and violations which would make, or would have made, you 
ineligible for a permit under Sec. Sec.  773.12(a) and (b) of this 
subchapter. We must make a preliminary finding of permanent permit 
ineligibility if we find that--
    (1) You control or have controlled surface coal mining and 
reclamation operations with a demonstrated pattern of willful 
violations under section 510(c) of the Act; and
    (2) The violations are of such nature and duration with such 
resulting irreparable damage to the environment as to indicate your 
intent not to comply with the Act, its implementing regulations, the 
regulatory program, or your permit.
    (d) You may request a hearing on a preliminary finding of permanent 
permit ineligibility under 43 CFR 4.1350 through 4.1356.
    (e) Entry into AVS.
    (1) If you do not request a hearing, and the time for seeking a 
hearing has expired, we will enter our finding into AVS.
    (2) If you request a hearing, we will enter our finding into AVS 
only if that finding is upheld on administrative appeal.
    (f) At any time, we may identify any person who owns or controls an 
entire surface coal mining operation or any relevant portion or aspect 
thereof. If we identify such a person, we must issue a written 
preliminary finding to the person and the applicant or permittee 
describing the nature and extent of ownership or control. Our written 
preliminary finding must be based on evidence sufficient to establish a 
prima facie case of ownership or control.
    (g) After we issue a written preliminary finding under paragraph 
(f) of this section, we will allow you, the person subject to the 
preliminary finding, 30 days in which to submit any information tending 
to demonstrate your lack of ownership or control. If, after reviewing 
any information you submit, we are persuaded that you are not an owner 
or controller, we will

[[Page 54946]]

serve you a written notice to that effect. If, after reviewing any 
information you submit, we still find that you are an owner or 
controller, or if you do not submit any information within the 30-day 
period, we will issue a written finding and enter our finding into AVS.
    (h) If we identify you as an owner or controller under paragraph 
(g) of this section, you may challenge the finding using the provisions 
of Sec. Sec.  773.25, 773.26, and 773.27 of this subchapter.


Sec.  774.12  Post-permit issuance information requirements for 
permittees.

    (a) Within 30 days after the issuance of a cessation order under 
Sec.  843.11 of this chapter, or its State regulatory program 
equivalent, you, the permittee, must provide or update all the 
information required under Sec.  778.11 of this subchapter.
    (b) You do not have to submit information under paragraph (a) of 
this section if a court of competent jurisdiction grants a stay of the 
cessation order and the stay remains in effect.
    (c) Within 60 days of any addition, departure, or change in 
position of any person identified in Sec.  778.11(c) of this 
subchapter, you must provide--
    (1) The information required under Sec.  778.11(d) of this 
subchapter; and
    (2) The date of any departure.


Sec.  774.13  Permit revisions.

    (a) General. During the term of a permit, the permittee may submit 
an application to the regulatory authority for a revision of the 
permit.
    (b) Application requirements and procedures. the regulatory 
authority shall establish--
    (1) A time period within which the regulatory authority will 
approve or disapprove an application for a permit revision; and
    (2) Guidelines establishing the scale or extent of revisions for 
which all the permit application information requirements and 
procedures of this subchapter, including notice, public participation, 
and notice of decision requirements of Sec. Sec.  773.6, 773.19(b) (1) 
and (3), and 778.21, shall apply. Such requirements and procedures 
shall apply at a minimum to all significant permit revisions.
    (c) Criteria for approval. No application for a permit revision 
shall be approved unless the application demonstrates and the 
regulatory authority finds that reclamation as required by the Act and 
the regulatory program can be accomplished, applicable requirements 
under Sec.  773.15 which are pertinent to the revision are met, and the 
application for a revision complies with all requirements of the Act 
and the regulatory program.
    (d) Request to change permit boundary. Any extensions to the area 
covered by the permit, except incidental boundary revisions, shall be 
made by application for a new permit.


Sec.  774.15  Permit renewals.

    (a) General. A valid permit, issued pursuant to an approved 
regulatory program, shall carry with it the right of successive 
renewal, within the approved boundaries of the existing permit, upon 
expiration of the term of the permit.
    (b) Application requirements and procedures. (1) An application for 
renewal of a permit shall be filed with the regulatory authority at 
least 120 days before expiration of the existing permit term.
    (2) An application for renewal of a permit shall be in the form 
required by the regulatory authority and shall include at a minimum--
    (i) The name and address of the permittee, the term of the renewal 
requested, and the permit number or other identifier;
    (ii) Evidence that a liability insurance policy or adequate self-
insurance under Sec.  800.60 of this chapter will be provided by the 
applicant for the proposed period of renewal;
    (iii) Evidence that the performance bond in effect for the 
operation will continue in full force and effect for any renewal 
requested, as well as any additional bond required by the regulatory 
authorities pursuant to subchapter J of this chapter;
    (iv) A copy of the proposed newspaper notice and proof of 
publication of same, as required by Sec.  778.21 of this chapter; and
    (v) Additional revised or updated information required by the 
regulatory authority.
    (3) Applications for renewal shall be subject to the requirements 
of public notification and public participation contained in Sec. Sec.  
773.6 and 773.19(b) of this chapter.
    (4) If an application for renewal includes any proposed revisions 
to the permit, such revisions shall be identified and subject to the 
requirements of Sec.  774.13.
    (c) Approval process--(1) Criteria for approval. The regulatory 
authority shall approve a complete and accurate application for permit 
renewal, unless it finds, in writing that--
    (i) The terms and conditions of the existing permit are not being 
satisfactorily met;
    (ii) The present surface coal mining and reclamation operations are 
not in compliance with the environmental protection standards of the 
Act and the regulatory program;
    (iii) The requested renewal substantially jeopardizes the 
operator's continuing ability to comply with the Act and the regulatory 
program on existing permit areas;
    (iv) The operator has not provided evidence of having liability 
insurance or self-insurance as required in Sec.  800.60 of this 
chapter;
    (v) The operator has not provided evidence that any performance 
bond required to be in effect for the operation will continue in full 
force and effect for the proposed period of renewal, as well as any 
additional bond the regulatory authority might require pursuant to 
subchapter J of this chapter; or
    (vi) Additional revised or updated information required by the 
regulatory authority has not been provided by the applicant.
    (2) Burden of proof. In the determination of whether to approve or 
deny a renewal of a permit, the burden of proof shall be on the 
opponents of renewal.
    (3) Alluvial valley floor variance. If the surface coal mining and 
reclamation operation authorized by the original permit was not subject 
to the standards contained in sections 510(b)(5) (A) and (B) of the Act 
and Sec.  785.19 of this chapter, because the permittee complied with 
the exceptions in the proviso to section 510(b)(5) of the Act, the 
portion of the application for renewal of the permit that addresses new 
land areas previously identified in the reclamation plan for the 
original permit shall not be subject to the standards contained in 
sections 510(b)(5) (A) and (B) of the Act and Sec.  785.19 of this 
chapter.
    (d) Renewal term. Any permit renewal shall be for a term not to 
exceed the period of the original permit established under Sec.  
773.19.
    (e) Notice of decision. The regulatory authority shall send copies 
of its decision to the applicant, to each person who filed comments or 
objections on the renewal, to each party to any informal conference 
held on the permit renewal, and to OSM if OSM is not the regulatory 
authority.
    (f) Administrative and judicial review. Any person having an 
interest which is or may be adversely affected by the decision of the 
regulatory authority shall have the right to administrative and 
judicial review set forth in part 775 of this chapter.


Sec.  774.17  Transfer, assignment, or sale of permit rights.

    (a) General. No transfer, assignment, or sale of rights granted by 
a permit shall be made without the prior written approval of the 
regulatory authority. At its discretion, the regulatory authority

[[Page 54947]]

may allow a prospective successor in interest to engage in surface coal 
mining and reclamation operations under the permit during the pendency 
of an application for approval of a transfer, assignment, or sale of 
permit rights submitted under paragraph (b) of this section, provided 
that the prospective successor in interest can demonstrate to the 
satisfaction of the regulatory authority that sufficient bond coverage 
will remain in place.
    (b) Application requirements. An applicant for approval of the 
transfer, assignment, or sale of permit rights shall--
    (1) Provide the regulatory authority with an application for 
approval of the proposed transfer, assignment, or sale including--
    (i) The name and address of the existing permittee and permit 
number or other identifier;
    (ii) A brief description of the proposed action requiring approval; 
and
    (iii) The legal, financial, compliance, and related information 
required by part 778 of this chapter for the applicant for approval of 
the transfer, assignment, or sale of permit rights.
    (2) Advertise the filing of the application in a newspaper of 
general circulation in the locality of the operations involved, 
indicating the name and address of the applicant, the permittee, the 
permit number or other identifier, the geographic location of the 
permit, and the address to which written comments may be sent;
    (3) Obtain appropriate performance bond coverage in an amount 
sufficient to cover the proposed operations, as required under 
subchapter J of this chapter.
    (c) Public participation. Any person having an interest which is or 
may be adversely affected by a decision on the transfer, assignment, or 
sale of permit rights, including an official of any Federal, State, or 
local government agency, may submit written comments on the application 
to the regulatory authority within a time specified by the regulatory 
authority.
    (d) Criteria for approval. The regulatory authority may allow a 
permittee to transfer, assign, or sell permit rights to a successor, if 
it finds in writing that the successor--
    (1) Is eligible to receive a permit in accordance with Sec. Sec.  
773.12 and 773.14 of this chapter;
    (2) Has submitted a performance bond or other guarantee, or 
obtained the bond coverage of the original permittee, as required by 
subchapter J of this chapter; and
    (3) Meets any other requirements specified by the regulatory 
authority.
    (e) Notification. (1) The regulatory authority shall notify the 
permittee, the successor, commenters, and OSM, if OSM is not the 
regulatory authority, of its findings.
    (2) The successor shall immediately provide notice to the 
regulatory authority of the consummation of the transfer, assignment, 
or sale of permit rights.
    (f) Continued operation under existing permit. The successor in 
interest shall assume the liability and reclamation responsibilities of 
the existing permit and shall conduct the surface coal mining and 
reclamation operations in full compliance with the Act, the regulatory 
program, and the terms and conditions of the existing permit, unless 
the applicant has obtained a new or revised permit as provided in this 
subchapter.


0
5. Revise part 777 to read as follows:

PART 777--GENERAL CONTENT REQUIREMENTS FOR PERMIT APPLICATIONS

Sec.
777.1 Scope.
777.10 Information collection.
777.11 Format and contents.
777.13 Reporting of technical data.
777.14 Maps and plans: General requirements.
777.15 Completeness.
777.17 Permit fees.

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


Sec.  777.1  Scope.

    This part provides minimum requirements concerning the general 
content for permit applications under a State or Federal program.


Sec.  777.10  Information collection.

    The information collection requirements contained in part 777 have 
been approved by the Office of Management and Budget under 44 U.S.C. 
3507 and assigned clearance number 1029-0032. The information is being 
collected to meet the requirements of sections 507, 508, and 510(b) of 
the Act. It provides general requirements for permit application format 
and contents. The obligation to respond is mandatory.


Sec.  777.11  Format and contents.

    (a) An application shall--
    (1) Contain current information, as required by this subchapter;
    (2) Be clear and concise; and
    (3) Be filed in the format required by the regulatory authority.
    (b) If used in the application, referenced materials shall either 
be provided to the regulatory authority by the applicant or be readily 
available to the regulatory authority. If provided, relevant portions 
of referenced published materials shall be presented briefly and 
concisely in the application by photocopying or abstracting and with 
explicit citations.
    (c) Applications for permits; revisions; renewals; or transfers, 
sales or assignments of permit rights shall be verified under oath, by 
a responsible official of the applicant, that the information contained 
in the application is true and correct to the best of the official's 
information and belief.


Sec.  777.13  Reporting of technical data.

    (a) All technical data submitted in the application shall be 
accompanied by the names of persons or organizations that collected and 
analyzed the data, dates of the collection and analysis of the data, 
and descriptions of the methodology used to collect and analyze the 
data.
    (b) Technical analyses shall be planned by or under the direction 
of a professional qualified in the subject to be analyzed.


Sec.  777.14  Maps and plans: General requirements.

    (a) Maps submitted with applications shall be presented in a 
consolidated format, to the extent possible, and shall include all the 
types of information that are set forth on topographic maps of the U.S. 
Geological Survey of the 1:24,000 scale series. Maps of the permit area 
shall be at a scale of 1:6,000 or larger. Maps of the adjacent area 
shall clearly show the lands and waters within those areas and be in a 
scale determined by the regulatory authority, but in no event smaller 
than 1:24,000.
    (b) All maps and plans submitted with the application shall 
distinguish among each of the phases during which surface coal mining 
operations were or will be conducted at any place within the life of 
operations. At a minimum, distinctions shall be clearly shown among 
those portions of the life of operations in which surface coal mining 
operations occurred--
    (1) Prior to August 3, 1977;
    (2) After August 3, 1977, and prior to either--
    (i) May 3, 1978; or
    (ii) In the case of an applicant or operator which obtained a small 
operator's exemption in accordance with Sec.  710.12 of this chapter, 
January 1, 1979;
    (3) After May 3, 1978 (or January 1, 1979, for persons who received 
a small operator's exemption) and prior to the approval of the 
applicable regulatory program;
    (4) After the estimated date of issuance of a permit by the 
regulatory

[[Page 54948]]

authority under the approved regulatory program.


Sec.  777.15  Completeness.

    An application for a permit to conduct surface coal mining and 
reclamation operations shall be complete and shall include at a 
minimum--
    (a) For surface mining activities, the information required under 
parts 778, 779, and 780 of this chapter, and, as applicable to the 
operation, part 785 of this chapter; and
    (b) For underground mining activities, the information required 
under parts 778, 783, and 784 of this chapter, and, as applicable to 
the operation, part 785 of this chapter.


Sec.  777.17  Permit fees.

    An application for a surface coal mining and reclamation permit 
shall be accompanied by a fee determined by the regulatory authority. 
The fee may be less than, but shall not exceed, the actual or 
anticipated cost of reviewing, administering, and enforcing the permit. 
The regulatory authority may develop procedures to allow the fee to be 
paid over the term of the permit.


0
6. Revise part 779 to read as follows:

PART 779--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS 
FOR INFORMATION ON ENVIRONMENTAL RESOURCES

Sec.
779.1 Scope.
779.2 Objectives.
779.4 Responsibilities.
779.10 Information collection.
779.11 General requirements.
779.12 General environmental resources information.
779.18 Climatological information.
779.19 Vegetation information.
779.20 [Reserved]
779.21 Soil resources information.
779.24 Maps: General requirements.
779.25 Cross sections, maps, and plans.

    Authority:  30 U.S.C. 1201 et seq.; sec. 115 of Pub. L. 98-146, 
(30 U.S.C. 1257), and 16 U.S.C. 470 et seq.


Sec.  779.1  Scope.

    This part establishes the minimum requirements for the Secretary's 
approval of regulatory program provisions for the environmental 
resources contents of applications for surface mining activities.


Sec.  779.2  Objectives.

    The objectives of this part are to ensure that each application 
provides to the regulatory authority a complete and accurate 
description of the environmental resources that may be impacted or 
affected by proposed surface mining activities.


Sec.  779.4  Responsibilities.

    (a) It is the responsibility of the applicant to provide, except 
where specifically exempted in this part, all information required by 
this part in the application.
    (b) It is the responsibility of State and Federal government 
agencies to provide information for applications as specifically 
required by this part.


Sec.  779.10  Information collection.

    The information collection requirements contained in 30 CFR 779.11, 
779.12, 779.13, 779.14, 779.15, 779.16, 779.17, 779.18, 779.19, 779.21, 
779.22, 779.24, 779.25 and 779.27 have been approved by the Office of 
Management and Budget under 44 U.S.C. 3507 and assigned clearance 
number 1029-0035. The information is being collected to meet the 
requirements of sections 507 and 508 of Pub. L. 95-87, which require 
the applicant to present an adequate description of the existing pre-
mining environmental resources within and around the proposed mine plan 
area. This information will be used by the regulatory authority to 
determine whether the applicant can comply with the performance 
standards of the regulations for surface coal mining and whether 
reclamation of these areas is feasible. The obligation to respond is 
mandatory.


Sec.  779.11  General requirements.

    Each permit application shall include a description of the 
existing, premining environmental resources within the proposed permit 
area and adjacent areas that may be affected or impacted by the 
proposed surface mining activities.


Sec.  779.12  General environmental resources information.

    Each application shall describe and identify--
    (a) The lands subject to surface coal mining operations over the 
estimated life of those operations and the size, sequence, and timing 
of the subareas for which it is anticipated that individual permits for 
mining will be sought; and
    (b)(1) The nature of cultural, historic and archeological resources 
listed or eligible for listing on the National Register of Historic 
Places and known archeological sites within the proposed permit and 
adjacent areas. The description shall be based on all available 
information, including, but not limited to, information from the State 
Historic Preservation Officer and from local archeological, historical, 
and cultural preservation agencies.
    (2) The regulatory authority may require the applicant to identify 
and evaluate important historic and archeological resources that may be 
eligible for listing on the National Register of Historic Places, 
through
    (i) Collection of additional information,
    (ii) Conduct of field investigations, or
    (iii) Other appropriate analyses.


Sec.  779.18  Climatological information.

    (a) When requested by the regulatory authority, the application 
shall contain a statement of the climatological factors that are 
representative of the proposed permit area, including:
    (1) The average seasonal precipitation;
    (2) The average direction and velocity of prevailing winds; and
    (3) Seasonal temperature ranges.
    (b) The regulatory authority may request such additional data as 
deemed necessary to ensure compliance with the requirements of this 
subchapter.


Sec.  779.19  Vegetation information.

    (a) The permit application shall, if required by the regulatory 
authority, contain a map that delineates existing vegetative types and 
a description of the plant communities within the proposed permit area 
and within any proposed reference area. This description shall include 
information adequate to predict the potential for reestablishing 
vegetation.
    (b) When a map or aerial photograph is required, sufficient 
adjacent areas shall be included to allow evaluation of vegetation as 
important habitat for fish and wildlife for those species of fish and 
wildlife identified under 30 CFR 780.16.


Sec.  779.20  [Reserved]


Sec.  779.21  Soil resources information.

    (a) The applicant shall provide adequate soil survey information of 
the permit area consisting of the following:
    (1) A map delineating different soils;
    (2) Soil identification;
    (3) Soil description; and
    (4) Present and potential productivity of existing soils.
    (b) Where the applicant proposes to use selected overburden 
materials as a supplement or substitute for topsoil, the application 
shall provide results of the analyses, trials, and tests required under 
30 CFR 816.22.


Sec.  779.24  Maps: General requirements.

    The permit application shall include maps showing--
    (a) All boundaries of lands and names of present owners of record 
of those lands, both surface and subsurface, included in or contiguous 
to the permit area;

[[Page 54949]]

    (b) The boundaries of land within the proposed permit area upon 
which the applicant has the legal right to enter and begin surface 
mining activities;
    (c) The boundaries of all areas proposed to be affected over the 
estimated total life of the proposed surface mining activities, with a 
description of size, sequence, and timing of the mining of sub-areas 
for which it is anticipated that additional permits will be sought;
    (d) The location of all buildings on and within 1,000 feet of the 
proposed permit area, with identification of the current use of the 
buildings;
    (e) The location of surface and sub-surface man-made features 
within, passing through, or passing over the proposed permit area, 
including, but not limited to major electric transmission lines, 
pipelines, and agricultural drainage tile fields;
    (f) The location and boundaries of any proposed reference areas for 
determining the success of revegetation;
    (g) The locations of water supply intakes for current users of 
surface water flowing into, out of, and within a hydrologic area 
defined by the regulatory authority, and those surface waters which 
will receive discharges from affected areas in the proposed permit 
area;
    (h) Each public road located in or within 100 feet of the proposed 
permit area;
    (i) The boundaries of any public park and locations of any cultural 
or historical resources listed or eligible for listing in the National 
Register of Historic Places and known archeological sites within the 
permit and adjacent areas.
    (j) Each cemetery that is located in or within 100 feet of the 
proposed permit area.
    (k) Any land within the proposed permit area which is within the 
boundaries of any units of the National System of Trails or the Wild 
and Scenic Rivers System, including study rivers designated under 
section 5(a) of the Wild and Scenic Rivers Act; and
    (l) Other relevant information required by the regulatory 
authority.


Sec.  779.25  Cross sections, maps, and plans.

    (a) The application shall include cross sections, maps, and plans 
showing--
    (1) Elevations and locations of test borings and core samplings;
    (2) Elevations and locations of monitoring stations used to gather 
data for water quality and quantity, fish and wildlife, and air 
quality, if required, in preparation of the application;
    (3) Nature, depth, and thickness of the coal seams to be mined, any 
coal or rider seams above the seam to be mined, each stratum of the 
overburden, and the stratum immediately below the lowest coal seam to 
be mined;
    (4) All coal crop lines and the strike and dip of the coal to be 
mined within the proposed permit area;
    (5) Location and extent of known workings of active, inactive, or 
abandoned underground mines, including mine openings to the surface 
within the proposed permit and adjacent areas;
    (6) Location and extent of sub-surface water, if encountered, 
within the proposed permit or adjacent areas;
    (7) Location of surface water bodies such as streams, lakes, ponds, 
springs, constructed or natural drains, and irrigation ditches within 
the proposed permit and adjacent areas;
    (8) Location and extent of existing or previously surface-mined 
areas within the proposed permit area;
    (9) Location and dimensions of existing areas of spoil, waste, and 
non-coal waste disposal, dams, embankments, other impoundments, and 
water treatment and air pollution control facilities within the 
proposed permit area;
    (10) Location, and depth if available, of gas and oil wells within 
the proposed permit area and water wells in the permit area and 
adjacent area;
    (b) Cross sections, maps and plans included in a permit application 
as required by this section shall be prepared by, or under the 
direction of, and certified by a qualified, registered, professional 
engineer, a professional geologist, or in any State which authorizes 
land surveyors to prepare and certify such cross sections, maps and 
plans, a qualified, registered, professional, land surveyor, with 
assistance from experts in related fields such as landscape 
architecture, and shall be updated as required by the regulatory 
authority.


0
7. Revise part 780 to read as follows:

PART 780--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENT 
FOR RECLAMATION AND OPERATION PLAN

Sec.
780.1 Scope.
780.2 Objectives.
780.4 Responsibilities.
780.10 Information collection.
780.11 Operation plan: General requirements.
780.12 Operation plan: Existing structures.
780.13 Operation plan: Blasting.
780.14 Operation plan: Maps and plans.
780.15 Air pollution control plan.
780.16 Fish and wildlife information.
780.18 Reclamation plan: General requirements.
780.21 Hydrologic information.
780.22 Geologic information.
780.23 Reclamation plan: Land use information.
780.25 Reclamation plan: Siltation structures, impoundments, banks, 
dams, and embankments.
780.27 Reclamation plan: Surface mining near underground mining.
780.28 [Reserved]
780.29 Diversions.
780.31 Protection of publicly owned parks and historic places.
780.33 Relocation or use of public roads.
780.35 Disposal of excess spoil.
780.37 Road systems.
780.38 Support facilities.

    Authority:  30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.


Sec.  780.1  Scope.

    This part provides the minimum requirements for the Secretary's 
approval of regulatory program provisions for the mining operations and 
reclamation plan portions of applications for permits for surface 
mining activities, except to the extent that different requirements for 
those plans are established under 30 CFR part 785.


Sec.  780.2  Objectives.

    The objectives of this part are to insure that the regulatory 
authority is provided with comprehensive and reliable information on 
proposed surface mining activities, and to ensure that those activities 
are allowed to be conducted only in compliance with the Act, this 
chapter, and the regulatory program.


Sec.  780.4  Responsibilities.

    (a) It is the responsibility of the applicant to provide to the 
regulatory authority all of the information required by this part, 
except where specifically exempted in this part.
    (b) It is the responsibility of State and Federal governmental 
agencies to provide information to the regulatory authority where 
specifically required in this part.


Sec.  780.10  Information collection.

    (a) The collections of information contained in part 780 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0036. The information will be 
used by the regulatory authority to determine whether the applicant can 
comply with the applicable performance and environmental standards in 
Public Law 95-87. Response is required to obtain a benefit.
    (b) Public Reporting burden for this information is estimated to 
average 28 hours per response, including the time

[[Page 54950]]

for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing the burden, to the Information Collection 
Clearance Officer, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Ave. NW., Room 203, Washington, DC 
20240; and the Office of Management and Budget, Paperwork Reduction 
Project 1029-0036, Washington, DC 20503.


Sec.  780.11  Operation plan: General requirements.

    Each application shall contain a description of the mining 
operations proposed to be conducted during the life of the mine within 
the proposed permit area, including, at a minimum, the following:
    (a) A narrative description of the type and method of coal mining 
procedures and proposed engineering techniques, anticipated annual and 
total production of coal, by tonnage, and the major equipment to be 
used for all aspects of those operations; and
    (b) A narrative explaining the construction, modification, use, 
maintenance, and removal of the following facilities (unless retention 
of such facilities is necessary for postmining land use as specified in 
Sec.  816.133):
    (1) Dams, embankments, and other impoundments;
    (2) Overburden and topsoil handling and storage areas and 
structures;
    (3) Coal removal, handling, storage, cleaning, and transportation 
areas and structures;
    (4) Spoil, coal processing waste, and non-coal waste removal, 
handling, storage, transportation, and disposal areas and structures;
    (5) Mine facilities; and
    (6) Water and air pollution control facilities.


Sec.  780.12  Operation plan: Existing structures.

    (a) Each application shall contain a description of each existing 
structure proposed to be used in connection with or to facilitate the 
surface coal mining and reclamation operation. The description shall 
include--
    (1) Location;
    (2) Plans of the structure which describe its current condition;
    (3) Approximate dates on which construction of the existing 
structure was begun and completed; and
    (4) A showing, including relevant monitoring data or other 
evidence, whether the structure meets the performance standards of 
subchapter K (Permanent Program Standards) of this chapter or, if the 
structure does not meet the performance standards of subchapter K of 
this chapter, a showing whether the structure meets the performance 
standards of subchapter B (Interim Program Standards) of this chapter.
    (b) Each application shall contain a compliance plan for each 
existing structure proposed to be modified or reconstructed for use in 
connection with or to facilitate the surface coal mining and 
reclamation operation. The compliance plan shall include--
    (1) Design specifications for the modification or reconstruction of 
the structure to meet the design and performance standards of 
subchapter K of this chapter;
    (2) A construction schedule which shows dates for beginning and 
completing interim steps and final reconstruction;
    (3) Provisions for monitoring the structure during and after 
modification or reconstruction to ensure that the performance standards 
of subchapter K of this chapter are met; and
    (4) A showing that the risk of harm to the environment or to public 
health or safety is not significant during the period of modification 
or reconstruction.


Sec.  780.13  Operation plan: Blasting.

    (a) Blasting plan. Each application shall contain a blasting plan 
for the proposed permit area, explaining how the applicant will comply 
with the requirements of Sec. Sec.  816.61 through 816.68 of this 
chapter. This plan shall include, at a minimum, information setting 
forth the limitations the operator will meet with regard to ground 
vibration and airblast, the bases for those limitations, and the 
methods to be applied in controlling the adverse effects of blasting 
operations.
    (b) Monitoring system. Each application shall contain a description 
of any system to be used to monitor compliance with the standards of 
Sec.  816.67 including the type, capability, and sensitivity of any 
blast-monitoring equipment and proposed procedures and locations of 
monitoring.
    (c) Blasting near underground mines. Blasting operations within 500 
feet of active underground mines require approval of the State and 
Federal regulatory authorities concerned with the health and safety of 
underground miners.


Sec.  780.14  Operation plan: Maps and plans.

    Each application shall contain maps and plans as follows:
    (a) The maps and plans shall show the lands proposed to be affected 
throughout the operation and any change in a facility or feature to be 
caused by the proposed operations, if the facility or feature was shown 
under 30 CFR 779.24 through 779.25.
    (b) The following shall be shown for the proposed permit area:
    (1) Buildings, utility corridors and facilities to be used;
    (2) The area of land to be affected within the proposed permit 
area, according to the sequence of mining and reclamation;
    (3) Each area of land for which a performance bond or other 
equivalent guarantee will be posted under subchapter J of this chapter;
    (4) Each coal storage, cleaning and loading area;
    (5) Each topsoil, spoil, coal waste, and non-coal waste storage 
area;
    (6) Each water diversion, collection, conveyance, treatment, 
storage, and discharge facility to be used;
    (7) Each air pollution collection and control facility;
    (8) Each source of waste and each waste disposal facility relating 
to coal processing or pollution control;
    (9) Each facility to be used to protect and enhance fish and 
wildlife and related environmental values;
    (10) Each explosive storage and handling facility; and
    (11) Location of each sedimentation pond, permanent water 
impoundment, coal processing waste bank, and coal processing waste dam 
and embankment, in accordance with 30 CFR 780.25, and fill area for the 
disposal of excess spoil in accordance 30 CFR 780.35.
    (c) Except as provided in Sec. Sec.  780.25(a)(2), 780.25(a)(3), 
780.35(a), 816.71(b), 816.73(c), 816.74(c) and 816.81(c) of this 
chapter, cross sections, maps and plans required under paragraphs 
(b)(4), (5), (6), (10) and (11) of this section shall be prepared by, 
or under the direction of, and certified by a qualified registered 
professional engineer, a professional geologist, or in any State which 
authorizes land surveyors to prepare and certify such cross sections, 
maps and plans, a qualified, registered, professional, land surveyor, 
with assistance from experts in related fields such as landscape 
architecture.


Sec.  780.15  Air pollution control plan.

    (a) For all surface mining activities with projected production 
rates exceeding 1,000,000 tons of coal per year and located west of the 
100th

[[Page 54951]]

meridian west longitude, the application shall contain an air pollution 
control plan which includes the following:
    (1) An air quality monitoring program to provide sufficient data to 
evaluate the effectiveness of the fugitive dust control practices 
proposed under paragraph (a)(2) of this section to comply with Federal 
and State air quality standards; and
    (2) A plan for fugitive dust control practices as required under 30 
CFR 816.95.
    (b) For all other surface mining activities the application shall 
contain an air pollution control plan which includes the following:
    (1) An air quality monitoring program, if required by the 
regulatory authority, to provide sufficient data to evaluate the 
effectiveness of the fugitive dust control practices under paragraph 
(b)(2) of this section to comply with applicable Federal and State air 
quality standards; and
    (2) A plan for fugitive dust control practices, as required under 
30 CFR 816.95.


Sec.  780.16  Fish and wildlife information.

    (a) Resource information. Each application shall include fish and 
wildlife resource information for the permit area and adjacent area.
    (1) The scope and level of detail for such information shall be 
determined by the regulatory authority in consultation with State and 
Federal agencies with responsibilities for fish and wildlife and shall 
be sufficient to design the protection and enhancement plan required 
under paragraph (b) of this section.
    (2) Site-specific resource information necessary to address the 
respective species or habitats shall be required when the permit area 
or adjacent area is likely to include:
    (i) Listed or proposed endangered or threatened species of plants 
or animals or their critical habitats listed by the Secretary under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), or 
those species or habitats protected by similar State statutes;
    (ii) Habitats of unusually high value for fish and wildlife such as 
important streams, wetlands, riparian areas, cliffs supporting raptors, 
areas offering special shelter or protection, migration routes, or 
reproduction and wintering areas; or
    (iii) Other species or habitats identified through agency 
consultation as requiring special protection under State or Federal 
law.
    (b) Protection and enhancement plan. Each application shall include 
a description of how, to the extent possible using the best technology 
currently available, the operator will minimize disturbances and 
adverse impacts on fish and wildlife and related environmental values, 
including compliance with the Endangered Species Act, during the 
surface coal mining and reclamation operations and how enhancement of 
these resources will be achieved where practicable. This description 
shall--
    (1) Be consistent with the requirements of Sec.  816.97 of this 
chapter;
    (2) Apply, at a minimum, to species and habitats identified under 
paragraph (a) of this section; and
    (3) Include--
    (i) Protective measures that will be used during the active mining 
phase of operation. Such measures may include the establishment of 
buffer zones, the selective location and special design of haul roads 
and powerlines, and the monitoring of surface water quality and 
quantity; and
    (ii) Enhancement measures that will be used during the reclamation 
and postmining phase of operation to develop aquatic and terrestrial 
habitat. Such measures may include restoration of streams and other 
wetlands, retention of ponds and impoundments, establishment of 
vegetation for wildlife food and cover, and the replacement of perches 
and nest boxes. Where the plan does not include enhancement measures, a 
statement shall be given explaining why enhancement is not practicable.
    (c) Fish and Wildlife Service review. Upon request, the regulatory 
authority shall provide the resource information required under 
paragraph (a) of this section and the protection and enhancement plan 
required under paragraph (b) of this section to the U.S. Department of 
the Interior, Fish and Wildlife Service Regional or Field Office for 
their review. This information shall be provided within 10 days of 
receipt of the request from the Service.


Sec.  780.18  Reclamation plan: General requirements.

    (a) Each application shall contain a plan for reclamation of the 
lands within the proposed permit area, showing how the applicant will 
comply with section 515 of the Act, subchapter K of this chapter, and 
the environmental protection performance standards of the regulatory 
program. The plan shall include, at a minimum, all information required 
under 30 CFR 780.18 through 780.37.
    (b) Each plan shall contain the following information for the 
proposed permit area--
    (1) A detailed timetable for the completion of each major step in 
the reclamation plan;
    (2) A detailed estimate of the cost of reclamation of the proposed 
operations required to be covered by a performance bond under 
subchapter J of this chapter, with supporting calculations for the 
estimates;
    (3) A plan for backfilling, soil stabilization, compacting, and 
grading, with contour maps or cross sections that show the anticipated 
final surface configuration of the proposed permit area, in accordance 
with 30 CFR 816.102 through 816.107;
    (4) A plan for removal, storage, and redistribution of topsoil, 
subsoil, and other material to meet the requirements of Sec.  816.22 of 
this chapter. A demonstration of the suitability of topsoil substitutes 
or supplements under Sec.  816.22(b) of this chapter shall be based 
upon analysis of the thickness of soil horizons, total depth, texture, 
percent coarse fragments, pH, and areal extent of the different kinds 
of soils. The regulatory authority may require other chemical and 
physical analyses, field-site trials, or greenhouse tests if determined 
to be necessary or desirable to demonstrate the suitability of the 
topsoil substitutes or supplements.
    (5) A plan for revegetation as required in 30 CFR 816.111 through 
816.116, including, but not limited to, descriptions of the--
    (i) Schedule of revegetation;
    (ii) Species and amounts per acre of seeds and seedlings to be 
used;
    (iii) Methods to be used in planting and seeding;
    (iv) Mulching techniques;
    (v) Irrigation, if appropriate, and pest and disease control 
measures, if any; and
    (vi) Measures proposed to be used to determine the success of 
revegetation as required in 30 CFR 816.116.
    (vii) A soil testing plan for evaluation of the results of topsoil 
handling and reclamation procedures related to revegetation.
    (6) A description of the measures to be used to maximize the use 
and conservation of the coal resource as required in 30 CFR 816.59;
    (7) A description of measures to be employed to ensure that all 
debris, acid-forming and toxic-forming materials, and materials 
constituting a fire hazard are disposed of in accordance with 30 CFR 
816.89 and 816.102 and a description of the contingency plans which 
have been developed to preclude sustained combustion of such materials;
    (8) A description, including appropriate cross sections and maps, 
of the measures to be used to seal or

[[Page 54952]]

manage mine openings, and to plug, case, or manage exploration holes, 
other bore holes, wells, and other openings within the proposed permit 
area, in accordance with 30 CFR 816.13 through 816.15; and
    (9) A description of steps to be taken to comply with the 
requirements of the Clean Air Act (42 U.S.C. 7401 et seq.), the Clean 
Water Act (33 U.S.C. 1251 et seq.), and other applicable air and water 
quality laws and regulations and health and safety standards.


Sec.  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 OSM 
Administrative Record, U.S. Department of the Interior, Room 5315, 1100 
L Street NW., Washington, DC; at the OSM Eastern Technical Service 
Center, U.S. Department of the Interior, Building 10, Parkway Center, 
Pittsburgh, Pa.; at the OSM Western Technical Service Center, U.S. 
Department of the Interior, Brooks Tower, 1020 15th Street, Denver, 
Colo or at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. 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 (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 permining 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

[[Page 54953]]

    (iv) What impact the proposed operation will have on:
    (A) Sediment yields 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 Sec. Sec.  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.


Sec.  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 Sec.  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

[[Page 54954]]

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.


Sec.  780.23  Reclamation plan: Land use information.

    (a) The plan shall contain a statement of the condition, 
capability, and productivity of the land within the proposed permit 
area, including:
    (1) A map and supporting narrative of the uses of the land existing 
at the time of the filing of the application. If the premining use of 
the land was changed within 5 years before the anticipated date of 
beginning the proposed operations, the historic use of the land shall 
also be described. In the case of previously mined land, the use of the 
land prior to any mining shall also be described to the extent such 
information is available.
    (2) A narrative of land capability and productivity, which analyzes 
the land-use description under paragraph (a) of this section in 
conjunction with other environmental resources information. The 
narrative shall provide analyses of:
    (i) The capability of the land before any mining to support a 
variety of uses, giving consideration to soil and foundation 
characteristics, topography, vegetative cover, and the hydrology of the 
proposed permit area; and
    (ii) The productivity of the proposed permit area before mining, 
expressed as average yield of food, fiber, forage, or wood products 
from such lands obtained under high levels of management. The 
productivity shall be determined by yield data or estimates for similar 
sites based on current data from the U.S. Department of Agriculture, 
State agricultural universities, or appropriate State natural resource 
or agricultural agencies.
    (b) Each plan shall contain a detailed description of the proposed 
use, following reclamation, of the land within the proposed permit 
area, including a discussion of the utility and capacity of the 
reclaimed land to support a variety of alternative uses, and the 
relationship of the proposed use of existing land use policies and 
plans. This description shall explain:
    (1) How the proposed post mining land use is to be achieved and the 
necessary support activities which may be needed to achieve the 
proposed land use; and
    (2) Where a land use different from the premining land use is 
proposed, all materials needed for approval of the alternative use 
under 30 CFR 816.133.
    (3) The consideration which has been given to making all of the 
proposed surface mining activities consistent with surface owner plans 
and applicable State and local land use plans and programs.
    (c) The description shall be accompanied by a copy of the comments 
concerning the proposed use by the legal or equitable owner of record 
of the surface of the proposed permit area and the State and local 
government agencies which would have to initiate, implement, approve, 
or authorize the proposed use of the land following reclamation.


Sec.  780.25  Reclamation plan: Siltation structures, impoundments, 
banks, dams, and embankments.

    (a) General. Each application shall include a general plan and a 
detailed design plan for each proposed siltation structure, water 
impoundment, and coal processing waste bank, dam, or embankment within 
the proposed permit area.
    (1) Each general plan shall--(i) Be prepared by, or under the 
direction of, and certified by a qualified, registered, professional 
engineer, a professional geologist, or in any State which authorizes 
land surveyors to prepare and certify such plans, a qualified, 
registered, professional, land surveyor, with assistance from experts 
in related fields such as landscape architecture;
    (ii) Contain a description, map, and cross section of the structure 
and its location;
    (iii) Contain preliminary hydrologic and geologic information 
required to assess the hydrologic impact of the structure;
    (iv) Contain a survey describing the potential effect on the 
structure from subsidence of the subsurface strata resulting from past 
underground mining operations if underground mining has occurred; and
    (v) Contain a certification statement which includes a schedule 
setting forth the dates that any detailed design plans for structures 
that are not submitted with the general plan will be submitted to the 
regulatory authority. The regulatory authority shall have approved, in 
writing, the detailed design plan for a structure before construction 
of the structure begins.
    (2) Impoundments meeting the Class B or C criteria for dams in the 
U.S. Department of Agriculture, Soil Conservation Service Technical 
Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' 
Technical Release No. 60 (TR-60) shall comply with the requirements of 
this section for structures that meet or exceed the size of other 
criteria of the Mine Safety and Health Administration (MSHA). The 
technical release is hereby incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. TR-60 
may be viewed and downloaded from OSM's Web site at http://www.osmre.gov/programs/TDT/damsafety.shtm. It also is available for 
inspection at the OSM Headquarters Office, Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, Room 252, 1951 
Constitution Ave. NW., Washington, DC or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Each detailed design plan for a structure that 
meets or exceeds the size or other criteria of MSHA, Sec.  77.216(a) of 
this chapter shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields

[[Page 54955]]

such as geology, land surveying, and landscape architecture;
    (ii) Include any geotechnical investigation, design, and 
construction requirements for the structure;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
    (3) Each detailed design plan for structures not included in 
paragraph (a)(2) of this section shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified, registered, professional engineer, or in any State which 
authorizes land surveyors to prepare and certify such plans, a 
qualified, registered, professional land surveyor, except that all coal 
processing waste dams and embankments covered by Sec. Sec.  816.81-
816.84 of this chapter shall be certified by a qualified, registered, 
professional engineer;
    (ii) Include any design and construction requirements for the 
structure, including any required geotechnical information;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
    (b) Siltation structures. Siltation structures shall be designed in 
compliance with the requirements of Sec.  816.46 of this chapter.
    (c) Permanent and temporary impoundments. (1) Permanent and 
temporary impoundments shall be designed to comply with the 
requirements of Sec.  816.49 of this chapter.
    (2) Each plan for an impoundment meeting the size or other criteria 
of the Mine Safety and Health Administration shall comply with the 
requirements of Sec. Sec.  77.216-1 and 77.216-2 of this title. The 
plan required to be submitted to the District Manager of MSHA under 
Sec.  77.216 of this title shall be submitted to the regulatory 
authority as part of the permit application in accordance with 
paragraph (a) of this section.
    (3) For impoundments not included in paragraph (a)(2) of this 
section, the regulatory authority may establish through the State 
program approval process, engineering design standards that ensure 
stability comparable to a 1.3 minimum static safety factor in lieu of 
engineering tests to establish compliance with the minimum static 
safety factor of 1.3 specified in Sec.  816.49(a)(4)(ii) of this 
chapter.
    (d) Coal processing waste banks. Coal processing waste banks shall 
be designed to comply with the requirements of 30 CFR 816.81-816.84.
    (e) Coal processing waste dams and embankments. Coal processing 
waste dams and embankments shall be designed to comply with the 
requirements of 30 CFR 816.81-816.84. Each plan shall comply with the 
requirements of the Mine Safety and Health Administration, 30 CFR 
77.216-1 and 77.216-2, and shall contain the results of a geotechnical 
investigation of the proposed dam or embankment foundation area, to 
determine the structural competence of the foundation which will 
support the proposed dam or embankment structure and the impounded 
material. The geotechnical investigation shall be planned and 
supervised by an engineer or engineering geologist, according to the 
following:
    (1) The number, location, and depth of borings and test pits shall 
be determined using current prudent engineering practice for the size 
of the dam or embankment, quantity of material to be impounded, and 
subsurface conditions.
    (2) The character of the overburden and bedrock, the proposed 
abutment sites, and any adverse geotechnical conditions which may 
affect the particular dam, embankment, or reservoir site shall be 
considered.
    (3) All springs, seepage, and ground water flow observed or 
anticipated during wet periods in the area of the proposed dam or 
embankment shall be identified on each plan.
    (4) Consideration shall be given to the possibility of mudflows, 
rock-debris falls, or other landslides into the dam, embankment, or 
impounded material.
    (f) If the structure meets the Class B or C criteria for dams in 
TR-60 or meets the size or other criteria of Sec.  77.216(a) of this 
chapter, each plan under paragraphs (b), (c), and (e) of this section 
shall include a stability analysis of the structure. The stability 
analysis shall include, but not be limited to, strength parameters, 
pore pressures, and long-term seepage conditions. The plan shall also 
contain a description of each engineering design assumption and 
calculation with a discussion of each alternative considered in 
selecting the specific design parameters and construction methods.


Sec.  780.27  Reclamation plan: Surface mining near underground mining.

    For surface mining activities within the proposed permit area to be 
conducted within 500 feet of an underground mine, the application shall 
describe the measures to be used to comply with 30 CFR 816.79.


Sec.  780.28   [Reserved]


Sec.  780.29  Diversions.

    Each application shall contain descriptions, including maps and 
cross sections, of stream channel diversions and other diversions to be 
constructed within the proposed permit area to achieve compliance with 
30 CFR 816.43 of this chapter.


Sec.  780.31  Protection of publicly owned parks and historic places.

    (a) For any publicly owned parks or any places listed on the 
National Register of Historic Places that may be adversely affected by 
the proposed operation, each plan shall describe the measures to be 
used--
    (1) To prevent adverse impacts, or
    (2) If a person has valid existing rights, as determined under 
Sec.  761.16 of this chapter, or if joint agency approval is to be 
obtained under Sec.  761.17(d) of this chapter, to minimize adverse 
impacts.
    (b) The regulatory authority may require the applicant to protect 
historic or archeological properties listed on or eligible for listing 
on the National Register of Historic Places through appropriate 
mitigation and treatment measures. Appropriate mitigation and treatment 
measures may be required to be taken after permit issuance provided 
that the required measures are completed before the properties are 
affected by any mining operation.


Sec.  780.33  Relocation or use of public roads.

    Each application shall describe, with appropriate maps and cross-
sections, the measures to be used to ensure that the interests of the 
public and landowners affected are protected if, under Sec.  761.14 of 
this chapter, the applicant seeks to have the regulatory authority 
approve--
    (a) Conducting the proposed surface mining activities within 100 
feet of the right-of-way line of any public road, except where mine 
access or haul roads join that right-of-way; or
    (b) Relocating a public road.


Sec.  780.35  Disposal of excess spoil.

    (a) Each application shall contain descriptions, including 
appropriate maps and cross section drawings, of the proposed disposal 
site and design of the spoil disposal structures according to 30 CFR 
816.71-816.74. These plans shall describe the geotechnical 
investigation, design, construction, operation, maintenance, and 
removal, if appropriate, of the site and structures.
    (b) Except for the disposal of excess spoil on pre existing 
benches, each application shall contain the results of a geotechnical 
investigation of the

[[Page 54956]]

proposed disposal site, including the following:
    (1) The character of bedrock and any adverse geologic conditions in 
the disposal area,
    (2) A survey identifying all springs, seepage, and ground water 
flow observed or anticipated during wet periods in the area of the 
disposal site;
    (3) A survey of the potential effects of subsidence of the 
subsurface strata due to past and future mining operations;
    (4) A technical description of the rock materials to be utilized in 
the construction of those disposal structures containing rock chimney 
cores or underlain by a rock drainage blanket; and
    (5) A stability analysis including, but not limited to, strength 
parameters, pore pressures and long-term seepage conditions. These data 
shall be accompanied by a description of all engineering design 
assumptions and calculations and the alternatives considered in 
selecting the specific design specifications and methods.
    (c) If, under 30 CFR 816.71(d), rock-toe buttresses or key-way cuts 
are required, the application shall include the following:
    (1) The number, location, and depth of borings or test pits which 
shall be determined with respect to the size of the spoil disposal 
structure and subsurface conditions; and
    (2) Engineering specifications utilized to design the rock-toe 
buttress or key-way cuts which shall be determined in accordance with 
paragraph (b)(5) of this section.


Sec.  780.37  Road systems.

    (a) Plans and drawings. Each applicant for a surface coal mining 
and reclamation permit shall submit plans and drawings for each road, 
as defined in Sec.  701.5 of this chapter, to be constructed, used, or 
maintained within the proposed permit area. The plans and drawings 
shall--
    (1) Include a map, appropriate cross sections, design drawings and 
specifications for road widths, gradients, surfacing materials, cuts, 
fill embankments, culverts, bridges, drainage ditches, low-water 
crossings, and drainage structures;
    (2) Contain the drawings and specifications of each proposed road 
that is located in the channel of an intermittent or perennial stream, 
as necessary for approval of the road by the regulatory authority in 
accordance with Sec.  816.150(d)(1) of this chapter;
    (3) Contain the drawings and specifications for each proposed ford 
of perennial or intermittent streams that is used as a temporary route, 
as necessary for approval of the ford by the regulatory authority in 
accordance with Sec.  816.151(c)(2) of this chapter;
    (4) Contain a description of measures to be taken to obtain 
approval of the regulatory authority for alteration or relocation of a 
natural stream channel under Sec.  816.151(d)(5) of this chapter;
    (5) Contain the drawings and specifications for each low-water 
crossing of perennial or intermittent stream channels so that the 
regulatory authority can maximize the protection of the stream in 
accordance with Sec.  816.151(d)(6) of this chapter; and
    (6) Describe the plans to remove and reclaim each road that would 
not be retained under an approved postmining land use, and the schedule 
for this removal and reclamation.
    (b) Primary road certification. The plans and drawings for each 
primary road shall be prepared by, or under the direction of, and 
certified by a qualified registered professional engineer, or in any 
State which authorizes land surveyors to certify the design of primary 
roads a qualified registered professional land surveyor, with 
experience in the design and construction of roads, as meeting the 
requirements of this chapter; current, prudent engineering practices; 
and any design criteria established by the regulatory authority.
    (c) Standard design plans. The regulatory authority may establish 
engineering design standards for primary roads through the State 
program approval process, in lieu of engineering tests, to establish 
compliance with the minimum static safety factor of 1.3 for all 
embankments specified in Sec.  816.151(b) of this chapter.


Sec.  780.38  Support facilities.

    Each applicant for a surface coal mining and reclamation permit 
shall submit a description, plans, and drawings for each support 
facility to be constructed, used, or maintained within the proposed 
permit area. The plans and drawings shall include a map, appropriate 
cross sections, design drawings, and specifications sufficient to 
demonstrate compliance with Sec.  816.181 of this chapter for each 
facility.

0
8. Revise part 783 to read as follows:

PART 783--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM 
REQUIREMENTS FOR INFORMATION ON ENVIRONMENTAL RESOURCES

Sec.
783.1 Scope.
783.2 Objectives.
783.4 Responsibilities.
783.10 Information collection.
783.11 General requirements.
783.12 General environmental resources information.
783.18 Climatological information.
783.19 Vegetation information.
783.20 [Reserved]
783.21 Soil resources information.
783.24 Maps: General requirements.
783.25 Cross sections, maps, and plans.

    Authority:  30 U.S.C. 1201 et seq.; sec. 115 of Pub. L. 98-146, 
(30 U.S.C. 1257), and 16 U.S.C. 470 et seq.


Sec.  783.1  Scope.

    This part establishes the minimum requirements for the Secretary's 
approval of regulatory program provisions for the environmental 
resources contents of applications for permits for underground mining 
activities.


Sec.  783.2  Objectives.

    The objectives of this part are to ensure that each application 
provides to the regulatory authority a complete and accurate 
description of the environmental resources that may be impacted or 
affected by proposed underground mining activities.


Sec.  783.4  Responsibilities.

    (a) It is the responsibility of the applicant to provide, except 
where specifically exempted in this part, all information required by 
this part in the application.
    (b) It is the responsibility of State and Federal Government 
agencies to provide information for applications as specifically 
required by this part.


Sec.  783.10  Information collection.

    The information collection requirements contained in 30 CFR 783.11, 
783.12, 783.13, 783.14, 783.15, 783.16, 783.17, 783.18, 783.19, 783.21, 
783.22, 783.23, 783.24 and 783.25 have been approved by the Office of 
Management and Budget under 44 U.S.C. 3507 and assigned clearance 
number 1029-0038. The information is being collected to meet the 
requirements of sections 507 and 508 of Pub. L. 95-87, which require 
the permit applicant to present an adequate description of the existing 
pre-mining environmental resources within and around the proposed mine 
plan area. This information will be used by the regulatory authority to 
determine whether the applicant can comply with the performance 
standards for underground mining. The obligation to respond is 
mandatory.


Sec.  783.11  General requirements.

    Each permit application shall include a description of the 
existing, premining environmental resources within the

[[Page 54957]]

proposed permit area and adjacent areas that may be affected or 
impacted by the proposed underground mining activities.


Sec.  783.12  General environmental resources information.

    Each application shall describe and identify--
    (a) The lands subject to surface coal mining operations over the 
estimated life of those operations and the size, sequence, and timing 
of the subareas for which it is anticipated that individual permits for 
mining will be sought; and
    (b) The nature of cultural historic and archeological resources 
listed or eligible for listing on the National Register of Historic 
Places and known archeological sites within the proposed permit and 
adjacent areas.
    (1) The description shall be based on all available information, 
including, but not limited to, information from the State Historic 
Preservation Officer and local archeological, historical, and cultural 
preservation groups.
    (2) The regulatory authority may require the applicant to identify 
and evaluate important historic and archeological resources that may be 
eligible for listing on the National Register of Historic Places, 
through the--
    (i) Collection of additional information,
    (ii) Conduct of field investigations, or
    (iii) Other appropriate analyses.


Sec.  783.18  Climatological information.

    (a) When requested by the regulatory authority, the application 
shall contain a statement of the climatological factors that are 
representative of the proposed permit area, including--
    (1) The average seasonal precipitation;
    (2) The average direction and velocity of prevailing winds; and
    (3) Seasonal temperature ranges.
    (b) The regulatory authority may request such additional data as 
deemed necessary to ensure compliance with the requirements of this 
subchapter.


Sec.  783.19  Vegetation information.

    (a) The permit application shall, if required by the regulatory 
authority, contain a map that delineates existing vegetative types and 
a description of the plant communities within the area affected by 
surface operations and facilities and within any proposed reference 
area. This description shall include information adequate to predict 
the potential for reestablishing vegetation.
    (b) When a map or aerial photograph is required, sufficient 
adjacent areas shall be included to allow evaluation of vegetation as 
important habitat for fish and wildlife for those species of fish and 
wildlife identified under 30 CFR 784.21.


Sec.  783.20   [Reserved]


Sec.  783.21  Soil resources information.

    (a) The applicant shall provide adequate soil survey information on 
those portions of the permit area to be affected by surface operations 
or facilities consisting of the following:
    (1) A map delineating different soils;
    (2) Soil identification;
    (3) Soil description; and
    (4) Present and potential productivity of existing soils.
    (b) Where the applicant proposes to use selected overburden 
materials as a supplement or substitute for topsoil, the application 
shall provide results of the analyses, trials and tests required under 
30 CFR 817.22.


Sec.  783.24  Maps: General requirements.

    The permit application shall include maps showing:
    (a) All boundaries of lands and names of present owners of record 
of those lands, both surface and sub-surface, included in or contiguous 
to the permit area;
    (b) The boundaries of land within the proposed permit area upon 
which the applicant has the legal right to enter and begin underground 
mining activities;
    (c) The boundaries of all areas proposed to be affected over the 
estimated total life of the underground mining activities, with a 
description of size, sequence and timing of the mining of sub-areas for 
which it is anticipated that additional permits will be sought;
    (d) The location of all buildings in and within 1000 feet of the 
proposed permit area, with identification of the current use of the 
buildings;
    (e) The location of surface and sub-surface man-made features 
within, passing through, or passing over the proposed permit area, 
including, but not limited to, major electric transmission lines, 
pipelines, and agricultural drainage tile fields;
    (f) The location and boundaries of any proposed reference areas for 
determining the success of revegetation;
    (g) The locations of water supply intakes for current users of 
surface waters flowing into, out of, and within a hydrologic area 
defined by the regulatory authority, and those surface waters which 
will receive discharges from affected areas in the proposed permit 
area;
    (h) Each public road located in or within 100 feet of the proposed 
permit area;
    (i) The boundaries of any public park and locations of any cultural 
or historical resources listed or eligible for listing in the National 
Register of Historic Places and known archeological sites within the 
permit and adjacent areas.
    (j) Each cemetery that is located in or within 100 feet of the 
proposed permit area.
    (k) Any land within the proposed permit area which is within the 
boundaries of any units of the National System of Trails or the Wild 
and Scenic Rivers System, including study rivers designated under 
section 5(a) of the Wild and Scenic Rivers Act; and
    (l) Other relevant information required by the regulatory 
authority.


Sec.  783.25  Cross sections, maps, and plans.

    (a) The application shall include cross sections, maps, and plans 
showing--
    (1) Elevations and locations of test borings and core samplings;
    (2) Elevations and locations of monitoring stations used to gather 
data on water quality and quantity, fish and wildlife, and air quality, 
if required, in preparation of the application.
    (3) Nature, depth, and thickness of the coal seams to be mined, any 
coal or rider seams above the seam to be mined, each stratum of the 
overburden, and the stratum immediately below the lowest coal seam to 
be mined;
    (4) All coal crop lines and the strike and dip of the coal to be 
mined within the proposed permit area;
    (5) Location and extent of known workings of active, inactive, or 
abandoned underground mines, including mine openings to the surface 
within the proposed permit and adjacent areas;
    (6) Location and extent of sub-surface water, if encountered, 
within the proposed permit or adjacent areas, including, but not 
limited to areal and vertical distribution of aquifers, and portrayal 
of seasonal differences of head in different aquifers on cross-sections 
and contour maps;
    (7) Location of surface water bodies such as streams, lakes, ponds, 
springs, constructed or natural drains, and irrigation ditches within 
the proposed permit and adjacent areas;
    (8) Location and extent of existing or previously surface-mined 
areas within the proposed permit area;
    (9) Location and dimensions of existing areas of spoil, waste, coal 
development waste, and non-coal waste disposal, dams, embankments, 
other impoundments, and water treatment and air pollution control 
facilities within the proposed permit area;
    (10) Location, and depth if available, of gas and oil wells within 
the proposed permit area and water wells in the permit area and 
adjacent areas;

[[Page 54958]]

    (b) Cross-sections, maps and plans included in a permit application 
as required by this section shall be prepared by, or under the 
direction of, and certified by a qualified, registered, professional 
engineer, a professional geologist, or in any State which authorizes 
land surveyors to prepare and certify such cross sections, maps and 
plans, a qualified, registered, professional, land surveyor, with 
assistance from experts in related fields such as landscape 
architecture, and shall be updated as required by the regulatory 
authority.

0
9. Revise part 784 to read as follows:

PART 784--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM 
REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN

Sec.
784.1 Scope.
784.2 Objectives.
784.4 Responsibilities.
784.10 Information collection.
784.11 Operation plan: General requirements.
784.12 Operation plan: Existing structures.
784.13 Reclamation plan: General requirements.
784.14 Hydrologic information.
784.15 Reclamation plan: Land use information.
784.16 Reclamation plan: Siltation structures, impoundments, banks, 
dams, and embankments.
784.17 Protection of publicly owned parks and historic places.
784.18 Relocation or use of public roads.
784.19 Underground development waste.
784.20 Subsidence control plan.
784.21 Fish and wildlife information.
784.22 Geologic information.
784.23 Operation plan: Maps and plans.
784.24 Road systems.
784.25 Return of coal processing waste to abandoned underground 
workings.
784.26 Air pollution control plan.
784.29 Diversions.
784.30 Support facilities.
784.200 Interpretive rules related to General Performance Standards.

    Authority:  30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.


Sec.  784.1  Scope.

    This part provides the minimum requirements for the Secretary's 
approval of regulatory program provisions for the mining operations and 
reclamation plans portions of applications for permits for underground 
mining activities, except to the extent that different requirements for 
those plans are established under 30 CFR part 785.


Sec.  784.2  Objectives.

    The objectives of this part are to ensure that the regulatory 
authority is provided with comprehensive and reliable information on 
proposed underground mining activities, and to ensure that those 
activities are allowed to be conducted only in compliance with the Act, 
this chapter, and the regulatory program.


Sec.  784.4  Responsibilities.

    (a) It is the responsibility of the applicant to provide to the 
regulatory authority all of the information required by this part, 
except where specifically exempted in this part.
    (b) It is the responsibility of State and Federal governmental 
agencies to provide information to the regulatory authority where 
specifically required in this part.


Sec.  784.10  Information collection.

    (a) The collections of information contained in part 784 have been 
approved by Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0039. The information will be 
used to meet the requirements of 30 U.S.C. 1211(b), 1251, 1257, 1258, 
1266, and 1309a. The obligation to respond is required to obtain a 
benefit.
    (b) Public reporting burden for this information is estimated to 
average 513 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.


Sec.  784.11  Operation plan: General requirements.

    Each application shall contain a description of the mining 
operations proposed to be conducted during the life of the mine within 
the proposed permit area, including, at a minimum, the following:
    (a) A narrative description of the type and method of coal mining 
procedures and proposed engineering techniques, anticipated annual and 
total production of coal, by tonnage, and the major equipment to be 
used for all aspects of those operations; and
    (b) A narrative explaining the construction, modification, use, 
maintenance, and removal of the following facilities (unless retention 
of such facility is necessary for postmining land use as specified in 
Sec.  817.133):
    (1) Dams, embankments, and other impoundments;
    (2) Overburden and topsoil handling and storage areas and 
structures;
    (3) Coal removal, handling, storage, cleaning, and transportation 
areas and structures;
    (4) Spoil, coal processing waste, mine development waste, and non-
coal waste removal, handling, storage, transportation, and disposal 
areas and structures;
    (5) Mine facilities; and
    (6) Water pollution control facilities.


Sec.  784.12  Operation plan: Existing structures.

    (a) Each application shall contain a description of each existing 
structure proposed to be used in connection with or to facilitate the 
surface coal mining and reclamation operation. The description shall 
include:
    (1) Location;
    (2) Plans of the structure which describe its current condition;
    (3) Approximate dates on which construction of the existing 
structure was begun and completed; and
    (4) A showing, including relevant monitoring data or other 
evidence, whether the structure meets the performance standards of 
subchapter K (Permanent Program Standards) of this chapter or, if the 
structure does not meet the performance standards of subchapter K of 
this chapter, a showing whether the structure meets the performance 
standards of subchapter B (Interim Program Standards) of this chapter.
    (b) Each application shall contain a compliance plan for each 
existing structure proposed to be modified or reconstructed for use in 
connection with or to facilitate the surface coal mining and 
reclamation operation. The compliance plan shall include--
    (1) Design specifications for the modification or reconstruction of 
the structure to meet the design and performance standards of 
subchapter K of this chapter;
    (2) A construction schedule which shows dates for beginning and 
completing interim steps and final reconstruction;
    (3) Provisions for monitoring the structure during and after 
modification or reconstruction to ensure that the performance standards 
of subchapter K of this chapter are met; and
    (4) A showing that the risk of harm to the environment or to public 
health or safety is not significant during the period of modification 
or reconstruction.


Sec.  784.13  Reclamation plan: General requirements.

    (a) Each application shall contain a plan for the reclamation of 
the lands within the proposed permit area, showing how the applicant 
will comply with sections 515 and 516 of the Act, subchapter K of this 
chapter, and the environmental protection performance standards of the 
regulatory program.

[[Page 54959]]

The plan shall include, at a minimum, all information required under 30 
CFR 784.13 through 784.26.
    (b) Each plan shall contain the following information for the 
proposed permit area;
    (1) A detailed timetable for the completion of each major step in 
the reclamation plan;
    (2) A detailed estimate of the cost of the reclamation of the 
proposed operations required to be covered by a performance bond under 
subchapter J of this chapter, with supporting calculations for the 
estimates;
    (3) A plan for backfilling, soil stabilization, compacting and 
grading, with contour maps or cross sections that show the anticipated 
final surface configuration of the proposed permit area, in accordance 
with 30 CFR 817.102 through 817.107;
    (4) A plan for removal, storage, and redistribution of topsoil, 
subsoil, and other material to meet the requirements of Sec.  817.22 of 
this chapter. A demonstration of the suitability of topsoil substitutes 
or supplements under Sec.  817.22(b) of this chapter shall be based 
upon analysis of the thickness of soil horizons, total depth, texture, 
percent coarse fragments, pH, and areal extent of the different kinds 
of soils. The regulatory authority may require other chemical and 
physical analyses, field-site trials, or greenhouse tests if determined 
to be necessary or desirable to demonstrate the suitability of the 
topsoil substitutes or supplements.
    (5) A plan for revegetation as required in 30 CFR 817.111 through 
817.116, including, but not limited to, descriptions of the--
    (i) Schedule of revegetation;
    (ii) Species and amounts per acre of seeds and seedlings to be 
used;
    (iii) Methods to be used in planting and seeding;
    (iv) Mulching techniques;
    (v) Irrigation, if appropriate, and pest and disease control 
measures, if any;
    (vi) Measures proposed to be used to determine the success of 
revegetation as required in 30 CFR 817.116; and,
    (vii) A soil testing plan for evaluation of the results of topsoil 
handling and reclamation procedures related to revegetation.
    (6) A description of the measures to be used to maximize the use 
and conservation of the coal resource as required in 30 CFR 817.59;
    (7) A description of measures to be employed to ensure that all 
debris, acid-forming and toxic-forming materials, and materials 
constituting a fire hazard are disposed of in accordance with 30 CFR 
817.89 and 817.102 and a description of the contingency plans which 
have been developed to preclude sustained combustion of such materials;
    (8) A description, including appropriate cross sections and maps, 
of the measures to be used to seal or manage mine openings, and to 
plug, case or manage exploration holes, other bore holes, wells and 
other openings within the proposed permit area, in accordance with 30 
CFR 817.13-817.15; and
    (9) A description of steps to be taken to comply with the 
requirements of the Clean Air Act (42 U.S.C. 7401 et seq.), the Clean 
Water Act (33 U.S.C. 1251 et seq.), and other applicable air and water 
quality laws and regulations and health and safety standards.


Sec.  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 OSM 
Administrative Record, U.S. Department of the Interior, Room 5315, 1100 
L Street NW., Washington, DC; at the OSM Eastern Technical Service 
Center, U.S. Department of the Interior, Building 10, Parkway Center, 
Pittsburgh, Pa.; at the OSM Western Technical Service Center, U.S. 
Department of the Interior, Brooks Tower, 1020 15th Street, Denver, 
Colo or at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. 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 (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

[[Page 54960]]

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;
    (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;
    (iv) Whether the underground mining activities conducted after 
October 24, 1992 may result in contamination, diminution or 
interruption of a well or spring in existence at the time the permit 
application is submitted and used for domestic, drinking, or 
residential purposes within the permit or adjacent areas.
    (4) An application for a permit revision shall be reviewed by the 
regulatory authority to determine whether a new or updated PHC 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 of this chapter, including Sec. Sec.  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; and control drainage. 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

[[Page 54961]]

authority may require additional monitoring.


Sec.  784.15  Reclamation plan: Land use information.

    (a) The plan shall contain a statement of the condition, 
capability, and productivity of the land within the proposed permit 
area, including:
    (1) A map and supporting narrative of the uses of the land existing 
at the time of the filing of the application. If the premining use of 
the land was changed within 5 years before the anticipated date of 
beginning the proposed operations, the historic use of the land shall 
also be described. In the case of previously mined land, the use of the 
land prior to any mining shall also be described to the extent such 
information is available.
    (2) A narrative of land capability and productivity, which analyzes 
the land-use description under paragraph (a) of this section in 
conjunction with other environmental resources information. The 
narrative shall provide analyses of:
    (i) The capability of the land before any mining to support a 
variety of uses, giving consideration to soil and foundation 
characteristics, topography, vegetative cover, and the hydrology of the 
proposed permit area; and
    (ii) The productivity of the proposed permit area before mining, 
expressed as average yield of food, fiber, forage, or wood products 
from such lands obtained under high levels of management. The 
productivity shall be determined by yield data or estimates for similar 
sites based on current data from the U.S. Department of Agriculture, 
State agricultural universities, or appropriate State natural resource 
or agricultural agencies.
    (b) Each plan shall contain a detailed description of the proposed 
use, following reclamation, of the land within the proposed permit area 
including a discussion of the utility and capacity of the reclaimed 
land to support a variety of alternative uses, and the relationship of 
the proposed use to existing land use policies and plans. This 
description shall explain:
    (1) How the proposed postmining land use is to be achieved and the 
necessary support activities which may be needed to achieve the 
proposed land use; and
    (2) Where a land use different from the premining land use is 
proposed, all materials needed for approval of the alternative use 
under 30 CFR 817.133.
    (3) The consideration which has been given to making all of the 
proposed surface mining activities consistent with surface owner plans 
and applicable State and local land use plans and programs.
    (c) The description shall be accompanied by a copy of the comments 
concerning the proposed use by the legal or equitable owner of record 
of the surface of the proposed permit area and the State and local 
government agencies which would have to initiate, implement, approve, 
or authorize the proposed use of the land following reclamation.


Sec.  784.16  Reclamation plan: Siltation structures, impoundments, 
banks, dams, and embankments.

    (a) General. Each application shall include a general plan and a 
detailed design plan for each proposed siltation structure, water 
impoundment, and coal processing waste bank, dam, or embankment within 
the proposed permit area.
    (1) Each general plan shall--
    (i) Be prepared by, or under the direction of, and certified by a 
qualified, registered, professional engineer, a professional geologist, 
or in any State which authorizes land surveyors to prepare and certify 
such plans, a qualified, registered, professional, land surveyor with 
assistance from experts in related fields such as landscape 
architecture;
    (ii) Contain a description, map, and cross section of the structure 
and its location;
    (iii) Contain preliminary hydrologic and geologic information 
required to assess the hydrologic impact of the structure;
    (iv) Contain a survey describing the potential effect on the 
structure from subsidence of the subsurface strata resulting from past 
underground mining operations if underground mining has occurred; and
    (v) Contain a certification statement which includes a schedule 
setting forth the dates when any detailed design plans for structures 
that are not submitted with the general plan will be submitted to the 
regulatory authority. The regulatory authority shall have approved, in 
writing, the detailed design plan for a structure before construction 
of the structure begins.
    (2) Impoundments meeting the Class B or C criteria for dams in the 
U.S. Department of Agriculture, Soil Conservation Service Technical 
Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' 
Technical Release No. 60 (TR-60) shall comply with the requirements of 
this section for structures that meet or exceed the size or other 
criteria of the Mine Safety and Health Administration (MSHA). The 
technical release is hereby incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. TR-60 
may be viewed or downloaded from OSM's Web site at http://www.osmre.gov/programs/TDT/damsafety.shtm. It also is available for 
inspection at the OSM Headquarters Office, Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, Room 252, 1951 
Constitution Ave. NW., Washington, DC or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Each detailed design plan for a structure that 
meets or exceeds the size or other criteria of MSHA, Sec.  77.216(a) of 
this chapter shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (ii) Include any geotechnical investigation, design, and 
construction requirements for the structure;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
    (3) Each detailed design plan for structures not included in 
paragraph (a)(2) of this section shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified, registered, professional engineer, or in any State which 
authorizes land surveyors to prepare and certify such plans, a 
qualified, registered, professional, land surveyor, except that all 
coal processing waste dams and embankments covered by Sec. Sec.  817.81 
through 817.84 of this chapter shall be certified by a qualified, 
registered, professional engineer;
    (ii) Include any design and construction requirements for the 
structure, including any required geotechnical information;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
    (b) Siltation structures. Siltation structures shall be designed in 
compliance with the requirements of Sec.  817.46 of this chapter.
    (c) Permanent and temporary impoundments. (1) Permanent and 
temporary impoundments shall be

[[Page 54962]]

designed to comply with the requirements of Sec.  817.49 of this 
chapter.
    (2) Each plan for an impoundment meeting the size of other criteria 
of the Mine Safety and Health Administration shall comply with the 
requirements of Sec. Sec.  77.216-1 and 77.216-2 of this title. The 
plan required to be submitted to the District Manager of MSHA under 
Sec.  77.216 of this title shall be submitted to the regulatory 
authority as part of the permit application in accordance with 
paragraph (a) of this section.
    (3) For impoundments not included in paragraph (a)(2) of this 
section the regulatory authority may establish through the State 
program approval process engineering design standards that ensure 
stability comparable to a 1.3 minimum static safety factor in lieu of 
engineering tests to establish compliance with the minimum static 
safety factor of 1.3 specified in Sec.  817.49(a)(4)(ii) of this 
chapter.
    (d) Coal processing waste banks. Coal processing waste banks shall 
be designed to comply with the requirements of 30 CFR 817.81 through 
817.84.
    (e) Coal processing waste dams and embankments. Coal processing 
waste dams and embankments shall be designed to comply with the 
requirements of 30 CFR 817.81 through 817.84. Each plan shall comply 
with the requirements of the Mine Safety and Health Administration, 30 
CFR 77.216-1 and 77.216-2, and shall contain the results of a 
geotechnical investigation of the proposed dam or embankment foundation 
area, to determine the structural competence of the foundation which 
will support the proposed dam or embankment structure and the impounded 
material. The geotechnical investigation shall be planned and 
supervised by an engineer or engineering geologist, according to the 
following:
    (1) The number, location, and depth of borings and test pits shall 
be determined using current prudent engineering practice for the size 
of the dam or embankment, quantity of material to be impounded, and 
subsurface conditions.
    (2) The character of the overburden and bedrock, the proposed 
abutment sites, and any adverse geotechnical conditions which may 
affect the particular dam, embankment, or reservoir site shall be 
considered.
    (3) All springs, seepage, and ground water flow observed or 
anticipated during wet periods in the area of the proposed dam or 
embankment shall be identified on each plan.
    (4) Consideration shall be given to the possibility of mudflows, 
rock-debris falls, or other landslides into the dam, embankment, or 
impounded material.
    (f) If the structure meets the Class B or C criteria for dams in 
TR-60 or meets the size or other criteria of Sec.  77.216(a) of this 
chapter, each plan under paragraphs (b), (c), and (e) of this section 
shall include a stability analysis of the structure. The stability 
analysis shall include, but not be limited to, strength parameters, 
pore pressures, and long-term seepage conditions. The plan shall also 
contain a description of each engineering design assumption and 
calculation with a discussion of each alternative considered in 
selecting the specific design parameters and construction methods.


Sec.  784.17  Protection of publicly owned parks and historic places.

    (a) For any publicly owned parks or any places listed on the 
National Register of Historic Places that may be adversely affected by 
the proposed operation, each plan shall describe the measures to be 
used.
    (1) To prevent adverse impacts, or
    (2) If a person has valid existing rights, as determined under 
Sec.  761.16 of this chapter, or if joint agency approval is to be 
obtained under Sec.  761.17(d) of this chapter, to minimize adverse 
impacts.
    (b) The regulatory authority may require the applicant to protect 
historic and archeological properties listed on or eligible for listing 
on the National Register of Historic Places through appropriate 
mitigation and treatment measures. Appropriate mitigation and treatment 
measures may be required to be taken after permit issuance provided 
that the required measures are completed before the properties are 
affected by any mining operation.


Sec.  784.18  Relocation or use of public roads.

    Each application shall describe, with appropriate maps and cross 
sections, the measures to be used to ensure that the interests of the 
public and landowners affected are protected if, under Sec.  761.14 of 
this chapter, the applicant seeks to have the regulatory authority 
approve--
    (a) Conducting the proposed surface coal mining operations within 
100 feet of the right-of-way line of any public road, except where mine 
access or haul roads join that right-of-way; or
    (b) Relocating a public road.


Sec.  784.19  Underground development waste.

    Each plan shall contain descriptions, including appropriate maps 
and cross section drawings of the proposed disposal methods and sites 
for placing underground development waste and excess spoil generated at 
surface areas affected by surface operations and facilities, according 
to 30 CFR 817.71 through 817.74. Each plan shall describe the 
geotechnical investigation, design, construction, operation, 
maintenance and removal, if appropriate, of the structures and be 
prepared according to 30 CFR 780.35.


Sec.  784.20  Subsidence control plan.

    (a) Pre-subsidence survey. Each application must include:
    (1) A map of the permit and adjacent areas at a scale of 1:12,000, 
or larger if determined necessary by the regulatory authority, showing 
the location and type of structures and renewable resource lands that 
subsidence may materially damage or for which the value or reasonably 
foreseeable use may be diminished by subsidence, and showing the 
location and type of drinking, domestic, and residential water supplies 
that could be contaminated, diminished, or interrupted by subsidence.
    (2) A narrative indicating whether subsidence, if it occurred, 
could cause material damage to or diminish the value or reasonably 
foreseeable use of such structures or renewable resource lands or could 
contaminate, diminish, or interrupt drinking, domestic, or residential 
water supplies.
    (3) A survey of the condition of all non-commercial buildings or 
occupied residential dwellings and structures related thereto, that may 
be materially damaged or for which the reasonably foreseeable use may 
be diminished by subsidence, within the area encompassed by the 
applicable angle of draw; as well as a survey of the quantity and 
quality of all drinking, domestic, and residential water supplies 
within the permit area and adjacent area that could be contaminated, 
diminished, or interrupted by subsidence. If the applicant cannot make 
this survey because the owner will not allow access to the site, the 
applicant will notify the owner, in writing, of the effect that denial 
of access will have as described in Sec.  817.121(c)(4) of this 
chapter. The applicant must pay for any technical assessment or 
engineering evaluation used to determine the pre-mining condition or 
value of such non-commercial buildings or occupied residential 
dwellings and structures related thereto and the quantity and quality 
of drinking, domestic, or residential water supplies. The applicant 
must provide copies of the survey and any technical assessment or 
engineering evaluation to the property owner and regulatory authority. 
However, the requirements to perform a survey of the condition of all 
noncommercial buildings or occupied

[[Page 54963]]

residential dwellings and structures related thereto, that may be 
materially damaged or for which the reasonably foreseeable use may be 
diminished by subsidence, within the areas encompassed by the 
applicable angle of draw is suspended per court order.
    (b) Subsidence control plan. If the survey conducted under 
paragraph (a) of this section shows that no structures, or drinking, 
domestic, or residential water supplies, or renewable resource lands 
exist, or that no material damage or diminution in value or reasonably 
foreseeable use of such structures or lands, and no contamination, 
diminution, or interruption of such water supplies would occur as a 
result of mine subsidence, and if the regulatory authority agrees with 
this conclusion, no further information need be provided under this 
section. If the survey shows that structures, renewable resource lands, 
or water supplies exist and that subsidence could cause material damage 
or diminution in value or reasonably foreseeable use, or contamination, 
diminution, or interruption of protected water supplies, or if the 
regulatory authority determines that damage, diminution in value or 
foreseeable use, or contamination, diminution, or interruption could 
occur, the application must include a subsidence control plan that 
contains the following information:
    (1) A description of the method of coal removal, such as longwall 
mining, room-and-pillar removal or hydraulic mining, including the 
size, sequence and timing of the development of underground workings;
    (2) A map of the underground workings that describes the location 
and extent of the areas in which planned-subsidence mining methods will 
be used and that identifies all areas where the measures described in 
paragraphs (b)(4), (b)(5), and (b)(7) of this section will be taken to 
prevent or minimize subsidence and subsidence-related damage; and, when 
applicable, to correct subsidence-related material damage;
    (3) A description of the physical conditions, such as depth of 
cover, seam thickness and lithology of overlaying strata, that affect 
the likelihood or extent of subsidence and subsidence-related damage;
    (4) A description of the monitoring, if any, needed to determine 
the commencement and degree of subsidence so that, when appropriate, 
other measures can be taken to prevent, reduce or correct material 
damage in accordance with Sec.  817.121(c) of this chapter;
    (5) Except for those areas where planned subsidence is projected to 
be used, a detailed description of the subsidence control measures that 
will be taken to prevent or minimize subsidence and subsidence-related 
damage, such as, but not limited to:
    (i) Backstowing or backfilling of voids;
    (ii) Leaving support pillars of coal;
    (iii) Leaving areas in which no coal is removed, including a 
description of the overlying area to be protected by leaving coal in 
place; and
    (iv) Taking measures on the surface to prevent or minimize material 
damage or diminution in value of the surface;
    (6) A description of the anticipated effects of planned subsidence, 
if any;
    (7) For those areas where planned subsidence is projected to be 
used, a description of methods to be employed to minimize damage from 
planned subsidence to non-commercial buildings and occupied residential 
dwellings and structures related thereto; or the written consent of the 
owner of the structure or facility that minimization measures not be 
taken; or, unless the anticipated damage would constitute a threat to 
health or safety, a demonstration that the costs of minimizing damage 
exceed the anticipated costs of repair;
    (8) A description of the measures to be taken in accordance with 
Sec. Sec.  817.41(j) and 817.121(c) of this chapter to replace 
adversely affected protected water supplies or to mitigate or remedy 
any subsidence-related material damage to the land and protected 
structures; and
    (9) Other information specified by the regulatory authority as 
necessary to demonstrate that the operation will be conducted in 
accordance with Sec.  817.121 of this chapter.


Sec.  784.21  Fish and wildlife information.

    (a) Resource information. Each application shall include fish and 
wildlife resource information for the permit area and adjacent area.
    (1) The scope and level of detail for such information shall be 
determined by the regulatory authority in consultation with State and 
Federal agencies with responsibilities for fish and wildlife and shall 
be sufficient to design the protection and enhancement plan required 
under paragraph (b) of this section.
    (2) Site-specific resource information necessary to address the 
respective species or habitats shall be required when the permit area 
or adjacent area is likely to include:
    (i) Listed or proposed endangered or threatened species of plants 
or animals or their critical habitats listed by the Secretary under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), or 
those species or habitats protected by similar State statutes;
    (ii) Habitats of unusually high value for fish and wildlife such as 
important streams, wetlands, riparian areas, cliffs supporting raptors, 
areas offering special shelter or protection, migration routes, or 
reproduction and wintering areas; or
    (iii) Other species or habitats identified through agency 
consultation as requiring special protection under State or Federal 
law.
    (b) Protection and enhancement plan. Each application shall include 
a description of how, to the extent possible using the best technology 
currently available, the operator will minimize disturbances and 
adverse impacts on fish and wildlife and related environmental values, 
including compliance with the Endangered Species Act, during the 
surface coal mining and reclamation operations and how enhancement of 
these resources will be achieved where practicable. This description 
shall--
    (1) Be consistent with the requirements of Sec.  817.97 of this 
chapter;
    (2) Apply, at a minimum, to species and habitats identified under 
paragraph (a) of this section; and
    (3) Include--
    (i) Protective measures that will be used during the active mining 
phase of operation. Such measures may include the establishment of 
buffer zones, the selective location and special design of haul roads 
and powerlines, and the monitoring of surface water quality and 
quantity; and
    (ii) Enchancement measures that will be used during the reclamation 
and postmining phase of operation to develop aquatic and terrestrial 
habitat. Such measures may include restoration of streams and other 
wetlands, retention of ponds and impoundments, establishment of 
vegetation for wildlife food and cover, and the placement of perches 
and nest boxes. Where the plan does not include enhancement measures, a 
statement shall be given explaining why enhancement is not practicable.
    (c) Fish and Wildlife Service review. Upon request, the regulatory 
authority shall provide the resource information required under 
paragraph (a) of this section and the protection and enhancement plan 
required under paragraph (b) of this section to the U.S. Department of 
the Interior, Fish and Wildlife Service Regional or Field Office for 
their review. This information shall be provided within 10 days of 
receipt of the request from the Service.

[[Page 54964]]

Sec.  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 Sec.  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 Sec.  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 (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.


Sec.  784.23  Operation plan: Maps and plans.

    Each application shall contain maps and plans as follows:
    (a) The maps, plans and cross-sections shall show the underground 
mining activities to be conducted, the lands to be affected throughout 
the operation, and any change in a facility or feature to be caused by 
the proposed operations, if the facility or feature was shown under 30 
CFR 783.24 and 783.25.
    (b) The following shall be shown for the proposed permit area:
    (1) Buildings, utility corridors, and facilities to be used;
    (2) The area of land to be affected within the proposed permit 
area, according to the sequence of mining and reclamation;
    (3) Each area of land for which a performance bond or other 
equivalent guarantee will be posted under subchapter J of this chapter;
    (4) Each coal storage, cleaning and loading area;
    (5) Each topsoil, spoil, coal preparation waste, underground 
development waste, and non-coal waste storage area;
    (6) Each water diversion, collection, conveyance, treatment, 
storage and discharge facility to be used;
    (7) Each source of waste and each waste disposal facility relating 
to coal processing or pollution control;
    (8) Each facility to be used to protect and enhance fish and 
wildlife related environmental values;
    (9) Each explosive storage and handling facility;
    (10) Location of each sedimentation pond, permanent water 
impoundment, coal processing waste bank, and coal processing waste dam 
and embankment, in accordance with 30 CFR 784.16 and disposal areas for 
underground development waste and excess spoil, in accordance with 30 
CFR 784.19;
    (11) Each profile, at cross-sections specified by the regulatory 
authority, of the anticipated final surface configuration to be 
achieved for the affected areas;
    (12) Location of each water and subsidence monitoring point;
    (13) Location of each facility that will remain on the proposed 
permit area as a permanent feature, after the completion of underground 
mining activities.
    (c) Except as provided in Sec. Sec.  784.16(a)(2), 784.16(a)(3), 
784.19, 817.71(b), 817.73(c), 817.74(c) and 817.81(c) of this chapter, 
cross sections, maps and plans required under paragraphs (b)(4), (5), 
(6), (10) and (11) of this section shall be prepared by, or under the 
direction of, and certified by a qualified, registered, professional 
engineer, a professional geologist, or in any State which authorizes 
land surveyors to prepare and certify such

[[Page 54965]]

cross sections, maps and plans, a qualified, registered, professional, 
land surveyor, with assistance from experts in related fields such as 
landscape architecture.


Sec.  784.24  Road systems.

    (a) Plans and drawings. Each applicant for an underground coal 
mining and reclamation permit shall submit plans and drawings for each 
road, as defined in Sec.  701.5 of this chapter, to be constructed, 
used, or maintained within the proposed permit area. The plans and 
drawings shall--
    (1) Include a map, appropriate cross sections, design drawings, and 
specifications for road widths, gradients, surfacing materials, cuts, 
fill embankments, culverts, bridges, drainage ditches, low-water 
crossings, and drainage structures;
    (2) Contain the drawings and specifications of each proposed road 
that is located in the channel of an intermittent or perennial stream, 
as necessary for approval of the road by the regulatory authority in 
accordance with Sec.  817.150(d)(1) of this chapter;
    (3) Contain the drawings and specifications for each proposed ford 
of perennial or intermittent streams that is used as a temporary route, 
as necessary for approval of the ford by the regulatory authority in 
accordance with Sec.  817.151(c)(2) of this chapter;
    (4) Contain a description of measures to be taken to obtain 
approval of the regulatory authority for alteration or relocation of a 
natural stream channel under Sec.  817.151(d)(5) of this chapter;
    (5) Contain the drawings and specifications for each low-water 
crossing of perennial or intermittent stream channels so that the 
regualtory authority can maximize the protection of the stream in 
accordance with Sec.  817.151(d)(6) of this chapter; and
    (6) Describe the plans to remove and reclaim each road that would 
not be retained under an approved postmining land use, and the schedule 
for this removal and reclamation.
    (b) Primary road certification. The plans and drawings for each 
primary road shall be prepared by, or under the direction of, and 
certified by a qualified registered professional engineer, or in any 
State which authorizes land surveyors to certify the design of primary 
roads a qualified registered professional land surveyor, experienced in 
the design and construction of roads, as meeting the requirements of 
this chapter; current, prudent engineering practices; and any design 
criteria established by the regulatory authority.
    (c) Standard design plans. The regulatory authority may establish 
engineering design standards for primary roads through the State 
program approval process, in lieu of engineering tests, to establish 
compliance with the minimum static safety factor of 1.3 for all 
embankments specified in Sec.  817.151(b) of this chapter.


Sec.  784.25  Return of coal processing waste to abandoned underground 
workings.

    (a) Each plan shall describe the design, operation and maintenance 
of any proposed coal processing waste disposal facility, including flow 
diagrams and any other necessary drawings and maps, for the approval of 
the regulatory authority and the Mine Safety and Health Administration 
under 30 CFR 817.81(f).
    (b) Each plan shall describe the source and quality of waste to be 
stowed, area to be backfilled, percent of the mine void to be filled, 
method of constructing underground retaining walls, influence of the 
backfilling operation on active underground mine operations, surface 
area to be supported by the backfill, and the anticipated occurrence of 
surface effects following backfilling.
    (c) The applicant shall describe the source of the hydraulic 
transport mediums, method of dewatering the placed backfill, retainment 
of water underground, treatment of water if released to surface 
streams, and the effect on the hydrologic regime.
    (d) The plan shall describe each permanent monitoring well to be 
located in the backfilled area, the stratum underlying the mined coal, 
and gradient from the backfilled area.
    (e) The requirements of paragraphs (a), (b), (c), and (d) of this 
section shall also apply to pneumatic backfilling operations, except 
where the operations are exempted by the regulatory authority from 
requirements specifying hydrologic monitoring.


Sec.  784.26  Air pollution control plan.

    For all surface operations associated with underground mining 
activities, the application shall contain an air pollution control plan 
which includes the following:
    (a) An air quality monitoring program, if required by the 
regulatory authority, to provide sufficient data to evaluate the 
effectiveness of the fugitive dust control practices, under paragraph 
(b) of this section to comply with applicable Federal and State air 
quality standards; and
    (b) A plan for fugitive dust control practices, as required under 
30 CFR 817.95.


Sec.  784.29  Diversions.

    Each application shall contain descriptions, including maps and 
cross sections, of stream channel diversions and other diversions to be 
constructed within the proposed permit area to achieve compliance with 
Sec.  817.43 of this chapter.


Sec.  784.30  Support facilities.

    Each applicant for an underground coal mining and reclamation 
permit shall submit a description, plans, and drawings for each support 
facility to be constructed, used, or maintained within the proposed 
permit area. The plans and drawings shall include a map, appropriate 
cross sections, design drawings, and specifications sufficient to 
demonstrate compliance with Sec.  817.181 of this chapter for each 
facility.


Sec.  784.200  Interpretive rules related to General Performance 
Standards.

    The following interpretation of rules promulgated in part 784 of 
this chapter have been adopted by the Office of Surface Mining 
Reclamation and Enforcement.
    (a) Interpretation of Sec.  784.15: Reclamation plan: Postmining 
land uses. (1) The requirements of Sec.  784.15(a)(2), for approval of 
an alternative postmining land use, may be met by requesting approval 
through the permit revision procedures of Sec.  774.13 rather than 
requesting such approval in the original permit application. The 
original permit application, however, must demonstrate that the land 
will be returned to its premining land use capability as required by 
Sec.  817.133(a). An application for a permit revision of this type, 
(i) must be submitted in accordance with the filing deadlines of Sec.  
774.13, (ii) shall constitute a significant alteration from the mining 
operations contemplated by the original permit, and (iii) shall be 
subject to the requirements of 30 CFR parts 773 and 775.
    (b) [Reserved]

0
10. Revise part 785 to read as follows:

PART 785--REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING

Sec.
785.1 Scope.
785.2 Objective.
785.10 Information collection.
785.11 Anthracite surface coal mining and reclamation operations.
785.12 Special bituminous surface coal mining and reclamation 
operations.
785.13 Experimental practices mining.
785.14 Mountaintop removal mining.
785.15 Steep slope mining.
785.16 Permits incorporating variances from approximate original 
contour restoration requirements for steep slope mining.

[[Page 54966]]

785.17 Prime farmlands.
785.18 Variances for delay in contemporaneous reclamation 
requirement in combined surface and underground mining activities.
785.19 Surface coal mining and reclamation operations on areas or 
adjacent to areas including alluvial valley floors in the arid and 
semi-arid areas west of the 100th meridian.
785.20 Augering.
785.21 Coal preparation plants not located within the permit area of 
a mine.
785.22 In situ processing activities.
785.25 Lands eligible for remining.

    Authority:  30 U.S.C. 1201 et seq. as


Sec.  785.1  Scope.

    This part establishes the minimum requirements for regulatory 
program provisions for permits for certain categories of surface coal 
mining and reclamation operations. These requirements are in addition 
to the general permit requirements contained in this subchapter G. All 
of the provisions of subchapter G apply to these operations, unless 
otherwise specifically provided in this part.


Sec.  785.2  Objective.

    The objective of this part is to ensure that permits are issued for 
certain categories of surface coal mining and reclamation operations 
only after the regulatory authority receives information that shows 
that these operations will be conducted according to the applicable 
requirements of the Act, subchapter K, and applicable regulatory 
programs.


Sec.  785.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements 
of part 785 and assigned it control number 1029-0040. The information 
is being collected to meet the requirements of sections 507, 508, 510, 
515, 701 and 711 of Public Law 95-87, which requires applicants for 
special types of mining activities to provide descriptions, maps, plans 
and data of the proposed activity. This information will be used by the 
regulatory authority in determining if the applicant can meet the 
applicable performance standards for the special type of mining 
activity. Persons must respond to obtain a benefit. A Federal agency 
may not conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.


Sec.  785.11  Anthracite surface coal mining and reclamation 
operations.

    (a) This section applies to any person who conducts or intends to 
conduct anthracite surface coal mining and reclamation operations in 
Pennsylvania.
    (b) Each person who intends to conduct anthracite surface coal 
mining and reclamation operations in Pennsylvania shall apply for and 
obtain a permit in accordance with the requirements of this subchapter. 
The following standards apply to applications for and issuance of 
permits:
    (1) In lieu of the requirements of 30 CFR parts 816-817, the 
requirements of 30 CFR part 820 shall apply.
    (2) All other requirements of this chapter including the bonding 
and insurance requirements of 30 CFR 800.70, except the bond limits and 
the period of revegetation responsibility, to the extent they are 
required under sections 509 or 510 of the Act, shall apply.
    (c) If the Pennsylvania anthracite permanent regulatory program in 
effect on August 3, 1977, is amended with respect to environmental 
protection performance standards, the Secretary shall issue additional 
regulations necessary to meet the purposes of the Act.


Sec.  785.12  Special bituminous surface coal mining and reclamation 
operations.

    (a) This section applies to any person who conducts or intends to 
conduct certain special bituminous coal surface mine operations in 
Wyoming.
    (b) Each application for a permit for a special bituminous coal 
mine operation shall include, as part of the mining operations and 
reclamation plan, the detailed descriptions, maps and plans needed to 
demonstrate that the operations will comply with the requirements of 
the Act and 30 CFR part 825.
    (c) The regulatory authority may issue a permit for a special 
bituminous coal mine operation for which a complete application has 
been filed in accordance with this section, if it finds, in writing, 
that the operation will be conducted in compliance with the Act and 30 
CFR part 825.
    (d) Upon amendment or revision to the Wyoming regulatory program, 
regulations, or decisions made thereunder, governing special bituminous 
coal mines, the Secretary shall issue additional regulations necessary 
to meet the purposes of the Act.


Sec.  785.13  Experimental practices mining.

    (a) Experimental practices provide a variance from environmental 
protection performance standards of the Act, of subchapter K of this 
chapter, and the regulatory program for experimental or research 
purposes, or to allow an alternative postmining land use, and may be 
undertaken if they are approved by the regulatory authority and the 
Director and if they are incorporated in a permit or permit revision 
issued in accordance with the requirements of subchapter G of this 
chapter.
    (b) An application for an experimental practice shall contain 
descriptions, maps, plans, and data which show--
    (1) The nature of the experimental practice, including a 
description of the performance standards for which variances are 
requested, the duration of the experimental practice, and any special 
monitoring which will be conducted;
    (2) How use of the experimental practice encourages advances in 
mining and reclamation technology or allows a postmining land use for 
industrial, commercial, residential, or public use (including 
recreation facilities) on an experimental basis;
    (3) That the experimental practice--
    (i) Is potentially more, or at least as, environmentally 
protective, during and after mining operations, as would otherwise be 
required by standards promulgated under subchapter K of this chapter; 
and
    (ii) Will not reduce the protection afforded public health and 
safety below that provided by the requirements of subchapter K of this 
chapter; and
    (4) That the applicant will conduct monitoring of the effects of 
the experimental practice. The monitoring program shall ensure the 
collection, analysis, and reporting of reliable data that are 
sufficient to enable the regulatory authority and the Director to--
    (i) Evaluate the effectiveness of the experimental practice; and
    (ii) Identify, at the earliest possible time, potential risk to the 
environment and public health and safety which may be caused by the 
experimental practice during and after mining.
    (c) Applications for experimental practices shall comply with the 
public notice requirements of Sec.  773.6 of this chapter.
    (d) No application for an experimental practice under this section 
shall be approved until the regulatory authority first finds in writing 
and the Director then concurs that--
    (1) The experimental practice encourages advances in mining and 
reclamation technology or allows a postmining land use for industrial, 
commercial, residential, or public use (including recreational 
facilities) on an experimental basis;
    (2) The experimental practice is potentially more, or at least as, 
environmentally protective, during and

[[Page 54967]]

after mining operations, as would otherwise be required by standards 
promulgated under subchapter K of this chapter;
    (3) The mining operations approved for a particular land-use or 
other purpose are not larger or more numerous than necessary to 
determine the effectiveness and economic feasibility of the 
experimental practice; and
    (4) The experimental practice does not reduce the protection 
afforded public health and safety below that provided by standards 
promulgated under subchapter K of this chapter.
    (e) Experimental practices granting variances from the special 
environmental protection performance standards of sections 515 and 516 
of the Act applicable to prime farmlands shall be approved only after 
consultation with the U.S. Department of Agriculture, Soil Conservation 
Service.
    (f) Each person undertaking an experimental practice shall conduct 
the periodic monitoring, recording and reporting program set forth in 
the application, and shall satisfy such additional requirements as the 
regulatory authority or the Director may impose to ensure protection of 
the public health and safety and the environment.
    (g) Each experimental practice shall be reviewed by the regulatory 
authority at a frequeny set forth in the approved permit, but no less 
frequently than every 2\1/2\ years. After review, the regulatory 
authority may require such reasonable modifications of the experimental 
practice as are necessary to ensure that the activities fully protect 
the environment and the public health and safety. Copies of the 
decision of the regulatory authority shall be sent to the permittee and 
shall be subject to the provisions for administrative and judicial 
review of part 775 of this chapter.
    (h) Revisions or modifications to an experimental practice shall be 
processed in accordance with the requirements of Sec.  774.13 of this 
chapter and approved by the regulatory authority. Any revisions which 
propose significant alterations in the experimental practice shall, at 
a minimum, be subject to notice, hearing, and public participation 
requirements of Sec.  773.6 of this chapter and concurrence by the 
Director. Revisions that do not propose significant alterations in the 
experimental practice shall not require concurrence by the Director.


Sec.  785.14  Mountaintop removal mining.

    (a) This section applies to any person who conducts or intends to 
conduct surface mining activities by mountaintop removal mining.
    (b) Mountaintop removal mining means surface mining activities, 
where the mining operation removes an entire coal seam or seams running 
through the upper fraction of a mountain, ridge, or hill, except as 
provided for in 30 CFR 824.11(a)(6), by removing substantially all of 
the overburden off the bench and creating a level plateau or a gently 
rolling contour, with no highwalls remaining, and capable of supporting 
postmining land uses in accordance with the requirements of this 
section.
    (c) The regulatory authority may issue a permit for mountaintop 
removal mining, without regard to the requirements of Sec. Sec.  
816.102, 816.104, 816.105, and 816.107 of this chapter to restore the 
lands disturbed by such mining to their approximate original contour, 
if it first finds, in writing, on the basis of a complete application, 
that the following requirements are met:
    (1) The proposed postmining land use of the lands to be affected 
will be an industrial, commercial, agricultural, residential, or public 
facility (including recreational facilities) use and, if--
    (i) After consultation with the appropriate land-use planning 
agencies, if any, the proposed land use is deemed by the regulatory 
authority to constitute an equal or better economic or public use of 
the affected land compared with the pre-mining use;
    (ii) The applicant demonstrates compliance with the requirements 
for acceptable alternative postmining land uses of paragraphs (a) 
through (c) of Sec.  816.133 of this chapter;
    (iii) The applicant has presented specific plans for the proposed 
postmining land use and appropriate assurances that such use will be--
    (A) Compatible with adjacent land uses;
    (B) Obtainable according to data regarding expected need and 
market;
    (C) Assured of investment in necessary public facilities;
    (D) Supported by commitments from public agencies where 
appropriate;
    (E) Practicable with respect to private financial capability for 
completion of the proposed use;
    (F) Planned pursuant to a schedule attached to the reclamation plan 
so as to integrate the mining operation and reclamation with the 
postmining land use; and
    (G) Designed by a registered engineer in conformance with 
professional standards established to assure the stability, drainage, 
and configuation necessary for the intended use of the site.
    (iv) The proposed use would be consistent with adjacent land use 
and existing State and local land use plans and programs; and
    (v) The regulatory authority has provided, in writing, an 
opportunity of not more than 60 days to review and comment on such 
proposed use to the governing body of general purpose government in 
whose jurisdiction the land is located and any State or Federal agency 
which the regulatory authority, in its discretion, determines to have 
an interest in the proposed use.
    (2) The applicant demonstrates that in place of restoration of the 
land to be affected to the approximate original contour under 
Sec. Sec.  816.102, 816.104, 816.105, and 816.107 of this chapter, the 
operation will be conducted in compliance with the requirements of part 
824 of this chapter.
    (3) The requirements of 30 CFR 824 are made a specific condition of 
the permit.
    (4) All other requirements of the Act, this chapter, and the 
regulatory program are met by the proposed operations.
    (5) The permit is clearly identified as being for mountaintop 
removal mining.
    (d)(1) Any permits incorporating a variance issued under this 
section shall be reviewed by the regulatory authority to evaluate the 
progress and development of mining activities to establish that the 
operator is proceeding in accordance with the terms of the variance--
    (i) Within the sixth month preceding the third year from the date 
of its issuance;
    (ii) Before each permit renewal; and
    (iii) Not later than the middle of each permit term.
    (2) Any review required under paragraph (d)(1) of this section need 
not be held if the permittee has demonstrated and the regulatory 
authority finds, in writing, within three months before the scheduled 
review, that all operations under the permit are proceeding and will 
continue to be conducted in accordance with the terms of the permit and 
requirements of the Act, this chapter, and the regulatory program.
    (3) The terms and conditions of a permit for mountaintop removal 
mining may be modified at any time by the regulatory authority, if it 
determines that more stringent measures are necessary to insure that 
the operation involved is conducted in compliance with the requirements 
of the Act, this chapter, and the regulatory program.


Sec.  785.15  Steep slope mining.

    (a) This section applies to any persons who conducts or intends to 
conduct

[[Page 54968]]

steep slope surface coal mining and reclamation operations, except--
    (1) Where an operator proposes to conduct surface coal mining and 
reclamation operations on flat or gently rolling terrain, leaving a 
plain or predominantly flat area, but on which an occasional steep 
slope is encountered as the mining operation proceeds;
    (2) Where a person obtains a permit under the provisions of Sec.  
785.14; or
    (3) To the extent that a person obtains a permit incorporating a 
variance under Sec.  785.16.
    (b) Any application for a permit for surface coal mining and 
reclamation operations covered by this section shall contain sufficient 
information to establish that the operations will be conducted in 
accordance with the requirements of Sec.  816.107 or Sec.  817.107 of 
this chapter.
    (c) No permit shall be issued for any operations covered by this 
section, unless the regulatory authority finds, in writing, that in 
addition to meeting all other requirements of this subchapter, the 
operation will be conducted in accordance with the requirements of 
Sec.  816.107 or Sec.  817.107 of this chapter.


Sec.  785.16  Permits incorporating variances from approximate original 
contour restoration requirements for steep slope mining.

    (a) The regulatory authority may issue a permit for non-mountaintop 
removal, steep slope, surface coal mining and reclamation operations 
which includes a variance from the requirements to restore the 
disturbed areas to their approximate original contour that are 
contained in Sec. Sec.  816.102, 816.104, 816.105, and 816.107, or 
Sec. Sec.  817.102 and 817.107 of this chapter. The permit may contain 
such a variance only if the regulatory authority finds, in writing, 
that the applicant has demonstrated, on the basis of a complete 
application, that the following requirments are met:
    (1) After reclamation, the lands to be affected by the variance 
within the permit area will be suitable for an industrial, commercial, 
residential, or public postmining land use (including recreational 
facilities).
    (2) The requirements of Sec.  816.133 or Sec.  817.133 of this 
chapter will be met.
    (3) The watershed of lands within the proposed permit and adjacent 
areas will be improved by the operations when compared with the 
condition of the watershed before mining or with its condition if the 
approximate original contour were to be restored. The watershed will be 
deemed improved only if--
    (i) The amount of total suspended solids or other pollutants 
discharged to ground or surface water from the permit area will be 
reduced, so as to improve the public or private uses or the ecology of 
such water, or flood hazards within the watershed containing the permit 
area will be reduced by reduction of the peak flow discharge from 
precipitation events or thaws;
    (ii) The total volume of flow from the proposed permit area, during 
every season of the year, will not vary in a way that adversely affects 
the ecology of any surface water or any existing or planned use of 
surface or ground water; and
    (iii) The appropriate State environmental agency approves the plan.
    (4) The owner of the surface of the lands within the permit area 
has knowingly requested, in writing, as part of the application, that a 
variance be granted. The request shall be made separately from any 
surface owner consent given for the operations under Sec.  778.15 of 
this chapter and shall show an understanding that the variance could 
not be granted without the surface owner's request.
    (b) If a variance is granted under this section--
    (1) The requirements of Sec.  816.133(d) or Sec.  817.133(d) of 
this chapter shall be included as a specific condition of the permit; 
and
    (2) The permit shall be specifically marked as containing a 
variance from approximate original contour.
    (c) A permit incorporating a variance under this section shall be 
reviewed by the regulatory authority at least every 30 months following 
the issuance of the permit to evaluate the progress and development of 
the surface coal mining and reclamation operations to establish that 
the operator is proceeding in accordance with the terms of the 
variance.
    (d) If the permittee demonstrates to the regulatory authority that 
the operations have been, and continue to be, conducted in compliance 
with the terms and conditions of the permit, the requirements of the 
Act, this chapter, and the regulatory program, the review specified in 
paragraph (c) of this section need not be held.
    (e) The terms and conditions of a permit incorporating a variance 
under this section may be modified at any time by the regulatory 
authority, if it determines that more stringent measures are necessary 
to ensure that the operations involved are conducted in compliance with 
the requirements of the Act, this chapter, and the regulatory program.
    (f) The regulatory authority may grant variances in accordance with 
this section only if it has promulgated specific rules to govern the 
granting of variances in accordance with the provisions of this section 
and any necessary, more stringent requirements.


Sec.  785.17  Prime farmland.

    (a) This section applies to any person who conducts or intends to 
conduct surface coal mining and reclamation operations on prime 
farmlands historically used for cropland. This section does not apply 
to:
    (1) Lands on which surface coal mining and reclamation operations 
are conducted pursuant to any permit issued prior to August 3, 1977; or
    (2) Lands on which surface coal mining and reclamation operations 
are conducted pursuant to any renewal or revision of a permit issued 
prior to August 3, 1977; or
    (3) Lands included in any existing surface coal mining operations 
for which a permit was issued for all or any part thereof prior to 
August 3, 1977, provided that:
    (i) Such lands are part of a single continuous surface coal mining 
operation begun under a permit issued before August 3, 1977; and
    (ii) The permittee had a legal right to mine the lands prior to 
August 3, 1977, through ownership, contract, or lease but not including 
an option to buy, lease, or contract; and
    (iii) The lands contain part of a continuous recoverable coal seam 
that was being mined in a single continuous mining pit (or multiple 
pits if the lands are proven to be part of a single continuous surface 
coal mining operation) begun under a permit issued prior to August 3, 
1977.
    (4) For purposes of this section:
    (i) ``Renewal'' of a permit shall mean a decision by the regulatory 
authority to extend the time by which the permittee may complete mining 
within the boundaries of the original permit, and ``revision'' of the 
permit shall mean a decision by the regulatory authority to allow 
changes in the method of mining operations within the original permit 
area, or the decision of the regulatory authority to allow incidental 
boundary changes to the original permit;
    (ii) A pit shall be deemed to be a single continuous mining pit 
even if portions of the pit are crossed by a road, pipeline, railroad, 
or powerline or similar crossing;
    (iii) A single continuous surface coal mining operation is presumed 
to consist only of a single continuous mining pit under a permit issued 
prior to August 3, 1977, but may include non-contiguous parcels if the 
operator can prove by clear and convincing evidence that,

[[Page 54969]]

prior to August 3, 1977, the non-contiguous parcels were part of a 
single permitted operation. For the purposes of this paragraph, clear 
and convincing evidence includes, but is not limited to, contracts, 
leases, deeds or other properly executed legal documents (not including 
options) that specifically treat physically separate parcels as one 
surface coal mining operation.
    (b) Application contents--Reconnaissance inspection. (1) All permit 
applications, whether or not prime farmland is present, shall include 
the results of a reconnaissance inspection of the proposed permit area 
to indicate whether prime farmland exists. The regulatory authority in 
consultation with the U.S. Soil Conservation Service shall determine 
the nature and extent of the required reconnaissance inspection.
    (2) If the reconnaissance inspection establishes that no land 
within the proposed permit area is prime farmland historically used for 
cropland, the applicant shall submit a statement that no prime farmland 
is present. The statement shall identify the basis upon which such a 
conclusion was reached.
    (3) If the reconnaissance inspection indicates that land within the 
proposed permit area may be prime farmland historically used for 
cropland, the applicant shall determine if a soil survey exists for 
those lands and whether soil mapping units in the permit area have been 
designated as prime farmland. If no soil survey exists, the applicant 
shall have a soil survey made of the lands within the permit area which 
the reconnaissance inspection indicates could be prime farmland. Soil 
surveys of the detail used by the U.S. Soil Conservation Service for 
operational conservation planning shall be used to identify and locate 
prime farmland soils.
    (i) If the soil survey indicates that no prime farmland soils are 
present within the proposed permit area, paragraph (b)(2) of this 
section shall apply.
    (ii) If the soil survey indicates that prime farmland soils are 
present within the proposed permit area, paragraph (c) of this section 
shall apply.
    (c) Application contents--Prime farmland. All permit applications 
for areas in which prime farmland has been identified within the 
proposed permit area shall include the following:
    (1) A soil survey of the permit area according to the standards of 
the National Cooperative Soil Survey and in accordance with the 
procedures set forth in U.S. Department of Agriculture Handbooks 436 
``Soil Taxonomy'' (U.S. Soil Conservation Service, 1975) as amended on 
March 22, 1982 and October 5, 1982, and 18, ``Soil Survey Manual'' 
(U.S. Soil Conservation Service, 1951), as amended on December 18, 
1979, May 7, 1980, May 9, 1980, September 11, 1980, June 9, 1981, June 
29, 1981, November 16, 1982. The U.S. Soil Conservation Service 
establishes the standards of the National Cooperative Soil Survey and 
maintains a National Soils Handbook which gives current acceptable 
procedures for conducting soil surveys. This National Soils Handbook is 
available for review at area and State SCS offices.
    (i) U.S. Department of Agriculture Handbooks 436 and 18 are 
incorporated by reference as they exist on the date of adoption of this 
section. Notices of changes made to these publications will be 
periodically published by OSM in the Federal Register. The handbooks 
are on file and available for inspection at the OSM Central Office, 
U.S. Department of the Interior, 1951 Constitution Avenue NW., 
Washington, DC, at each OSM Technical Center and Field Office, and at 
the central office of the applicable State regulatory authority, if 
any. Copies of these documents are also available from the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402, Stock Nos. 001-000-02597-0 and 001-000-00688-6, 
respectively. In addition, these documents are available for inspection 
at the national, State, and area offices of the Soil Conservation 
Service, U.S. Department of Agriculture, or at the National Archives 
and Records Administration (NARA). For information on the availability 
of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Incorporation by reference provisions were approved 
by the Director of the Federal Register on June 29, 1981.
    (ii) The soil survey shall include a description of soil mapping 
units and a representative soil profile as determined by the U.S. Soil 
Conservation Service, including, but not limited to, soil-horizon 
depths, pH, and the range of soil densities for each prime farmland 
soil unit within the permit area. Other representative soil-profile 
descriptions from the locality, prepared according to the standards of 
the National Cooperative Soil Survey, may be used if their use is 
approved by the State Conservationist, U.S. Soil Conservation Service. 
The regulatory authority may request the operator to provide 
information on other physical and chemical soil properties as needed to 
make a determination that the operator has the technological capability 
to restore the prime farmland within the permit area to the soil-
reconstruction standards of part 823 of this chapter.
    (2) A plan for soil reconstruction, replacement, and stabilization 
for the purpose of establishing the technological capability of the 
mine operator to comply with the requirements of part 823 of this 
chapter.
    (3) Scientific data, such as agricultural-school studies, for areas 
with comparable soils, climate, and management that demonstrate that 
the proposed method of reclamation, including the use of soil mixtures 
or substitutes, if any, will achieve, within a reasonable time, levels 
of yield equivalent to, or higher than, those of nonmined prime 
farmland in the surrounding area.
    (4) The productivity prior to mining, including the average yield 
of food, fiber, forage, or wood products obtained under a high level of 
management.
    (d) Consultation with Secretary of Agriculture. (1) The Secretary 
of Agriculture has responsibilities with respect to prime farmland 
soils and has assigned the prime farmland responsibilities arising 
under the Act to the Chief of the U.S. Soil Conservation Service. The 
U.S. Soil Conservation Service shall carry out consultation and review 
through the State Conservationist located in each State.
    (2) The State Conservationist shall provide to the regulatory 
authority a list of prime farmland soils, their location, physical and 
chemical characteristics, crop yields, and associated data necessary to 
support adequate prime farmland soil descriptions.
    (3) The State Conservationist shall assist the regulatory authority 
in describing the nature and extent of the reconnaissance inspection 
required in paragraph (b)(1) of this section.
    (4) Before any permit is issued for areas that include prime 
farmland, the regulatory authority shall consult with the State 
Conservationist. The State Conservationist shall provide for the review 
of, and comment on, the proposed method of soil reconstruction in the 
plan submitted under paragraph (c) of this section. If the State 
Conservationist considers those methods to be inadequate, he or she 
shall suggest revisions to the regulatory authority which result in 
more complete and adequate reconstruction.
    (e) Issuance of permit. A permit for the mining and reclamation of 
prime farmland may be granted by the regulatory authority, if it first 
finds, in writing, upon the basis of a complete application, that--

[[Page 54970]]

    (1) The approved proposed postmining land use of these prime 
farmlands will be cropland;
    (2) The permit incorporates as specific conditions the contents of 
the plan submitted under paragraph (c) of this section, after 
consideration of any revisions to that plan suggested by the State 
Conservationist under paragraph (d)(4) of this section;
    (3) The applicant has the technological capability to restore the 
prime farmland, within a reasonable time, to equivalent or higher 
levels of yield as non-mined prime farmland in the surrounding area 
under equivalent levels of management; and
    (4) The proposed operations will be conducted in compliance with 
the requirements of 30 CFR part 823 and other environmental protection 
performance and reclamation standards for mining and reclamation of 
prime farmland of the regulatory program.
    (5) The aggregate total prime farmland acreage shall not be 
decreased from that which existed prior to mining. Water bodies, if 
any, to be constructed during mining and reclamation operations must be 
located within the post-reclamation non-prime farmland portions of the 
permit area. The creation of any such water bodies must be approved by 
the regulatory authority and the consent of all affected property 
owners within the permit area must be obtained.


Sec.  785.18  Variances for delay in contemporaneous reclamation 
requirement in combined surface and underground mining activities.

    (a) Scope. This section shall apply to any person or persons 
conducting or intending to conduct combined surface and underground 
mining activities where a variance is requested from the 
contemporaneous reclamation requirements of Sec.  816.100 of this 
chapter.
    (b) Application contents for variances. Any person desiring a 
variance under this section shall file with the regulatory authority 
complete applications for both the surface mining activities and 
underground mining activities which are to be combined. The reclamation 
and operation plans for these permits shall contain appropriate 
narratives, maps, and plans, which--
    (1) Show why the proposed underground mining activities are 
necessary or desirable to assure maximum practical recovery of the 
coal;
    (2) Show how multiple future disturbances of surface lands or 
waters will be avoided;
    (3) Identify the specific surface areas for which a variance is 
sought and the sections of the Act, this chapter, and the regulatory 
program from which a variance is being sought;
    (4) Show how the activities will comply with Sec.  816.79 of this 
chapter and other applicable requirements of the regulatory program;
    (5) Show why the variance sought is necessary for the 
implementation of the proposed underground mining activities;
    (6) Provide an assessment of the adverse environmental consequences 
and damages, if any, that will result if the reclamation of surface 
mining activities is delayed; and
    (7) Show how offsite storage of spoil will be conducted to comply 
with the requirements of the Act, Sec. Sec.  816.71 through 816.74 of 
this chapter, and the regulatory program.
    (c) Issuance of permit. A permit incorporating a variance under 
this section may be issued by the regulatory authority if it first 
finds, in writing, upon the basis of a complete application filed in 
accordance with this section, that--
    (1) The applicant has presented, as part of the permit application, 
specific, feasible plans for the proposed underground mining 
activities;
    (2) The proposed underground mining activities are necessary or 
desirable to assure maximum practical recovery of the mineral resource 
and will avoid multiple future disturbances of surface land or waters;
    (3) The applicant has satisfactorily demonstrated that the 
applications for the surface mining activities and underground mining 
activities conform to the requirements of the regulatory program and 
that all other permits necessary for the underground mining activities 
have been issued by the appropriate authority;
    (4) The surface area of surface mining activities proposed for the 
variance has been shown by the applicant to be necessary for 
implementing the proposed underground mining activities;
    (5) No substantial adverse environmental damage, either onsite or 
offsite, will result from the delay in completion of reclamation 
otherwise required by section 515(b)(16) of the Act, part 816 of this 
chapter, and the regulatory program;
    (6) The operations will, insofar as a variance is authorized, be 
conducted in compliance with the requirements of Sec.  816.79 of this 
chapter and the regulatory program;
    (7) Provisions for offsite storage of spoil will comply with the 
requirements of section 515(b)(22) of the Act, Sec. Sec.  816.71 
through 816.74 of this chapter, and the regulatory program;
    (8) Liability under the performance bond required to be filed by 
the applicant with the regulatory authority pursuant to subchapter J of 
this chapter and the regulatory program will be for the duration of the 
underground mining activities and until all requirements of subchapter 
J and the regulatory program have been complied with; and
    (9) The permit for the surface mining activities contains specific 
conditions--
    (i) Delineating the particular surface areas for which a variance 
is authorized;
    (ii) Identifying the applicable provisions of section 515(b) of the 
Act, part 816 of this chapter, and the regulatory program; and
    (iii) Providing a detailed schedule for compliance with the 
provisions of this section.
    (d) Review of permits containing variances. Variances granted by 
permits issued under this section shall be reviewed by the regulatory 
authority no later than 3 years from the dates of issuance of the 
permit and any permit renewals.


Sec.  785.19  Surface coal mining and reclamation operations on areas 
or adjacent to areas including alluvial valley floors in the arid and 
semiarid areas west of the 100th meridian.

    (a) Alluvial valley floor determination. (1) Permit applicants who 
propose to conduct surface coal mining and reclamation operations 
within a valley holding a stream or in a location where the permit area 
or adjacent area includes any stream, in the arid and semiarid regions 
of the United States, as an initial step in the permit process, may 
request the regulatory authority to make an alluvial valley floor 
determination with respect to that valley floor. The applicant shall 
demonstrate and the regulatory authority shall determine, based on 
either available data or field studies submitted by the applicant, or a 
combination of available data and field studies, the presence or 
absence of an alluvial valley floor. Studies shall include sufficiently 
detailed geologic, hydrologic, land use, soils, and vegetation data and 
analysis to demonstrate the probable existence of an alluvial valley 
floor in the area. The regulatory authority may require additional data 
collection and analysis or other supporting documents, maps, and 
illustrations in order to make the determination.
    (2) The regulatory authority shall make a written determination as 
to the extent of any alluvial valley floors within the area. The 
regulatory authority shall determine that an alluvial valley floor 
exists if it finds that--

[[Page 54971]]

    (i) Unconsolidated streamlaid deposits holding streams are present; 
and
    (ii) There is sufficient water available to support agricultural 
activities as evidenced by--
    (A) The existence of current flood irrigation in the area in 
question;
    (B) The capability of an area to be flood irrigated, based on 
evaluations of typical regional agricultural practices, historical 
flood irrigation, streamflow, water quality, soils, and topography; or
    (C) Subirrigation of the lands in question derived from the ground-
water system of the valley floor.
    (3) If the regulatory authority determines in writing that an 
alluvial valley does not exist pursuant to paragraph (a)(2) of this 
section, no further consideration of this section is required.
    (b) Applicability of statutory exclusions. (1) If an alluvial 
valley floor is identified pursuant to paragraph (a)(2) of this section 
and the proposed surface coal mining operation may affect this alluvial 
valley floor or waters that supply the alluvial valley floor, the 
applicant may request the regulatory authority, as a preliminary step 
in the permit application process, to separately determine the 
applicability of the statutory exclusions set forth in paragraph (b)(2) 
of this section. The regulatory authority may make such a determination 
based on the available data, may require additional data collection and 
analysis in order to make the determination, or may require the 
applicant to submit a complete permit application and not make the 
determination until after the complete application is evaluated.
    (2) An applicant need not submit the information required in 
paragraphs (d)(2) (ii) and (iii) of this section and a regulatory 
authority is not required to make the findings of paragraphs (e)(2) (i) 
and (ii) of this section when the regulatory authority determines that 
one of the following circumstances, heretofore called statutory 
exclusions, exist:
    (i) The premining land use is undeveloped rangeland which is not 
significant to farming;
    (ii) Any farming on the alluvial valley floor that would be 
affected by the surface coal mining operation is of such small acreage 
as to be of negligible impact on the farm's agricultural production. 
Negligible impact of the proposed operation on farming will be based on 
the relative importance of the affected farmland areas of the alluvial 
valley floor area to the farm's total agricultural production over the 
life of the mine; or
    (iii) The circumstances set forth in Sec.  822.12(b) (3) or (4) of 
this chapter exist.
    (3) For the purpose of this section, a farm is one or more land 
units on which farming is conducted. A farm is generally considered to 
be the combination of land units with acreage and boundaries in 
existence prior to August 3, 1977, or if established after August 3, 
1977, with those boundaries based on enhancement of the farm's 
agricultural productivity and not related to surface coal operations.
    (c) Summary denial. If the regulatory authority determines that the 
statutory exclusions are not applicable and that any of the required 
findings of paragraph (e)(2) of this section cannot be made, the 
regulatory authority may, at the request of the applicant:
    (1) Determine that mining is precluded on the proposed permit area 
and deny the permit without the applicant filing any additional 
information required by this section; or
    (2) Prohibit surface coal mining and reclamation operations in all 
or parts of the area to be affected by mining.
    (d) Application contents for operations affecting designated 
alluvial valley floors. (1) If land within the permit area or adjacent 
area is identified as an alluvial valley floor and the proposed surface 
coal mining operation may affect an alluvial valley floor or waters 
supplied to an alluvial valley floor, the applicant shall submit a 
complete application for the proposed surface coal mining and 
reclamation operations to be used by the regulatory authority together 
with other relevant information as a basis for approval or denial of 
the permit. If an exclusion of paragraph (b)(2) of this section 
applies, then the applicant need not submit the information required in 
paragraphs (d)(2) (ii) and (iii) of this section.
    (2) The complete application shall include detailed surveys and 
baseline data required by the regulatory authority for a determination 
of--
    (i) The essential hydrologic functions of the alluvial valley floor 
which might be affected by the mining and reclamation process. The 
information required by this subparagraph shall evaluate those factors 
which contribute to the collecting, storing, regulating and making the 
natural flow of water available for agricultural activities on the 
alluvial valley floor and shall include, but are not limited to:
    (A) Factors contributing to the function of collecting water, such 
as amount, rate and frequency of rainfall and runoff, surface 
roughness, slope and vegetative cover, infiltration, and 
evapotranspiration, relief, slope and density of drainage channels;
    (B) Factors contributing to the function of storing water, such as 
permeability, infiltration, porosity, depth and direction of ground 
water flow, and water holding capacity;
    (C) Factors contributing to the function of regulating the flow of 
surface and ground water, such as the longitudinal profile and slope of 
the valley and channels, the sinuosity and cross-sections of the 
channels, interchange of water between streams and associated alluvial 
and bedrock aquifers, and rates and amount of water supplied by these 
aquifers; and
    (D) Factors contributing to water availability, such as the 
presence of flood plains and terraces suitable for agricultural 
activities.
    (ii) Whether the operation will avoid during mining and reclamation 
the interruption, discontinuance, or preclusion of farming on the 
alluvial valley floor;
    (iii) Whether the operation will cause material damage to the 
quantity or quality of surface or ground waters supplied to the 
alluvial valley floor;
    (iv) Whether the reclamation plan is in compliance with 
requirements of the Act, this chapter, and regulatory program; and
    (v) Whether the proposed monitoring system will provide sufficient 
information to measure compliance with part 822 of this chapter during 
and after mining and reclamation operations.
    (e) Findings. (1) The findings of paragraphs (e)(2) (i) and (ii) of 
this section are not required with regard to alluvial valley floors to 
which are applicable any of the exclusions of paragraph (b)(2) of this 
section.
    (2) No permit or permit revision application for surface coal 
mining and reclamation operations on lands located west of the 100th 
meridian west longitude shall be approved by the regulatory authority 
unless the application demonstrates and the regulatory authority finds 
in writing, on the basis of information set forth in the application, 
that--
    (i) The proposed operations will not interrupt, discontinue, or 
preclude farming on an alluvial valley floor;
    (ii) The proposed operations will not materially damage the 
quantity or quality of water in surface and underground water systems 
that supply alluvial valley floors; and
    (iii) The proposed operations will comply with part 822 of this 
chapter and the other applicable requirements of the Act and the 
regulatory program.

[[Page 54972]]

Sec.  785.20  Augering.

    (a) This section applies to any person who conducts or intends to 
conduct surface coal mining and reclamation operations utilizing 
augering operations.
    (b) Any application for a permit for operations covered by this 
section shall contain, in the mining and reclamation plan, a 
description of the augering methods to be used and the measures to be 
used to comply with 30 CFR part 819.
    (c) No permit shall be issued for any operations covered by this 
section unless the regulatory authority finds, in writing, that in 
addition to meeting all other applicable requirements of this 
subchapter, the operation will be conducted in compliance with 30 CFR 
part 819.


Sec.  785.21  Coal preparation plants not located within the permit 
area of a mine.

    (a) This section applies to any person who operates or intends to 
operate a coal preparation plant in connection with a coal mine but 
outside the permit area for a specific mine. Any person who operates 
such a preparation plant shall obtain a permit from the regulatory 
authority in accordance with the requirements of this section
    (b) Any application for a permit for operations covered by this 
section shall contain an operation and reclamation plan which specifies 
plans, including descriptions, maps, and cross sections, of the 
construction, operation, maintenance, and removal of the preparation 
plant and support facilities operated incident thereto or resulting 
therefrom. The plan shall demonstrate that those operations will be 
conducted in compliance with part 827 of this chapter.
    (c) No permit shall be issued for any operation covered by this 
section, unless the regulatory authority finds in writing that, in 
addition to meeting all other applicable requirements of this 
subchapter, the operations will be conducted in compliance with the 
requirements of part 827 of this chapter.
    (d)(1) Except as provided in paragraph (d)(2) of this section, any 
person who operates a coal preparation plant beyond May 10, 1986, that 
was not subject to this chapter before July 6, 1984, shall have applied 
for a permit no later than November 11, 1985.
    (2)(i) State programs that have a statutory or regulatory bar 
precluding issuance of permits to facilities covered by paragraph 
(d)(1) of this section shall notify OSMRE not later than November 7, 
1985, and shall establish a schedule for actions necessary to allow the 
permitting of such facilities as soon as practicable. Not later than 
December 9, 1985, this schedule shall be submitted to OSMRE for 
approval.
    (ii) Any person who operates a coal preparation plant that was not 
subject to this chapter before July 6, 1984, in a state which submits a 
schedule in accordance with paragraph (d)(2)(i) of this section shall 
apply for a permit in accordance with the schedule approved by OSMRE.
    (e) Notwithstanding Sec.  773.4 of this chapter and except as 
prohibited by Sec.  761.11 of this chapter, any person operating a coal 
preparation plant that was not subject to this chapter before July 6, 
1984, may continue to operate without a permit until May 10, 1986, and 
may continue to operate beyond that date if:
    (1) A permit application has been timely filed under paragraph 
(d)(1) of this section or under a State imposed schedule specified in 
paragraph (d)(2) of this section,
    (2) The regulatory authority has yet to either issue or deny the 
permit, and
    (3) The person complies with the applicable performance standards 
of Sec.  827.13 of this chapter.


Sec.  785.22  In situ processing activities.

    (a) This section applies to any person who conducts or intends to 
conduct surface coal mining and reclamation operations utilizing in 
situ processing activities.
    (b) Any application for a permit for operations covered by this 
section shall be made according to all requirements of this subchapter 
applicable to underground mining activities. In addition, the mining 
and reclamation operations plan for operations involving in situ 
processing activities shall contain information establishing how those 
operations will be conducted in compliance with the requirements of 30 
CFR part 828, including--
    (1) Delineation of proposed holes and wells and production zone for 
approval of the regulatory authority;
    (2) Specifications of drill holes and casings proposed to be used;
    (3) A plan for treatment, confinement or disposal of all acid-
forming, toxic-forming or radioactive gases, solids, or liquids 
constituting a fire, health, safety or environmental hazard caused by 
the mining and recovery process; and
    (4) Plans for monitoring surface and ground water and air quality, 
as required by the regulatory authority.
    (c) No permit shall be issued for operations covered by this 
section, unless the regulatory authority first finds, in writing, upon 
the basis of a complete application made in accordance with paragraph 
(b) of this section, that the operation will be conducted in compliance 
with all requirements of this subchapter relating to underground mining 
activities, and 30 CFR parts 817 and 828.


Sec.  785.25  Lands eligible for remining.

    (a) This section contains permitting requirements to implement 
Sec.  773.13. Any person who submits a permit application to conduct a 
surface coal mining operation on lands eligible for remining must 
comply with this section.
    (b) Any application for a permit under this section shall be made 
according to all requirements of this subchapter applicable to surface 
coal mining and reclamation operations. In addition, the application 
shall--
    (1) To the extent not otherwise addressed in the permit 
application, identify potential environmental and safety problems 
related to prior mining activity at the site and that could be 
reasonably anticipated to occur. This identification shall be based on 
a due diligence investigation which shall include visual observations 
at the site, a record review of past mining at the site, and 
environmental sampling tailored to current site conditions.
    (2) With regard to potential environmental and safety problems 
referred to in paragraph (b)(1) of this section, describe the 
mitigative measures that will be taken to ensure that the applicable 
reclamation requirements of the regulatory program can be met.

0
11. Revise part 800 to read as follows:

PART 800--BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING 
AND RECLAMATION OPERATIONS UNDER REGULATORY PROGRAMS

Sec.
800.1 Scope and purpose.
800.4 Regulatory authority responsibilities.
800.5 Definitions.
800.10 Information collection.
800.11 Requirement to file a bond.
800.12 Form of the performance bond.
800.13 Period of liability.
800.14 Determination of bond amount.
800.15 Adjustment of amount.
800.16 General terms and conditions of bond.
800.17 Bonding requirements for underground coal mines and long-term 
coal-related surface facilities and structures.
800.20 Surety bonds.
800.21 Collateral bonds.
800.23 Self-bonding.
800.30 Replacement of bonds.
800.40 Requirement to release performance bonds.
800.50 Forfeiture of bonds.
800.60 Terms and conditions for liability insurance.

[[Page 54973]]

800.70 Bonding for anthracite operations in Pennsylvania.

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


Sec.  800.1  Scope and purpose.

    This part sets forth the minimum requirements for filing and 
maintaining bonds and insurance for surface coal mining and reclamation 
operations under regulatory programs in accordance with the Act.


Sec.  800.4  Regulatory authority responsibilities.

    (a) The regulatory authority shall prescribe and furnish forms for 
filing performance bonds.
    (b) The regulatory authority shall prescribe by regulation terms 
and conditions for performance bonds and insurance.
    (c) The regulatory authority shall determine the amount of the bond 
for each area to be bonded, in accordance with Sec.  800.14. The 
regulatory authority shall also adjust the amount as acreage in the 
permit area is revised, or when other relevant conditions change 
according to the requirements of Sec.  800.15.
    (d) The regulatory authority may accept a self-bond if the 
permittee meets the requirements of Sec.  800.23 and any additional 
requirements in the State or Federal program.
    (e) The regulatory authority shall release liability under a bond 
or bonds in accordance with Sec.  800.40.
    (f) If the conditions specified in Sec.  800.50 occur, the 
regulatory authority shall take appropriate action to cause all or part 
of a bond to be forfeited in accordance with procedures of that 
section.
    (g) The regulatory authority shall require in the permit that 
adequate bond coverage be in effect at all times. Except as provided in 
Sec.  800.16(e)(2), operating without a bond is a violation of a 
condition upon which the permit is issued.


Sec.  800.5  Definitions.

    (a) Surety bond means an indemnity agreement in a sum certain 
payable to the regulatory authority, executed by the permittee as 
principal and which is supported by the performance guarantee of a 
corporation licensed to do business as a surety in the State where the 
operation is located.
    (b) Collateral bond means an indemnity agreement in a sum certain 
executed by the permittee as principal which is supported by the 
deposit with the regulatory authority of one or more of the following:
    (1) A cash account, which shall be the deposit of cash in one or 
more federally-insured or equivalently protected accounts, payable only 
to the regulatory authority upon demand, or the deposit of cash 
directly with the regulatory authority;
    (2) Negotiable bonds of the United States, a State, or a 
municipality, endorsed to the order of, and placed in the possession 
of, the regulatory authority;
    (3) Negotiable certificates of deposit, made payable or assigned to 
the regulatory authority and placed in its possession or held by a 
federally-insured bank;
    (4) An irrevocable letter of credit of any bank organized or 
authorized to transact business in the United States, payable only to 
the regulatory authority upon presentation;
    (5) A perfected, first-lien security interest in real property in 
favor of the regulatory authority; or
    (6) Other investment-grade rated securities having a rating of AAA, 
AA, or A or an equivalent rating issued by a nationally recognized 
securities rating service, endorsed to the order of, and placed in the 
possession of, the regulatory authority.
    (c) Self-bond means an indemnity agreement in a sum certain 
executed by the applicant or by the applicant and any corporate 
guarantor and made payable to the regulatory authority, with or without 
separate surety.


Sec.  800.10  Information collection.

    The collection of information contained in Sec. Sec.  800.11, 
800.21(c), 800.23(b)(2), 800.23(b)(3), 800.40(a), and 800.60(a) have 
been approved by the Office of Management and Budget under 44 U.S.C. 
3501 et seq. and assigned clearance number 1029-0043. The information 
will be used to determine if reclamation bonds are sufficient to comply 
with the Act. Response is required to obtain a benefit in accordance 
with the requirements of 30 U.S.C. 1201 et seq. Public reporting burden 
for this collection of information is estimated to average 28 hours per 
response, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Send comments 
regarding this burden estimate or any other aspects of this collection 
of information, including suggestions for reducing the burden, to the 
Office of Surface Mining Reclamation and Enforcement, Information 
Collection Clearance Officer, 1951 Constitution Avenue NW., rm 5415 L, 
Washington, DC 20240 and the Office of Management and Budget, Paperwork 
Reduction Project (1029-0043), Washington, DC 20503.


Sec.  800.11  Requirement to file a bond.

    (a) After a permit application under subchapter G of this chapter 
has been approved, but before a permit is issued, the applicant shall 
file with the regulatory authority, on a form prescribed and furnished 
by the regulatory authority, a bond or bonds for performance made 
payable to the regulatory authority and conditioned upon the faithful 
performance of all the requirements of the Act, the regulatory program, 
the permit, and the reclamation plan.
    (b)(1) 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.
    (2) As surface coal mining and reclamation operations on succeeding 
increments are initiated and conducted within the permit area, the 
permittee shall file with the regulatory authority an additional bond 
or bonds to cover such increments in accordance with this section.
    (3) The operator shall identify the initial and successive areas or 
increments for bonding on the permit application map submitted for 
approval as provided in the application (under parts 780 and 784 of 
this chapter), and shall specify the bond amount to be provided for 
each area or increment.
    (4) Independent increments shall be of sufficient size and 
configuration to provide for efficient reclamation operations should 
reclamation by the regulatory authority become necessary pursuant to 
Sec.  800.50.
    (c) An operator shall not disturb any surface areas, succeeding 
increments, or extend any underground shafts, tunnels or operations 
prior to acceptance by the regulatory authority of the required 
performance bond.
    (d) The applicant shall file, with the approval of the regulatory 
authority, a bond or bonds under one of the following schemes to cover 
the bond amounts for the permit area as determined in accordance with 
Sec.  800.14:
    (1) A performance bond or bonds for the entire permit area;
    (2) A cumulative bond schedule and the performance bond required 
for full reclamation of the initial area to be disturbed; or
    (3) An incremental bond schedule and the performance bond required 
for the first increment in the schedule.
    (e) OSM may approve, as part of a State or Federal program, an 
alternative

[[Page 54974]]

bonding system, if it will achieve the following objectives and 
purposes of the bonding program:
    (1) The alternative must assure that the regulatory authority will 
have available sufficient money to complete the reclamation plan for 
any areas which may be in default at any time; and
    (2) The alternative must provide a substantial economic incentive 
for the permittee to comply with all reclamation provisions.


Sec.  800.12  Form of the performance bond.

    The regulatory authority shall prescribe the form of the 
performance bond. The regulatory authority may allow for:
    (a) A surety bond;
    (b) A collateral bond;
    (c) A self-bond; or
    (d) A combination of any of these bonding methods.


Sec.  800.13  Period of liability.

    (a)(1) Performance bond liability shall be for the duration of the 
surface coal mining and reclamation operation and for a period which is 
coincident with the operator's period of extended responsibility for 
successful revegetation provided in Sec.  816.116 or Sec.  817.116 of 
this chapter or until achievement of the reclamation requirements of 
the Act, regulatory programs, and permit, whichever is later.
    (2) With the approval of 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 Sec. Sec.  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.
    (b) Isolated and clearly defined portions of the permit area 
requiring extended liability may be separated from the original area 
and bonded separately with the approval of the regulatory authority. 
Such areas shall be limited in extent and not constitute a scattered, 
intermittent, or checkerboard pattern of failure. Access to the 
separated areas for remedial work may be included in the area under 
extended liability if deemed necessary by the regulatory authority.
    (c) If the regulatory authority approves a long-term, intensive 
agricultural postmining land use, in accordance with Sec.  816.133 or 
Sec.  817.133 of this chapter, the applicable 5 or 10 year period of 
liability shall commence at the date of initial planting for such long-
term agricultural use.
    (d)(1) The bond liability of the permittee shall include only those 
actions which he or she is obligated to take under the permit, 
including completion of the reclamation plan, so that the land will be 
capable of supporting the postmining land use approved under Sec.  
816.133 or Sec.  817.133 of this chapter.
    (2) Implementation of an alternative postmining land use approved 
under Sec. Sec.  816.133(c) and 817.133(c) which is beyond the control 
of the permittee, need not be covered by the bond. Bond liability for 
prime farmland shall be as specified in Sec.  800.40(c)(2).


Sec.  800.14  Determination of bond amount.

    (a) The amount of the bond required for each bonded area shall:
    (1) Be determined by the regulatory authority;
    (2) Depend upon the requirements of the approved permit and 
reclamation plan;
    (3) Reflect the probable difficulty of reclamation, giving 
consideration to such factors as topography, geology, hydrology, and 
revegetation potential; and
    (4) Be based on, but not limited to, the estimated cost submitted 
by the permit applicant.
    (b) The amount of the bond shall be sufficient to assure the 
completion of the reclamation plan if the work has to be performed by 
the regulatory authority in the event of forfeiture, and in no case 
shall the total bond initially posted for the entire area under one 
permit be less than $10,000.
    (c) An operator's financial responsibility under Sec.  817.121(c) 
of this chapter for repairing material damage resulting from subsidence 
may be satisfied by the liability insurance policy required under Sec.  
800.60.


Sec.  800.15  Adjustment of amount.

    (a) The amount of the bond or deposit required and the terms of the 
acceptance of the applicant's bond shall be adjusted by the regulatory 
authority from time to time as the area requiring bond coverage is 
increased or decreased or where the cost of future reclamation changes. 
The regulatory authority may specify periodic times or set a schedule 
for reevaluating and adjusting the bond amount to fulfill this 
requirement.
    (b) The regulatory authority shall--
    (1) Notify the permittee, the surety, and any person with a 
property interest in collateral who has requested notification under 
Sec.  800.21(f) of any proposed adjustment to the bond amount; and
    (2) Provide the permittee an opportunity for an informal conference 
on the adjustment.
    (c) A permittee may request reduction of the amount of the 
performance bond upon submission of evidence to the regulatory 
authority proving that the permittee's method of operation or other 
circumstances reduces the estimated cost for the regulatory authority 
to reclaim the bonded area. Bond adjustments which involve undisturbed 
land or revision of the cost estimate of reclamation are not considered 
bond release subject to procedures of Sec.  800.40.
    (d) In the event that an approved permit is revised in accordance 
with subchapter G of this chapter, the regulatory authority shall 
review the bond for adequacy and, if necessary, shall require 
adjustment of the bond to conform to the permit as revised.


Sec.  800.16  General terms and conditions of bond.

    (a) The performance bond shall be in an amount determined by the 
regulatory authority as provided in Sec.  800.14.
    (b) The performance bond shall be payable to the regulatory 
authority.
    (c) The performance bond shall be conditioned upon faithful 
performance of all the requirements of the Act, this chapter, the 
regulatory program, and the approved permit, including completion of 
the reclamation plan.
    (d) The duration of the bond shall be for the time period provided 
in Sec.  800.13.
    (e)(1) The bond shall provide a mechanism for a bank or surety 
company to give prompt notice to the regulatory authority and the 
permittee of any action filed alleging the insolvency or bankruptcy of 
the surety company, the bank, or the permittee, or alleging any 
violations which would result in suspension or revocation of the surety 
or bank charter or license to do business.
    (2) Upon the incapacity of a bank or surety company by reason of 
bankruptcy, insolvency, or suspension or revocation of a charter or 
license, the permittee shall be deemed to be without bond coverage and 
shall promptly notify the regulatory authority. The regulatory 
authority, upon notification received through procedures of paragraph 
(e)(1) of this section or from the permittee, shall, in writing, notify 
the operator who is without bond coverage and specify a reasonable 
period, not to exceed 90 days, to replace bond coverage. If an adequate 
bond is not posted by the end of the period allowed, the operator shall 
cease coal extraction and shall comply with the provisions of Sec.  
816.132 or Sec.  817.132 of this chapter and shall immediately begin to 
conduct reclamation operations in accordance with the reclamation plan. 
Mining

[[Page 54975]]

operations shall not resume until the regulatory authority has 
determined that an acceptable bond has been posted.


Sec.  800.17  Bonding requirements for underground coal mines and long-
term coal-related surface facilities and structures.

    (a) Responsibilities. The regulatory authority shall require bond 
coverage, in an amount determined under Sec.  800.14, for long-term 
surface facilities and structures, and for areas disturbed by surface 
impacts incident to underground mines, for which a permit is required. 
Specific reclamation techniques required for underground mines and 
long-term facilities shall be considered in determining the amount of 
bond to complete the reclamation.
    (b) Long-term period of liability. (1) The period of liability for 
every bond covering long-term surface disturbances shall commence with 
the issuance of a permit, except that to the extent that such 
disturbances will occur on a succeeding increment to be bonded, such 
liability will commence upon the posting of the bond for that increment 
before the initial surface disturbance of that increment. The liability 
period shall extend until all reclamation, restoration, and abatement 
work under the permit has been completed and the bond is released under 
the provisions of Sec.  800.40, or until the bond has been replaced or 
extended in accordance with Sec.  800.17(b)(3).
    (2) Long-term surface disturbances shall include long-term coal-
related surface facilities and structures, and surface impacts incident 
to underground coal mining, which disturb an area for a period that 
exceeds 5 years. Long-term surface disturbances include, but are not 
limited to: surface features of shafts and slope facilities, coal 
refuse areas, powerlines, bore-holes, ventilation shafts, preparation 
plants, machine shops, roads, and loading and treatment facilities.
    (3) To achieve continuous bond coverage for long-term surface 
disturbances, the bond shall be conditioned upon extension, 
replacement, or payment in full, 30 days prior to the expiration of the 
bond term.
    (4) Continuous bond coverage shall apply throughout the period of 
extended responsibility for successful revegetation and until the 
provisions of Sec.  800.40 have been met.
    (c) Bond forfeiture. The regulatory authority shall take action to 
forfeit a bond pursuant to this section, if 30 days prior to bond 
expiration, the operator has not filed: (1) A performance bond for a 
new term as required for continuous coverage, or (2) a performance bond 
providing coverage for the period of liability, including the period of 
extended responsibility for successful revegetation.


Sec.  800.20  Surety bonds.

    (a) A surety bond shall be executed by the operator and a corporate 
surety licensed to do business in the State where the operation is 
located.
    (b) Surety bonds shall be noncancellable during their terms, except 
that surety bond coverage for lands not disturbed may be cancelled with 
the prior consent of the regulatory authority. The regulatory authority 
shall advise the surety, within 30 days after receipt of a notice to 
cancel bond, whether the bond may be cancelled on an undisturbed area.


Sec.  800.21  Collateral bonds.

    (a) Collateral bonds, except for letters of credit, cash accounts, 
and real property, shall be subject to the following conditions:
    (1) The regulatory authority shall keep custody of collateral 
deposited by the applicant until authorized for release or replacement 
as provided in this subchapter.
    (2) The regulatory authority shall value collateral at its current 
market value, not at face value.
    (3) The regulatory authority shall require that certificates of 
deposit be made payable to or assigned to the regulatory authority, 
both in writing and upon the records of the bank issuing the 
certificates. If assigned, the regulatory authority shall require the 
banks issuing these certificates to waive all rights of setoff or liens 
against those certificates.
    (4) The regulatory authority shall not accept an individual 
certificate of deposit in an amount in excess of $100,000 or the 
maximum insurable amount as determined by the Federal Deposit Insurance 
Corporation or the Federal Savings and Loan Insurance Corporation.
    (b) Letters of credit shall be subject to the following conditions:
    (1) The letter may be issued only by a bank organized or authorized 
to do business in the United States;
    (2) Letters of credit shall be irrevocable during their terms. A 
letter of credit used as security in areas requiring continuous bond 
coverage shall be forfeited and shall be collected by the regulatory 
authority if not replaced by other suitable bond or letter of credit at 
least 30 days before its expiration date.
    (3) The letter of credit shall be payable to the regulatory 
authority upon demand, in part or in full, upon receipt from the 
regulatory authority of a notice of forfeiture issued in accordance 
with Sec.  800.50.
    (c) Real property posted as a collateral bond shall meet the 
following conditions:
    (1) The applicant shall grant the regulatory authority a first 
mortgage, first deed of trust, or perfected first-lien security 
interest in real property with a right to sell or otherwise dispose of 
the property in the event of forfeiture under Sec.  800.50.
    (2) In order for the regulatory authority to evaluate the adequacy 
of the real property offered to satisfy collateral requirements, the 
applicant shall submit a schedule of the real property which shall be 
mortgaged or pledged to secure the obligations under the indemnity 
agreement. The list shall include--
    (i) A description of the property;
    (ii) The fair market value as determined by an independent 
appraisal conducted by a certified appraiser; and
    (iii) Proof of possession and title to the real property.
    (3) The property may include land which is part of the permit area; 
however, land pledged as collateral for a bond under this section shall 
not be disturbed under any permit while it is serving as security under 
this section.
    (d) Cash accounts shall be subject to the following conditions:
    (1) The regulatory authority may authorize the operator to 
supplement the bond through the establishment of a cash account in one 
or more federally-insured or equivalently protected accounts made 
payable upon demand to, or deposited directly with, the regulatory 
authority. The total bond including the cash account shall not be less 
than the amount required under terms of performance bonds including any 
adjustments, less amounts released in accordance with Sec.  800.40.
    (2) Any interest paid on a cash account shall be retained in the 
account and applied to the bond value of the account unless the 
regulatory authority has approved the payment of interest to the 
operator.
    (3) Certificates of deposit may be substituted for a cash account 
with the approval of the regulatory authority.
    (4) The regulatory authority shall not accept an individual cash 
account in an amount in excess of $100,000 or the maximum insurable 
amount as determined by the Federal Deposit Insurance Corporation or 
the Federal Savings and Loan Insurance Corporation.
    (e)(1) The estimated bond value of all collateral posted as 
assurance under this section shall be subject to a margin which is the 
ratio of bond value to

[[Page 54976]]

market value, as determined by the regulatory authority. The margin 
shall reflect legal and liquidation fees, as well as value 
depreciation, marketability, and fluctuations which might affect the 
net cash available to the regulatory authority to complete reclamation.
    (2) The bond value of collateral may be evaluated at any time but 
it shall be evaluated as part of permit renewal and, if necessary, the 
performance bond amount increased or decreased. In no case shall the 
bond value of collateral exceed the market value.
    (f) Persons with an interest in collateral posted as a bond, and 
who desire notification of actions pursuant to the bond, shall request 
the notification in writing to the regulatory authority at the time 
collateral is offered.


Sec.  800.23  Self-bonding.

    (a) Definitions. For the purposes of this section only:
    Current assets means cash or other assets or resources which are 
reasonably expected to be converted to cash or sold or consumed within 
one year or within the normal operating cycle of the business.
    Current liabilities means obligations which are reasonably expected 
to be paid or liquidated within one year or within the normal operating 
cycle of the business.
    Fixed assets means plants and equipment, but does not include land 
or coal in place.
    Liabilities means obligations to transfer assets or provide 
services to other entities in the future as a result of past 
transactions.
    Net worth means total assets minus total liabilities and is 
equivalent to owners' equity.
    Parent corporation means a corporation which owns or controls the 
applicant.
    Tangible net worth means net worth minus intangibles such as 
goodwill and rights to patents or royalties.
    (b) The regulatory authority may accept a self-bond from an 
applicant for a permit if all of the following conditions are met by 
the applicant or its parent corporation guarantor:
    (1) The applicant designates a suitable agent to receive service of 
process in the State where the proposed surface coal mining operation 
is to be conducted.
    (2) The applicant has been in continuous operation as a business 
entity for a period of not less than 5 years. Continuous operation 
shall mean that business was conducted over a period of 5 years 
immediately preceding the time of application.
    (i) The regulatory authority may allow a joint venture or syndicate 
with less than 5 years of continuous operation to qualify under this 
requirement, if each member of the joint venture or syndicate has been 
in continuous operation for at least 5 years immediately preceding the 
time of application.
    (ii) When calculating the period of continuous operation, the 
regulatory authority may exclude past periods of interruption to the 
operation of the business entity that were beyond the applicant's 
control and that do not affect the applicant's likelihood of remaining 
in business during the proposed surface coal mining and reclamation 
operations.
    (3) The applicant submits financial information in sufficient 
detail to show that the applicant meets one of the following criteria:
    (i) The applicant has a current rating for its most recent bond 
issuance of ``A'' or higher as issued by either Moody's Investor 
Service or Standard and Poor's Corporation;
    (ii) The applicant has a tangible net worth of at least $10 
million, a ratio of total liabilities to net worth of 2.5 times or 
less, and a ratio of current assets to current liabilities of 1.2 times 
or greater; or
    (iii) The applicant's fixed assets in the United States total at 
least $20 million, and the applicant has a ratio of total liabilities 
to net worth of 2.5 times or less, and a ratio of current assets to 
current liabilities of 1.2 times or greater.
    (4) The applicant submits;
    (i) Financial statements for the most recently completed fiscal 
year accompanied by a report prepared by an independent certified 
public accountant in conformity with generally accepted accounting 
principles and containing the accountant's audit opinion or review 
opinion of the financial statements with no adverse opinion;
    (ii) Unaudited financial statements for completed quarters in the 
current fiscal year; and
    (iii) Additional unaudited information as requested by the 
regulatory authority.
    (c)(1) The regulatory authority may accept a written guarantee for 
an applicant's self-bond from a parent corporation guarantor, if the 
guarantor meets the conditions of paragraphs (b)(1) through (b)(4) of 
this section as if it were the applicant. Such a written guarantee 
shall be referred to as a ``corporate guarantee.'' The terms of the 
corporate guarantee shall provide for the following:
    (i) If the applicant fails to complete the reclamation plan, the 
guarantor shall do so or the guarantor shall be liable under the 
indemnity agreement to provide funds to the regulatory authority 
sufficient to complete the reclamation plan, but not to exceed the bond 
amount.
    (ii) The corporate guarantee shall remain in force unless the 
guarantor sends notice of cancellation by certified mail to the 
applicant and to the regulatory authority at least 90 days in advance 
of the cancellation date, and the regulatory authority accepts the 
cancellation.
    (iii) The cancellation may be accepted by the regulatory authority 
if the applicant obtains suitable replacement bond before the 
cancellation date or if the lands for which the self-bond, or portion 
thereof, was accepted have not been disturbed.
    (2) The regulatory authority may accept a written guarantee for an 
applicant's self-bond from any corporate guarantor, whenever the 
applicant meets the conditions of paragraphs (b)(1), (b)(2) and (b)(4) 
of this section, and the guarantor meets the conditions of paragraphs 
(b)(1) through (b)(4) of this section. Such a written guarantee shall 
be referred to as a ``non-parent corporate guarantee.'' The terms of 
this guarantee shall provide for compliance with the conditions of 
paragraphs (c)(1)(i) through (c)(1)(iii) of this section. The 
regulatory authority may require the applicant to submit any 
information specified in paragraph (b)(3) of this section in order to 
determine the financial capabilities of the applicant.
    (d) For the regulatory authority to accept an applicant's self-
bond, the total amount of the outstanding and proposed self-bonds of 
the applicant for surface coal mining and reclamation operations shall 
not exceed 25 percent of the applicant's tangible net worth in the 
United States. For the regulatory authority to accept a corporate 
guarantee, the total amount of the parent corporation guarantor's 
present and proposed self-bonds and guaranteed self-bonds for surface 
coal mining and reclamation operations shall not exceed 25 percent of 
the guarantor's tangible net worth in the United States. For the 
regulatory authority to accept a non-parent corporate guarantee, the 
total amount of the non-parent corporate guarantor's present and 
proposed self-bonds and guaranteed self-bonds shall not exceed 25 
percent of the guarantor's tangible net worth in the United States.
    (e) If the regulatory authority accepts an applicant's self-bond, 
an indemnity agreement shall be submitted subject to the following 
requirements:
    (1) The indemnity agreement shall be executed by all persons and 
parties who are to be bound by it, including the parent corporation 
guarantor, and shall bind each jointly and severally.

[[Page 54977]]

    (2) Corporations applying for a self-bond, and parent and non-
parent corporations guaranteeing an applicant's self-bond shall submit 
an indemnity agreement signed by two corporate officers who are 
authorized to bind their corporations. A copy of such authorization 
shall be provided to the regulatory authority along with an affidavit 
certifying that such an agreement is valid under all applicable Federal 
and State laws. In addition, the guarantor shall provide a copy of the 
corporate authorization demonstrating that the corporation may 
guarantee the self-bond and execute the indemnity agreement.
    (3) If the applicant is a partnership, joint venture or syndicate, 
the agreement shall bind each partner or party who has a beneficial 
interest, directly or indirectly, in the applicant.
    (4) Pursuant to Sec.  800.50, the applicant, parent or non-parent 
corporate guarantor shall be required to complete the approved 
reclamation plan for the lands in default or to pay to the regulatory 
authority an amount necessary to complete the approved reclamation 
plan, not to exceed the bond amount. If permitted under State law, the 
indemnity agreement when under forfeiture shall operate as a judgment 
against those parties liable under the indemnity agreement.
    (f) A regulatory authority may require self-bonded applicants, 
parent and non-parent corporate guarantors to submit an update of the 
information required under paragraphs (b)(3) and (b)(4) of this section 
within 90 days after the close of each fiscal year following the 
issuance of the self-bond or corporate guarantee.
    (g) If at any time during the period when a self-bond is posted, 
the financial conditions of the applicant, parent or non-parent 
corporate guarantor change so that the criteria of paragraphs (b)(3) 
and (d) of this section are not satisfied, the permittee shall notify 
the regulatory authority immediately and shall within 90 days post an 
alternate form of bond in the same amount as the self-bond. Should the 
permittee fail to post an adequate substitute bond, the provisions of 
Sec.  800.16(e) shall apply.


Sec.  800.30  Replacement of bonds.

    (a) The regulatory authority may allow a permittee to replace 
existing bonds with other bonds that provide equivalent coverage.
    (b) The regulatory authority shall not release existing performance 
bonds until the permittee has submitted, and the regulatory authority 
has approved, acceptable replacement performance bonds. Replacement of 
a performance bond pursuant to this section shall not constitute a 
release of bond under Sec.  800.40.


Sec.  800.40  Requirement to release performance bonds.

    (a) Bond release application. (1) The permittee may file an 
application with the regulatory authority for the release of all or 
part of a performance bond. Applications may be filed only at times or 
during seasons authorized by the regulatory authority in order to 
properly evaluate the completed reclamation operations. The times or 
seasons appropriate for the evaluation of certain types of reclamation 
shall be established in the regulatory program or identified in the 
mining and reclamation plan required in subchapter G of this chapter 
and approved by the regulatory authority.
    (2) Within 30 days after an application for bond release has been 
filed with the regulatory authority, the permittee shall submit a copy 
of an advertisement placed at least once a week for four successive 
weeks in a newspaper of general circulation in the locality of the 
surface coal mining operation. The advertisement shall be considered 
part of any bond release application and shall contain the permittee's 
name, permit number and approval date, notification of the precise 
location of the land affected, the number of acres, the type and amount 
of the bond filed and the portion sought to be released, the type and 
appropriate dates of reclamation work performed, a description of the 
results achieved as they relate to the permittee's approved reclamation 
plan, and the name and address of the regulatory authority to which 
written comments, objections, or requests for public hearings and 
informal conferences on the specific bond release may be submitted 
pursuant to Sec.  800.40 (f) and (h). In addition, as part of any bond 
release application, the permittee shall submit copies of letters which 
he or she has sent to adjoining property owners, local governmental 
bodies, planning agencies, sewage and water treatment authorities, and 
water companies in the locality in which the surface coal mining and 
reclamation operation took place, notifying them of the intention to 
seek release from the bond.
    (3) The permittee shall include in the application for bond release 
a notarized statement which certifies that all applicable reclamation 
activities have been accomplished in accordance with the requirements 
of the Act, the regulatory program, and the approved reclamation plan. 
Such certification shall be submitted for each application or phase of 
bond release.
    (b) Inspection by regulatory authority. (1) Upon receipt of the 
bond release application, the regulatory authority shall, within 30 
days, or as soon thereafter as weather conditions permit, conduct an 
inspection and evaluation of the reclamation work involved. The 
evaluation shall consider, among other factors, the degree of 
difficulty to complete any remaining reclamation, whether pollution of 
surface and subsurface water is occurring, the probability of future 
occurrence of such pollution, and the estimated cost of abating such 
pollution. The surface owner, agent, or lessee shall be given notice of 
such inspection and may participate with the regulatory authority in 
making the bond release inspection. The regulatory authority may 
arrange with the permittee to allow access to the permit area, upon 
request by any person with an interest in bond release, for the purpose 
of gathering information relevant to the proceeding.
    (2) Within 60 days from the filing of the bond release application, 
if no public hearing is held pursuant to paragraph (f) of this section, 
or, within 30 days after a public hearing has been held pursuant to 
paragraph (f) of this section, the regulatory authority shall notify in 
writing the permittee, the surety or other persons with an interest in 
bond collateral who have requested notification under Sec.  800.21(f), 
and the persons who either filed objections in writing or objectors who 
were a party to the hearing proceedings, if any, of its decision to 
release or not to release all or part of the performance bond.
    (c) The regulatory authority may release all or part of the bond 
for the entire permit area or incremental area if the regulatory 
authority is satisfied that all the reclamation or a phase of the 
reclamation covered by the bond or portion thereof has been 
accomplished in accordance with the following schedules for reclamation 
of Phases I, II, and III:
    (1) At the completion of Phase I, after the operator completes the 
backfilling, regrading (which may include the replacement of topsoil) 
and drainage control of a bonded area in accordance with the approved 
reclamation plan, 60 percent of the bond or collateral for the 
applicable area.
    (2) At the completion of Phase II, after revegetation has been 
established on the regraded mined lands in accordance with the approved 
reclamation plan, an additional amount of bond. When determining the 
amount of bond to be released after successful revegetation has been 
established, the regulatory authority shall retain that amount of bond 
for the revegetated area which

[[Page 54978]]

would be sufficient to cover the cost of reestablishing revegetation if 
completed by a third party and for the period specified for operator 
responsibility in section 515 of the Act for reestablishing 
revegetation. No part of the bond or deposit shall be released under 
this paragraph so long as the lands to which the release would be 
applicable are contributing suspended solids to streamflow or runoff 
outside the permit area in excess of the requirements set by section 
515(b)(10) of the Act and by subchapter K of this chapter or until soil 
productivity for prime farmlands has returned to the equivalent levels 
of yield as nonmined land of the same soil type in the surrounding area 
under equivalent management practices as determined from the soil 
survey performed pursuant to section 507(b)(16) of the Act and part 823 
of this chapter. Where a silt dam is to be retained as a permanent 
impoundment pursuant to subchapter K of this chapter, the Phase II 
portion of the bond may be released under this paragraph so long as 
provisions for sound future maintenance by the operator or the 
landowner have been made with the regulatory authority.
    (3) At the completion of Phase III, after the operator has 
completed successfully all surface coal mining and reclamation 
activities, the release of the remaining portion of the bond, but not 
before the expiration of the period specified for operator 
responsibility in Sec.  816.116 or Sec.  817.116 of this chapter. 
However, no bond shall be fully released under provisions of this 
section until reclamation requirements of the Act and the permit are 
fully met.
    (d) If the regulatory authority disapproves the application for 
release of the bond or portion thereof, the regulatory authority shall 
notify the permittee, the surety, and any person with an interest in 
collateral as provided for in Sec.  800.21(f), in writing, stating the 
reasons for disapproval and recommending corrective actions necessary 
to secure the release and allowing an opportunity for a public hearing.
    (e) When any application for total or partial bond release is filed 
with the regulatory authority, the regulatory authority shall notify 
the municipality in which the surface coal mining operation is located 
by certified mail at least 30 days prior to the release of all or a 
portion of the bond.
    (f) Any person with a valid legal interest which might be adversely 
affected by release of the bond, or the responsible officer or head of 
any Federal, State, or local governmental agency which has jurisdiction 
by law or special expertise with respect to any environmental, social, 
or economic impact involved in the operation or which is authorized to 
develop and enforce environmental standards with respect to such 
operations, shall have the right to file written objections to the 
proposed release from bond with the regulatory authority within 30 days 
after the last publication of the notice required by Sec.  
800.40(a)(2). If written objections are filed and a hearing is 
requested, the regulatory authority shall inform all the interested 
parties of the time and place of the hearing, and shall hold a public 
hearing within 30 days after receipt of the request for the hearing. 
The date, time, and location of the public hearing shall be advertised 
by the regulatory authority in a newspaper of general circulation in 
the locality for two consecutive weeks. The public hearing shall be 
held in the locality of the surface coal mining operation from which 
bond release is sought, at the location of the regulatory authority 
office, or at the State capital, at the option of the objector.
    (g) For the purpose of the hearing under paragraph (f) of this 
section, the regulatory authority shall have the authority to 
administer oaths, subpoena witnesses or written or printed material, 
compel the attendance of witnesses or the production of materials, and 
take evidence including, but not limited to, inspection of the land 
affected and other surface coal mining operations carried on by the 
applicant in the general vicinity. A verbatim record of each public 
hearing shall be made, and a transcript shall be made available on the 
motion of any party or by order of the regulatory authority.
    (h) Without prejudice to the right of an objector or the applicant, 
the regulatory authority may hold an informal conference as provided in 
section 513(b) of the Act to resolve such written objections. The 
regulatory authority shall make a record of the informal conference 
unless waived by all parties, which shall be accessible to all parties. 
The regulatory authority shall also furnish all parties of the informal 
conference with a written finding of the regulatory authority based on 
the informal conference, and the reasons for said finding.


Sec.  800.50  Forfeiture of bonds.

    (a) If an operator refuses or is unable to conduct reclamation of 
an unabated violation, if the terms of the permit are not met, or if 
the operator defaults on the conditions under which the bond was 
accepted, the regulatory authority shall take the following action to 
forfeit all or part of a bond or bonds for any permit area or an 
increment of a permit area:
    (1) Send written notification by certified mail, return receipt 
requested, to the permittee and the surety on the bond, if any, 
informing them of the determination to forfeit all or part of the bond, 
including the reasons for the forfeiture and the amount to be 
forfeited. The amount shall be based on the estimated total cost of 
achieving the reclamation plan requirements.
    (2) Advise the permittee and surety, if applicable, of the 
conditions under which forfeiture may be avoided. Such conditions may 
include, but are not limited to--
    (i) Agreement by the permittee or another party to perform 
reclamation operations in accordance with a compliance schedule which 
meets the conditions of the permit, the reclamation plan, and the 
regulatory program and a demonstration that such party has the ability 
to satisfy the conditions; or
    (ii) The regulatory authority may allow a surety to complete the 
reclamation plan, or the portion of the reclamation plan applicable to 
the bonded phase or increment, if the surety can demonstrate an ability 
to complete the reclamation in accordance with the approved reclamation 
plan. Except where the regulatory authority may approve partial release 
authorized under Sec.  800.40, no surety liability shall be released 
until successful completion of all reclamation under the terms of the 
permit, including applicable liability periods of Sec.  800.13.
    (b) In the event forfeiture of the bond is required by this 
section, the regulatory authority shall--
    (1) Proceed to collect the forfeited amount as provided by 
applicable laws for the collection of defaulted bonds or other debts if 
actions to avoid forfeiture have not been taken, or if rights of 
appeal, if any, have not been exercised within a time established by 
the regulatory authority, or if such appeal, if taken, is unsuccessful.
    (2) Use funds collected from bond forfeiture to complete the 
reclamation plan, or portion thereof, on the permit area or increment, 
to which bond coverage applies.
    (c) Upon default, the regulatory authority may cause the forfeiture 
of any and all bonds deposited to complete reclamation for which the 
bonds were posted. Unless specifically limited, as provided in Sec.  
800.11(b), bond liability shall extend to the entire permit area under 
conditions of forfeiture.
    (d)(1) In the event the estimated amount forfeited is insufficient 
to pay for the full cost of reclamation, the

[[Page 54979]]

operator shall be liable for remaining costs. The regulatory authority 
may complete, or authorize completion of, reclamation of the bonded 
area and may recover from the operator all costs of reclamation in 
excess of the amount forfeited.
    (2) In the event the amount of performance bond forfeited was more 
than the amount necessary to complete reclamation, the unused funds 
shall be returned by the regulatory authority to the party from whom 
they were collected.


Sec.  800.60  Terms and conditions for liability insurance.

    (a) The regulatory authority shall require the applicant to submit 
as part of its permit application a certificate issued by an insurance 
company authorized to do business in the United States certifying that 
the applicant has a public liability insurance policy in force for the 
surface coal mining and reclamation operations for which the permit is 
sought. Such policy shall provide for personal injury and property 
damage protection in an amount adequate to compensate any persons 
injured or property damaged as a result of the surface coal mining and 
reclamation operations, including the use of explosives, and who are 
entitled to compensation under the applicable provisions of State law. 
Minimum insurance coverage for bodily injury and property damage shall 
be $300,000 for each occurrence and $500,000 aggregate.
    (b) The policy shall be maintained in full force during the life of 
the permit or any renewal thereof and the liability period necessary to 
complete all reclamation operations under this Chapter.
    (c) The policy shall include a rider requiring that the insurer 
notify the regulatory authority whenever substantive changes are made 
in the policy including any termination or failure to renew.
    (d) The regulatory authority may accept from the applicant, in lieu 
of a certificate for a public liability insurance policy, satisfactory 
evidence from the applicant that it satisfies applicable State self-
insurance requirements approved as part of the regulatory program and 
the requirements of this section.


Sec.  800.70  Bonding for anthracite operations in Pennsylvania.

    (a) All of the provisions of this subchapter shall apply to bonding 
and insuring anthracite surface coal mining and reclamation operations 
in Pennsylvania except that--
    (1) Specified bond limits shall be determined by the regulatory 
authority in accordance with applicable provisions of Pennsylvania 
statutes, rules and regulations promulgated thereunder, and 
implementing policies of the Pennsylvania Department of Environmental 
Resources.
    (2) The period of liability for responsibility under each bond 
shall be established for those operations in accordance with applicable 
laws of the State of Pennsylvania, rules and regulations promulgated 
thereunder, and implementing policies of the Pennsylvania Department of 
Environmental Resources.
    (b) Upon amendment of the Pennsylvania permanent regulatory program 
with respect to specified bond limits and period of revegetation 
responsibility for anthracite surface coal mining and reclamation 
operations, any person engaging in or seeking to engage in those 
operations shall comply with additional regulations the Secretary may 
issue as are necessary to meet the purposes of the Act.

0
12. Revise part 816 to read as follows:

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

Sec.
816.1 Scope.
816.2 Objectives.
816.10 Information collection.
816.11 Signs and markers.
816.13 Casing and sealing of drilled holes: General requirements.
816.14 Casing and sealing of drilled holes: Temporary.
816.15 Casing and sealing of drilled holes: Permanent.
816.22 Topsoil and subsoil.
816.41 Hydrologic-balance protection.
816.42 Hydrologic balance: Water quality standards and effluent 
limitations.
816.43 Diversions.
816.45 Hydrologic balance: Sediment control measures.
816.46 Hydrologic balance: Siltation structures.
816.47 Hydrologic balance: Discharge structures.
816.49 Impoundments.
816.56 Postmining rehabilitation of sedimentation ponds, diversions, 
impoundments, and treatment facilities.
816.57 Hydrologic balance: Stream buffer zones.
816.59 Coal recovery.
816.61 Use of explosives: General requirements.
816.62 Use of explosives: Preblasting survey.
816.64 Use of explosives: Blasting schedule.
816.66 Use of explosives: Blasting signs, warnings, and access 
control.
816.67 Use of explosives: Control of adverse effects.
816.68 Use of explosives: Records of blasting operations.
816.71 Disposal of excess spoil: General requirements.
816.72 Disposal of excess spoil: Valley fills/head-of-hollow fills.
816.73 Disposal of excess spoil: Durable rock fills.
816.74 Disposal of excess spoil: Preexisting benches.
816.79 Protection of underground mining.
816.81 Coal mine waste: General requirements.
816.83 Coal mine waste: Refuse piles.
816.84 Coal mine waste: Impounding structures.
816.87 Coal mine waste: Burning and burned waste utilization.
816.89 Disposal of noncoal mine wastes.
816.95 Stabilization of surface areas.
816.97 Protection of fish, wildlife, and related environmental 
values.
816.99 Slides and other damage.
816.100 Contemporaneous reclamation.
816.101 Backfilling and grading: Time and distance requirements.
816.102 Backfilling and grading: General grading requirements.
816.104 Backfilling and grading: Thin overburden.
816.105 Backfilling and grading: Thick overburden.
816.106 Backfilling and grading: Previously mined areas.
816.107 Backfilling and grading: Steep slopes.
816.111 Revegetation: General requirements.
816.113 Revegetation: Timing.
816.114 Revegetation: Mulching and other soil stabilizing practices.
816.116 Revegetation: Standards for success.
816.131 Cessation of operations: Temporary.
816.132 Cessation of operations: Permanent.
816.133 Postmining land use.
816.150 Roads: General.
816.151 Primary roads.
816.180 Utility installations.
816.181 Support facilities.
816.200 Interpretative rules related to general performance 
standards.

    Authority:  30 U.S.C. 1201 et seq.; and sec 115 of Pub. L. 98-
146.


Sec.  816.1  Scope.

    This part sets forth the minimum environmental protection 
performance standards to be adopted and implemented under regulatory 
programs for surface mining activities.


Sec.  816.2  Objectives.

    This part is intended to ensure that all surface mining activities 
are conducted in a manner which preserves and enhances environmental 
and other values in accordance with the Act.


Sec.  816.10  Information collection.

    (a) The collections of information contained in part 816 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq.

[[Page 54980]]

and assigned clearance number 1029-0047. The information will be used 
by the regulatory authority to monitor and inspect surface coal mining 
activities to ensure that they are in compliance with the Surface 
Mining Control and Reclamation Act. Response is required to obtain a 
benefit.
    (b) Public Reporting Burden for this information is estimated to 
average 1 hour per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing the burden, to the Information Collection 
Clearance Officer, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Ave. NW., Room 203, Washington, DC 
20240; and the Office of Management and Budget, Paperwork Reduction 
Project (1029-0047), Washington, DC 20503.


Sec.  816.11  Signs and markers.

    (a) Specifications. Signs and markers required under this part 
shall--
    (1) Be posted and maintained by the person who conducts the surface 
mining activities;
    (2) Be of a uniform design throughout the operation that can be 
easily seen and read;
    (3) Be made of durable material; and
    (4) Conform to local ordinances and codes.
    (b) Duration of maintenance. Signs and markers shall be maintained 
during the conduct of all activities to which they pertain.
    (c) Mine and permit identification signs. (1) Identification signs 
shall be displayed at each point of access to the permit area from 
public roads.
    (2) Signs shall show the name, business address, and telephone 
number of the person who conducts the surface mining activities and the 
identification number of the current permit authorizing surface mining 
activities.
    (3) Signs shall be retained and maintained until after the release 
of all bonds for the permit area.
    (d) Perimeter markers. The perimeter of a permit area shall be 
clearly marked before the beginning of surface mining activities.
    (e) Buffer zone markers. Buffer zones shall be marked along their 
boundaries as required under Sec.  816.57.
    (f) Topsoil markers. Where topsoil or other vegetation-supporting 
material is segregated and stockpiled as required under Sec.  816.22, 
the stockpiled material shall be clearly marked.


Sec.  816.13  Casing and sealing of drilled holes: General 
requirements.

    Each exploration hole, other drill or borehole, well, or other 
exposed underground opening shall be cased, sealed, or otherwise 
managed, as approved by the regulatory authority, to prevent acid or 
other toxic drainage from entering ground or surface waters, to 
minimize disturbance to the prevailing hydrologic balance, and to 
ensure the safety of people, livestock, fish and wildlife, and 
machinery in the permit area and adjacent area. If these openings are 
uncovered or exposed by surface mining activities within the permit 
area they shall be permanently closed, unless approved for water 
monitoring, or otherwise managed in a manner approved by the regulatory 
authority. Use of a drilled hole or borehole or monitoring well as a 
water well must meet the provisions of Sec.  816.41 of this part. This 
section does not apply to holes solely drilled and used for blasting.


Sec.  816.14  Casing and sealing of drilled holes: Temporary.

    Each exploration hole, other drill or boreholes, wells and other 
exposed underground openings which have been identified in the approved 
permit application for use to return coal processing waste or water to 
underground workings, or to be used to monitor ground water conditions, 
shall be temporarily sealed before use and protected during use by 
barricades, or fences, or other protective devices approved by the 
regulatory authority. These devices shall be periodically inspected and 
maintained in good operating condition by the person who conducts the 
surface mining activities.


Sec.  816.15  Casing and sealing of drilled holes: Permanent.

    When no longer needed for monitoring or other use approved by the 
regulatory authority upon a finding of no adverse environmental or 
health and safety effect, or unless approved for transfer as a water 
well under Sec.  816.41, each exploration hole, other drilled hole or 
borehole, well, and other exposed underground opening shall be capped, 
sealed, backfilled, or otherwise properly managed, as required by the 
regulatory authority, under Sec.  816.13 and consistent with 30 CFR 
75.1711. Permanent closure measures shall be designed to prevent access 
to the mine workings by people, livestock, fish and wildlife, and 
machinery, and to keep acid or other toxic drainage from entering 
ground or surface waters.


Sec.  816.22  Topsoil and subsoil.

    (a) Removal. (1)(i) All topsoil shall be removed as a separate 
layer from the area to be disturbed, and segregated.
    (ii) Where the topsoil is of insufficient quantity or poor quality 
for sustaining vegetation, the materials approved by the regulatory 
authority in accordance with paragraph (b) of this section shall be 
removed as a separate layer from the area to be disturbed, and 
segregated.
    (2) If topsoil is less than 6 inches thick, the operator may remove 
the topsoil and the unconsolidated materials immediately below the 
topsoil and treat the mixture as topsoil.
    (3) The regulatory authority may choose not to require the removal 
of topsoil for minor disturbances which--
    (i) Occur at the site of small structures, such as power poles, 
signs, or fence lines; or
    (ii) Will not destroy the existing vegetation and will not cause 
erosion.
    (4) Timing. All material to be removed under this section shall be 
removed after the vegetative cover that would interfere with its 
salvage is cleared from the area to be disturbed, but before any 
drilling, blasting, mining, or other surface disturbance takes place.
    (b) Substitutes and supplements. Selected overburden materials may 
be substituted for, or used as a supplement to topsoil if the operator 
demonstrates to the regulatory authority that the resulting soil medium 
is equal to, or more suitable for sustaining vegetation than, the 
existing topsoil, and the resulting soil medium is the best available 
in the permit area to support revegetation.
    (c) Storage. (1) Materials removed under paragraph (a) of this 
section shall be segregated and stockpiled when it is impractical to 
redistribute such materials promptly on regraded areas.
    (2) Stockpiled materials shall--
    (i) Be selectively placed on a stable site within the permit area;
    (ii) Be protected from contaminants and unnecessary compaction that 
would interfere with revegetation;
    (iii) Be protected from wind and water erosion through prompt 
establishment and maintenance of an effective, quick growing vegetative 
cover or through other measures approved by the regulatory authority; 
and
    (iv) Not be moved until required for redistribution unless approved 
by the regulatory authority.
    (3) Where long-term surface disturbances will result from 
facilities such as support facilities and preparation plants and where 
stockpiling of materials removed under paragraph (a)(1) of this section 
would be detrimental to the quality or quantity of

[[Page 54981]]

those materials, the regulatory authority may approve the temporary 
distribution of the soil materials so removed to an approved site 
within the permit area to enhance the current use of that site until 
needed for later reclamation, provided that--
    (i) Such action will not permanently diminish the capability of the 
topsoil of the host site; and
    (ii) The material will be retained in a condition more suitable for 
redistribution than if stockpiled.
    (d) Redistribution. (1) Topsoil materials and topsoil substitutes 
and supplements removed under paragraphs (a) and (b) of this section 
shall be redistributed in a manner that--
    (i) Achieves an approximately uniform, stable thickness when 
consistent with the approved postmining land use, contours, and 
surface-water drainage systems. Soil thickness may also be varied to 
the extent such variations help meet the specific revegetation goals 
identified in the permit;
    (ii) Prevents excess compaction of the materials; and
    (iii) Protects the materials from wind and water erosion before and 
after seeding and planting.
    (2) Before redistribution of the material removed under paragraph 
(a) of this section the regraded land shall be treated if necessary to 
reduce potential slippage of the redistributed material and to promote 
root penetration. If no harm will be caused to the redistributed 
material and reestablished vegetation, such treatment may be conducted 
after such material is replaced.
    (3) The regulatory authority may choose not to require the 
redistribution of topsoil or topsoil substitutes on the approved 
postmining embankments of permanent impoundments or of roads if it 
determines that--
    (i) Placement of topsoil or topsoil substitutes on such embankments 
is inconsistent with the requirement to use the best technology 
currently available to prevent sedimentation, and
    (ii) Such enbankments will be otherwise stabilized.
    (4) Nutrients and soil amendments. Nutrients and soil amendments 
shall be applied to the initially redistributed material when necessary 
to establish the vegetative cover.
    (e) Subsoil segregation. The regulatory authority may require that 
the B horizon, C horizon, or other underlying strata, or portions 
thereof, be removed and segrgated, stockpiled, and redistributed as 
subsoil in accordance with the requirements of paragraphs (c) and (d) 
of this section if it finds that such subsoil layers are necessary to 
comply with the revegetation requirements of Sec. Sec.  816.111, 
816.113, 816.114, and 816.116 of this chapter.


Sec.  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 Sec.  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 
Sec.  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 
Sec. Sec.  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 Sec.  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 Sec.  780.21(i) of this 
chapter.
    (4) Equipment, structures, and other devices used in conjuction 
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 Sec.  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 Sec.  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 Sec.  780.21(h) of this chapter.
    (e) Surface-water monitoring. (1) Surface-water monitoring shall be

[[Page 54982]]

conducted according to the surface-water monitoring plan approved under 
Sec.  780.21(j) of this chapter. The regulatory authority may require 
additional monitoring when necessary.
    (2) Surface-water monitoring data shcll 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 Sec. Sec.  
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 Sec.  
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 Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec.  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.


Sec.  816.42  Hydrologic balance: Water quality standards and effluent 
limitations.

    Discharges of water from areas disturbed by surface mining 
activities shall be made in compliance with all applicable State and 
Federal water quality laws and regulations and with the effluent 
limitations for coal mining promulgated by the U.S. Environmental 
Protection Agency set forth in 40 CFR part 434.


Sec.  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 Sec.  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 
Sec.  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

[[Page 54983]]

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.


Sec.  816.45  Hydrologic balance: Sediment control measures.

    (a) Appropriate sediment control measures shall be designed, 
constructed, and maintained using the best technology currently 
available to:
    (1) Prevent, to the extent possible, additional contributions of 
sediment to streamflow or to runoff outside the permit area,
    (2) Meet the more stringent of applicable State or Federal effluent 
limitations,
    (3) Minimize erosion to the extent possible.
    (b) Sediment control measures include practices carried out within 
and adjacent to the disturbed area. The sedimentation storage capacity 
of practices in and downstream from the disturbed area shall reflect 
the degree to which successful mining and reclamation techniques are 
applied to reduce erosion and control sediment. Sediment control 
measures consist of the utilization of proper mining and reclamation 
methods and sediment control practices, singly or in combination. 
Sediment control methods include but are not limited to--
    (1) Disturbing the smallest practicable area at any one time during 
the mining operation through progressive backfilling, grading, and 
prompt revegetation as required in Sec.  816.111(b);
    (2) Stabilizing the backfill material to promote a reduction in the 
rate and volume of runoff, in accordance with the requirements of Sec.  
816.102;
    (3) Retaining sediment within disturbed areas;
    (4) Diverting runoff away from disturbed areas;
    (5) Diverting runoff using protected channels or pipes through 
disturbed areas so as not to cause additional erosion;
    (6) Using straw dikes, riprap, check dams, mulches, vegetative 
sediment filters, dugout ponds, and other measures that reduce overland 
flow velocity, reduce runoff volume, or trap sediment; and
    (7) Treating with chemicals.


Sec.  816.46  Hydrologic balance: Siltation structures.

    (a) For the purpose of this section only, disturbed areas shall not 
include those areas--
    (1) In which the only surface mining activities include diversion 
ditches, siltation structures, or roads that are designed constructed 
and maintained in accordance with this part; and
    (2) For which the upstream area is not otherwise disturbed by the 
operator.
    (b) General requirements. (1) Additional contributions of suspended 
solids sediment to streamflow or runoff outside the permit area shall 
be prevented to the extent possible using the best technology currently 
available.
    (2) All surface drainage from the disturbed area shall be passed 
through a siltation structure before leaving the permit area, except as 
provided in paragraph (b)(5) or (e) of this section. The requirements 
of this paragraph are suspended effective December 22, 1986, per court 
order.
    (3) Siltation structures for an area shall be constructed before 
beginning any surface mining activities in that area, and upon 
construction shall be certified by a qualified registered professional 
engineer, or in any State which authorizes land surveyors to prepare 
and certify plans in accordance with Sec.  780.25(a) of this chapter a 
qualified registered professional land surveyor, to be constructed as 
designed and as approved in the reclamation plan.
    (4) Any siltation structure which impounds water shall be designed, 
constructed and maintained in accordance with Sec.  816.49 of this 
chapter.
    (5) Siltation structures shall be maintained until removal is 
authorized by the regulatory authority and the disturbed area has been 
stabilized and revegetated. In no case shall the structure be removed 
sooner than 2 years after the last augmented seeding.
    (6) When siltation structure is removed, the land on which the 
siltation structure was located shall be regraded and revegetated in 
accordance with the reclamation plan and Sec. Sec.  816.111 through 
816.116 of this chapter. Sedimentation ponds approved by the regulatory 
authority for retention as permanent impoundments may be exempted from 
this requirement.
    (c) Sedimentation ponds. (1) When used, sedimentation ponds shall--
    (i) Be used individually or in series;
    (ii) Be located as near as possible to the disturbed area and out 
of perennial streams unless approved by the regulatory authority, and

[[Page 54984]]

    (iii) Be designed, constructed, and maintained to--
    (A) Provide adequate sediment storage volume;
    (B) Provide adequate detention time to allow the effluent from the 
ponds to meet State and Federal effluent limitations;
    (C) Contain or treat the 10-year, 24-hour precipitation event 
(``design event'') unless a lesser design event is approved by the 
regulatory authority based on terrain, climate, other site-specific 
conditions and on a demonstration by the operator that the effluent 
limitations of Sec.  816.42 will be met;
    (D) Provide a nonclogging dewatering device adequate to maintain 
the detention time required under paragraph (c)(1)(iii)(B) of this 
section;
    (E) Minimize, to the extent possible, short circuiting;
    (F) Provide periodic sediment removal sufficient to maintain 
adequate volume for the design event;
    (G) Ensure against excessive settlement;
    (H) Be free of sod, large roots, frozen soil, and acid- or toxic-
forming coal-processing waste; and
    (I) Be compacted properly.
    (2) Spillways. A sedimentation pond shall include either a 
combination of principal and emergency spillways or single spillway 
configured as specified in Sec.  816.49(a)(9).
    (d) Other treatment facilities. (1) Other treatment facilities 
shall be designed to treat the 10-year, 24-hour precipitation event 
unless a lesser design event is approved by the regulatory authority 
based on terrain, climate, other site-specific conditions and a 
demonstration by the operator that the effluent limitations of Sec.  
816.42 will be met.
    (2) Other treatment facilities shall be designed in accordance with 
the applicable requirements of paragraph (c) of this section.
    (e) Exemptions. Exemptions to the requirements of this section may 
be granted if--
    (1) The disturbed drainage area within the total disturbed area is 
small; and
    (2) The operator demonstrates that siltation structures and 
alternate sediment control measures are not necessary for drainage from 
the disturbed area to meet the effluent limitations under Sec.  816.42 
and the applicable State and Federal water quality standards for the 
receiving waters.


Sec.  816.47   Hydrologic balance: Discharge structures.

    Discharge from sedimentation ponds, permanent and temporary 
impoundments, coal processing waste dams and embankments, and 
diversions shall be controlled, by energy dissipators, riprap channels, 
and other devices, where necessary, to reduce erosion, to prevent 
deepening or enlargement of stream channels, and to minimize 
disturbance of the hydrologic balance. Discharge structures shall be 
designed according to standard engineering-design procedures.


Sec.  816.49  Impoundments.

    (a) General requirements. The requirements of this paragraph apply 
to both temporary and permanent impoundments.
    (1) Impoundments meeting the Class B or C criteria for dams in the 
U.S. Department of Agriculture, Soil Conservation Service Technical 
Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' 
1985 shall comply with ``Minimum Emergency Spillway Hydrologic 
Criteria'' table in TR-60 and the requirements of this section. The 
technical release is hereby incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
may be obtained from the National Technical Information Service (NTIS), 
5285 Port Royal Road, Springfield, Virginia 22161, order No. PB 87-
157509/AS. Copies can be inspected at the OSM Headquarters Office, 
Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, 1951 Constitution Avenue NW., Washington, DC, or at the 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (2) An impoundment meeting the size or other criteria of Sec.  
77.216(a) of this title shall comply with the requirements of Sec.  
77.216 of this title and this section.
    (3) Design certification. The design of impoundments shall be 
certified in accordance with Sec.  780.25(a) of this chapter as 
designed to meet the requirements of this part using current, prudent, 
engineering practices and any design criteria established by the 
regulatory authority. The qualified, registered, professional engineer 
or qualified, registered, professional, land surveyor shall be 
experienced in the design and construction of impoundments.
    (4) Stability. (i) An impoundment meeting the Class B or C criteria 
for dams in TR-60, or the size or other criteria of Sec.  77.216(a) of 
this title shall have a minimum static safety factor of 1.5 for a 
normal pool with steady state seepage saturation conditions, and a 
seismic safety factor of at least 1.2.
    (ii) Impoundments not included in paragraph (a)(4)(i) of this 
section, except for a coal mine waste impounding structure, shall have 
a minimum static safety factor of 1.3 for a normal pool with steady 
state seepage saturation conditions or meet the requirements of Sec.  
780.25(c)(3).
    (5) Freeboard. Impoundments shall have adequate freeboard to resist 
overtopping by waves and by sudden increases in storage volume. 
Impoundments meeting the Class B or C criteria for dams in TR-60 shall 
comply with the freeboard hydrograph criteria in the ``Minimum 
Emergency Spillway Hydrologic Criteria'' table in TR-60.
    (6) Foundation. (i) Foundations and abutments for an impounding 
structure shall be stable during all phases of construction and 
operation and shall be designed based on adequate and accurate 
information on the foundation conditions. For an impoundment meeting 
the Class B or C criteria for dams in TR-60, or the size or other 
criteria of Sec.  77.216(a) of this title, foundation investigation, as 
well as any necessary laboratory testing of foundation material, shall 
be performed to determine the design requirements for foundation 
stability.
    (ii) All vegetative and organic materials shall be removed and 
foundations excavated and prepared to resist failure. Cutoff trenches 
shall be installed if necessary to ensure stability.
    (7) Slope protection shall be provided to protect against surface 
erosion at the site and protect against sudden drawdown.
    (8) Faces of embankments and surrounding areas shall be vegetated, 
except that faces where water is impounded may be riprapped or 
otherwise stabilized in accordance with accepted design practices.
    (9) Spillways. An impoundment shall include either a combination of 
principal and emergency spillways or a single spillway configured as 
specified in paragraph (a)(9)(i) of this section, designed and 
constructed to safely pass the applicable design precipitation event 
specified in paragraph (a)(9)(ii) of this section, except as set forth 
in paragraph (c)(2) of this section.
    (i) The regulatory authority may approve a single open-channel 
spillway that is:
    (A) Of nonerodible construction and designed to carry sustained 
flows; or
    (B) Earth- or grass-lined and designed to carry short-term, 
infrequent flows at

[[Page 54985]]

non-erosive velocities where sustained flows are not expected.
    (ii) Except as specified in paragraph (c)(2) of this section, the 
required design precipitation event for an impoundment meeting the 
spillway requirements of paragraph (a)(9) of this section is:
    (A) For an impoundment meeting the Class B or C criteria for dams 
in TR-60, the emergency spillway hydrograph criteria in the ``Minimum 
Emergency Spillway Hydrologic Criteria'' table in TR-60, or greater 
event as specified by the regulatory authority.
    (B) For an impoundment meeting or exceeding the size or other 
criteria of Sec.  77.216(a) of this title, a 100-year 6-hour event, or 
greater event as specified by the regulatory authority.
    (C) For an impoundment not included in paragraph (a)(9)(ii) (A) and 
(B) of this section, a 25-year 6-hour or greater event as specified by 
the regulatory authority.
    (10) The vertical portion of any remaining highwall shall be 
located far enough below the low-water line along the full extent of 
highwall to provide adequate safety and access for the proposed water 
users.
    (11) Inspections. Except as provided in paragraph (a)(11)(iv) of 
this section, a qualified registered professional engineer or other 
qualified professional specialist under the direction of a professional 
engineer, shall inspect each impoundment as provided in paragraph 
(a)(11)(i) of this section. The professional engineer or specialist 
shall be experienced in the construction of impoundments.
    (i) Inspections shall be made regularly during construction, upon 
completion of construction, and at least yearly until removal of the 
structure or release of the performance bond.
    (ii) The qualified registered professional engineer, or qualified 
registered professional land surveyor as specified in paragraph 
(a)(11)(iv) of this section, shall promptly after each inspection 
required in paragraph (a)(11)(i) of this section provide to the 
regulatory authority a certified report that the impoundment has been 
constructed and/or maintained as designed and in accordance with the 
approved plan and this chapter. The report shall include discussion of 
any appearance of instability, structural weakness or other hazardous 
condition, depth and elevation of any impounded waters, existing 
storage capacity, any existing or required monitoring procedures and 
instrumentation, and any other aspects of the structure affecting 
stability.
    (iii) A copy of the report shall be retained at or near the 
minesite.
    (iv) In any State which authorizes land surveyors to prepare and 
certify plans in accordance with Sec.  780.25(a) of this chapter, a 
qualified registered professional land surveyor may inspect any 
temporary or permanent impoundment that does not meet the SCS Class B 
or C criteria for dams in TR-60, or the size or other criteria of Sec.  
77.216(a) of this title and certify and submit the report required by 
paragraph (a)(11)(ii) of this section, except that all coal mine waste 
impounding structures covered by Sec.  816.84 of this chapter shall be 
certified by a qualified registered professional engineer. The 
professional land surveyor shall be experienced in the construction of 
impoundments.
    (12) Impoundments meeting the SCS Class B or C criteria for dams in 
TR-60, or the size or other criteria of Sec.  77.216 of this title must 
be examined in accordance with Sec.  77.216-3 of this title. 
Impoundments not meeting the SCS Class B or C criteria for dams in TR-
60, or subject to Sec.  77.216 of this title, shall be examined at 
least quarterly. A qualified person designated by the operator shall 
examine impoundments for the appearance of structural weakness and 
other hazardous conditions.
    (13) Emergency procedures. If any examination or inspection 
discloses that a potential hazard exists, the person who examined the 
impoundment shall promptly inform the regulatory authority of the 
finding and of the emergency procedures formulated for public 
protection and remedial action. If adequate procedures cannot be 
formulated or implemented, the regulatory authority shall be notified 
immediately. The regulatory authority shall then notify the appropriate 
agencies that other emergency procedures are required to protect the 
public.
    (b) Permanent impoundments. A permanent impoundment of water may be 
created, if authorized by the regulatory authority in the approved 
permit based upon the following demonstration:
    (1) The size and configuration of such impoundment will be adequate 
for its intended purposes.
    (2) The quality of impounded water will be suitable on a permanent 
basis for its intended use and, after reclamation, will meet applicable 
State and Federal water quality standards, and discharges from the 
impoundment will meet applicable effluent limitations and will not 
degrade the quality of receiving water below applicable State and 
Federal water quality standards.
    (3) The water level will be sufficiently stable and be capable of 
supporting the intended use.
    (4) Final grading will provide for adequate safety and access for 
proposed water users.
    (5) The impoundment will not result in the diminution of the 
quality and quantity of water utilized by adjacent or surrounding 
landowners for agricultural, industrial, recreational, or domestic 
uses.
    (6) The impoundment will be suitable for the approved postmining 
land use.
    (c) Temporary impoundments. (1) The regulatory authority may 
authorize the construction of temporary impoundments as part of a 
surface coal mining operation.
    (2) In lieu of meeting the requirements in paragraph (a)(9)(i) of 
this section, the regulatory authority may approve an impoundment that 
relies primarily on storage to control the runoff from the design 
precipitation event when it is demonstrated by the operator and 
certified by a qualified registered professional engineer or qualified 
registered professional land surveyor in accordance with Sec.  
780.25(a) of this chapter that the impoundment will safely control the 
design precipitation event, the water from which shall be safely 
removed in accordance with current, prudent, engineering practices. 
Such an impoundment shall be located where failure would not be 
expected to cause loss of life or serious property damage, except 
where:
    (i) Impoundments meeting the SCS Class B or C criteria for dams in 
TR-60, or the size or other criteria of Sec.  77.216(a) of this title 
shall be designed to control the precipitation of the probable maximum 
precipitation of a 6-hour event, or greater event specified by the 
regulatory authority.
    (ii) Impoundments not included in paragraph (c)(2)(i) of this 
section shall be designed to control the precipitation of the 100-year 
6-hour event, or greater event specified by the regulatory authority.


Sec.  816.56  Postmining rehabilitation of sedimentation ponds, 
diversions, impoundments, and treatment facilities.

    Before abandoning a permit area or seeking bond release, the 
operator shall ensure that all temporary structures are removed and 
reclaimed, and that all permanent sedimentation ponds, diversions, 
impoundments, and treatment facilities meet the requirements of this 
chapter for permanent structures, have been maintained properly, and 
meet the requirements of the approved reclamation plan for permanent

[[Page 54986]]

structures and impoundments. The operator shall renovate such 
structures if necessary to meet the requirements of this chapter and to 
conform to the approved reclamation plan.


Sec.  816.57  Hydrologic balance: Stream buffer zones.

    (a) No land within 100 feet of a perennial stream or an 
intermittent stream shall be disturbed by surface mining activities, 
unless the regulatory authority specifically authorizes surface mining 
activities closer to, or through, such a stream. The regulatory 
authority may authorize such activities only upon finding that--
    (1) Surface mining activities will not cause or contribute to the 
violation of applicable State or Federal water quality standards, and 
will not adversely affect the water quantity and quality or other 
environmental resources of the stream; and
    (2) If there will be a temporary or permanent stream-channel 
diversion, it will comply with Sec.  816.43.
    (b) The area not to be disturbed shall be designated as a buffer 
zone, and the operator shall mark it as specified in Sec.  816.11.


Sec.  816.59  Coal recovery.

    Surface mining activities shall be conducted so as to maximize the 
utilization and conservation of the coal, while utilizing the best 
appropriate technology currently available to maintain environmental 
integrity, so that reaffecting the land in the future through surface 
coal mining operations is minimized.


Sec.  816.61  Use of explosives: General requirements.

    (a) Each operator shall comply with all applicable State and 
Federal laws and regulations in the use of explosives.
    (b) Blasts that use more than 5 pounds of explosive or blasting 
agent shall be conducted according to the schedule required under Sec.  
816.64.
    (c) Blasters. (1) No later than 12 months after the blaster 
certification program for a State required by part 850 of this chapter 
has been approved under the procedures of subchapter C of this chapter, 
all blasting operations in that State shall be conducted under the 
direction of a certified blaster. Before that time, all such blasting 
operations in that State shall be conducted by competent, experienced 
persons who understand the hazards involved.
    (2) Certificates of blaster certification shall be carried by 
blasters or shall be on file at the permit area during blasting 
operations.
    (3) A blaster and at least one other person shall be present at the 
firing of a blast.
    (4) Any blaster who is responsible for conducting blasting 
operations at a blasting site shall:
    (i) Be familiar with the blasting plan and site-specific 
performance standards; and
    (ii) Give direction and on-the-job training to persons who are not 
certified and who are assigned to the blasting crew or assist in the 
use of explosives.
    (d) Blast design. (1) An anticipated blast design shall be 
submitted if blasting operations will be conducted within--
    (i) 1,000 feet of any building used as a dwelling, public building, 
school, church, or community or institutional building outside the 
permit area; or
    (ii) 500 feet of an active or abandoned underground mine.
    (2) The blast design may be presented as part of a permit 
application or at a time, before the blast, approved by the regulatory 
authority.
    (3) The blast design shall contain sketches of the drill patterns, 
delay periods, and decking and shall indicate the type and amount of 
explosives to be used, critical dimensions, and the location and 
general description of structures to be protected, as well as a 
discussion of design factors to be used, which protect the public and 
meet the applicable airblast, flyrock, and ground-vibration standards 
in Sec.  816.67.
    (4) The blast design shall be prepared and signed by a certified 
blaster.
    (5) The regulatory authority may require changes to the design 
submitted.


Sec.  816.62  Use of explosives: Preblasting survey.

    (a) At least 30 days before initiation of blasting, the operator 
shall notify, in writing, all residents or owners of dwellings or other 
structures located within \1/2\ mile of the permit area how to request 
a preblasting survey.
    (b) A resident or owner of a dwelling or structure within \1/2\ 
mile of any part of the permit area may request a preblasting survey. 
This request shall be made, in writing, directly to the operator or to 
the regulatory authority, who shall promptly notify the operator. The 
operator shall promptly conduct a preblasting survey of the dwelling or 
structure and promptly prepare a written report of the survey. An 
updated survey of any additions, modifications, or renovations shall be 
performed by the operator if requested by the resident or owner.
    (c) The operator shall determine the condition of the dwelling or 
structure and shall document any preblasting damage and other physical 
factors that could reasonably be affected by the blasting. Structures 
such as pipelines, cables, transmission lines, and cisterns, wells, and 
other water systems warrant special attention; however, the assessment 
of these structures may be limited to surface conditions and other 
readily available data.
    (d) The written report of the survey shall be signed by the person 
who conducted the survey. Copies of the report shall be promptly 
provided to the regulatory authority and to the person requesting the 
survey. If the person requesting the survey disagrees with the contents 
and/or recommendations contained therein, he or she may submit to both 
the operator and the regulatory authority a detailed description of the 
specific areas of disagreement.
    (e) Any surveys requested more than 10 days before the planned 
initiation of blasting shall be completed by the operator before the 
initiation of blasting.


Sec.  816.64  Use of explosives: Blasting schedule.

    (a) General requirements. (1) The operator shall conduct blasting 
operations at times approved by the regulatory authority and announced 
in the blasting schedule. The regulatory authority may limit the area 
covered, timing, and sequence of blasting as listed in the schedule, if 
such limitations are necessary and reasonable in order to protect the 
public health and safety or welfare.
    (2) All blasting shall be conducted between sunrise and sunset, 
unless nighttime blasting is approved by the regulatory authority based 
upon a showing by the operator that the public will be protected from 
adverse noise and other impacts. The regulatory authority may specify 
more restrictive time periods for blasting.
    (3) Unscheduled blasts may be conducted only where public or 
operator health and safety so require and for emergency blasting 
actions. When an operator conducts an unscheduled blast, the operator, 
using audible signals, shall notify residents within \1/2\ mile of the 
blasting site and document the reason for the unscheduled blast in 
accordance with Sec.  816.68(p).
    (b) Blasting schedule publication and distribution. (1) The 
operator shall publish the blasting schedule in a newspaper of general 
circulation in the locality of the blasting site at least 10 days, but 
not more than 30 days, before beginning a blasting program.
    (2) The operator shall distribute copies of the schedule to local 
governments and public utilities and to

[[Page 54987]]

each local residence within \1/2\ mile of the proposed blasting site 
described in the schedule.
    (3) The operator shall republish and redistribute the schedule at 
least every 12 months and revise and republish the schedule at least 10 
days, but not more than 30 days, before blasting whenever the area 
covered by the schedule changes or actual time periods for blasting 
significantly differ from the prior announcement.
    (c) Blasting schedule contents. The blasting schedule shall 
contain, at a minimum--
    (1) Name, address, and telephone number of operator;
    (2) Identification of the specific areas in which blasting will 
take place;
    (3) Dates and time periods when explosives are to be detonated;
    (4) Methods to be used to control access to the blasting area; and
    (5) Type and patterns of audible warning and all-clear signals to 
be used before and after blasting.


Sec.  816.66   Use of explosives: Blasting signs, warnings, and access 
control.

    (a) Blasting signs. Blasting signs shall meet the specifications of 
Sec.  816.11. The operator shall--
    (1) Conspicuously place signs reading ``Blasting Area'' along the 
edge of any blasting area that comes within 100 feet of any public road 
right-of-way, and at the point where any other road provides access to 
the blasting area; and
    (2) At all entrances to the permit area from public roads or 
highways, place conspicuous signs which state ``Warning! Explosives in 
Use,'' which clearly list and describe the meaning of the audible blast 
warning and all-clear signals that are in use, and which explain the 
marking of blasting areas and charged holes awaiting firing within the 
permit area.
    (b) Warnings. Warning and all-clear signals of different character 
or pattern that are audible within a range of \1/2\ mile from the point 
of the blast shall be given. Each person within the permit area and 
each person who resides or regularly works within \1/2\ mile of the 
permit area shall be notified of the meaning of the signals in the 
blasting schedule.
    (c) Access control. Access within the blasting area shall be 
controlled to prevent presence of livestock or unauthorized persons 
during blasting and until an authorized representative of the operator 
has reasonably determined that--
    (1) No unusual hazards, such as imminent slides or undetonated 
charges, exist; and
    (2) Access to and travel within the blasting area can be safely 
resumed.


Sec.  816.67  Use of explosives: Control of adverse effects.

    (a) General requirements. Blasting shall be conducted to prevent 
injury to persons, damage to public or private property outside the 
permit area, adverse impacts on any underground mine, and change in the 
course, channel, or availability of surface or ground water outside the 
permit area.
    (b) Airblast--(1) Limits. (i) Airblast shall not exceed the maximum 
limits listed below at the location of any dwelling, public building, 
school, church, or community or institutional building outside the 
permit area, except as provided in paragraph (e) of this section.

----------------------------------------------------------------------------------------------------------------
 Lower frequency limit of measuring system, in Hz  (<plus-
                        minus>3 dB)                                          Maximum level, in dB
----------------------------------------------------------------------------------------------------------------
0.1 Hz or lower--flat response \1\.........................  134 peak.
2 Hz or lower--flat response...............................  133 peak.
6 Hz or lower--flat response...............................  129 peak.
C-weighted--slow response \1\..............................  105 peak dBC.
----------------------------------------------------------------------------------------------------------------
\1\ Only when approved by the regulatory authority.

    (ii) If necessary to prevent damage, the regulatory authority shall 
specify lower maximum allowable airblast levels than those of paragraph 
(b)(1)(i) of this section for use in the vicinity of a specific 
blasting operation.
    (2) Monitoring. (i) The operator shall conduct periodic monitoring 
to ensure compliance with the airblast standards. The regulatory 
authority may require airblast measurement of any or all blasts and may 
specify the locations at which such measurements are taken.
    (ii) The measuring systems shall have an upper-end flat-frequency 
response of at least 200 Hz.
    (c) Flyrock. Flyrock travelling in the air or along the ground 
shall not be cast from the blasting site--
    (1) More than one-half the distance to the nearest dwelling or 
other occupied structure;
    (2) Beyond the area of control required under Sec.  816.66(c); or
    (3) Beyond the permit boundary.
    (d) Ground vibration--(1) General. In all blasting operations, 
except as otherwise authorized in paragraph (e) of this section, the 
maximum ground vibration shall not exceed the values approved in the 
blasting plan required under Sec.  780.13 of this chapter. The maximum 
ground vibration for protected structures listed in paragraph (d)(2)(i) 
of this section shall be established in accordance with either the 
maximum peak-particle-velocity limits of paragraph (d)(2), the scaled-
distance equation of paragraph (d)(3), the blasting-level chart of 
paragraph (d)(4) of this section, or by the regulatory authority under 
paragraph (d)(5) of this section. All structures in the vicinity of the 
blasting area, not listed in paragraph (d)(2)(i) of this section, such 
as water towers, pipelines and other utilities, tunnels, dams, 
impoundments, and underground mines, shall be protected from damage by 
establishment of a maximum allowable limit on the ground vibration, 
submitted by the operator in the blasting plan and approved by the 
regulatory authority.
    (2) Maximum peak particle velocity. (i) The maximum ground 
vibration shall not exceed the following limits at the location of any 
dwelling, public building, school, church, or community or 
institutional building outside the permit area:

[[Page 54988]]



----------------------------------------------------------------------------------------------------------------
                                                                 Maximum allowable peak
                                                                  particle velocity (V    Scaled-distance factor
         Distance (D), from the blasting site, in feet              max) for ground       to be applied without
                                                                 vibration, in inches/    seismic monitoring \2\
                                                                       second \1\                  (Ds)
----------------------------------------------------------------------------------------------------------------
0 to 300......................................................                     1.25                       50
301 to 5,000..................................................                     1.00                       55
5,001 and beyond..............................................                     0.75                       65
----------------------------------------------------------------------------------------------------------------
\1\ Ground vibration shall be measured as the particle velocity. Particle velocity shall be recorded in three
  mutually perpendicular directions. The maximum allowable peak particle velocity shall apply to each of the
  three measurements.
\2\ Applicable to the scaled-distance equation of paragraph (d)(3)(i) of this section.

    (ii) A seismographic record shall be provided for each blast.
    (3) Scale-distance equation. (i) An operator may use the scaled-
distance equation, W = (D/Ds)\2\, to determine the allowable charge 
weight of explosives to be detonated in any 8-millisecond period, 
without seismic monitoring; where W = the maximum weight of explosives, 
in pounds; D = the distance, in feet, from the blasting site to the 
nearest protected structure; and Ds = the scaled-distance factor, which 
may initially be approved by the regulatory authority using the values 
for scaled-distance factor listed in paragraph (d)(2)(i) of this 
section.
    (ii) The development of a modified scaled-distance factor may be 
authorized by the regulatory authority on receipt of a written request 
by the operator, supported by seismographic records of blasting at the 
minesite. The modified scale-distance factor shall be determined such 
that the particle velocity of the predicted ground vibration will not 
exceed the prescribed maximum allowable peak particle velocity of 
paragraph (d)(2)(i) of this section, at a 95-percent confidence level.
    (4) Blasting-level chart. (i) An operator may use the ground-
vibration limits in Figure 1 to determine the maximum allowable ground 
vibration.
[GRAPHIC] [TIFF OMITTED] TR17NO17.018

    (ii) If the Figure 1 limits are used, a seismographic record 
including both particle velocity and vibration-frequency levels shall 
be provided for each blast. The method for the analysis of the 
predominant frequency contained in the blasting records shall be 
approved by the regulatory authority before application of this 
alternative blasting criterion.
    (5) The maximum allowable ground vibration shall be reduced by the 
regulatory authority beyond the limits otherwise provided by this 
section, if

[[Page 54989]]

determined necessary to provide damage protection.
    (6) The regulatory authority may require an operator to conduct 
seismic monitoring of any or all blasts or may specify the location at 
which the measurements are taken and the degree of detail necessary in 
the measurement.
    (e) The maximum airblast and ground-vibration standards of 
paragraphs (b) and (d) of this section shall not apply at the following 
locations:
    (1) At structures owned by the permittee and not leased to another 
person.
    (2) At structures owned by the permittee and leased to another 
person, if a written waiver by the lessee is submitted to the 
regulatory authority before blasting.


Sec.  816.68  Use of explosives: Records of blasting operations.

    The operator shall retain a record of all blasts for at least 3 
years. Upon request, copies of these records shall be made available to 
the regulatory authority and to the public for inspection. Such records 
shall contain the following data:
    (a) Name of the operator conducting the blast.
    (b) Location, date, and time of the blast.
    (c) Name, signature, and certification number of the blaster 
conducting the blast.
    (d) Identification, direction, and distance, in feet, from the 
nearest blast hole to the nearest dwelling, public building, school, 
church, community or institutional building outside the permit area, 
except those described in Sec.  816.67(e).
    (e) Weather conditions, including those which may cause possible 
adverse blasting effects.
    (f) Type of material blasted.
    (g) Sketches of the blast pattern including number of holes, 
burden, spacing, decks, and delay pattern.
    (h) Diameter and depth of holes.
    (i) Types of explosives used.
    (j) Total weight of explosives used per hole.
    (k) The maximum weight of explosives detonated in an 8-millisecond 
period.
    (l) Initiation system.
    (m) Type and length of stemming.
    (n) Mats or other protections used.
    (o) Seismographic and airblast records, if required, which shall 
include--
    (1) Type of instrument, sensitivity, and calibration signal or 
certification of annual calibration;
    (2) Exact location of instrument and the date, time, and distance 
from the blast;
    (3) Name of the person and firm taking the reading;
    (4) Name of the person and firm analyzing the seismographic record; 
and
    (5) The vibration and/or airblast level recorded.
    (p) Reasons and conditions for each unscheduled blast.


Sec.  816.71  Disposal of excess spoil: General requirements.

    (a) General. Excess spoil shall be placed in designated disposal 
areas within the permit area, in a controlled manner to--
    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on surface and ground waters;
    (2) Ensure mass stability and prevent mass movement during and 
after construction; and
    (3) Ensure that the final fill is suitable for reclamation and 
revegetation compatible with the natural surroundings and the approved 
postmining land use.
    (b) Design certification. (1) The fill and appurtenant structures 
shall be designed using current, prudent engineering practices and 
shall meet any design criteria established by the regulatory authority. 
A qualified registered professional engineer experienced in the design 
of earth and rock fills shall certify the design of the fill and 
appurtenant structures.
    (2) The fill shall be designed to attain a minimum long-term static 
safety factor of 1.5. The foundation and abutments of the fill must be 
stable under all conditions of construction.
    (c) Location. The disposal area shall be located on the most 
moderately sloping and naturally stable areas available, as approved by 
the regulatory authority, and shall be placed, where possible, upon or 
above a natural terrace, bench, or berm, if such placement provides 
additional stability and prevents mass movement.
    (d) Foundation. (1) Sufficient foundation investigations, as well 
as any necessary laboratory testing of foundation material, shall be 
performed in order to determine the design requirements for foundation 
stability. The analyses of foundation conditions shall take into 
consideration the effect of underground mine workings, if any, upon the 
stability of the fill and appurtenant structures.
    (2) Where the slope in the disposal area is in excess of 2.8h:1v 
(36 percent), or such lesser slope as may be designated by the 
regulatory authority based on local conditions, keyway cuts 
(excavations to stable bedrock) or rock toe buttresses shall be 
constructed to ensure stability of the fill. Where the toe of the spoil 
rests on a downslope, stability analyses shall be performed in 
accordance with Sec.  780.35(c) of this chapter to determine the size 
of rock toe buttresses and keyway cuts.
    (e) Placement of excess spoil. (1) All vegetative and organic 
materials shall be removed from the disposal area prior to placement of 
the excess spoil. Topsoil shall be removed, segregated and stored or 
redistributed in accordance with Sec.  816.22. If approved by the 
regulatory authority, organic material may be used as mulch or may be 
included in the topsoil to control erosion, promote growth of 
vegetation or increase the moisture retention of the soil.
    (2) Excess spoil shall be transported and placed in a controlled 
manner in horizontal lifts not exceeding 4 feet in thickness; 
concurrently compacted as necessary to ensure mass stability and to 
prevent mass movement during and after construction; graded so that 
surface and subsurface drainage is compatible with the natural 
surroundings; and covered with topsoil or substitute material in 
accordance with Sec.  816.22 of this chapter. The regulatory authority 
may approve a design which incorporates placement of excess spoil in 
horizontal lifts other than 4 feet in thickness when it is demonstrated 
by the operator and certified by a qualified registered professional 
engineer that the design will ensure the stability of the fill and will 
meet all other applicable requirements.
    (3) The final configuration of the fill shall be suitable for the 
approved postmining land use. Terraces may be constructed on the 
outslope of the fill if required for stability, control of erosion, to 
conserve soil moisture, or to facilitate the approved postmining land 
use. The grade of the outslope between terrace benches shall not be 
steeper than 2h: 1v (50 percent).
    (4) No permanent impoundments are allowed on the completed fill. 
Small depressions may be allowed by the regulatory authority if they 
are needed to retain moisture, minimize erosion, create and enhance 
wildlife habitat, or assist revegetation; and if they are not 
incompatible with the stability of the fill.
    (5) Excess spoil that is acid- or toxic-forming or combustible 
shall be adequately covered with nonacid, nontoxic and noncombustible 
material, or treated, to control the impact on surface and ground water 
in accordance with Sec.  816.41, to prevent sustained combustion, and 
to minimize adverse

[[Page 54990]]

effects on plant growth and the approved postmining land use.
    (f) Drainage control. (1) If the disposal area contains springs, 
natural or manmade water courses, or wet weather seeps, the fill design 
shall include diversions and underdrains as necessary to control 
erosion, prevent water infiltration into the fill, and ensure 
stability.
    (2) Diversions shall comply with the requirements of Sec.  816.43.
    (3) Underdrains shall consist of durable rock or pipe, be designed 
and constructed using current, prudent engineering practices and meet 
any design criteria established by the regulatory authority. The 
underdrain system shall be designed to carry the anticipated seepage of 
water due to rainfall away from the excess spoil fill and from seeps 
and springs in the foundation of the disposal area and shall be 
protected from piping and contamination by an adequate filter. Rock 
underdrains shall be constructed of durable, nonacid-,nontoxic-forming 
rock (e.g., natural sand and gravel, sandstone, limestone, or other 
durable rock) that does not slake in water or degrade to soil material, 
and which is free of coal, clay or other nondurable material. 
Perforated pipe underdrains shall be corrosion resistant and shall have 
characteristics consistent with the long-term life of the fill.
    (g) Surface area stabilization. Slope protection shall be provided 
to minimize surface erosion at the site. All disturbed areas, including 
diversion channels that are not riprapped or otherwise protected, shall 
be revegetated upon completion of construction.
    (h) Inspections. A qualified registered professional engineer, or 
other qualified professional specialist under the direction of the 
professional engineer, shall periodically inspect the fill during 
construction. The professional engineer or specialist shall be 
experienced in the construction of earth and rock fills.
    (1) Such inspections shall be made at least quarterly throughout 
construction and during critical construction periods. Critical 
construction periods shall include at a minimum:
    (i) Foundation preparation, including the removal of all organic 
material and topsoil; (ii) placement of underdrains and protective 
filter systems; (iii) installation of final surface drainage systems; 
and (iv) the final graded and revegetated fill. Regular inspections by 
the engineer or specialist shall also be conducted during placement and 
compaction of fill materials.
    (2) The qualified registered professional engineer shall provide a 
certified report to the regulatory authority promptly after each 
inspection that the fill has been constructed and maintained as 
designed and in accordance with the approved plan and this chapter. The 
report shall include appearances of instability, structural weakness, 
and other hazardous conditions.
    (3)(i) The certified report on the drainage system and protective 
filters shall include color photographs taken during and after 
construction, but before underdrains are covered with excess spoil. If 
the underdrain system is constructed in phases, each phase shall be 
certified separately.
    (ii) Where excess durable rock spoil is placed in single or 
multiple lifts such that the underdrain system is constructed 
simultaneously with excess spoil placement by the natural segregation 
of dumped materials, in accordance with Sec.  816.73, color photographs 
shall be taken of the underdrain as the underdrain system is being 
formed.
    (iii) The photographs accompanying each certified report shall be 
taken in adequate size and number with enough terrain or other physical 
features of the site shown to provide a relative scale to the 
photographs and to specifically and clearly identify the site.
    (4) A copy of each inspection report shall be retained at or near 
the mine site.
    (i) Coal mine waste. Coal mine waste may be disposed of in excess 
spoil fills if approved by the regulatory authority and, if such waste 
is--
    (1) Placed in accordance with Sec.  816.83;
    (2) Nontoxic and nonacid forming; and
    (3) Of the proper characteristics to be consistent with the design 
stability of the fill.
    (j) Underground disposal. Excess spoil may be disposed of in 
underground mine workings, but only in accordance with a plan approved 
by the regulatory authority and MSHA under Sec.  784.25 of this 
chapter.


Sec.  816.72  Disposal of excess spoil: Valley fills/head-of-hollow 
fills.

    Valley fills and head-of-hollow fills shall meet the requirements 
of Sec.  816.71 and the additional requirements of this section.
    (a) Drainage control. (1) The top surface of the completed fill 
shall be graded such that the final slope after settlement will be 
toward properly designed drainage channels. Uncontrolled surface 
drainage may not be directed over the outslope of the fill.
    (2) Runoff from areas above the fill and runoff from the surface of 
the fill shall be diverted into stabilized diversion channels designed 
to meet the requirements of Sec.  816.43 and, in addition, to safely 
pass the runoff from a 100-year, 6-hour precipitation event.
    (b) Rock-core chimney drains. A rock-core chimney drain may be used 
in a head-of-hollow fill, instead of the underdrain and surface 
diversion system normally required, as long as the fill is not located 
in an area containing intermittent or perennial streams. A rock-core 
chimney drain may be used in a valley fill if the fill does not exceed 
250,000 cubic yards of material and upstream drainage is diverted 
around the fill. The alternative rock-core chimney drain system shall 
be incorporated into the design and construction of the fill as 
follows.
    (1) The fill shall have, along the vertical projection of the main 
buried stream channel or rill, a vertical core of durable rock at least 
16 feet thick which shall extend from the toe of the fill to the head 
of the fill, and from the base of the fill to the surface of the fill. 
A system of lateral rock underdrains shall connect this rock core to 
each area of potential drainage or seepage in the disposal area. The 
underdrain system and rock core shall be designed to carry the 
anticipated seepage of water due to rainfall away from the excess spoil 
fill and from seeps and springs in the foundation of the disposal area. 
Rocks used in the rock core and underdrains shall meet the requirements 
of Sec.  816.71(f).
    (2) A filter system to ensure the proper long-term functioning of 
the rock core shall be designed and constucted using current, prudent 
engineering practices.
    (3) Grading may drain surface water away from the outslope of the 
fill and toward the rock core. In no case, however, may intermittent or 
perennial streams be diverted into the rock core. The maximum slope of 
the top of the fill shall be 33h:1v (3 percent). A drainage pocket may 
be maintained at the head of the fill during and after construction, to 
intercept surface runoff and discharge the runoff through or over the 
rock drain, if stability of the fill is not impaired. In no case shall 
this pocket or sump have a potential capacity for impounding more than 
10,000 cubic feet of water. Terraces on the fill shall be graded with a 
3 to 5 percent grade toward the fill and a 1 percent slope toward the 
rock core.


Sec.  816.73  Disposal of excess spoil: Durable rock fills.

    The regulatory authority may approve the alternative method of 
disposal of excess durable rock spoil by gravity

[[Page 54991]]

placement in single or multiple lifts, provided the following 
conditions are met:
    (a) Except as provided in this section, the requirements of Sec.  
816.71 are met.
    (b) The excess spoil consists of at least 80 percent, by volume, 
durable, nonacid- and nontoxic-forming rock (e.g., sandstone or 
limestone) that does not slake in water and will not degrade to soil 
material. Where used, noncemented clay shale, clay spoil, soil or other 
nondurable excess spoil materials shall be mixed with excess durable 
rock spoil in a controlled manner such that no more than 20 percent of 
the fill volume, as determined by tests performed by a registered 
engineer and approved by the regulatory authority, is not durable rock.
    (c) A qualified registered professional engineer certifies that the 
design will ensure the stability of the fill and meet all other 
applicable requirements.
    (d) The fill is designed to attain a minimum long-term static 
safety factor of 1.5, and an earthquake safety factor of 1.1.
    (e) The underdrain system may be constructed simultaneously with 
excess spoil placement by the natural segregation of dumped materials, 
provided the resulting underdrain system is capable of carrying 
anticipated seepage of water due to rainfall away from the excess spoil 
fill and from seeps and springs in the foundation of the disposal area 
and the other requirements for drainage control are met.
    (f) Surface water runoff from areas adjacent to and above the fill 
is not allowed to flow onto the fill and is diverted into stabilized 
diversion channels designed to meet the requirements of Sec.  816.43 
and to safely pass the runoff from a 100-year, 6-hour precipitation 
event.


Sec.  816.74  Disposal of excess spoil: Preexisting benches.

    (a) The regulatory authority may approve the disposal of excess 
spoil through placement on a preexisting bench if the affected portion 
of the preexisting bench is permitted and the standards set forth in 
Sec. Sec.  816.102(c), (e) through (h), and (j), and the requirements 
of this section are met.
    (b) All vegetation and organic materials shall be removed from the 
affected portion of the preexisting bench prior to placement of the 
excess spoil. Any available topsoil on the bench shall be removed, 
stored and redistributed in accordance with Sec.  816.22 of this part. 
Substitute or supplemental materials may be used in accordance with 
Sec.  816.22(b) of this part.
    (c) The fill shall be designed and constructed using current, 
prudent engineering practices. The design will be certified by a 
registered professional engineer. The spoil shall be placed on the 
solid portion of the bench in a controlled manner and concurrently 
compacted as necessary to attain a long term static safety factor of 
1.3 for all portions of the fill. Any spoil deposited on any fill 
portion of the bench will be treated as excess spoil fill under Sec.  
816.71.
    (d) The preexisting bench shall be backfilled and graded to--
    (1) Achieve the most moderate slope possible which does not exceed 
the angle of repose;
    (2) Eliminate the highwall to the maximum extent technically 
practical;
    (3) Minimize erosion and water pollution both on and off the site; 
and
    (4) If the disposal area contains springs, natural or manmade water 
courses, or wet weather seeps, the fill design shall include diversions 
and underdrains as necessary to control erosion, prevent water 
infiltration into the fill, and ensure stability.
    (e) All disturbed areas, including diversion channels that are not 
riprapped or otherwise protected, shall be revegetated upon completion 
of construction.
    (f) Permanent impoundments may not be constructed on preexisting 
benches backfilled with excess spoil under this regulation.
    (g) Final configuration of the backfill must be compatible with the 
natural drainage patterns and the surrounding area, and support the 
approved postmining land use.
    (h) Disposal of excess spoil from an upper actively mined bench to 
a lower preexisting bench by means of gravity transport may be approved 
by the regulatory authority provided that--
    (1) The gravity transport courses are determined on a site-specific 
basis by the operator as part of the permit application and approved by 
the regulatory authority to minimize hazards to health and safety and 
to ensure that damage will be minimized between the benches, outside 
the set course, and downslope of the lower bench should excess spoil 
accidentally move;
    (2) All gravity transported excess spoil, including that excess 
spoil immediately below the gravity transport courses and any 
preexisting spoil that is disturbed, is rehandled and placed in 
horizontal lifts in a controlled manner, concurrently compacted as 
necessary to ensure mass stability and to prevent mass movement, and 
graded to allow surface and subsurface drainage to be compatible with 
the natural surroundings and to ensure a minimum long-term static 
safety factor of 1.3. Excess spoil on the bench prior to the current 
mining operation that is not disturbed need not be rehandled except 
where necessary to ensure stability of the fill;
    (3) A safety berm is constructed on the solid portion of the lower 
bench prior to gravity transport of the excess spoil. Where there is 
insufficient material on the lower bench to construct a safety berm, 
only that amount of excess spoil necessary for the construction of the 
berm may be gravity transported to the lower bench prior to 
construction of the berm.
    (4) Excess spoil shall not be allowed on the downslope below the 
upper bench except on designated gravity transport courses properly 
prepared according to Sec.  816.22. Upon completion of the fill, no 
excess spoil shall be allowed to remain on the designated gravity 
transport course between the two benches and each transport course 
shall be reclaimed in accordance with the requirements of this part.


Sec.  816.79  Protection of underground mining.

    No surface mining activities shall be conducted closer than 500 
feet to any point of either an active or abandoned underground mine, 
except to the extent that--
    (a) The activities result in improved resource recovery, abatement 
of water pollution, or elimination of hazards to the health and safety 
of the public; and
    (b) The nature, timing, and sequence of the activities that propose 
to mine closer than 500 feet to an active underground mine are jointly 
approved by the regulatory authority, the Mine Safety and Health 
Administration, and the State agency, if any, responsible for the 
safety of underground mine workers.


Sec.  816.81  Coal mine waste: General requirements.

    (a) General. All coal mine waste disposed of in an area other than 
the mine workings or excavations shall be placed in new or existing 
disposal areas within a permit area, which are approved by the 
regulatory authority for this purpose. Coal mine waste shall be hauled 
or conveyed and placed for final placement in a controlled manner to--
    (1) Minimize adverse effects of leachate and surface-water runoff 
on surface and ground water quality and quantity;
    (2) Ensure mass stability and prevent mass movement during and 
after construction;
    (3) Ensure that the final disposal facility is suitable for 
reclamation and

[[Page 54992]]

revegetation compatible with the natural surroundings and the approved 
postmining land use;
    (4) Not create a public hazard; and
    (5) Prevent combustion.
    (b) Coal mine waste material from activities located outside a 
permit area may be disposed of in the permit area only if approved by 
the regulatory authority. Approval shall be based upon a showing that 
such disposal will be in accordance with the standards of this section.
    (c) Design certification. (1) The disposal facility shall be 
designed using current, prudent engineering practices and shall meet 
any design criteria established by the regulatory authority. A 
qualified registered professional engineer, experienced in the design 
of similar earth and waste structures, shall certify the design of the 
disposal facility.
    (2) 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.
    (d) Foundation. Sufficient foundation investigations, as well as 
any necessary laboratory testing of foundation material, shall be 
performed in order to determine the design requirements for foundation 
stability. The analyses of the foundation conditions shall take into 
consideration the effect of underground mine workings, if any, upon the 
stability of the disposal facility.
    (e) Emergency procedures. If any examination or inspection 
discloses that a potential hazard exists, the regulatory authority 
shall be informed promptly of the finding and of the emergency 
procedures formulated for public protection and remedial action. If 
adequate procedures cannot be formulated or implemented, the regulatory 
authority shall be notified immediately. The regulatory authority shall 
then notify the appropriate agencies that other emergency procedures 
are required to protect the public.
    (f) Underground disposal. Coal mine waste may be disposed of in 
underground mine workings, but only in accordance with a plan approved 
by the regulatory authority and MSHA under Sec.  784.25 of this 
chapter.


Sec.  816.83  Coal mine waste: Refuse piles.

    Refuse piles shall meet the requirements of Sec.  816.81, the 
additional requirements of this section, and the requirements of 
Sec. Sec.  77.214 and 77.215 of this title.
    (a) Drainage control. (1) If the disposal area contains springs, 
natural or manmade water courses, or wet weather seeps, the design 
shall include diversions and underdrains as necessary to control 
erosion, prevent water infiltration into the disposal facility and 
ensure stability.
    (2) Uncontrolled surface drainage may not be diverted over the 
outslope of the refuse piles. Runoff from the areas above the refuse 
pile and runoff from the surface of the refuse pile shall be diverted 
into stabilized diversion channels designed to meet the requirements of 
Sec.  816.43 to safely pass the runoff from a 100-year, 6-hour 
precipitation event. Runoff diverted from undisturbed areas need not be 
commingled with runoff from the surface of the refuse pile.
    (3) Underdrains shall comply with the requirements of Sec.  
816.71(f)(3).
    (b) Surface area stabilization. Slope protection shall be provided 
to minimize surface erosion at the site. All disturbed areas, including 
diversion channels that are not riprapped or otherwise protected, shall 
be revegetated upon completion of construction.
    (c) Placement. (1) All vegetative and organic materials shall be 
removed from the disposal area prior to placement of coal mine waste. 
Topsoil shall be removed, segregated and stored or redistributed in 
accordance with Sec.  816.22. If approved by the regulatory authority, 
organic material may be used as mulch, or may be included in the 
topsoil to control erosion, promote growth of vegetation or increase 
the moisture retention of the soil.
    (2) The final configuration of the refuse pile shall be suitable 
for the approved postmining land use. Terraces may be constructed on 
the outslope of the refuse pile if required for stability, control or 
erosion, conservation of soil moisture, or facilitation of the approved 
postmining land use. The grade of the outslope between terrace benches 
shall not be steeper than 2h:1v (50 percent).
    (3) No permanent impoundments shall be allowed on the completed 
refuse pile. Small depressions may be allowed by the regulatory 
authority if they are needed to retain moisture, minimize erosion, 
create and enhance wildlife habitat, or assist revegetation, and if 
they are not incompatible with stability of the refuse pile.
    (4) Following final grading of the refuse pile, the coal mine waste 
shall be covered with a minimum of 4 feet of the best available, 
nontoxic and noncombustible material, in a manner that does not impede 
drainage from the underdrains. The regulatory authority may allow less 
than 4 feet of cover material based on physical and chemical analyses 
which show that the requirements of Sec. Sec.  816.111 through 816.116 
will be met.
    (d) Inspections. A qualified registered professional engineer, or 
other qualified professional specialist under the direction of the 
professional engineer, shall inspect the refuse pile during 
construction. The professional engineer or specialist shall be 
experienced in the construction of similar earth and waste structures.
    (1) Such inspections shall be made at least quarterly throughout 
construction and during critical construction periods. Critical 
construction periods shall include at a minimum:
    (i) Foundation preparation including the removal of all organic 
material and topsoil; (ii) placement of underdrains and protective 
filter systems; (iii) installation of final surface drainage systems; 
and (iv) the final graded and revegetated facility. Regular inspections 
by the engineer or specialist shall also be conducted during placement 
and compaction of coal mine waste materials. More frequent inspections 
shall be conducted if a danger of harm exists to the public health and 
safety or the environment. Inspections shall continue until the refuse 
pile has been finally graded and revegetated or until a later time as 
required by the regulatory authority.
    (2) The qualified registered professional engineer shall provide a 
certified report to the regulatory authority promptly after each 
inspection that the refuse pile has been constructed and maintained as 
designed and in accordance with the approved plan and this chapter. The 
report shall include appearances of instability, structural weakness, 
and other hazardous conditions.
    (3) The certified report on the drainage system and protective 
filters shall include color photographs taken during and after 
construction, but before underdrains are covered with coal mine waste. 
If the underdrain system is constructed in phases, each phase shall be 
certified separately. The photographs accompanying each certified 
report shall be taken in adequate size and number with enough terrain 
or other physical features of the site shown to provide a relative 
scale to the photographs and to specifically and clearly identify the 
site.
    (4) A copy of each inspection report shall be retained at or near 
the minesite.


Sec.  816.84  Coal mine waste: Impounding structures.

    New and existing impounding structures constructed of coal mine 
waste or intended to impound coal mine

[[Page 54993]]

waste shall meet the requirements of Sec.  816.81.
    (a) Coal mine waste shall not be used for construction of 
impounding structures unless it has been demonstrated to the regulatory 
authority that the stability of such a structure conforms to the 
requirements of this part and the use of coal mine waste will not have 
a detrimental effect on downstream water quality or the environment due 
to acid seepage through the impounding structure. The stability of the 
structure and the potential impact of acid mine seepage through the 
impounding structure shall be discussed in detail in the design plan 
submitted to the regulatory authority in accordance with Sec.  780.25 
of this chapter.
    (b)(1) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste shall be designed, constructed and 
maintained in accordance with Sec.  816.49 (a) and (c). Such structures 
may not be retained permanently as part of the approved postmining land 
use.
    (2) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste that meets the criteria of Sec.  
77.216(a) of this title shall have sufficient spillway capacity to 
safely pass, adequate storage capacity to safely contain, or a 
combination of storage capacity and spillway capacity to safely 
control, the probable maximum precipitation of a 6-hour precipitation 
event, or greater event as specified by the regulatory authority.
    (c) Spillways and outlet works shall be designed to provide 
adequate protection against erosion and corrosion. Inlets shall be 
protected against blockage.
    (d) Drainage control. Runoff from areas above the disposal facility 
or runoff from surface of the facility that may cause instability or 
erosion of the impounding structure shall be diverted into stabilized 
diversion channels designed to meet the requirements of Sec.  816.43 
and designed to safely pass the round off from a 100-year, 6-hour 
design precipitation event.
    (e) Impounding structures constructed of or impounding coal mine 
waste shall be designed so that at least 90 percent of the water stored 
during the design precipitation event can be removed within a 10-day 
period.
    (f) For an impounding structure constructed of or impounding coal 
mine waste, at least 90 percent of the water stored during the design 
precipitation event shall be removed within the 10-day period following 
the design precipitation event.


Sec.  816.87  Coal mine waste: Burning and burned waste utilization.

    (a) Coal mine waste fires shall be extinguished by the person who 
conducts the surface mining activities, in accordance with a plan 
approved by the regulatory authority and the Mine Safety and Health 
Administration. The plan shall contain, at a minimum, provisions to 
ensure that only those persons authorized by the operator, and who have 
an understanding of the procedures to be used, shall be involved in the 
extinguishing operations.
    (b) No burning or burned coal mine waste shall be removed from a 
permitted disposal area without a removal plan approved by the 
regulatory authority. Consideration shall be given to potential hazards 
to persons working or living in the vicinity of the structure.


Sec.  816.89  Disposal of noncoal mine wastes.

    (a) Noncoal mine wastes including, but not limited to grease, 
lubricants, paints, flammable liquids, garbage, abandoned mining 
machinery, lumber and other combustible materials generated during 
mining activities shall be placed and stored in a controlled manner in 
a designated portion of the permit area. Placement and storage shall 
ensure that leachate and surface runoff do not degrade surface or 
ground water, that fires are prevented, and that the area remains 
stable and suitable for reclamation and revegetation compatible with 
the natural surroundings.
    (b) Final disposal of noncoal mine wastes shall be in a designated 
disposal site in the permit area or a State-approved solid waste 
disposal area. Disposal sites in the permit area shall be designed and 
constructed to ensure that leachate and drainage from the noncoal mine 
waste area does not degrade surface or underground water. Wastes shall 
be routinely compacted and covered to prevent combustion and wind-borne 
waste. When the disposal is completed, a minimum of 2 feet of soil 
cover shall be placed over the site, slopes stabilized, and 
revegetation accomplished in accordance with Sec. Sec.  816.111 through 
816.116. Operation of the disposal site shall be conducted in 
accordance with all local, State and Federal requirements.
    (c) At no time shall any noncoal mine waste be deposited in a 
refuse pile or impounding structure, nor shall an excavation for a 
noncoal mine waste disposal site be located within 8 feet of any coal 
outcrop or coal storage area.


Sec.  816.95  Stabilization of surface areas.

    (a) All exposed surface areas shall be protected and stabilized to 
effectively control erosion and air pollution attendant to erosion.
    (b) Rills and gullies, which form in areas that have been regraded 
and topsoiled and which either (1) disrupt the approved postmining land 
use or the reestablishment of the vegetative cover, or (2) cause or 
contribute to a violation of water quality standards for receiving 
streams shall be filled, regraded, or otherwise stabilized; topsoil 
shall be replaced; and the areas shall be reseeded or replanted.


Sec.  816.97  Protection of fish, wildlife, and related environmental 
values.

    (a) The operator shall, to the extent possible using the best 
technology currently available, minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values and shall 
achieve enhancement of such resources where practicable.
    (b) Endangered and threatened species. No surface mining activity 
shall be conducted which is likely to jeopardize the continued 
existence of endangered or threatened species listed by the Secretary 
or which is likely to result in the destruction or adverse modification 
of designated critical habitats of such species in violation of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). 
The operator shall promptly report to the regulatory authority any 
State- or federally-listed endangered or threatened species within the 
permit area of which the operator becomes aware. Upon notification, the 
regulatory authority shall consult with appropriate State and Federal 
fish and wildlife agencies and, after consultation, shall identify 
whether, and under what conditions, the operater may proceed.
    (c) Bald and golden eagles. No surface mining activity shall be 
conducted in a manner which would result in the unlawful taking of a 
bald or golden eagle, its nest, or any of its eggs. The operator shall 
promptly report to the regulatory authority any golden or bald eagle 
nest within the permit area of which the operator becomes aware. Upon 
notification, the regulatory authority shall consult with the U.S. Fish 
and Wildlife Service and also, where appropriate, the State fish and 
wildlife agency and, after consultation, shall identify whether, and 
under what conditions, the operator may proceed.
    (d) Nothing in this chapter shall authorize the taking of an 
endangered or threatened species or a bald or golden eagle, its nest, 
or any of its eggs in violation of the Endangered Species Act

[[Page 54994]]

of 1973, as amended, 16 U.S.C. 1531 et seq., or the Bald Eagle 
Protection Act, as amended, 16 U.S.C. 668 et seq.
    (e) Each operator shall, to the extent possible using the best 
technology currently available--
    (1) Ensure that electric powerlines and other transmission 
facilities used for, or incidental to, surface mining activities on the 
permit area are designed and constructed to minimize electrocution 
hazards to raptors, except where the regulatory authority determines 
that such requirements are unnecessary;
    (2) Locate and operate haul and access roads so as to avoid or 
minimize impacts on important fish and wildlife species or other 
species protected by State or Federal law;
    (3) Design fences, overland conveyors, and other potential barriers 
to permit passage for large mammals, except where the regulatory 
authority determines that such requirements are unnecessary; and
    (4) Fence, cover, or use other appropriate methods to exclude 
wildlife from ponds which contain hazardous concentrations of toxic-
forming materials.
    (f) Wetlands and habitats of unusually high value for fish and 
wildlife. The operator conducting surface mining activities shall avoid 
disturbances to, enhance where practicable, restore, or replace, 
wetlands, and riparian vegetation along rivers and streams and 
bordering ponds and lakes. Surface mining activities shall avoid 
disturbances to, enhance where practicable, or restore, habitats of 
unusually high value for fish and wildlife.
    (g) Where fish and wildlife habitat is to be a postmining land use, 
the plant species to be used on reclaimed areas shall be selected on 
the basis of the following criteria:
    (1) Their proven nutritional value for fish or wildlife.
    (2) Their use as cover for fish or wildlife.
    (3) Their ability to support and enhance fish or wildlife habitat 
after the release of performance bonds. The selected plants shall be 
grouped and distributed in a manner which optimizes edge effect, cover, 
and other benefits to fish and wildlife.
    (h) Where cropland is to be the postmining land use, and where 
appropriate for wildlife- and crop-management practices, the operator 
shall intersperse the fields with trees, hedges, or fence rows 
throughout the harvested area to break up large blocks of monoculture 
and to diversify habitat types for birds and other animals.
    (i) Where residential, public service, or industrial uses are to be 
the postmining land use, and where consistent with the approved 
postmining land use, the operator shall intersperse reclaimed lands 
with greenbelts utilizing species of grass, shrubs, and trees useful as 
food and cover for wildlife.


Sec.  816.99  Slides and other damage.

    (a) An undisturbed natural barrier shall be provided beginning at 
the elevation of the lowest coal seam to be mined and extending from 
the outslope for such distance as may be determined by the regulatory 
authority as is needed to assure stability. The barrier shall be 
retained in place to prevent slides and erosion.
    (b) At any time a slide occurs which may have a potential adverse 
affect on public property, health, safety, or the environment, the 
person who conducts the surface mining activities shall notify the 
regulatory authority by the fastest available means and comply with any 
remedial measures required by the regulatory authority.


Sec.  816.100  Contemporaneous reclamation.

    Reclamation efforts, including but not limited to backfilling, 
grading, topsoil replacement, and revegetation, on all land that is 
disturbed by surface mining activities shall occur as contemporaneously 
as practicable with mining operations, except when such mining 
operations are conducted in accordance with a variance for concurrent 
surface and underground mining activities issued under Sec.  785.18 of 
this chapter.


Sec.  816.101  Backfilling and grading: Time and distance requirements.

    (a) Except as provided in paragraph (b) of this section, rough 
backfilling and grading for surface mining activities shall be 
completed according to one of the following schedules:
    (1) Contour mining. Within 60 days or 1,500 linear feet following 
coal removal;
    (2) Area mining. Within 180 days following coal removal, and not 
more than four spoil ridges behind the pit being worked, the spoil from 
the active pit constituting the first ridge; or
    (3) Other surface mining methods. In accordance with the schedule 
established by the regulatory authority. For States with approved State 
programs, schedules are subject to the State program approval process.
    (b) The regulatory authority may extend the time allowed for rough 
backfilling and grading for the entire permit area or for a specified 
portion of the permit area if the permittee demonstrates in accordance 
with Sec.  780.18(b)(3) of this chapter that additional time is 
necessary.


Sec.  816.102  Backfilling and grading: General requirements.

    (a) Disturbed areas shall be backfilled and graded to--
    (1) Achieve the approximate original contour, except as provided in 
paragraph (k) of this section;
    (2) Eliminate all highwalls, spoil piles, and depressions, except 
as provided in paragraph (h) (small depressions) and in paragraph 
(k)(3)(iii) (previously mined highwalls) of this section;
    (3) Achieve a postmining slope that does not exceed either the 
angle of repose or such lesser slope as is necessary to achieve a 
minimum long-term static safety factor of 1.3 and to prevent slides;
    (4) Minimize erosion and water pollution both on and off the site; 
and
    (5) Support the approved postmining land use.
    (b) Spoil, except excess spoil disposed of in accordance with 
Sec. Sec.  816.71 through 816.74, shall be returned to the mined-out 
area.
    (c) Spoil and waste materials shall be compacted where advisable to 
ensure stability or to prevent leaching of toxic materials.
    (d) Spoil may be placed on the area outside the mined-out area in 
nonsteep slope areas to restore the approximate original contour by 
blending the spoil into the surrounding terrain if the following 
requirements are met:
    (1) All vegetative and organic material shall be removed from the 
area.
    (2) The topsoil on the area shall be removed, segregated, stored, 
and redistributed in accordance with Sec.  816.22.
    (3) The spoil shall be backfilled and graded on the area in 
accordance with the requirements of this section.
    (e) Disposal of coal processing waste and underground development 
waste in the mined-out area shall be in accordance with Sec. Sec.  
816.81 and 816.83, except that a long-term static safety factor of 1.3 
shall be achieved.
    (f) Exposed coal seams, acid- and toxic-forming materials, and 
combustible materials exposed, used, or produced during mining shall be 
adequately covered with nontoxic and noncombustible material, or 
treated, to control the impact on surface and ground water in 
accordance with Sec.  816.41, to prevent sustained combustion, and to 
minimize adverse effects on plant growth and the approved postmining 
land use.

[[Page 54995]]

    (g) Cut-and-fill terraces may be allowed by the regulatory 
authority where--
    (1) Needed to conserve soil moisture, ensure stability, and control 
erosion on final-graded slopes, if the terraces are compatible with the 
approved postmining land use; or
    (2) Specialized grading, foundation conditions, or roads are 
required for the approved postmining land use, in which case the final 
grading may include a terrace of adequate width to ensure the safety, 
stability, and erosion control necessary to implement the postmining 
land-use plan.
    (h) Small depressions may be constructed if they are needed to 
retain moisture, minimize erosion, create and enhance wildlife habitat, 
or assist revegetation.
    (i) Permanent impoundments may be approved if they meet the 
requirements of Sec. Sec.  816.49 and 816.56 and if they are suitable 
for the approved postmining land use.
    (j) Preparation of final-graded surfaces shall be conducted in a 
manner that minimizes erosion and provides a surface for replacement of 
topsoil that will minimize slippage.
    (k) The postmining slope may vary from the approximate original 
contour when--
    (1) The standards for thin overburden in Sec.  816.104 are met;
    (2) The standards for thick overburden in Sec.  816.105 are met; or
    (3) Approval is obtained from the regulatory authority for--
    (i) Mountaintop removal operations in accordance with Sec.  785.14 
of this chapter;
    (ii) A variance from approximate original contour requirements in 
accordance with Sec.  785.16 of this chapter; or
    (iii) Incomplete elimination of highwalls in previously mined areas 
in accordance with Sec.  816.106.


Sec.  816.104  Backfilling and grading: Thin overburden.

    (a) Definition. Thin overburden means insufficient spoil and other 
waste materials available from the entire permit area to restore the 
disturbed area to its approximate original contour. Insufficient spoil 
and other waste materials occur where the overburden thickness times 
the swell factor, plus the thickness of other available waste 
materials, is less than the combined thickness of the overburden and 
coal bed prior to removing the coal, so that after backfilling and 
grading the surface configuration of the reclaimed area would not:
    (1) Closely resemble the surface configuration of the land prior to 
mining; or
    (2) Blend into and complement the drainage pattern of the 
surrounding terrain.
    (b) Performance standards. Where thin overburden occurs within the 
permit area, the permittee at a minimum shall:
    (1) Use all spoil and other waste materials available from the 
entire permit area to attain the lowest practicable grade, but not more 
than the angle of repose; and
    (2) Meet the requirements of Sec. Sec.  816.102(a)(2) through (j) 
of this part.


Sec.  816.105  Backfilling and grading: Thick overburden.

    (a) Definition. Thick overburden means more than sufficient spoil 
and other waste materials available from the entire permit area to 
restore the disturbed area to its approximate original contour. More 
than sufficient spoil and other waste materials occur where the 
overburden thickness times the swell factor exceeds the combined 
thickness of the overburden and coal bed prior to removing the coal, so 
that after backfilling and grading the surface configuration of the 
reclaimed area would not:
    (1) Closely resemble the surface configuration of the land prior to 
mining; or
    (2) Blend into and complement the drainage pattern of the 
surrounding terrain.
    (b) Performance standards. Where thick overburden occurs within the 
permit area, the permittee at a minimum shall:
    (1) Restore the approximate original contour and then use the 
remaining spoil and other waste materials to attain the lowest 
practicable grade, but not more than the angle of repose;
    (2) Meet the requirements of Sec. Sec.  816.102 (a)(2) through (j) 
of this part; and
    (3) Dispose of any excess spoil in accordance with Sec. Sec.  
816.71 through 816.74 of this part.


Sec.  816.106  Backfilling and grading: Previously mined areas.

    (a) Remining operations on previously mined areas that contain a 
preexisting highwall shall comply with the requirements of Sec. Sec.  
816.102 through 816.107 of this chapter, except as provided in this 
section.
    (b) The requirements of Sec.  816.102(a) (1) and (2) requiring the 
elimination of highwalls shall not apply to remining opertions where 
the volume of all reasonably available spoil is demonstrated in writing 
to the regulatory authority to be insufficient to completely backfill 
the reaffected or enlarged highwall. The highwall shall be eliminated 
to the maximum extent technically practical in accordance with the 
following criteria:
    (1) All spoil generated by the remining operation and any other 
reasonably available spoil shall be used to backfill the area. 
Reasonably available spoil in the immediate vicinity of the remining 
operation shall be included within the permit area.
    (2) The backfill shall be graded to a slope which is compatible 
with the approved postmining land use and which provides adequate 
drainage and long-term stability.
    (3) Any highwall remnant shall be stable and not pose a hazard to 
the public health and safety or to the environment. The operator shall 
demonstrate, to the satisfaction of the regulatory authority, that the 
highwall remnant is stable.
    (4) Spoil placed on the outslope during previous mining operations 
shall not be disturbed if such disturbances will cause instability of 
the remaining spoil or otherwise increase the hazard to the public 
health and safety or to the environment.


Sec.  816.107  Backfilling and grading: Steep slopes.

    (a) Surface mining activities on steep slopes shall be conducted so 
as to meet the requirements of Sec. Sec.  816.102-816.106, and the 
requirements of this section except where mining is conducted on flat 
or gently rolling terrain with an occasional steep slope through which 
the mining proceeds and leaves a plain or predominantly flat area or 
where operations are conducted in accordance with part 824 of this 
chapter.
    (b) The following materials shall not be placed on the downslope:
    (1) Spoil.
    (2) Waste materials of any type.
    (3) Debris, including that from clearing and grubbing.
    (4) Abandoned or disabled equipment.
    (c) Land above the highwall shall not be disturbed unless the 
regulatory authority finds that this disturbance will facilitate 
compliance with the environmental protection standards of this 
subchapter and the disturbance is limited to that necessary to 
facilitate compliance.
    (d) Woody materials shall not be buried in the backfilled area 
unless the regulatory authority determines that the proposed method for 
placing woody material within the backfill will not deteriorate the 
stable condition of the backfilled area.

[[Page 54996]]

Sec.  816.111  Revegetation: General requirements.

    (a) The permittee shall establish on regraded areas and on all 
other disturbed areas except water areas and surface areas of roads 
that are approved as part of the postmining land use, a vegetative 
cover that is in accordance with the approved permit and reclamation 
plan and that is--
    (1) Diverse, effective, and permanent;
    (2) Comprised of species native to the area, or of introduced 
species where desirable and necessary to achieve the approved 
postmining land use and approved by the regulatory authority;
    (3) At least equal in extent of cover to the natural vegetation of 
the area; and
    (4) Capable of stabilizing the soil surface from erosion.
    (b) The reestablished plant species shall--
    (1) Be compatible with the approved postmining land use;
    (2) Have the same seasonal characteristics of growth as the 
original vegetation;
    (3) Be capable of self-regeneration and plant succession;
    (4) Be compatible with the plant and animal species of the area; 
and
    (5) Meet the requirements of applicable State and Federal seed, 
poisonous and noxious plant, and introduced species laws or 
regulations.
    (c) The regulatory authority may grant exception to the 
requirements of paragraphs (b) (2) and (3) of this section when the 
species are necessary to achieve a quick-growing, temporary, 
stabilizing cover, and measures to establish permanent vegetation are 
included in the approved permit and reclamation plan.
    (d) When the regulatory authority approves a cropland postmining 
land use, the regulatory authority may grant exception to the 
requirements of paragraphs (a) (1), (3), (b) (2), and (3) of this 
section. The requirements of part 823 of this chapter apply to areas 
identified as prime farmland.


Sec.  816.113  Revegetation: Timing.

    Disturbed areas shall be planted during the first normal period for 
favorable planting conditions after replacement of the plant-growth 
medium. The normal period for favorable planting is that planting time 
generally accepted locally for the type of plant materials selected.


Sec.  816.114  Revegetation: Mulching and other soil stabilizing 
practices.

    Suitable mulch and other soil stabilizing practices shall be used 
on all areas that have been regraded and covered by topsoil or topsoil 
substitutes. The regulatory authority may waive this requirement if 
seasonal, soil, or slope factors result in a condition where mulch and 
other soil stabilizing practices are not necessary to control erosion 
and to promptly establish an effective vegetative cover.


Sec.  816.116  Revegetation: Standards for success.

    (a) Success of revegetation shall be judged on the effectiveness of 
the vegetation for the approved postmining land use, the extent of 
cover compared to the cover occurring in natural vegetation of the 
area, and the general requirements of Sec.  816.111.
    (1) Standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority, described in writing, and made available to the public.
    (2) Standards for success shall include criteria representative of 
unmined lands in the area being reclaimed to evaluate the appropriate 
vegetation parameters of ground cover, production, or stocking. Ground 
cover, production, or stocking shall be considered equal to the 
approved success standard when they are not less than 90 percent of the 
success standard. The sampling techniques for measuring success shall 
use a 90-percent statistical confidence interval (i.e., one-sided test 
with a 0.10 alpha error).
    (b) Standards for success shall be applied in accordance with the 
approved postmining land use and, at a minimum, the following 
conditions:
    (1) For areas developed for use as grazing land or pasture land, 
the ground cover and production of living plants on the revegetated 
area shall be at least equal to that of a reference area or such other 
success standards approved by the regulatory authority.
    (2) For areas developed for use as cropland, crop production on the 
revegetated area shall be at least equal to that of a reference area or 
such other success standards approved by the regulatory authority.
    (3) For areas to be developed for fish and wildlife habitat, 
recreation, undeveloped land, or forest products, success of vegetation 
shall be determined on the basis of tree and shrub stocking and 
vegetative ground cover. Such parameters are described as follows:
    (i) Minimum stocking and planting arrangements shall be specified 
by the regulatory authority on the basis of local and regional 
conditions and after consultation with and approval by the State 
agencies responsible for the administration of forestry and wildlife 
programs. Consultation and approval may occur on either a programwide 
or a permit-specific basis.
    (ii) Trees and shrubs that will be used in determining the success 
of stocking and the adequacy of the plant arrangement shall have 
utility for the approved postmining land use. Trees and shrubs counted 
in determining such success shall be healthy and have been in place for 
not less than two growing seasons. At the time of bond release, at 
least 80 percent of the trees and shrubs used to determine such success 
shall have been in place for 60 percent of the applicable minimum 
period of responsibility. The requirements of this section apply to 
trees and shrubs that have been seeded or transplanted and can be met 
when records of woody vegetation planted show that no woody plants were 
planted during the last two growing seasons of the responsibility 
period and, if any replanting of woody plants took place during the 
responsibility period, the total number planted during the last 60 
percent of that period is less than 20 percent of the total number of 
woody plants required. Any replanting must be by means of transplants 
to allow for adequate accounting of plant stocking. This final 
accounting may include volunteer trees and shrubs of approved species. 
Volunteer trees and shrubs of approved species shall be deemed 
equivalent to planted specimens two years of age or older and can be 
counted towards success. Suckers on shrubby vegetation can be counted 
as volunteer plants when it is evident the shrub community is vigorous 
and expanding.
    (iii) Vegetative ground cover shall not be less than that required 
to achieve the approved postmining land use.
    (4) For areas to be developed for industrial, commercial, or 
residential use less than 2 years after regrading is completed, the 
vegetative ground cover shall not be less than that required to control 
erosion.
    (5) For areas previously disturbed by mining that were not 
reclaimed to the requirements of this subchapter and that are remined 
or otherwise redisturbed by surface coal mining operations, as a 
minimum, the vegetative ground cover shall be not less than the ground 
cover existing before redisturbance and shall be adequate to control 
erosion.
    (c)(1) The period of extended responsibility for successful 
revegetation shall begin after the last year of augmented seeding, 
fertilizing, irrigation, or other work, excluding husbandry practices 
that are approved by the regulatory authority in accordance with 
paragraph (c)(4) of this section.

[[Page 54997]]

    (2) In areas of more than 26.0 inches of annual average 
precipitation, the period of responsibility shall continue for a period 
of not less than:
    (i) Five full years, except as provided in paragraph (c)(2)(ii) of 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazing land, pasture land, or cropland shall equal or 
exceed the approved success standard during the growing season of any 2 
years of the responsibility period, except the first year. Areas 
approved for the other uses identified in paragraph (b) of this section 
shall equal or exceed the applicable success standard during the 
growing season of the last year of the responsibility period.
    (ii) Two full years for lands eligible for remining included in a 
permit for which a finding has been made under Sec.  773.15(m) of this 
chapter. To the extent that the success standards are established by 
paragraph (b)(5) of this section, the lands must equal or exceed the 
standards during the growing season of the last year of the 
responsibility period.
    (3) In areas of 26.0 inches or less average annual precipitation, 
the period of responsibility shall continue for a period of not less 
than:
    (i) Ten full years, except as provided in paragraph (c)(3)(ii) in 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazing land, pasture land, or cropland shall equal or 
exceed the approved success standard during the growing season of any 
two years after year six of the responsibility period. Areas approved 
for the other uses identified in paragraph (b) of this section shall 
equal or exceed the applicable success standard during the growing 
season of the last year of the responsibility period.
    (ii) Five full years for lands eligible for remining included in a 
permit for which a finding has been made under Sec.  773.15(m) of this 
chapter. To the extent that the success standards are established by 
paragraph (b)(5) of this section, the lands must equal or exceed the 
standards during the growing seasons of the last two consecutive years 
of the responsibility period.
    (4) The regulatory authority may approve selective husbandry 
practices, excluding augmented seeding, fertilization, or irrigation, 
provided it obtains prior approval from the Director in accordance with 
Sec.  732.17 of this chapter that the practices are normal husbandry 
practices, without extending the period of responsibility for 
revegetation success and bond liability, if such practices can be 
expected to continue as part of the postmining land use or if 
discontinuance of the practices after the liability period expires will 
not reduce the probability of permanent revegetation success. Approved 
practices shall be normal husbandry practices within the region for 
unmined lands having land uses similar to the approved postmining land 
use of the disturbed area, including such practices as disease, pest, 
and vermin control; and any pruning, reseeding, and transplanting 
specifically necessitated by such actions.


Sec.  816.131  Cessation of operations: Temporary.

    (a) Each person who conducts surface mining activities shall 
effectively secure surface facilities in areas in which there are no 
current operations, but in which operations are to be resumed under an 
approved permit. Temporary abandonment shall not relieve a person of 
their obligation to comply with any provisions of the approved permit.
    (b) Before temporary cessation of mining and reclamation operations 
for a period of thirty days or more, or as soon as it is known that a 
temporary cessation will extend beyond 30 days, persons who conduct 
surface mining activities shall submit to the regulatory authority a 
notice of intention to cease or abandon mining and reclamation 
operations. This notice shall include a statement of the exact number 
of acres which will have been affected in the permit area, prior to 
such temporary cessation, the extent and kind of reclamation of those 
areas which will have been accomplished, and identification of the 
backfilling, regrading, revegetation, environmental monitoring, and 
water treatment activities that will continue during the temporary 
cessation.


Sec.  816.132  Cessation of operations: Permanent.

    (a) Persons who cease surface mining activities permanently shall 
close or backfill or otherwise permanently reclaim all affected areas, 
in accordance with this chapter and the permit approved by the 
regulatory authority.
    (b) All underground openings, equipment, structures, or other 
facilities not required for monitoring, unless approved by the 
regulatory authority as suitable for the postmining land use or 
environmental monitoring, shall be removed and the affected land 
reclaimed.


Sec.  816.133  Postmining land use.

    (a) General. All disturbed areas shall be restored in a timely 
manner to conditions that are capable of supporting--
    (1) The uses they were capable of supporting before any mining; or
    (2) Higher or better uses.
    (b) Determining premining uses of land. The premining uses of land 
to which the postmining land use is compared shall be those uses which 
the land previously supported, if the land has not been previously 
mined and has been properly managed. The postmining land use for land 
that has been previously mined and not reclaimed shall be judged on the 
basis of the land use that existed prior to any mining: Provided that, 
if the land cannot be reclaimed to the land use that existed prior to 
any mining because of the previously mined condition, the postmining 
land use shall be judged on the basis of the highest and best use that 
can be achieved which is compatible with surrounding areas and does not 
require the disturbance of areas previously unaffected by mining.
    (c) Criteria for alternative postmining land uses. Higher or better 
uses may be approved by the regulatory authority as alternative 
postmining land uses after consultation with the landowner or the land 
management agency having jurisdiction over the lands, if the proposed 
uses meet the following criteria:
    (1) There is a reasonable likelihood for achievement of the use.
    (2) The use does not present any actual or probable hazard to 
public health or safety, or threat of water diminution or pollution.
    (3) The use will not--
    (i) Be impractical or unreasonable;
    (ii) Be inconsistent with applicable land use policies or plans;
    (iii) Involve unreasonable delay in implementation; or
    (iv) Cause or contribute to violation of Federal, State, or local 
law.
    (d) Approximate original contour: Criteria for variance. Surface 
coal mining operations that meet the requirements of this paragraph may 
be conducted under a variance from the requirement to restore disturbed 
areas to their approximate original contour, if the following 
requirements are satisfied:
    (1) The regulatory authority grants the variance under a permit 
issued in accordance with Sec.  785.16 of this chapter.
    (2) The alternative postmining land use requirements of paragraph 
(c) of this section are met.
    (3) All applicable requirements of the Act and the regulatory 
program, other than the requirement to restore disturbed areas to their 
approximate original contour, are met.
    (4) After consultation with the appropriate land use planning 
agencies, if any, the potential use is shown to

[[Page 54998]]

constitute an equal or better economic or public use.
    (5) The proposed use is designed and certified by a qualified 
registered professional engineer in conformance with professional 
standards established to assure the stability, drainage, and 
configuration necessary for the intended use of the site.
    (6) After approval, where required, of the appropriate State 
environmental agencies, the watershed of the permit and adjacent areas 
is shown to be improved.
    (7) The highwall is completely backfilled with spoil material, in a 
manner which results in a static factor of safety of at least 1.3, 
using standard geotechnical analysis.
    (8) Only the amount of spoil as is necessary to achieve the 
postmining land use, ensure the stability of spoil retained on the 
bench, and meet all other requirements of the Act and this chapter is 
placed off the mine bench. All spoil not retained on the bench shall be 
placed in accordance with Sec. Sec.  816.71-816.74 of this chapter.
    (9) The surface landowner of the permit area has knowingly 
requested, in writing, that a variance be granted, so as to render the 
land, after reclamation, suitable for an industrial, commercial, 
residential, or public use (including recreational facilities).
    (10) Federal, State, and local government agencies with an interest 
in the proposed land use have an adequate period in which to review and 
comment on the proposed use.


Sec.  816.150  Roads: general.

    (a) Road classification system. (1) Each road, as defined in Sec.  
701.5 of this chapter, shall be classified as either a primary road or 
an ancillary road.
    (2) A primary road is any road which is--
    (i) Used for transporting coal or spoil;
    (ii) Frequently used for access or other purposes for a period in 
excess of six months; or
    (iii) To be retained for an approved postmining land use.
    (3) An ancillary road is any road not classified as a primary road.
    (b) Performance standards. Each road shall be located, designed, 
constructed, reconstructed, used, maintained, and reclaimed so as to:
    (1) Control or prevent erosion, siltation, and the air pollution 
attendant to erosion, including road dust as well as dust occurring on 
other exposed surfaces, by measures such as vegetating, watering, using 
chemical or other dust suppressants, or otherwise stabilizing all 
exposed surfaces in accordance with current, prudent engineering 
practices;
    (2) Control or prevent damage to fish, wildlife, or their habitat 
and related environmental values;
    (3) Control or prevent additional contributions of suspended solids 
to stream flow or runoff outside the permit area;
    (4) Neither cause nor contribute to, directly or indirectly, the 
violation of State or Federal water quality standards applicable to 
receiving waters;
    (5) Refrain from seriously altering the normal flow of water in 
streambeds or drainage channels;
    (6) Prevent or control damage to public or private property, 
including the prevention or mitigation of adverse effects on lands 
within the boundaries of units of the National Park System, the 
National Wildlife Refuge System, the National System of Trails, the 
National Wilderness Preservation System, the Wild and Scenic Rivers 
System, including designated study rivers, and National Recreation 
Areas designated by Act of Congress;
    (7) Use nonacid- and nontoxic-forming substances in road surfacing.
    (c) Design and construction limits and establishment of design 
criteria. To ensure environmental protection appropriate for their 
planned duration and use, including consideration of the type and size 
of equipment used, the design and construction or reconstruction of 
roads shall incorporate appropriate limits for grade, width, surface 
materials, surface drainage control, culvert placement, and culvert 
size, in accordance with current, prudent engineering practices, and 
any necessary design criteria established by the regulatory authority.
    (d) Location. (1) No part of any road shall be located in the 
channel of an intermittent or perennial stream unless specifically 
approved by the regulatory authority in accordance with applicable 
Sec. Sec.  816.41 through 816.43 and 816.57 of this chapter.
    (2) Roads shall be located to minimize downstream sedimentation and 
flooding.
    (e) Maintenance. (1) A road shall be maintained to meet the 
performance standards of this part and any additional criteria 
specified by the regulatory authority.
    (2) A road damaged by a catastrophic event, such as a flood or 
earthquake, shall be repaired as soon as is practicable after the 
damage has occurred.
    (f) Reclamation. A road not to be retained under an approved 
postmining land use shall be reclaimed in accordance with the approved 
reclamation plan as soon as practicable after it is no longer needed 
for mining and reclamation operations. This reclamation shall include:
    (1) Closing the road to traffic;
    (2) Removing all bridges and culverts unless approved as part of 
the postmining land use;
    (3) Removing or otherwise disposing of road-surfacing materials 
that are incompatible with the postmining land use and revegetation 
requirements;
    (4) Reshaping cut and fill slopes as necessary to be compatible 
with the postmining land use and to complement the natural drainage 
pattern of the surrounding terrain;
    (5) Protecting the natural drainage patterns by installing dikes or 
cross drains as necessary to control surface runoff and erosion; and
    (6) Scarifying or ripping the roadbed; replacing topsoil or 
substitute material, and revegetating disturbed surfaces in accordance 
with Sec. Sec.  816.22 and 816.111 through 816.116 of this chapter.


Sec.  816.151  Primary roads.

    Primary roads shall meet the requirements of section 816.150 and 
the additional requirements of this section.
    (a) Certification. The construction or reconstruction of primary 
roads shall be certified in a report to the regulatory authority by a 
qualified registered professional engineer, or in any State which 
authorizes land surveyors to certify the construction or reconstruction 
of primary roads, a qualified registered professional land surveyor 
with experience in the design and construction of roads. The report 
shall indicate that the primary road has been constructed or 
reconstructed as designed and in accordance with the approved plan.
    (b) Safety Factor. Each primary road embankment shall have a 
minimum static factor of 1.3 or meet the requirements established under 
Sec.  780.37(c) of this chapter.
    (c) Location. (1) To minimize erosion, a primary road shall be 
located, insofar as is practicable, on the most stable available 
surface.
    (2) Fords or perennial or intermittent streams by primary roads are 
prohibited unless they are specifically approved by the regulatory 
authority as temporary routes during periods of road construction.
    (d) Drainage control. In accordance with the approved plan--
    (1) Each primary road shall be constructed or reconstructed, and 
maintained to have adequate drainage control, using structures such as, 
but not limited to bridges, ditches, cross drains, and ditch relief 
drains. The drainage control system shall be designed to safely pass 
the peak runoff from a 10-

[[Page 54999]]

year, 6-hour precipitation event, or greater event as specified by the 
regulatory authority;
    (2) Drainage pipes and culverts shall be installed as designed, and 
maintained in a free and operating condition and to prevent or control 
erosion at inlets and outlets;
    (3) Drainage ditches shall be constructed and maintained to prevent 
uncontrolled drainage over the road surface and embankment;
    (4) Culverts shall be installed and maintained to sustain the 
vertical soil pressure, the passive resistance of the foundation, and 
the weight of vehicles using the road;
    (5) Natural stream channels shall not be altered or relocated 
without the prior approval of the regulatory authority in accordance 
with applicable Sec.  816.41 through 816.43 and 816.57 of this chapter; 
and
    (6) Except as provided in paragraph (c)(2) of this section, 
structures for perennial or intermittent stream channel crossings shall 
be made using bridges, culverts, low-water crossings, or other 
structures designed, constructed, and maintained using current, prudent 
engineering practices. The regulatory authority shall ensure that low-
water crossings are designed, constructed, and maintained to prevent 
erosion of the structure or streambed and additional contributions of 
suspended solids to steamflow.
    (e) Surfacing. Primary roads shall be surfaced with material 
approved by the regulatory authority as being sufficiently durable for 
the anticipated volume of traffic and the weight and speed of vehicles 
using the road.


Sec.  816.180  Utility installations.

    All surface coal mining operations shall be conducted in a manner 
which minimizes damage, destruction, or disruption of services provided 
by oil, gas, and water wells; oil, gas, and coal-slurry pipelines; 
railroads; electric and telephone lines; and water and sewage lines 
which pass over, under, or through the permit area, unless otherwise 
approved by the owner of those facilities and the regulatory authority.


Sec.  816.181  Support facilities.

    (a) Support facilities shall be operated in accordance with a 
permit issued for the mine or coal preparation operation to which it is 
incident or from which its operation results.
    (b) In addition to the other provisions of this part, support 
facilities shall be located, maintained, and used in a manner that--
    (1) Prevents or controls erosion and siltation, water pollution, 
and damage to public or private property; and
    (2) To the extent possible using the best technology currently 
available--
    (i) Minimizes damage to fish, wildlife, and related environmental 
values; and
    (ii) Minimizes additional contributions of suspended solids to 
streamflow or runoff outside the permit area. Any such contributions 
shall not be in excess of limitations of State or Federal law.


Sec.  816.200  Interpretative rules related to general performance 
standards.

    The following interpretations of rules promulgated in part 816 of 
this chapter have been adopted by the Office of Surface Mining 
Reclamation and Enforcement.
    (a)-(b) [Reserved]
    (c) Interpretation of Sec.  816.22(e)--Topsoil Removal. (1) Results 
of physical and chemical analyses of overburden and topsoil to 
demonstrate that the resulting soil medium is equal to or more suitable 
for sustaining revegetation than the available topsoil, provided that 
trials, and tests are certified by an approved laboratory in accordance 
with 30 CFR 816.22(e)(1)(ii), may be obtained from any one or a 
combination of the following sources:
    (i) U.S. Department of Agriculture Soil Conservation Service 
published data based on established soil series;
    (ii) U.S. Department of Agriculture Soil Conservation Service 
Technical Guides;
    (iii) State agricultural agency, university, Tennessee Valley 
Authority, Bureau of Land Management or U.S. Department of Agriculture 
Forest Service published data based on soil series properties and 
behavior, or
    (iv) Results of physical and chemical analyses, field site trials, 
or greenhouse tests of the topsoil and overburden materials (soil 
series) from the permit area.
    (2) If the operator demonstrates through soil survey or other data 
that the topsoil and unconsolidated material are insufficient and 
substitute materials will be used, only the substitute materials must 
be analyzed in accordance with 30 CFR 816.22(e)(1)(i).

0
13. Revise part 817 to read as follows:

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

Sec.
817.1 Scope.
817.2 Objectives.
817.10 Information collection.
817.11 Signs and markers.
817.13 Casing and sealing of exposed underground openings: General 
requirements.
817.14 Casing and sealing of underground openings: Temporary.
817.15 Casing and sealing of underground openings: Permanent.
817.22 Topsoil and subsoil.
817.41 Hydrologic-balance protection.
817.42 Hydrologic balance: Water quality standards and effluent 
limitations.
817.43 Diversions.
817.45 Hydrologic balance: Sediment control measures.
817.46 Hydrologic balance: Siltation structures.
817.47 Hydrologic balance: Discharge structures.
817.49 Impoundments.
817.56 Postmining rehabilitation of sedimentation ponds, diversions, 
impoundments, and treatment facilities.
817.57 Hydrologic balance: Stream buffer zones.
817.59 Coal recovery.
817.61 Use of explosives: General requirements.
817.62 Use of explosives: Preblasting survey.
817.64 Use of explosives: General performance standards.
817.66 Use of explosives: Blasting signs, warnings, and access 
controls.
817.67 Use of explosives: Control of adverse effects.
817.68 Use of explosives: Records of blasting operations.
817.71 Disposal of excess spoil: General requirements.
817.72 Disposal of excess spoil: Valley fill/head-of-hollow fills.
817.73 Disposal of excess spoil: Durable rock fills.
817.74 Disposal of excess spoil: Preexisting benches.
817.81 Coal mine waste: General requirements.
817.83 Coal mine waste: Refuse piles.
817.84 Coal mine waste: Impounding structures.
817.87 Coal mine waste: Burning and burned waste utilization.
817.89 Disposal of noncoal mine wastes.
817.95 Stabilization of surface areas.
817.97 Protection of fish, wildlife and related environmental 
values.
817.99 Slides and other damage.
817.100 Contemporaneous reclamation.
817.102 Backfilling and grading: General requirements.
817.106 Backfilling and grading: Previously mined areas.
817.107 Backfilling and grading: Steep slopes.
817.111 Revegetation: General requirements.
817.113 Revegetation: Timing.
817.114 Revegetation: Mulching and other soil stabilizing practices.
817.116 Revegetation: Standards for success.
817.121 Subsidence control.
817.122 Subsidence control: Public notice.
817.131 Cessation of operations: Temporary.
817.132 Cessation of operations: Permanent.

[[Page 55000]]

817.133 Postmining land use.
817.150 Roads: General.
817.151 Primary roads.
817.180 Utility installations.
817.181 Support facilities.
817.200 Interpretative rules related to general performance 
standards.

    Authority:  30 U.S.C. 1201 et seq.


Sec.  817.1  Scope.

    This part sets forth the minimum environmental protection 
performance standards to be adopted and implemented under regulatory 
programs for underground mining activities.


Sec.  817.2  Objectives.

    This part is intended to ensure that all underground mining 
activities are conducted in a manner which preserves and enhances 
environmental and other values in accordance with the Act.


Sec.  817.10  Information collection.

    (a) The collections of information contained in part 817 have been 
approved by Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0048. The information will be 
used to meet the requirements of 30 U.S.C. 1211, 1251, 1266, and 1309a 
which provide, among other things, that permittees conducting 
underground coal mining operations will meet the applicable performance 
standards of the Act. This information will be used by the regulatory 
authority in monitoring and inspecting underground mining activities. 
The obligation to respond is required to obtain a benefit.
    (b) Public reporting burden for this information is estimated to 
average 4 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.


Sec.  817.11  Signs and markers.

    (a) Specifications. Signs and markers required under this part 
shall--
    (1) Be posted, maintained, and removed by the person who conducts 
the underground mining activities;
    (2) Be of a uniform design throughout the activities that can be 
easily seen and read;
    (3) Be made of durable material; and
    (4) Conform to local laws and regulations.
    (b) Duration of maintenance. Signs and markers shall be maintained 
during all activities to which they pertain.
    (c) Mine and permit identification signs. (1) Identification signs 
shall be displayed at each point of access from public roads to areas 
of surface operations and facilities on permit areas for underground 
mining activities.
    (2) Signs will show the name, business address, and telephone 
number of the person who conducts underground mining activities and the 
identification number of the current regulatory program permit 
authorizing underground mining activities.
    (3) Signs shall be retained and maintained until after the release 
of all bonds for the permit area.
    (d) Perimeter markers. Each person who conducts underground mining 
activities shall clearly mark the perimeter of all areas affected by 
surface operations or facilities before beginning mining activities.
    (e) Buffer zone markers. Buffer zones required by Sec.  817.57 
shall be clearly marked to prevent disturbance by surface operations 
and facilities.
    (f) Topsoil markers. Where topsoil or other vegetation-supporting 
material is segregated and stockpiled as required under Sec.  817.22, 
the stockpiled material shall be clearly marked.


Sec.  817.13  Casing and sealing of exposed underground openings: 
General requirements.

    Each exploration hole, other drillhole or borehole, shaft, well, or 
other exposed underground opening shall be cased, lined, or otherwise 
managed as approved by the regulatory authority to prevent acid or 
other toxic drainage from entering ground and surface waters, to 
minimize disturbance to the prevailing hydrologic balance and to ensure 
the safety of people, livestock, fish and wildlife, and machinery in 
the permit area and adjacent area. Each exploration hole, drill hole or 
borehole or well that is uncovered or exposed by mining activities 
within the permit area shall be permanently closed, unless approved for 
water monitoring or otherwise managed in a manner approved by the 
regulatory authority. Use of a drilled hole or monitoring well as a 
water well must meet the provisions of Sec.  817.41 of this part. This 
section does not apply to holes drilled and used for blasting, in the 
area affected by surface operations.


Sec.  817.14  Casing and sealing of underground openings: Temporary.

    (a) Each mine entry which is temporarily inactive, but has a 
further projected useful service under the approved permit application, 
shall be protected by barricades or other covering devices, fenced, and 
posted with signs, to prevent access into the entry and to identify the 
hazardous nature of the opening. These devices shall be periodically 
inspected and maintained in good operating condition by the person who 
conducts the underground mining activities.
    (b) Each exploration hole, other drill hole or borehole, shaft, 
well, and other exposed underground opening which has been identified 
in the approved permit application for use to return underground 
development waste, coal processing waste or water to underground 
workings, or to be used to monitor ground water conditions, shall be 
temporarily sealed until actual use.


Sec.  817.15  Casing and sealing of underground openings: Permanent.

    When no longer needed for monitoring or other use approved by the 
regulatory authority upon a finding of no adverse environmental or 
health and safety effects, or unless approved for transfer as a water 
well under Sec.  817.41, each shaft, drift, adit, tunnel, exploratory 
hole, entryway or other opening to the surface from underground shall 
be capped, sealed, backfilled, or otherwise properly managed, as 
required by the regulatory authority in accordance with Sec.  817.13 
and consistent with 30 CFR 75.1711. Permanent closure measures shall be 
designed to prevent access to the mine workings by people, livestock, 
fish and wildlife, machinery and to keep acid or other toxic drainage 
from entering ground or surface waters.


Sec.  817.22  Topsoil and subsoil.

    (a) Removal. (1)(i) All topsoil shall be removed as a separate 
layer from the area to be disturbed, and segregated.
    (ii) Where the topsoil is of insufficient quantity or of poor 
quality for sustaining vegetation, the materials approved by the 
regulatory authority in accordance with paragraph (b) of this section 
shall be removed as a separate layer from the area to be disturbed, and 
segregated.
    (2) If topsoil is less than 6 inches thick, the operator may remove 
the topsoil and the unconsolidated materials immediately below the 
topsoil and treat the mixture as topsoil.
    (3) The regulatory authority may choose not to require the removal 
of topsoil for minor disturbances which--
    (i) Occur at the site of small structures, such as power poles, 
signs, or fence lines; or
    (ii) Will not destroy the existing vegetation and will not cause 
erosion.
    (4) Timing. All materials to be removed under this section shall be 
removed after the vegetative cover that would interfere with its 
salvage is cleared from the area to be disturbed, but before any 
drilling, blasting, mining, or other surface disturbance takes place.
    (b) Substitutes and supplements. Selected overburden materials may 
be

[[Page 55001]]

substituted for, or used as a supplement to, topsoil if the operator 
demonstrates to the regulatory authority that the resulting soil medium 
is equal to, or more suitable for sustaining vegetation than, the 
existing topsoil, and the resulting soil medium is the best available 
in the permit area to support revegetation.
    (c) Storage. (1) Materials removed under Paragraph (a) of this 
section shall be segregated and stockpiled when it is impractical to 
redistribute such materials promptly on regraded areas.
    (2) Stockpiled materials shall--
    (i) Be selectively placed on a stable site within the permit area;
    (ii) Be protected from contaminants and unnecessary compaction that 
would interfere with revegetation;
    (iii) Be protected from wind and water erosion through prompt 
establishment and maintenance of an effective, quick growing vegetative 
cover or through other measures approved by the regulatory authority; 
and
    (iv) Not be moved until required for redistribution unless approved 
by the regulatory authority.
    (3) Where long-term surface disturbances will result from 
facilities such as support facilities and preparation plants and where 
stockpiling of materials removed under paragraph (a)(1) of this section 
would be detrimental to the quality or quantity of those materials, the 
regulatory authority may approve the temporary distribution of the soil 
materials so removed to an approved site within the permit area to 
enhance the current use of that site until needed for later 
reclamation, provided that--
    (i) Such action will not permanently diminish the capability of the 
topsoil of the host site; and
    (ii) The material will be retained in a condition more suitable for 
redistribution than if stockpiled.
    (d) Redistribution. (1) Topsoil materials and topsoil substitutes 
and supplements removed under paragraphs (a) and (b) of this section 
shall be redistributed in a manner that--
    (i) Achieves an approximately uniform, stable thickness when 
consistent with the approved postmining land use, contours, and 
surface-water drainage systems. Soil thickness may also be varied to 
the extent such variations help meet the specific revegetation goals 
identified in the permit;
    (ii) Prevents excess compaction of the materials; and
    (iii) Protects the materials from wind and water erosion before and 
after seeding and planting.
    (2) Before redistribution of the material removed under paragraph 
(a) of this section, the regraded land shall be treated if necessary to 
reduce potential slippage of the redistributed material and to promote 
root penetration. If no harm will be caused to the redistributed 
material and reestablished vegetation, such treatment may be conducted 
after such material is replaced.
    (3) The regulatory authority may choose not to require the 
redistribution of topsoil or topsoil substitutes on the approved 
postmining embankments of permanent impoundments or of roads if it 
determines that--
    (i) Placement of topsoil or topsoil substitutes on such embankments 
is inconsistent with the requirement to use the best technology 
currently available to prevent sedimentation, and
    (ii) Such embankments will be otherwise stabilized.
    (4) Nutrients and soil amendments. Nutrients and soil amendments 
shall be applied to the initially redistributed material when necessary 
to establish the vegetative cover.
    (e) Subsoil segregation. The regulatory authority may require that 
the B horizon, C horizon, or other underlying strata, or portions 
thereof, be removed and segregated, stockpiled, and redistributed as 
subsoil in accordance with the requirements of paragraphs (c) and (d) 
of this section if it finds that such subsoil layers are necessary to 
comply with the revegetation requirements of Sec. Sec.  817.111, 
817.113, 817.114, and 817.116 of this chapter.


Sec.  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 Sec.  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.
    (c) Ground-water monitoring. (1) Ground-water monitoring shall be 
conducted according to the ground-water monitoring plan approved under 
Sec.  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 
Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  784.14(g) of this chapter, and the 
following:
    (1) Surface-water quality shall be protected by handling earth 
materials,

[[Page 55002]]

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 Sec.  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 Sec.  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 
Sec.  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 Sec. Sec.  
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 Sec.  
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 Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec.  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.
    (j) Drinking, domestic or residential water supply. The permittee 
must promptly replace any drinking, domestic or residential water 
supply that is contaminated, diminished or interrupted by underground 
mining activities conducted after October 24, 1992, if the affected 
well or spring was in existence before the date the regulatory 
authority received the permit application for the activities causing 
the loss, contamination or interruption. The baseline hydrologic 
information required in Sec. Sec.  780.21 and 784.14 of this chapter 
and the geologic information concerning baseline hydrologic conditions 
required in Sec. Sec.  780.21 and 784.22 of this chapter will be used 
to determine the impact of mining activities upon the water supply.

[[Page 55003]]

Sec.  817.42  Hydrologic balance: Water quality standards and effluent 
limitations.

    Discharges of water from areas disturbed by underground mining 
activities shall be made in compliance with all applicable State and 
Federal water quality laws and regulations and with the effluent 
limitations for coal mining promulgated by the U.S. Environmental 
Protection Agency set forth in 40 CFR part 434.


Sec.  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 Sec.  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 Sec.  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 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 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.


Sec.  817.45  Hydrologic balance: Sediment control measures.

    (a) Appropriate sediment control measures shall be designed, 
constructed, and maintained using the best technology currently 
available to:
    (1) Prevent, to the extent possible, additional contributions of 
sediment to stream flow or to runoff outside the permit area,
    (2) Meet the more stringent of applicable State or Federal effluent 
limitations,
    (3) Minimize erosion to the extent possible.
    (b) Sediment control measures include practices carried out within 
and adjacent to the disturbed area. The sedimentation storage capacity 
of practices in and downstream from the disturbed areas shall reflect 
the degree to which successful mining and reclamation techniques are 
applied to reduce erosion and control sediment. Sediment control 
measures consist of the utilization of proper mining and reclamation 
methods and sediment control practices, singly or in combination. 
Sediment control methods include but are not limited to--
    (1) Disturbing the smallest practicable area at any one time during 
the mining operation through progressive backfilling, grading, and 
prompt revegetation as required in Sec.  817.111(b);
    (2) Stabilizing the backfilled material to promote a reduction of 
the rate and volume of runoff in accordance with the requirements of 
Sec.  817.102;
    (3) Retaining sediment within disturbed areas;
    (4) Diverting runoff away from disturbed areas;
    (5) Diverting runoff using protected channels or pipes through 
disturbed areas so as not to cause additional erosion;
    (6) Using straw dikes, riprap, check dams, mulches, vegetative 
sediment filters, dugout ponds, and other measures that reduce overland 
flow velocity, reduce runoff volume, or trap sediment;
    (7) Treating with chemicals; and
    (8) Treating mine drainage in underground sumps.


Sec.  817.46  Hydrologic balance: Siltation structures.

    (a) For the purposes of this section only, disturbed areas shall 
not include those areas--
    (1) In which the only surface mining activities include diversion 
ditches, siltation structures, or roads that are designed, constructed 
and maintained in accordance with this part; and
    (2) For which the upstream area is not otherwise distributed by the 
operator.

[[Page 55004]]

    (b) General requirements. (1) Additional contributions of suspended 
solids and sediment to streamflow or runoff outside the permit area 
shall be prevented to the extent possible using the best technology 
currently available.
    (2) All surface drainage from the disturbed area shall be passed 
through a siltation structure before leaving the permit area, except as 
provided in paragraph (b)(5) or (e) of this section. The requirements 
of this paragraph are suspended effective December 22, 1986, per court 
order.
    (3) Siltation structures for an area shall be constructed before 
beginning any underground mining activities in that area, and upon 
construction shall be certified by a qualified registered professional 
engineer, or, in any State which authorizes land surveyors to prepare 
and certify plans in accordance with Sec.  784.16(a) of this chapter, a 
qualified registered professional land surveyor, to be constructed as 
designed and as approved in the reclamation plan.
    (4) Any siltation structure which impounds water shall be designed, 
constructed and maintained in accordance with Sec.  817.49 of this 
chapter.
    (5) Siltation structures shall be maintained until removal is 
authorized by the regulatory authority and the disturbed area has been 
stabilized and revegetated. In no case shall the structure be removed 
sooner than 2 years after the last augmented seeding.
    (6) When the siltation structure is removed, the land on which the 
siltation structure was located shall be regraded and revegetated in 
accordance with the reclamation plan and Sec. Sec.  817.111 through 
817.116 of this chapter. Sedimentation ponds approved by the regulatory 
authority for retention as permanent impoundments may be exempted from 
this requirement.
    (7) Any point-source discharge of water from underground workings 
to surface waters which does not meet the effluent limitations of Sec.  
817.42 shall be passed through a siltation structure before leaving the 
permit area.
    (c) Sedimentation ponds. (1) Sedimentation ponds, when used, 
shall--
    (i) Be used individually or in series;
    (ii) Be located as near as possible to the distrubed area and out 
of perennial streams unless approved by the regulatory authority; and
    (iii) Be designed, constructed, and maintained to--
    (A) Provide adequate sediment storage volume;
    (B) Provide adequate detention time to allow the effluent from the 
ponds to meet State and Federal effluent limitations;
    (C) Contain or treat the 10-year, 24-hour precipitation event 
(``design event'') unless a lesser design event is approved by the 
regulatory authority based on terrain, climate, other site-specific 
conditions and on a demonstration by the operator that the effluent 
limitations of Sec.  817.42 will be met;
    (D) Provide a nonclogging dewatering device adequate to maintain 
the detention time required under paragraph (c)(1)(iii)(B) of this 
section;
    (E) Minimize, to the extent possible, short circuiting;
    (F) Provide periodic sediment removal sufficient to maintain 
adequate volume for the design event;
    (G) Ensure against excessive settlement;
    (H) Be free of sod, large roots, frozen soil, and acid- or toxic-
forming coal-processing waste; and
    (I) Be compacted properly.
    (2) Spillways. A sedimentation pond shall include either a 
combination of principal and emergency spillways or single spillway 
configured as specified in Sec.  817.49(a)(9).
    (d) Other treatment facilities. (1) Other treatment facilities 
shall be designed to treat the 10-year, 24-hour precipitation even 
unless a lesser design event is approved by the regulatory authority 
based on terrain, climate, other site-specific conditions and a 
demonstration by the operator that the effluent limitations of Sec.  
817.42 will met.
    (2) Other treatment facilities shall be designed in accordance with 
the applicable requirements of paragraph (c) of this section.
    (e) Exemptions. Exemptions to the requirements of this section may 
be granted if--
    (1) The disturbed drainage area within the total disturbed area is 
small; and
    (2) The operator demonstrates that siltation structures and 
alternate sediment control measures are not necessary for drainage from 
the disturbed drainage areas to meet the effluent limitations under 
Sec.  817.42 and the applicable State and Federal water quality 
standards for the receiving waters.


Sec.  817.47  Hydrologic balance: Discharge structures.

    Discharge from sedimentation ponds, permanent and temporary 
impoundments, coal processing waste dams and embankments, and 
diversions shall be controlled, by energy dissipators, riprap channels, 
and other devices, where necessary, to reduce erosion, to prevent 
deepening or enlargement of stream channels, and to minimize 
disturbance of the hydrologic balance. Discharge structures shall be 
designed according to standard engineering design procedures.


Sec.  817.49  Impoundments.

    (a) General requirements. The requirements of this paragraph apply 
to both temporary and permanent impoundments.
    (1) Impoundments meeting the Class B or C criteria for dams in the 
U.S. Department of Agriculture, Soil Conservation Service Technical 
Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' 
shall comply with the, ``Minimum Emergency Spillway Hydrologic 
Criteria,'' table in TR-60 and the requirements of this section. The 
technical release is hereby incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
may be obtained from the National Technical Information Service (NTIS), 
5285 Port Royal Road, Springfield, Virginia 22161, order No. PB 87-
157509-AS. Copies can be inspected at the OSM Headquarters Office, 
Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, 1951 Constitution Avenue NW., Washington, DC or at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (2) An impoundment meeting the size or other criteria of Sec.  
77.216(a) of this title shall comply with the requirements of Sec.  
77.216 of this title and this section.
    (3) Design certification. The design of impoundments shall be 
certified in accordance with Sec.  784.16(a) of this chapter as 
designed to meet the requirements of this part using current, prudent, 
engineering practices and any design criteria established by the 
regulatory authority. The qualified, registered, professional engineer 
or qualified, registered, professional, land surveyor shall be 
experienced in the design and construction or impoundments.
    (4) Stability. (i) An Impoundment meeting the SCS Class B or C 
criteria for dams in TR-60, or the size or other criteria of Sec.  
77.216(a) of this title shall have a minimum static safety factor of 
1.5 for a normal pool with steady state seepage saturation conditions, 
and a seismic safety factor of at least 1.2.
    (ii) Impoundments not included in paragraph (a)(4)(i) of this 
section, except

[[Page 55005]]

for a coal mine waste impounding structure, shall have a minimum static 
safety factor of 1.3 for a normal pool with steady state seepage 
saturation conditions or meet the requirements of Sec.  784.16(c)(3).
    (5) Freeboard. Impoundments shall have adequate freeboard to resist 
overtopping by waves and by sudden increases in storage volume. 
Impoundments meeting the SCS Class B or C criteria for dams in TR-60 
shall comply with the freeboard hydrograph criteria in the ``Minimum 
Emergency Spillway Hydrologic Criteria'' table in TR-60.
    (6) Foundation. (i) Foundations and abutments for an impounding 
structure shall be stable during all phases of construction and 
operation and shall be designed based on adequate and accurate 
information on the foundation conditions. For an impoundment meeting 
the SCS Class B or C criteria for dams in TR-60, or the size or other 
criteria of Sec.  77.216(a) of this title, foundation investigation, as 
well as any necessary laboratory testing of foundation material, shall 
be performed to determine the design requirements for foundation 
stability.
    (ii) All vegetative and organic materials shall be removed and 
foundations excavated and prepared to resist failure. Cutoff trenches 
shall be installed if necessary to ensure stability.
    (7) Slope protection shall be provided to protect against surface 
erosion at the site and protect against sudden drawdown.
    (8) Faces of embankments and surrounding areas shall be vegetated, 
except that faces where water is impounded may be riprapped or 
otherwise stabilized in accordance with accepted design practices.
    (9) Spillways. An impoundment shall include either a combination of 
principal and emergency spillways or a single spillway configured as 
specified in paragraph (a)(9)(i) of this section, designed and 
constructed to safely pass the applicable design precipitation event 
specified in paragraph (a)(9)(ii) of this section, except as set forth 
in paragraph (c)(2) of this section.
    (i) The regulatory authority may approve a single open-channel 
spillway that is:
    (A) Of nonerodible construction and designed to carry sustained 
flows; or
    (B) Earth- or grass-lined and designed to carry short-term, 
infrequent flows at non-erosive velocities where sustained flows are 
not expected.
    (ii) Except as specified in paragraph (c)(2) of this section, the 
required design precipitation event for an impoundment meeting the 
spillway requirements of paragraph (a)(9) of this section is:
    (A) For an impoundment meeting the SCS Class B or C criteria for 
dams in TR-60, the emergency spillway hydrograph criteria in the 
``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60, or 
greater event as specified by the regulatory authority.
    (B) For an impoundment meeting or exceeding the size or other 
criteria of Sec.  77.216(a) of this title, a 100-year 6-hour event, or 
greater event as specified by the regulatory authority.
    (C) For an impoundment not included in paragraph (a)(9)(ii) (A) and 
(B) of this section, a 25-year 6-hour event, or greater event as 
specified by the regulatory authority.
    (10) The vertical portion of any remaining highwall shall be 
located far enough below the low-water line along the full extent of 
highwall to provide adequate safety and access for the proposed water 
users.
    (11) Inspections. Except as provided in paragraph (a)(11)(iv) of 
this section, a qualified registered professional engineer or other 
qualified professional specialist under the direction of a professional 
engineer, shall inspect each impoundment as provided in paragraph 
(a)(11)(i) of this section. The professional engineer or specialist 
shall be experienced in the construction of impoundments.
    (i) Inspections shall be made regularly during construction, upon 
completion of construction, and at least yearly until removal of the 
structure or release of the performance bond.
    (ii) The qualified registered professional engineer, or qualified 
registered professional land surveyor as specified in paragraph 
(a)(11)(iv) of this section, shall promptly after each inspection 
required in paragraph (a)(11)(i) of this section provide to the 
regulatory authority a certified report that the impoundment has been 
constructed and/or maintained as designed and in accordance with the 
approved plan and this chapter. The report shall include discussion of 
any appearance of instability, structural weakness or other hazardous 
condition, depth and elevation of any impounded waters, existing 
storage capacity, any existing or required monitoring procedures and 
instrumentation, and any other aspects of the structure affecting 
stability.
    (iii) A copy of the report shall be retained at or near the 
minesite.
    (iv) In any State which authorizes land surveyors to prepare and 
certify plans in accordance with Sec.  784.16(a) of this chapter, a 
qualified registered professional land surveyor may inspect any 
temporary or permanent impoundment that does not meet the SCS Class B 
or C criteria for dams in TR-60, or the size or other criteria of Sec.  
77.216(a) of this title and certify and submit the report required by 
paragraph (a)(11)(ii) of this section, except that all coal mine waste 
impounding structures covered by Sec.  817.84 of this chapter shall be 
certified by a qualified registered professional engineer. The 
professional land surveyor shall be experienced in the construction of 
impoundments.
    (12) Impoundments meeting the SCS Class B or C criteria for dams in 
TR-60, or the size or other criteria of Sec.  77.216 of this title must 
be examined in accordance with Sec.  77.216-3 of this title. 
Impoundments not meeting the SCS Class B or C Criteria for dams in TR-
60, or subject to Sec.  77.216 of this title, shall be examined at 
least quarterly. A qualified person designated by the operator shall 
examine impoundments for the appearance of structural weakness and 
other hazardous conditions.
    (13) Emergency procedures. If any examination or inspection 
discloses that a potential hazard exists, the person who examined the 
impoundment shall promptly inform the regulatory authority of the 
finding and of the emergency procedures formulated for public 
protection and remedial action. If adequate procedures cannot be 
formulated or implemented, the regulatory authority shall be notified 
immediately. The regulatory authority shall then notify the appropriate 
agencies that other emergency procedures are required to protect the 
public.
    (b) Permanent impoundments. A permanent impoundment of water may be 
created, if authorized by the regulatory authority in the approved 
permit based upon the following demonstration:
    (1) The size and configuration of such impoundment will be adequate 
for its intended purposes.
    (2) The quality of impounded water will be suitable on a permanent 
basis for its intended use and, after reclamation, will meet applicable 
State and Federal water quality standards, and discharges from the 
impoundment will meet applicable effluent limitations and will not 
degrade the quality of receiving water below applicable State and 
Federal water quality standards.
    (3) The water level will be sufficiently stable and be capable of 
supporting the intended use.
    (4) Final grading will provide for adequate safety and access for 
proposed water users.

[[Page 55006]]

    (5) The impoundment will not result in the diminution of the 
quality and quantity of water utilized by adjacent or surrounding 
landowners for agricultural, industrial, recreational, or domestic 
uses.
    (6) The impoundment will be suitable for the approved postmining 
land use.
    (c) Temporary impoundments. (1) The regulatory authority may 
authorize the construction of temporary impoundments as part of 
underground mining activities.
    (2) In lieu of meeting the requirements in paragraph (a)(9)(i) of 
this section, the regulatory authority may approve an impoundment that 
relies primarily on storage to control the runoff from the design 
precipitation event when it is demonstrated by the operator and 
certified by a qualified registered professional engineer or qualified 
registered professional land surveyor in accordance with Sec.  
784.16(a) of this chapter that the impoundment will safely control the 
design precipitation event, the water from which shall be safely 
removed in accordance with current, prudent, engineering practices. 
Such an impoundment shall be located where failure would not be 
expected to cause loss of life or serious property damage, except 
where:
    (i) Impoundments meeting the SCS Class B or C criteria for dams in 
TR-60, or the size or other criteria of Sec.  77.216(a) of this title 
shall be designed to control the precipitation of the probable maximum 
precipitation of a 6-hour event, or greater event specified by the 
regulatory authority.
    (ii) Impoundments not included in paragraph (c)(2)(i) of this 
section shall be designed to control the precipitation of the 100-year 
6-hour event, or greater event specified by the regulatory authority.


Sec.  817.56  Postmining rehabilitation of sedimentation ponds, 
diversions, impoundments, and treatment facilities.

    Before abandoning a permit area or seeking bond release, the 
operator shall ensure that all temporary structures are removed and 
reclaimed, and that all permanent sedimentation ponds, diversions, 
impoundments, and treatment facilities meet the requirements of this 
chapter for permanent structures, have been maintained properly, and 
meet the requirements of the approved reclamation plan for permanent 
structures and impoundments. The operator shall renovate such 
structures if necessary to meet the requirements of this chapter and to 
conform to the approved reclamation plan.


Sec.  817.57  Hydrologic balance: Stream buffer zones.

    (a) No land within 100 feet of a perennial stream or an 
intermittent stream shall be disturbed by underground mining 
activities, unless the regulatory authority specifically authorizes 
underground mining activities closer to, or through, such a stream. The 
regulatory authority may authorize such activities only upon finding 
that--
    (1) Underground mining activities will not cause or contribute to 
the violation of applicable State or Federal water quality standards 
and will not adversely affect the water quantity and quality or other 
environmental resources of the stream; and
    (2) If there will be a temporary or permanent stream-channel 
diversion, it will comply with Sec.  817.43.
    (b) The area not to be disturbed shall be designated as a buffer 
zone, and the operator shall mark it as specified in Sec.  817.11.


Sec.  817.59  Coal recovery.

    Underground mining activities shall be conducted so as to maximize 
the utilization and conservation of the coal, while utilizing the best 
technology currently available to maintain environmental integrity, so 
that reaffecting the land in the future through surface coal mining 
operations is minimized.


Sec.  817.61  Use of explosives: General requirements.

    (a) Sections 817.61-817.68 apply to surface blasting activities 
incident to underground coal mining, including, but not limited to, 
initial rounds of slopes and shafts.
    (b) Each operator shall comply with all applicable State and 
Federal laws and regulations in the use of explosives.
    (c) Blasters. (1) No later than 12 months after the blaster 
certification program for a State required by part 850 of this chapter 
has been approved under the procedures of subchapter C of this chapter, 
all surface blasting operations incident to underground mining in that 
State shall be conducted under the direction of a certified blaster. 
Before that time, all such blasting operations in that State shall be 
conducted by competent, experienced persons who understand the hazards 
involved.
    (2) Certificates of blaster certification shall be carried by 
blasters or shall be on file at the permit area during blasting 
operations.
    (3) A blaster and at least one other person shall be present at the 
firing of a blast.
    (4) Any blaster who is responsible for conducting blasting 
operations at a blasting site shall:
    (i) Be familiar with the site-specific performance standards; and
    (ii) Give direction and on-the-job training to persons who are not 
certified and who are assigned to the blasting crew or assist in the 
use of explosives.
    (d) Blast design. (1) An anticipated blast design shall be 
submitted if blasting operations will be conducted within--
    (i) 1,000 feet of any building used as a dwelling, public building, 
school, church or community or institutional building; or
    (ii) 500 feet of active or abandoned underground mines.
    (2) The blast design may be presented as part of a permit 
application or at a time, before the blast, approved by the regulatory 
authority.
    (3) The blast design shall contain sketches of the drill patterns, 
delay periods, and decking and shall indicate the type and amount of 
explosives to be used, critical dimensions, and the location and 
general description of structures to be protected, as well as a 
discussion of design factors to be used, which protect the public and 
meet the applicable airblast, flyrock, and ground-vibration standards 
in Sec.  817.67.
    (4) The blast design shall be prepared and signed by a certified 
blaster.
    (5) The regulatory authority may require changes to the design 
submitted.


Sec.  817.62  Use of explosives: Preblasting survey.

    (a) At least 30 days before initiation of blasting, the operator 
shall notify, in writing, all residents or owners of dwellings or other 
structures located within \1/2\ mile of the permit area how to request 
a preblasting survey.
    (b) A resident or owner of a dwelling or structure within \1/2\ 
mile of any part of the permit area may request a preblasting survey. 
This request shall be made, in writing, directly to the operator or to 
the regulatory authority, who shall promptly notify the operator. The 
operator shall promptly conduct a preblasting survey of the dwelling or 
structure and promptly prepare a written report of the survey. An 
updated survey of any additions, modifications, or renovations shall be 
performed by the operator if requested by the resident or owner.
    (c) The operator shall determine the condition of the dwelling or 
structure and shall document any preblasting damage and other physical 
factors that could reasonably be affected by the blasting. Structures 
such as pipelines, cables, transmission lines, and cisterns,

[[Page 55007]]

wells, and other water systems warrant special attention; however, the 
assessment of these structures may be limited to surface conditions and 
other readily available data.
    (d) The written report of the survey shall be signed by the person 
who conducted the survey. Copies of the report shall be promptly 
provided to the regulatory authority and to the person requesting the 
survey. If the person requesting the survey disagrees with the contents 
and/or recommendations contained therein, he or she may submit to both 
the operator and the regulatory authority a detailed description of the 
specific areas of disagreement.
    (e) Any surveys requested more than 10 days before the planned 
initiation of blasting shall be completed by the operator before the 
initiation of blasting.


Sec.  817.64  Use of explosives: General performance standards.

    (a) The operator shall notify, in writing, residents within \1/2\ 
mile of the blasting site and local governments of the proposed times 
and locations of blasting operations. Such notice of times that 
blasting is to be conducted may be announced weekly, but in no case 
less than 24 hours before blasting will occur.
    (b) Unscheduled blasts may be conducted only where public or 
operator health and safety so requires and for emergency blasting 
actions. When an operator conducts an unscheduled surface blast 
incidental to underground coal mining operations, the operator, using 
audible signals, shall notify residents within \1/2\ mile of the 
blasting site and document the reason in accordance with Sec.  
817.68(p).
    (c) All blasting shall be conducted between sunrise and sunset 
unless nighttime blasting is approved by the regulatory authority based 
upon a showing by the operator that the public will be protected from 
adverse noise and other impacts. The regulatory authority may specify 
more restrictive time periods for blasting.


Sec.  817.66  Use of explosives: Blasting signs, warnings, and access 
control.

    (a) Blasting signs. Blasting signs shall meet the specifications of 
Sec.  817.11. The operator shall--
    (1) Conspicuously place signs reading ``Blasting Area'' along the 
edge of any blasting area that comes within 100 feet of any public-road 
right-of-way, and at the point where any other road provides access to 
the blasting area; and
    (2) At all entrances to the permit area from public roads or 
highways, place conspicuous signs which state ``Warning! Explosives in 
Use,'' which clearly list and describe the meaning of the audible blast 
warning and all-clear signals that are in use, and which explain the 
marking of blasting areas and charged holes awaiting firing within the 
permit area.
    (b) Warnings. Warning and all-clear signals of different character 
or pattern that are audible within a range of \1/2\ mile from the point 
of the blast shall be given. Each person within the permit area and 
each person who resides or regularly works within \1/2\ mile of the 
permit area shall be notified of the meaning of the signals in the 
blasting notification required in Sec.  817.64(a).
    (c) Access control. Access within the blasting areas shall be 
controlled to prevent presence of livestock or unauthorized persons 
during blasting and until an authorized representative of the operator 
has reasonably determined that--
    (1) No unusual hazards, such as imminent slides or undetonated 
charges, exist; and
    (2) Access to and travel within the blasting area can be safely 
resumed.


Sec.  817.67  Use of explosives: Control of adverse effects.

    (a) General requirements. Blasting shall be conducted to prevent 
injury to persons, damage to public or private property outside the 
permit area, adverse impacts on any underground mine, and change in the 
course, channel, or availability of surface or ground water outside the 
permit area.
    (b) Airblast--(1) Limits. (i) Airblast shall not exceed the maximum 
limits listed below at the location of any dwelling, public building, 
school, church, or community or institutional building outside the 
permit area, except as provided in paragraph (e) of this section.

----------------------------------------------------------------------------------------------------------------
  Lower frequency limit of measuring system, in Hz (<plus-
                        minus>3 dB)                                          Maximum level, in dB
----------------------------------------------------------------------------------------------------------------
0.1 Hz or lower--flat response \1\.........................  134 peak.
2 Hz or lower--flat response...............................  133 peak.
6 Hz or lower--flat response...............................  129 peak.
C-weighted--slow response \1\..............................  105 peak dBC.
----------------------------------------------------------------------------------------------------------------
\1\ Only when approved by the regulatory authority.

    (ii) If necessary to prevent damage, the regulatory authority may 
specify lower maximum allowable airblast levels than those of paragraph 
(b)(1)(i) of this section for use in the vicinity of a specific 
blasting operation.
    (2) Monitoring. (i) The operator shall conduct periodic monitoring 
to ensure compliance with the airblast standards. The regulatory 
authority may require airblast measurement of any or all blasts and may 
specify the locations at which such measurements are taken.
    (ii) The measuring systems used shall have an upper-end flat-
frequency response of at least 200 Hz.
    (c) Flyrock. Flyrock travelling in the air or along the ground 
shall not be cast from the blasting site--
    (1) More than one-half the distance to the nearest dwelling or 
other occupied structure;
    (2) Beyond the area of control required under Sec.  817.66(c); or
    (3) Beyond the permit boundary.
    (d) Ground vibration--(1) General. In all blasting operations, 
except as otherwise authorized in paragraph (e) of this section, the 
maximum ground vibration shall not exceed the values approved by the 
regulatory authority. The maximum ground vibration for protected 
structures listed in paragraph (d)(2)(i) of this section shall be 
established in accordance with either the maximum peak-particle-
velocity limits of paragraph (d)(2), the scaled-distance equation of 
paragraph (d)(3), the blasting-level chart of paragraph (d)(4) of this 
section, or by the regulatory authority under paragraph (d)(5) of this 
section. All structures in the vicinity of the blasting area, not 
listed in paragraph (d)(2)(i) of this section, such as water towers, 
pipelines and other utilities, tunnels, dams, impoundments, and 
underground mines shall be protected from damage by establishment of a 
maximum allowable limit on the ground vibration, submitted by the 
operator and approved by the regulatory authority before the initiation 
of blasting.
    (2) Maximum peak-particle velocity. (i) The maximum ground 
vibration shall not exceed the following limits at the location of any 
dwelling, public building, school, church, or community or 
institutional building outside the permit area:

[[Page 55008]]



----------------------------------------------------------------------------------------------------------------
                                                                 Maximum allowable peak
                                                                  particle velocity (V    Scaled-distance factor
         Distance (D), from the blasting site, in feet              max) for ground       to be applied without
                                                                 vibration, in inches/    seismic monitoring \2\
                                                                       second \1\                  (Ds)
----------------------------------------------------------------------------------------------------------------
0 to 300......................................................                     1.25                       50
301 to 5,000..................................................                     1.00                       55
5,001 and beyond..............................................                     0.75                       65
----------------------------------------------------------------------------------------------------------------
\1\ Ground vibration shall be measured as the particle velocity. Particle velocity shall be recorded in three
  mutually perpendicular directions. The maximum allowable peak particle velocity shall apply to each of the
  three measurements.
\2\ Applicable to the scaled-distance equation of Paragraph (d)(3)(i) of this section.

    (ii) A seismographic record shall be provided for each blast.
    (3) Scaled-distance equation. (i) An operator may use the scaled-
distance equation, W = (D/Ds)\2\, to determine the allowable charge 
weight of explosives to be detonated in any 8-millisecond period, 
without seismic monitoring; where W = the maximum weight of explosives, 
in pounds; D = the distance, in feet, from the blasting site to the 
nearest protected structure; and Ds = the scaled-distance factor, which 
may initially be approved by the regulatory authority using the values 
for scaled-distance factor listed in paragraph (d)(2)(i) of this 
section.
    (ii) The development of a modified scaled-distance factor may be 
authorized by the regulatory authority on receipt of a written request 
by the operator, supported by seismographic records of blasting at the 
minesite. The modified scaled-distance factor shall be determined such 
that the particle velocity of the predicted ground vibration will not 
exceed the prescribed maximum allowable peak particle velocity of 
paragraph (d)(2)(i) of this section, at a 95-percent confidence level.
    (4) Blasting-level chart. (i) An operator may use the ground-
vibration limits in Figure 1 to determine the maximum allowable ground 
vibration.
[GRAPHIC] [TIFF OMITTED] TR17NO17.019

    (ii) If the Figure 1 limits are used, a seismographic record 
including both particle velocity and vibration-frequency levels shall 
be provided for each blast. The method for the analysis of the 
predominant frequency contained in the blasting records shall be 
approved by the regulatory authority before application of this 
alternative blasting criterion.
    (5) The maximum allowable ground vibration shall be reduced by the 
regulatory authority beyond the limits otherwise provided by this 
section, if

[[Page 55009]]

determined necessary to provide damage protection.
    (6) The regulatory authority may require an operator to conduct 
seismic monitoring of any or all blasts and may specify the location at 
which the measurements are taken and the degree of detail necessary in 
the measurement.
    (e) The maximum airblast and ground-vibration standards of 
paragraphs (b) and (d) of this section shall not apply at the following 
locations:
    (1) At structures owned by the permittee and not leased to another 
person,
    (2) At structures owned by the permittee and leased to another 
person, if a written waiver by the lessee is submitted to the 
regulatory authority before blasting.


Sec.  817.68  Use of explosives: Records of blasting operations.

    The operator shall retain a record of all blasts for at least 3 
years. Upon request, copies of these records shall be made available to 
the regulatory authority and to the public for inspection. Such records 
shall contain the following data:
    (a) Name of the operator conducting the blast.
    (b) Location, date, and time of the blast.
    (c) Name, signature, and certification number of the blaster 
conducting the blast.
    (d) Identification, direction, and distance, in feet, from the 
nearest blast hole to the nearest dwelling, public building, school, 
church, community or institutional building outside the permit area, 
except those described in Sec.  817.67 (e).
    (e) Weather conditions, including those which may cause possible 
adverse blasting effects.
    (f) Type of material blasted.
    (g) Sketches of the blast pattern including number of holes, 
burden, spacing, decks, and delay pattern.
    (h) Diameter and depth of holes.
    (i) Types of explosives used.
    (j) Total weight of explosives used per hole.
    (k) The maximum weight of explosives detonated in an 8-millisecond 
period.
    (l) Initiation system.
    (m) Type and length of stemming.
    (n) Mats or other protections used.
    (o) Seismographic and airblast records, if required, which shall 
include--
    (1) Type of instrument, sensitivity, and calibration signal or 
certification of annual calibration;
    (2) Exact location of instrument and the date, time, and distance 
from the blast;
    (3) Name of the person and firm taking the reading;
    (4) Name of the person and firm analyzing the seismographic record; 
and
    (5) The vibration and/or airblast level recorded.
    (p) Reasons and conditions for each unscheduled blast.


Sec.  817.71  Disposal of excess spoil: General requirements.

    (a) General. Excess spoil shall be placed in designated disposal 
areas within the permit area, in a controlled manner to--
    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on surface and ground waters;
    (2) Ensure mass stability and prevent mass movement during and 
after construction; and
    (3) Ensure that the final fill is suitable for reclamation and 
revegetation compatible with the natural surroundings and the approved 
postmining land use.
    (b) Design certification. (1) The fill and appurtenant structures 
shall be designed using current, prudent engineering practices and 
shall meet any design criteria established by the regulatory authority. 
A qualified registered professional engineer experienced in the design 
of earth and rock fills shall certify the design of the fill and 
appurtenant structures.
    (2) The fill shall be designed to attain a minimum long-term static 
safety factor of 1.5. The foundation and abutments of the fill must be 
stable under all conditions of construction.
    (c) Location. The disposal area shall be located on the most 
moderately sloping and naturally stable areas available, as approved by 
the regulatory authority, and shall be placed, where possible, upon or 
above a natural terrace, bench, or berm, if such placement provides 
additional stability and prevents mass movement.
    (d) Foundation. (1) Sufficient foundation investigations, as well 
as any necessary laboratory testing of foundation material, shall be 
performed in order to determine the design requirements for foundation 
stability. The analyses of foundation conditions shall take into 
consideration the effect of underground mine workings, if any, upon the 
stability of the fill and appurtenant structures.
    (2) When the slope in the disposal area is in excess of 2.8h:lv (36 
percent), or such lesser slope as may be designated by the regulatory 
authority based on local conditions, keyway cuts (excavations to stable 
bedrock) or rock toe buttresses shall be constructed to ensure 
stability of the fill. Where the toe of the spoil rests on a downslope, 
stability analyses shall be performed in accordance with Sec.  784.19 
of this chapter to determine the size of rock toe buttresses and keyway 
cuts.
    (e) Placement of excess spoil. (1) All vegetative and organic 
materials shall be removed from the disposal area prior to placement of 
excess spoil. Topsoil shall be removed, segregated and stored or 
redistributed in accordance with Sec.  817.22. If approved by the 
regulatory authority, organic material may be used as mulch or may be 
included in the topsoil to control erosion, promote growth of 
vegetation or increase the moisture retention of the soil.
    (2) Excess spoil shall be transported and placed in a controlled 
manner in horizontal lifts not exceeding 4 feet in thickness; 
concurrently compacted as necessary to ensure mass stability and to 
prevent mass movement during and after construction; graded so that 
surface and subsurface drainage is compatible with the natural 
surroundings; and covered with topsoil or substitute material in 
accordance with Sec.  817.22 of this chapter. The regulatory authority 
may approve a design which incorporates placement of excess spoil in 
horizontal lifts other than 4 feet in thickness when it is demonstrated 
by the operator and certified by a qualified registered professional 
engineer that the design will ensure the stability of the fill and will 
meet all other applicable requirements.
    (3) The final configuration of the fill shall be suitable for the 
approved postmining land use. Terraces may be constructed on the 
outslope of the fill if required for stability, control of erosion, to 
conserve soil moisture, or to facilitate the approved postmining land 
use. The grade of the outslope between terrace benches shall not be 
steeper than 2h:lv (50 percent).
    (4) No permanent impoundments are allowed on the completed fill. 
Small depressions may be allowed by the regulatory authority if they 
are needed to retain moisture, minimize erosion, create and enhance 
wildlife habitat, or assist revegetation; and if they are not 
incompatible with the stability of the fill.
    (5) Excess spoil that is acid- or toxic-forming or combustible 
shall be adequately covered with nonacid, nontoxic and noncombustible 
material, or treated, to control the impact on surface and ground water 
in accordance with Sec.  817.41, to prevent sustained combustion, and 
to minimize adverse

[[Page 55010]]

effects on plant growth and the approved postmining land use.
    (f) Drainage control. (1) If the disposal area contains springs, 
natural or manmade water courses, or wet weather seeps, the fill design 
shall include diversions and underdrains as necessary to control 
erosion, prevent water infiltration into the fill, and ensure 
stability.
    (2) Diversions shall comply with the requirements of Sec.  817.43.
    (3) Underdrains shall consist of durable rock or pipe, be designed 
and constructed using current, prudent engineering practices and meet 
any design criteria established by the regulatory authority. The 
underdrain system shall be designed to carry the anticipated seepage of 
water due to rainfall away from the excess spoil fill and from seeps 
and springs in the foundation of the disposal area and shall be 
protected from piping and contamination by an adequate filter. Rock 
underdrains shall be constructed of durable, nonacid-, nontoxic-forming 
rock (e.g., natural sand and gravel, sandstone, limestone, or other 
durable rock) that does not slake in water or degrade to soil 
materials, and which is free of coal, clay or other nondurable 
material. Perforated pipe underdrains shall be corrosion resistant and 
shall have characteristics consistent with the long-term life of the 
fill.
    (g) Surface area stabilization. Slope protection shall be provided 
to minimize surface erosion at the site. All disturbed areas, including 
diversion channels that are not riprapped or otherwise protected, shall 
be revegetated upon completion of construction.
    (h) Inspections. A qualified registered professional engineer or 
other qualified professional specialist under the direction of the 
professional engineer, shall periodically inspect the fill during 
construction. The professional engineer or specialist shall be 
experienced in the construction of earth and rock fills.
    (1) Such inspections shall be made at least quarterly throughout 
construction and during critical construction periods. Critical 
construction periods shall include at a minimum: (i) Foundation 
preparation, including the removal of all organic material and topsoil; 
(ii) placement of underdrains and protective filter systems; (iii) 
installation of final surface drainage systems; and (iv) the final 
graded and revegetated fill. Regular inspections by the engineer or 
specialist shall also be conducted during placement and compaction of 
fill materials.
    (2) The qualified registered professional engineer shall provide a 
certified report to the regulatory authority promptly after each 
inspection that the fill has been constructed and maintained as 
designed and in accordance with the approved plan and this chapter. The 
report shall include appearances of instability, structural weakness, 
and other hazardous conditions.
    (3)(i) The certified report on the drainage system and protective 
filters shall include color photographs taken during and after 
construction, but before underdrains are covered with excess spoil. If 
the underdrain system is constructed in phases, each phase shall be 
certified separately.
    (ii) Where excess durable rock spoil is placed in single or 
multiple lifts such that the underdrain system is constructed 
simultaneously with excess spoil placement by the natural segregation 
of dumped materials, in accordance with Sec.  817.73, color photographs 
shall be taken of the underdrain as the underdrain system is being 
formed.
    (iii) The photographs accompanying each certified report shall be 
taken in adequate size and number with enough terrain or other physical 
features of the site shown to provide a relative scale to the 
photographs and to specifically and clearly identify the site.
    (4) A copy of each inspection report shall be retained at or near 
the mine site.
    (i) Coal mine waste. Coal mine waste may be disposed of in excess 
spoil fills if approved by the regulatory authority and, if such waste 
is--
    (1) Placed in accordance with Sec.  817.83;
    (2) Nontoxic and nonacid forming; and
    (3) Of the proper characteristics to be consistent with the design 
stability of the fill.
    (j) Underground disposal. Excess spoil may be disposed of in 
underground mine workings, but only in accordance with a plan approved 
by the regulatory authority and MSHA under Sec.  784.25 of this 
chapter.
    (k) Face-up operations. Spoil resulting from face-up operations for 
underground coal mine development may be placed at drift entries as 
part of a cut and fill structure, if the structure is less than 400 
feet in horizontal length, and designed in accordance with Sec.  
817.71.


Sec.  817.72  Disposal of excess spoil: Valley fill/head-of-hollow 
fills.

    Valley fills and head-of-hollow fills shall meet the requirements 
of Sec.  817.71 and the additional requirements of this section.
    (a) Drainage control. (1) The top surface of the completed fill 
shall be graded such that the final slope after settlement will be 
toward properly designed drainage channels. Uncontrolled surface 
drainage may not be directed over the outslope of the fill.
    (2) Runoff from areas above the fill and runoff from the surface of 
the fill shall be diverted into stabilized diversion channels designed 
to meet the requirements of Sec.  817.43 and to safely pass the runoff 
from a 100-year, 6-hour precipitation event.
    (b) Rock-core chimney drains. A rock-core chimney drain may be used 
in a head-of-hollow fill, instead of the underdrain and surface 
diversion system normally required, as long as the fill is not located 
in an area containing intermittent or perennial streams. A rock-core 
chimney drain may be used in a valley fill if the fill does not exceed 
250,000 cubic yards of material and upstream drainage is diverted 
around the fill. The alternative rock-core chimney drain system shall 
be incorporated into the design and construction of the fill as 
follows:
    (1) The fill shall have, along the vertical projection of the main 
buried stream channel or rill, a vertical core of durable rock at least 
16 feet thick which shall extend from the toe of the fill to the head 
of the fill, and from the base of the fill to the surface of the fill. 
A system of lateral rock underdrains shall connect this rock core to 
each area of potential drainage or seepage in the disposal area. The 
underdrain system and rock core shall be designed to carry the 
anticipated seepage of water due to rainfall away from the excess spoil 
fill and from seeps and springs in the foundation of the disposal area. 
Rocks used in the rock core and underdrains shall meet the requirements 
of Sec.  817.71(f).
    (2) A filter system to ensure the proper long-term functioning of 
the rock core shall be designed and constructed using current, prudent 
engineering practices.
    (3) Grading may drain surface water away from the outslope of the 
fill and toward the rock core. In no case, however, may intermittent or 
perennial streams be diverted into the rock core. The maximum slope of 
the top of the fill shall be 33h:lv (3 percent). A drainage pocket may 
be maintained at the head of the fill during and after construction, to 
intercept surface runoff and discharge the runoff through or over the 
rock drain, if stability of the fill is not impaired. In no case shall 
this pocket or sump have a potential capacity for impounding more than 
10,000 cubic feet of water. Terraces on the fill shall be

[[Page 55011]]

graded with a 3 to 5 percent grade toward the fill and a 1 percent 
slope toward the rock core.


Sec.  817.73  Disposal of excess spoil: Durable rock fills.

    The regulatory authority may approve the alternative method of 
disposal of excess durable rock spoil by gravity placement in single or 
multiple lifts, provided the following conditions are met:
    (a) Except as provided in this section, the requirements of Sec.  
817.71 are met.
    (b) The excess spoil consists of at least 80 percent, by volume, 
durable, nonacid- and nontoxic-forming rock (e.g., sandstone or 
limestone) that does not slake in water and will not degrade to soil 
material. Where used, noncemented clay shale, clay spoil, soil or other 
nondurable excess spoil material shall be mixed with excess durable 
rock spoil in a controlled manner such that no more than 20 percent of 
the fill volume, as determined by tests performed by a registered 
engineer and approved by the regulatory authority, is not durable rock.
    (c) A qualified registered professional engineer certifies that the 
design will ensure the stability of the fill and meet all other 
applicable requirements.
    (d) The fill is designed to attain a minimum long-term static 
safety factor of 1.5, and an earthquake safety factor of 1.1.
    (e) The underdrain system may be constructed simultaneously with 
excess spoil placement by the natural segregation of dumped materials, 
provided the resulting underdrain system is capable of carrying 
anticipated seepage of water due to rainfall away from the excess spoil 
fill and from seeps and springs in the foundation of the disposal area 
and the other requirements for drainage control are met.
    (f) Surface water runoff from areas adjacent to and above the fill 
is not allowed to flow onto the fill and is diverted into stabilized 
diversion channels designed to meet the requirements of Sec.  817.43 
and to safely pass the runoff from a 100-year, 6-hour precipitation 
event.


Sec.  817.74  Disposal of excess spoil: Preexisting benches.

    (a) The regulatory authority may approve the disposal of excess 
spoil through placement on a preexisting bench if the affected portion 
of the preexisting bench is permitted and the standards set forth in 
Sec.  817.102 (c), (e) through (h), and (j), and the requirements of 
this section are met.
    (b) All vegetation and organic materials shall be removed from the 
affected portion of the preexisting bench prior to placement of the 
excess spoil. Any available topsoil on the bench shall be removed, 
stored and redistributed in accordance with Sec.  817.22 of this part. 
Substitute or supplemental materials may be used in accordance with 
Sec.  817.22(b) of this part.
    (c) The fill shall be designed and constructed using current, 
prudent engineering practices. The design will be certified by a 
registered professional engineer. The spoil shall be placed on the 
solid portion of the bench in a controlled manner and concurrently 
compacted as necessary to attain a long term static safety factor of 
1.3 for all portions of the fill. Any spoil deposited on any fill 
portion of the bench will be treated as excess spoil fill under Sec.  
817.71.
    (d) The preexisting bench shall be backfilled and graded to--
    (1) Achieve the most moderate slope possible which does not exceed 
the angle of repose;
    (2) Eliminate the highwall to the maximum extent technically 
practical;
    (3) Minimize erosion and water pollution both on and off the site; 
and
    (4) If the disposal area contains springs, natural or manmade water 
courses, or wet weather seeps, the fill design shall include diversions 
and underdrains as necessary to control erosion, prevent water 
infiltration into the fill, and ensure stability.
    (e) All disturbed areas, including diversion channels that are not 
riprapped or otherwise protected, shall be revegetated upon completion 
of construction.
    (f) Permanent impoundments may not be constructed on preexisting 
benches backfilled with excess spoil under this regulation.
    (g) Final configuration of the backfill must be compatible with the 
natural drainage patterns and the surrounding area, and support the 
approved postmining land use.
    (h) Disposal of excess spoil from an upper actively mined bench to 
a lower preexisting bench by means of gravity transport may be approved 
by the regulatory authority provided that--
    (1) The gravity transport courses are determined on a site-specific 
basis by the operator as part of the permit application and approved by 
the regulatory authority to minimize hazards to health and safety and 
to ensure that damage will be minimized between the benches, outside 
the set course, and downslope of the lower bench should excess spoil 
accidentally move;
    (2) All gravity transported excess spoil, including that excess 
spoil immediately below the gravity transport courses and any 
preexisting spoil that is disturbed, is rehandled and placed in 
horizontal lifts in a controlled manner, concurrently compacted as 
necessary to ensure mass stability and to prevent mass movement, and 
graded to allow surface and subsurface drainage to be compatible with 
the natural surroundings and to ensure a minimum long-term static 
safety factor of 1.3. Excess spoil on the bench prior to the current 
mining operation that is not disturbed need not be rehandled except 
where necessary to ensure stability of the fill;
    (3) A safety berm is constructed on the solid portion of the lower 
bench prior to gravity transport of the excess spoil. Where there is 
insufficient material on the lower bench to construct a safety berm, 
only that amount of excess spoil necessary for the construction of the 
berm may be gravity transported to the lower bench prior to 
construction of the berm;
    (4) Excess spoil shall not be allowed on the downslope below the 
upper bench except on designated gravity transport courses properly 
prepared according to Sec.  817.22. Upon completion of the fill, no 
excess spoil shall be allowed to remain on the designated gravity 
transport course between the two benches and each transport course 
shall be reclaimed in accordance with the requirements of this part.


Sec.  817.81  Coal mine waste: General requirements.

    (a) General. All coal mine waste disposed of in an area other than 
the mine workings or excavations shall be placed in new or existing 
disposal areas within a permit area, which are approved by the 
regulatory authority for this purpose. Coal mine waste shall be hauled 
or conveyed and placed for final placement in a controlled manner to--
    (1) Minimize adverse effects of leachate and surface-water runoff 
on surface and ground water quality and quantity;
    (2) Ensure mass stability and prevent mass movement during and 
after construction;
    (3) Ensure that the final disposal facility is suitable for 
reclamation and revegetation compatible with the natural surroundings 
and the approved postmining land use;
    (4) Not create a public hazard; and
    (5) Prevent combustion.
    (b) Coal mine waste materials from activities located outside a 
permit area may be disposed of in the permit area only if approved by 
the regulatory authority. Approval shall be based upon a showing that 
such disposal will be in

[[Page 55012]]

accordance with the standards of this section.
    (c) Design certification. (1) The disposal facility shall be 
designed using current, prudent engineering practices and shall meet 
any design criteria established by the regulatory authority. A 
qualified registered professional engineer, experienced in the design 
of similar earth and waste structures, shall certify the design of the 
disposal facility.
    (2) 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.
    (d) Foundation. Sufficient foundation investigations, as well as 
any necessary laboratory testing of foundation material, shall be 
performed in order to determine the design requirements for foundation 
stability. The analyses of the foundation conditions shall take into 
consideration the effect of underground mine workings, if any, upon the 
stability of the disposal facility.
    (e) Emergency procedures. If any examination or inspection 
discloses that a potential hazard exists, the regulatory authority 
shall be informed promptly of the finding and of the emergency 
procedures formulated for public protection and remedial action. If 
adequate procedures cannot be formulated or implemented, the regulatory 
authority shall be notified immediately. The regulatory authority shall 
then notify the appropriate agencies that other emergency procedures 
are required to protect the public.
    (f) Underground disposal. Coal mine waste may be disposed of in 
underground mine workings, but only in accordance with a plan approved 
by the regulatory authority and MSHA under Sec.  784.25 of this 
chapter.


Sec.  817.83  Coal mine waste: Refuse piles.

    Refuse piles shall meet the requirements of Sec.  817.81, the 
additional requirements of this section, and the requirements of 
Sec. Sec.  77.214 and 77.215 of this title.
    (a) Drainage control. (1) If the disposal area contains springs, 
natural or manmade water courses, or wet weather seeps, the design 
shall include diversions and underdrains as necessary to control 
erosion, prevent water infiltration into the disposal facility and 
ensure stability.
    (2) Uncontrolled surface drainage may not be diverted over the 
outslope of the refuse pile. Runoff from areas above the refuse pile 
and runoff from the surface of the refuse pile shall be diverted into 
stabilized diversion channels designed to meet the requirements of 
Sec.  817.43 to safely pass the runoff from a 100-year, 6-hour 
precipitation event. Runoff diverted from undisturbed areas need not be 
commingled with runoff from the surface of the refuse pile.
    (3) Underdrains shall comply with the requirements of Sec.  
817.71(f)(3).
    (b) Surface area stabilization. Slope protection shall be provided 
to minimize surface erosion at the site. All disturbed areas, including 
diversion channels that are not riprapped or otherwise protected, shall 
be revegetated upon completion of construction.
    (c) Placement. (1) All vegetative and organic materials shall be 
removed from the disposal area prior to placement of coal mine waste. 
Topsoil shall be removed, segregated and stored or redistributed in 
accordance with Sec.  817.22. If approved by the regulatory authority, 
organic material may be used as mulch or may be included in the topsoil 
to control erosion, promote growth of vegetation or increase the 
moisture retention of the soil.
    (2) The final configuration of the refuse pile shall be suitable 
for the approved postmining land use. Terraces may be constructed on 
the outslope of the refuse pile if required for stability, control of 
erosion, conservation of soil moisture, or facilitation of the approved 
postmining land use. The grade of the outslope between terrace benches 
shall not be steeper than 2h:1v (50 percent).
    (3) No permanent impoundments shall be allowed on the completed 
refuse pile. Small depressions may be allowed by the regulatory 
authority if they are needed to retain moisture, minimize erosion, 
create and enhance wildlife habitat, or assist revegetation, and if 
they are not incompatible with stability of the refuse pile.
    (4) Following final grading of the refuse pile, the coal mine waste 
shall be covered with a minimum of 4 feet of the best available, 
nontoxic and noncombustible material, in a manner that does not impede 
drainage from the underdrains. The regulatory authority may allow less 
than 4 feet of cover material based on physical and chemical analyses 
which show that the requirements of Sec. Sec.  817.111 through 817.116 
will be met.
    (d) Inspections. A qualified registered professional engineer, or 
other qualified professional specialist under the direction of the 
professional engineer, shall inspect the refuse pile during 
construction. The professional engineer or specialist shall be 
experienced in the construction of similar earth and waste structures.
    (1) Such inspection shall be made at least quarterly throughout 
construction and during critical construction periods. Critical 
construction periods shall include at a minimum: (i) Foundation 
preparation including the removal of all organic material and topsoil; 
(ii) placement of underdrains and protective filter systems; (iii) 
installation of final surface drainage systems; and (iv) the final 
graded and revegetated facility. Regular inspections by the engineer or 
specialist shall also be conducted during placement and compaction of 
coal mine waste materials. More frequent inspections shall be conducted 
if a danger of harm exists to the public health and safety or the 
environment. Inspections shall continue until the refuse pile has been 
finally graded and revegetated or until a later time as required by the 
regulatory authority.
    (2) The qualified registered professional engineer shall provide a 
certified report to the regulatory authority promptly after each 
inspection that the refuse pile has been constructed and maintained as 
designed and in accordance with the approved plan and this chapter. The 
report shall include appearances of instability, structural weakness, 
and other hazardous conditions.
    (3) The certified report on the drainage system and protective 
filters shall include color photographs taken during and after 
construction, but before underdrains are covered with coal mine waste. 
If the underdrain system is constructed in phases, each phase shall be 
certified separately. The photographs accompanying each certified 
report shall be taken in adequate size and number with enough terrain 
or other physical features of the site shown to provide a relative 
scale to the photographs and to specifically and clearly identify the 
site.
    (4) A copy of each inspection report shall be retained at or near 
the minesite.


Sec.  817.84  Coal mine waste: Impounding structures.

    New and existing impounding structures constructed of coal mine 
waste or intended to impound coal mine waste shall meet the 
requirements of Sec.  817.81.
    (a) Coal mine waste shall not be used for construction of 
impounding structures unless it has been demonstrated to the regulatory 
authority that the stability of such a structure conforms to the 
requirements of this part and the use of coal mine waste will not have 
a detrimental effect on downstream water quality or the environment due 
to acid seepage

[[Page 55013]]

through the impounding structure. The stability of the structure and 
the potential impact of acid mine seepage through the impounding 
structure and shall be discussed in detail in the design plan submitted 
to the regulatory authority in accordance with Sec.  780.25 of this 
chapter.
    (b)(1) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste shall be designed, constructed and 
maintained in accordance with Sec.  817.49 (a) and (c). Such structures 
may not be retained permanently as part of the approved postmining land 
use.
    (2) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste that meets the criteria of Sec.  
77.216(a) of this title shall have sufficient spillway capacity to 
safely pass, adequate storage capacity to safely contain, or a 
combination of storage capacity and spillway capacity to safely 
control, the probable maximum precipitation of a 6-hour precipitation 
event, or greater event as specified by the regulatory authority.
    (c) Spillways and outlet works shall be designed to provide 
adequate protection against erosion and corrosion. Inlets shall be 
protected against blockage.
    (d) Drainage control. Runoff from areas above the disposal facility 
or runoff from the surface of the facility that may cause instability 
or erosion of the impounding structure shall be diverted into 
stabilized diversion channels designed to meet the requirements of 
Sec.  817.43 and designed to safely pass the runoff from a 100-year, 6-
hour design precipitation event.
    (e) Impounding structures constructed of or impounding coal mine 
waste shall be designed so that at least 90 percent of the water stored 
during the design precipitation event can be removed within a 10-day 
period.
    (f) For an impounding structure constructed of or impounding coal 
mine waste, at least 90 percent of the water stored during the design 
precipitation event shall be removed within the 10-day period following 
the design precipitation event.


Sec.  817.87  Coal mine waste: Burning and burned waste utilization.

    (a) Coal mine waste fires shall be extinguished by the person who 
conducts the surface mining activities, in accordance with a plan 
approved by the regulatory authority and the Mine Safety and Health 
Administration. The plan shall contain, at a minimum, provisions to 
ensure that only those persons authorized by the operator, and who have 
an understanding of the procedures to be used, shall be involved in the 
extinguishing operations.
    (b) No burning or unburned coal mine waste shall be removed from a 
permitted disposal area without a removal plan approved by the 
regulatory authority. Consideration shall be given to potential hazards 
to persons working or living in the vicinity of the structure.


Sec.  817.89  Disposal of noncoal mine wastes.

    (a) Noncoal mine wastes including, but not limited to grease, 
lubricants, paints, flammable liquids, garbage, abandoned mining 
machinery, lumber and other combustible materials generated during 
mining activities shall be placed and stored in a controlled manner in 
a designated portion of the permit area. Placement and storage shall 
ensure that leachate and surface runoff do not degrade surface or 
ground water, that fires are prevented, and that the area remains 
stable and suitable for reclamation and revegetation compatible with 
the natural surroundings.
    (b) Final disposal of noncoal mine wastes shall be in a designated 
disposal site in the permit area or a State-approved solid waste 
disposal area. Disposal sites in the permit area shall be designed and 
constructed to ensure that leachate and drainage from the noncoal mine 
waste area does not degrade surface or underground water. Wastes shall 
be routinely compacted and covered to prevent combustion and wind-borne 
waste. When the disposal is completed, a minimum of 2 feet of soil 
cover shall be placed over the site, slopes stabilized, and 
revegetation accomplished in accordance with Sec. Sec.  817.111 through 
817.116. Operation of the disposal site shall be conducted in 
accordance with all local, State, and Federal requirements.
    (c) At no time shall any noncoal mine waste be deposited in a 
refuse pile or impounding structure, nor shall any excavation for a 
noncoal mine waste disposal site be located within 8 feet of any coal 
outcrop or coal storage area.


Sec.  817.95  Stabilization of surface areas.

    (a) All exposed surface areas shall be protected and stabilized to 
effectively control erosion and air pollution attendant to erosion.
    (b) Rills and gullies which form in areas that have been regraded 
and topsoiled and which either (1) disrupt the approved postmining land 
use or the reestablishment of the vegetative cover, or (2) cause or 
contribute to a violation of water quality standards for receiving 
streams; shall be filled, regraded, or otherwise stabilized; topsoil 
shall be replaced; and the areas shall be reseeded or replanted.


Sec.  817.97  Protection of fish, wildlife, and related environmental 
values.

    (a) The operator shall, to the extent possible using the best 
technology currently available, minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values and shall 
achieve enhancement of such resources where practicable.
    (b) Endangered and threatened species. No underground mining 
activity shall be conducted which is likely to jeopardize the continued 
existence of endangered or threatened species listed by the Secretary 
or which is likely to result in the destruction or adverse modification 
of designated critical habitats of such species in violation of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). 
The operator shall promptly report to the regulatory authority any 
State- or federally-listed endangered or threatened species within the 
permit area of which the operator becomes aware. Upon notification, the 
regulatory authority shall consult with appropriate State and Federal 
fish and wildlife agencies and, after consultation, shall identify 
whether, and under what conditions, the operator may proceed.
    (c) Bald and golden eagles. No underground mining activity shall be 
conducted in a manner which would result in the unlawful taking of a 
bald or golden eagle, its nest, or any of its eggs. The operator shall 
promptly report to the regulatory authority any golden or bald eagle 
nest within the permit area of which the operator becomes aware. Upon 
notification, the regulatory authority shall consult with the U.S. Fish 
and Wildlife Service and also, where appropriate, the State fish and 
wildlife agency and, after consultation, shall identify whether, and 
under what conditions, the operator may proceed.
    (d) Nothing in this chapter shall authorize the taking of an 
endangered or threatened species or a bald or golden eagle, its nest, 
or any of its eggs in violation of the Endangered Species Act of 1973, 
as amended, 16 U.S.C. 1531 et seq., or the Bald Eagle Protection Act, 
as amended, 16 U.S.C. 668 et seq.
    (e) Each operator shall, to the extent possible using the best 
technology currently available--
    (1) Ensure that electric powerlines and other transmission 
facilities used for, or incidental to, underground mining activities on 
the permit area are designed and constructed to minimize electrocution 
hazards to raptors, except where the regulatory authority

[[Page 55014]]

determines that such requirements are unnecessary;
    (2) Locate and operate haul and access roads so as to avoid or 
minimize impacts on important fish and wildlife species or other 
species protected by State or Federal law;
    (3) Design fences, overland conveyors, and other potential barriers 
to permit passage for large mammals except where the regulatory 
authority determines that such requirements are unnecessary; and
    (4) Fence, cover, or use other appropriate methods to exclude 
wildlife from ponds which contain hazardous concentrations of toxic-
forming materials.
    (f) Wetlands and habitats of unusually high value for fish and 
wildlife. The operator conducting underground mining activities shall 
avoid disturbances to, enhance where practicable, restore, or replace, 
wetlands, and riparian vegetation along rivers and streams and 
bordering ponds and lakes. Underground mining activities shall avoid 
disturbances to, enhance where practicable, or restore, habitats of 
unusually high value for fish and wildlife.
    (g) Where fish and wildlife habitat is to be a postmining land use, 
the plant species to be used on reclaimed areas shall be selected on 
the basis of the following criteria:
    (1) Their proven nutritional value for fish or wildlife.
    (2) Their use as cover for fish or wildlife.
    (3) Their ability to support and enhance fish or wildlife habitat 
after the release of performance bonds. The selected plants shall be 
grouped and distributed in a manner which optimizes edge effect, cover, 
and other benefits to fish and wildlife.
    (h) Where cropland is to be the postmining land use, and where 
appropriate for wildlife- and crop-management practices, the operator 
shall intersperse the fields with trees, hedges, or fence rows 
throughout the harvested area to break up large blocks of monoculture 
and to diversify habitat types for birds and other animals.
    (i) Where residential, public service, or industrial uses are to be 
the postmining land use, and where consistent with the approved 
postmining land use, the operator shall intersperse reclaimed lands 
with greenbelts utilizing species of grass, shrubs, and trees useful as 
food and cover for wildlife.


Sec.  817.99  Slides and other damage.

    At any time a slide occurs which may have a potential adverse 
effect on public, property, health, safety, or the environment, the 
person who conducts the underground mining activities shall notify the 
regulatory authority by the fastest available means and comply with any 
remedial measures required by the regulatory authority.


Sec.  817.100  Contemporaneous reclamation.

    Reclamation efforts, including but not limited to backfilling, 
grading, topsoil replacement, and revegetation, on all areas affected 
by surface impacts incident to an underground coal mine shall occur as 
contemporaneously as practicable with mining operations, except when 
such mining operations are conducted in accordance with a variance for 
concurrent surface and underground mining activities issued under Sec.  
785.18 of this chapter. The regulatory authority may establish 
schedules that define contemporaneous reclamation.


Sec.  817.102  Backfilling and grading: General requirements.

    (a) Disturbed areas shall be backfilled and graded to--
    (1) Achieve the approximate original contour, except as provided in 
paragraph (k) of this section;
    (2) Eliminate all highwalls, spoil piles, and depressions, except 
as provided in paragraph (h) (small depressions) and in paragraph 
(k)(2) (previously mined highwalls) of this section;
    (3) Achieve a postmining slope that does not exceed either the 
angle of repose or such lesser slope as is necessary to achieve a 
minimum long-term static safety factor of 1.3 and to prevent slides;
    (4) Minimize erosion and water pollution both on and off the site; 
and
    (5) Support the approved postmining land use.
    (b) Spoil, except as provided in paragraph (l) of this section, and 
except excess spoil disposed of in accordance with Sec. Sec.  817.71 
through 817.74, shall be returned to the mined-out surface area.
    (c) Spoil and waste materials shall be compacted where advisable to 
ensure stability or to prevent leaching of toxic materials.
    (d) Spoil may be placed on the area outside the mined-out surface 
area in nonsteep slope areas to restore the approximate original 
contour by blending the spoil into the surrounding terrain if the 
following requirements are met:
    (1) All vegetative and organic material shall be removed from the 
area.
    (2) The topsoil on the area shall be removed, segregated, stored, 
and redistributed in accordance with Sec.  817.22.
    (3) The spoil shall be backfilled and graded on the area in 
accordance with the requirements of this section.
    (e) Disposal of coal processing waste and underground development 
waste in the mined-out surface area shall be in accordance with 
Sec. Sec.  817.81 and 817.83, except that a long-term static safety 
factor of 1.3 shall be achieved.
    (f) Exposed coal seams, acid- and toxic-forming materials, and 
combustible materials exposed, used, or produced during mining shall be 
adequately covered with nontoxic and noncombustible materials, or 
treated, to control the impact on surface and ground water in 
accordance with Sec.  817.41, to prevent sustained combustion, and to 
minimize adverse effects on plant growth and the approved postmining 
land use.
    (g) Cut-and-fill terraces may be allowed by the regulatory 
authority where--
    (1) Needed to conserve soil moisture, ensure stability, and control 
erosion on final-graded slopes, if the terraces are compatible with the 
approved postmining land use; or
    (2) Specialized grading, foundation conditions, or roads are 
required for the approved postmining land use, in which case the final 
grading may include a terrace of adequate width to ensure the safety, 
stability, and erosion control necessary to implement the postmining 
land-use plan.
    (h) Small depressions may be constructed if they are needed to 
retain moisture, minimize erosion, create and enhance wildlife habitat, 
or assist revegetation.
    (i) Permanent impoundments may be approved if they meet the 
requirements of Sec. Sec.  817.49 and 817.56 and if they are suitable 
for the approved postmining land use.
    (j) Preparation of final-graded surfaces shall be conducted in a 
manner that minimizes erosion and provides a surface for replacement of 
topsoil that will minimize slippage.
    (k) The postmining slope may vary from the approximate original 
contour when approval is obtained from the regulatory authority for--
    (1) A variance from approximate original contour requirements in 
accordance with Sec.  785.16 of this chapter; or
    (2) Incomplete elimination of highwalls in previously mined areas 
in accordance with Sec.  817.106.
    (l) Regrading of settled and revegetated fills to achieve 
approximate original contour at the conclusion of underground mining 
activities shall not be required if the conditions of

[[Page 55015]]

paragraph (l)(1) or (l)(2) of this section are met.
    (1)(i) Settled and revegetated fills shall be composed of spoil or 
non-acid- or non-toxic-forming underground development waste.
    (ii) The spoil or underground development waste shall not be 
located so as to be detrimental to the environment, to the health and 
safety of the public, or to the approved postmining land use.
    (iii) Stability of the spoil or underground development waste shall 
be demonstrated through standard geotechnical analysis to be consistent 
with backfilling and grading requirements for material on the solid 
bench (1.3 static safety factor) or excess spoil requirements for 
material not placed on a solid bench (1.5 static safety factor).
    (iv) The surface of the spoil or underground development waste 
shall be vegetated according to Sec.  817.116, and surface runoff shall 
be controlled in accordance with Sec.  817.43.
    (2) If it is determined by the regulatory authority that 
disturbance of the existing spoil or underground development waste 
would increase environmental harm or adversely affect the health and 
safety of the public, the regulatory authority may allow the existing 
spoil or underground development waste pile to remain in place. The 
regulatory authority may require stabilization of such spoil or 
underground development waste in accordance with the requirements of 
paragraphs (l)(1)(i) through (l)(1)(iv) of this section.


Sec.  817.106  Backfilling and grading: Previously mined areas.

    (a) Remining operations on previously mined areas that contain a 
preexisting highwall shall comply with the requirements of Sec. Sec.  
817.102 through 817.107 of this chapter, except as provided in this 
section.
    (b) The requirements of Sec.  817.102(a) (1) and (2) requiring that 
elimination of highwalls shall not apply to remining operations where 
the volume of all reasonably available spoil is demonstrated in writing 
to the regulatory authority to be insufficient to completely backfill 
the reaffected or enlarged highwall. The highwall shall be eliminated 
to the maximum extent technically practical in accordance with the 
following criteria:
    (1) All spoil generated by the remining operation and any other 
reasonably available spoil shall be used to backfill the area. 
Reasonably available spoil in the immediate vicinity of the remining 
operation shall be included within the permit area.
    (2) The backfill shall be graded to a slope which is compatible 
with the approved postmining land use and which provides adequate 
drainage and long-term stability.
    (3) Any highwall remnant shall be stable and not pose a hazard to 
the public health and safety or to the environment. The operator shall 
demonstrate, to the satisfaction of the regulatory authority, that the 
highwall remnant is stable.
    (4) Spoil placed on the outslope during previous mining operations 
shall not be disturbed if such disturbances will cause instability of 
the remaining spoil or otherwise increase the hazard to the public 
health and safety or to the environment.


Sec.  817.107  Backfilling and grading: Steep slopes.

    (a) Underground mining activities on steep slopes shall be 
conducted so as to meet the requirements of Sec. Sec.  817.102-817.106 
and the requirements of this section.
    (b) The following materials shall not be placed on the downslope:
    (1) Spoil.
    (2) Waste materials of any type.
    (3) Debris, including that from clearing and grubbing.
    (4) Abandoned or disabled equipment.
    (c) Land above the highwall shall not be disturbed unless the 
regulatory authority finds that this disturbance will facilitate 
compliance with the environmental protection standards of this 
subchapter and the disturbance is limited to that necessary to 
facilitate compliance.
    (d) Woody materials shall not be buried in the backfilled area 
unless the regulatory authority determines that the proposed method for 
placing woody material within the backfill will not deteriorate the 
stable condition of the backfilled area.


Sec.  817.111  Revegetation: General requirements.

    (a) The permittee shall establish on regraded areas and on all 
other disturbed areas except water areas and surface areas of roads 
that are approved as part of the postmining land use, as vegetative 
cover that is in accordance with the approved permit and reclamation 
plan and that is--
    (1) Diverse, effective, and permanent;
    (2) Comprised of species native to the area, or of introduced 
species where desirable and necessary to achieve the approved 
postmining land use and approved by the regulatory authority;
    (3) At least equal in extent of cover to the natural vegetation of 
the area; and
    (4) Capable of stabilizing the soil surface from erosion.
    (b) The reestablished plant species shall--
    (1) Be compatible with the approved postmining land use;
    (2) Have the same seasonal characteristics of growth as the 
original vegetation;
    (3) Be capable of self-regeneration and plant succession;
    (4) Be compatible with the plant and animal species of the area; 
and
    (5) Meet the requirements of applicable State and Federal seed, 
poisonous and noxious plant, and introduced species laws or 
regulations.
    (c) The regulatory authority may grant exception to the 
requirements of paragraphs (b) (2) and (3) of this section when the 
species are necessary to achieve a quick-growing, temporary, 
stabilizing cover, and measures to establish permanent vegetation are 
included in the approved permit and reclamation plan.
    (d) When the regulatory authority approves a cropland postmining 
land use, the regulatory authority may grant exceptions to the 
requirements of paragraphs (a) (1), (3), (b) (2), and (3) of this 
section. The requirements of part 823 of this chapter apply to areas 
identified as prime farmland.


Sec.  817.113  Revegetation: Timing.

    Disturbed areas shall be planted during the first normal period for 
favorable planting conditions after replacement of the plant-growth 
medium. The normal period for favorable planting is that planting time 
generally accepted locally for the type of plant materials selected.


Sec.  817.114  Revegetation: Mulching and other soil stabilizing 
practices.

    Suitable mulch and other soil stabilizing practices shall be used 
on all areas that have been regraded and covered by topsoil or topsoil 
substitutes. The regulatory authority may waive this requirement if 
seasonal, soil, or slope factors result in a condition where mulch and 
other soil stabilizing practices are not necessary to control erosion 
and to promptly establish an effective vegetative cover.


Sec.  817.116  Revegetation: Standards for success.

    (a) Success of revegetation shall be judged on the effectiveness of 
the vegetation for the approved postmining land use, the extent of 
cover compared to the cover occurring in natural vegetation of the 
area, and the general requirements of Sec.  817.111.

[[Page 55016]]

    (1) Standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority, described in writing, and made available to the public.
    (2) Standards for success shall include criteria representative of 
unmined lands in the area being reclaimed to evaluate the appropriate 
vegetation parameters of ground cover, production, or stocking. Ground 
cover, production, or stocking shall be considered equal to the 
approved success standard when they are not less than 90 percent of the 
success standard. The sampling techniques for measuring success shall 
use a 90-percent statistical confidence interval (i.e., a one-sided 
test with a 0.10 alpha error).
    (b) Standards for success shall be applied in accordance with the 
approved postmining land use and, at a minimum, the following 
conditions:
    (1) For areas developed for use as grazing land or pasture land, 
the ground cover and production of living plants on the revegetated 
area shall be at least equal to that of a reference area or such other 
success standards approved by the regulatory authority.
    (2) For areas developed for use as cropland, crop production on the 
revegetated area shall be at least equal to that of a reference area or 
such other success standards approved by the regulatory authority.
    (3) For areas to be developed for fish and wildlife habitat, 
recreation, undeveloped land, or forest products, success of vegetation 
shall be determined on the basis of tree and shrub stocking and 
vegetative ground cover. Such parameters are described as follows:
    (i) Minimum stocking and planting arrangements shall be specified 
by the regulatory authority on the basis of local and regional 
conditions and after consultation with and approval by the State 
agencies responsible for the administration of forestry and wildlife 
programs. Consultation and approval may occur on either a programwide 
or a permit-specific basis.
    (ii) Trees and shrubs that will be used in determining the success 
of stocking and the adequacy of the plant arrangement shall have 
utility for the approved postmining land use. Trees and shrubs counted 
in determining such success shall be healthy and have been in place for 
not less than two growing seasons. At the time of bond release, at 
least 80 percent of the trees and shrubs used to determine such success 
shall have been in place for 60 percent of the applicable minimum 
period of responsibility. The requirements of this section apply to 
trees and shrubs that have been seeded or transplanted and can be met 
when records of woody vegetation planted show that no woody plants were 
planted during the last two growing seasons of the responsibility 
period and, if any replanting of woody plants took place during the 
responsibility period, the total number planted during the last 60 
percent of that period is less than 20 percent of the total number of 
woody plants required. Any replanting must be by means of transplants 
to allow for adequate accounting of plant stocking. This final 
accounting may include volunteer trees and shrubs of approved species. 
Volunteer trees and shrubs of approved species shall be deemed 
equivalent to planted specimens two years of age or older and can be 
counted towards success. Suckers on shrubby vegetation can be counted 
as volunteer plants when it is evident the shrub community is vigorous 
and expanding.
    (iii) Vegetative ground cover shall not be less than that required 
to achieve the approved postmining land use.
    (4) For areas to be developed for industrial, commercial, or 
residential use less than 2 years after regrading is completed, the 
vegetative ground cover shall not be less than that required to control 
erosion.
    (5) For areas previously disturbed by mining that were not 
reclaimed to the requirements of this subchapter and that are remined 
or otherwise redisturbed by surface coal mining operations, as a 
minimum, the vegetative ground cover shall be not less than the ground 
cover existing before redisturbance and shall be adequate to control 
erosion.
    (c)(1) The period of extended responsibility for successful 
revegetation shall begin after the last year of augmented seeding, 
fertilizing, irrigation, or other work, excluding husbandry practices 
that are approved by the regulatory authority in accordance with 
paragraph (c)(4) of this section.
    (2) In areas of more than 26.0 inches of annual average 
precipitation, the period of responsibility shall continue for a period 
of not less than:
    (i) Five full years, except as provided in paragraph (c)(2)(ii) of 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazing land, pasture land, or cropland shall equal or 
exceed the approved success standard during the growing season of any 2 
years of the responsibility period, except the first year. Areas 
approved for the other uses identified in paragraph (b) of this section 
shall equal or exceed the applicable success standard during the 
growing season of the last year of the responsibility period.
    (ii) Two full years for lands eligible for remining included in a 
permit for which a finding has been made under Sec.  773.15(m) of this 
chapter. To the extent that the success standards are established by 
paragraph (b)(5) of this section, the lands must equal or exceed the 
standards during the growing season of the last year of the 
responsibility period.
    (3) In areas of 26.0 inches or less average annual precipitation, 
the period of responsibility shall continue for a period of not less 
than:
    (i) Ten full years, except as provided in paragraph (c)(3)(ii) in 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazing land, pasture land, or cropland shall equal or 
exceed the approved success standard during the growing season of any 
two years after year six of the responsibility period. Areas approved 
for the other uses identified in paragraph (b) of this section shall 
equal or exceed the applicable success standard during the growing 
season of the last year of the responsibility period.
    (ii) Five full years for lands eligible for remining included in a 
permit for which a finding has been made under Sec.  773.15(m) of this 
chapter. To the extent that the success standards are established by 
paragraph (b)(5) of this section, the lands must equal or exceed the 
standards during the growing seasons of the last two consecutive years 
of the responsibility period.
    (4) The regulatory authority may approve selective husbandry 
practices, excluding augmented seeding, fertilization, or irrigation, 
provided it obtains prior approval from the Director in accordance with 
Sec.  732.17 of this chapter that the practices are normal husbandry 
practices, without extending the period of responsibility for 
revegetation success and bond liability, if such practices can be 
expected to continue as part of the postmining land use or if 
discontinuance of the practices after the liability period expires will 
not reduce the probability of permanent revegetation success. Approved 
practices shall be normal husbandry practices within the region for 
unmined lands having land uses similar to the approved postmining land 
use of the disturbed area, including such practices as disease, pest, 
and vermin control; and any pruning, reseeding, and transplanting 
specifically necessitated by such actions.


Sec.  817.121  Subsidence control.

    (a) Measures to prevent or minimize damage. (1) The permittee must 
either

[[Page 55017]]

adopt measures consistent with known technology that prevent subsidence 
from causing material damage to the extent technologically and 
economically feasible, maximize mine stability, and maintain the value 
and reasonably foreseeable use of surface lands or adopt mining 
technology that provides for planned subsidence in a predictable and 
controlled manner.
    (2) If a permittee employs mining technology that provides for 
planned subsidence in a predictable and controlled manner, the 
permittee must take necessary and prudent measures, consistent with the 
mining method employed, to minimize material damage to the extent 
technologically and economically feasible to non-commercial buildings 
and occupied residential dwellings and structures related thereto 
except that measures required to minimize material damage to such 
structures are not required if:
    (i) The permittee has the written consent of their owners or
    (ii) Unless the anticipated damage would constitute a threat to 
health or safety, the costs of such measures exceed the anticipated 
costs of repair.
    (3) Nothing in this part prohibits the standard method of room-and-
pillar mining.
    (b) The operator shall comply with all provisions of the approved 
subsidence control plan prepared pursuant to Sec.  784.20 of this 
chapter.
    (c) Repair of damage--(1) Repair of damage to surface lands. The 
permittee must correct any material damage resulting from subsidence 
caused to surface lands, to the extent technologically and economically 
feasible, by restoring the land to a condition capable of maintaining 
the value and reasonably foreseeable uses that it was capable of 
supporting before subsidence damage.
    (2) Repair or compensation for damage to non-commercial buildings 
and dwellings and related structures. The permittee must promptly 
repair, or compensate the owner for, material damage resulting from 
subsidence caused to any non-commercial building or occupied 
residential dwelling or structure related thereto that existed at the 
time of mining. If repair option is selected, the permittee must fully 
rehabilitate, restore or replace the damaged structure. If compensation 
is selected, the permittee must compensate the owner of the damaged 
structure for the full amount of the decrease in value resulting from 
the subsidence-related damage. The permittee may provide compensation 
by the purchase, before mining, of a non-cancelable premium-prepaid 
insurance policy. The requirements of this paragraph apply only to 
subsidence-related damage caused by underground mining activities 
conducted after October 24, 1992.
    (3) Repair or compensation for damage to other structures. The 
permittee must, to the extent required under applicable provisions of 
State law, either correct material damage resulting from subsidence 
caused to any structures or facilities not protected by paragraph 
(c)(2) of this section by repairing the damage or compensate the owner 
of the structures or facilities for the full amount of the decrease in 
value resulting from the subsidence. Repair of damage includes 
rehabilitation, restoration, or replacement of damaged structures or 
facilities. Compensation may be accomplished by the purchase before 
mining of a non-cancelable premium-prepaid insurance policy.
    (4) Rebuttable presumption of causation by subsidence--(i) 
Rebuttable presumption of causation for damage within angle of draw. If 
damage to any non-commercial building or occupied residential dwelling 
or structure related thereto occurs as a result of earth movement 
within an area determined by projecting a specified angle of draw from 
the outermost boundary of any underground mine workings to the surface 
of the land, a rebuttable presumption exists that the permittee caused 
the damage. The presumption will normally apply to a 30-degree angle of 
draw. A State regulatory authority may amend its program to apply the 
presumption to a different angle of draw if the regulatory authority 
shows in writing that the angle has a more reasonable basis than the 
30-degree angle of draw, based on geotechnical analysis of the factors 
affecting potential surface impacts of underground coal mining 
operations in the State.
    (ii) Approval of site-specific angle of draw. A permittee or permit 
applicant may request that the presumption apply to an angle of draw 
different from that established in the regulatory program. The 
regulatory authority may approve application of the presumption to a 
site-specific angle of draw different than that contained in the State 
or Federal program based on a site-specific analysis submitted by an 
applicant. To establish a site-specific angle of draw, an applicant 
must demonstrate and the regulatory authority must determine in writing 
that the proposed angle of draw has a more reasonable basis than the 
standard set forth in the State or Federal program, based on a site-
specific geotechnical analysis of the potential surface impacts of the 
mining operation.
    (iii) No presumption where access for pre-subsidence survey is 
denied. If the permittee was denied access to the land or property for 
the purpose of conducting the pre-subsidence survey in accordance with 
Sec.  784.20(a) of this chapter, no rebuttable presumption will exist.
    (iv) Rebuttal of presumption. The presumption will be rebutted if, 
for example, the evidence establishes that: The damage predated the 
mining in question; the damage was proximately caused by some other 
factor or factors and was not proximately caused by subsidence; or the 
damage occurred outside the surface area within which subsidence was 
actually caused by the mining in question.
    (v) Information to be considered in determination of causation. In 
any determination whether damage to protected structures was caused by 
subsidence from underground mining, all relevant and reasonably 
available information will be considered by the regulatory authority.
    (5) Adjustment of bond amount for subsidence damage. When 
subsidence-related material damage to land, structures or facilities 
protected under paragraphs (c)(1) through (c)(3) of this section 
occurs, or when contamination, diminution, or interruption to a water 
supply protected under Sec.  817.41 (j) occurs, the regulatory 
authority must require the permittee to obtain additional performance 
bond in the amount of the estimated cost of the repairs if the 
permittee will be repairing, or in the amount of the decrease in value 
if the permittee will be compensating the owner, or in the amount of 
the estimated cost to replace the protected water supply if the 
permittee will be replacing the water supply, until the repair, 
compensation, or replacement is completed. If repair, compensation, or 
replacement is completed within 90 days of the occurrence of damage, no 
additional bond is required. The regulatory authority may extend the 
90-day time frame, but not to exceed one year, if the permittee 
demonstrates and the regulatory authority finds in writing that 
subsidence is not complete, that not all probable subsidence-related 
material damage has occurred to lands or protected structures, or that 
not all reasonably anticipated changes have occurred affecting the 
protected water supply, and that therefore it would be unreasonable to 
complete within 90 days the repair of the subsidence-related material 
damage to lands or protected structures, or the replacement of 
protected water supply.

[[Page 55018]]

    (d) Underground mining activities shall not be conducted beneath or 
adjacent to (1) public buildings and facilities; (2) churches, schools, 
and hospitals; or (3) impoundments with a storage capacity of 20 acre-
feet or more or bodies of water with a volume of 20 acre-feet or more, 
unless the subsidence control plan demonstrates that subsidence will 
not cause material damage to, or reduce the reasonably foreseeable use 
of, such features or facilities. If the regulatory authority determines 
that it is necessary in order to minimize the potential for material 
damage to the features or facilities described above or to any aquifer 
or body of water that serves as a significant water source for any 
public water supply system, it may limit the percentage of coal 
extracted under or adjacent thereto.
    (e) If subsidence causes material damage to any of the features or 
facilities covered by paragraph (d) of this section, the regulatory 
authority may suspend mining under or adjacent to such features or 
facilities until the subsidence control plan is modified to ensure 
prevention of further material damage to such features or facilities.
    (f) The regulatory authority shall suspend underground mining 
activities under urbanized areas, cities, towns, and communities, and 
adjacent to industrial or commercial buildings, major impoundments, or 
perennial streams, if imminent danger is found to inhabitants of the 
urbanized areas, cities, towns, or communities.
    (g) Within a schedule approved by the regulatory authority, the 
operator shall submit a detailed plan of the underground workings. The 
detailed plan shall include maps and descriptions, as appropriate, of 
significant features of the underground mine, including the size, 
configuration, and approximate location of pillars and entries, 
extraction ratios, measure taken to prevent or minimize subsidence and 
related damage, areas of full extraction, and other information 
required by the regulatory authority. Upon request of the operator, 
information submitted with the detailed plan may be held as 
confidential, in accordance with the requirements of Sec.  773.6(d) of 
this chapter.


Sec.  817.122  Subsidence control: Public notice.

    At least 6 months prior to mining, or within that period if 
approved by the regulatory authority, the underground mine operator 
shall mail a notification to all owners and occupants of surface 
property and structures above the underground workings. The 
notification shall include, at a minimum, identification of specific 
areas in which mining will take place, dates that specific areas will 
be undermined, and the location or locations where the operator's 
subsidence control plan may be examined.


Sec.  817.131  Cessation of operations: Temporary.

    (a) Each person who conducts underground mining activities shall 
effectively support and maintain all surface access openings to 
underground operations, and secure surface facilities in areas in which 
there are no current operations, but operations are to be resumed under 
an approved permit. Temporary abandonment shall not relieve a person of 
his or her obligation to comply with any provisions of the approved 
permit.
    (b) Before temporary cessation of mining and reclamation operations 
for a period of thirty days or more, or as soon as it is known that a 
temporary cessation will extend beyond 30 days, each person who 
conducts underground mining activities shall submit to the regulatory 
authority a notice of intention to cease or abandon operations. This 
notice shall include a statement of the exact number of surface acres 
and the horizontal and vertical extent of sub-surface strata which have 
been in the permit area prior to cessation or abandonment, the extent 
and kind of reclamation of surface area which will have been 
accomplished, and identification of the backfilling, regrading, 
revegetation, environmental monitoring, underground opening closures 
and water treatment activities that will continue during the temporary 
cessation.


Sec.  817.132  Cessation of operations: Permanent.

    (a) The person who conducts underground mining activities shall 
close or backfill or otherwise permanently reclaim all affected areas, 
in accordance with this chapter and according to the permit approved by 
the regulatory authority.
    (b) All surface equipment, structures, or other facilities not 
required for continued underground mining activities and monitoring, 
unless approved as suitable for the postmining land use or 
environmental monitoring, shall be removed and the affected lands 
reclaimed.


Sec.  817.133  Postmining land use.

    (a) General. All disturbed areas shall be restored in a timely 
manner to conditions that are capable of supporting--
    (1) The uses they were capable of supporting before any mining; or
    (2) Higher or better uses.
    (b) Determining premining uses of land. The premining uses of land 
to which the postmining land use is compared shall be those uses which 
the land previously supported, if the land has not been previously 
mined and has been properly managed. The postmining land use for land 
that has been previously mined and not reclaimed shall be judged on the 
basis of the land use that existed prior to any mining: Provided that, 
if the land cannot be reclaimed to the land use that existed prior to 
any mining because of the previously mined condition, the postmining 
land use shall be judged on the basis of the highest and best use that 
can be achieved which is compatible with surrounding areas and does not 
require the disturbance of areas previously unaffected by mining.
    (c) Criteria for alternative postmining land uses. Higher or better 
uses may be approved by the regulatory authority as alternative 
postmining land uses after consultation with the landowner or the land 
management agency having jurisdiction over the lands, if the proposed 
uses meet the following criteria:
    (1) There is a reasonable likelihood for achievement of the use.
    (2) The use does not present any actual or probable hazard to 
public health and safety, or threat of water diminution or pollution.
    (3) The use will not--
    (i) Be impractical or unreasonable;
    (ii) Be inconsistent with applicable land use policies or plans;
    (iii) Involve unreasonable delay in implementation; or
    (iv) Cause or contribute to violation of Federal, State, or local 
law.
    (d) Approximate original contour: Criteria for variance. Surface 
coal mining operations that meet the requirements of this paragraph may 
be conducted under a variance from the requirement to restore disturbed 
areas to their approximate original contour, if the following 
requirements are satisfied:
    (1) The regulatory authority grants the variance under a permit 
issued in accordance with Sec.  785.16 of this chapter.
    (2) The alternative postmining land use requirements of paragraph 
(c) of this section are met.
    (3) All applicable requirements of the Act and the regulatory 
program, other than the requirement to restore disturbed areas to their 
approximate original contour, are met.
    (4) After consultation with the appropriate land use planning 
agencies,

[[Page 55019]]

if any, the potential use is shown to constitute an equal or better 
economic or public use.
    (5) The proposed use is designed and certified by a qualified 
registered professional engineer in conformance with professional 
standards established to assure the stability, drainage, and 
configuration necessary for the intended use of the site.
    (6) After approval, where required, of the appropriate State 
environmental agencies, the watershed of the permit and adjacent areas 
is shown to be improved.
    (7) The highwall is completely backfilled with spoil material, in a 
manner which results in a static factor of safety of at least 1.3, 
using standard geotechnical analysis.
    (8) Only the amount of spoil as is necessary to achieve the 
postmining land use, ensure the stability of spoil retained on the 
bench, and meet all other requirements of the Act and this chapter is 
placed off the mine bench. All spoil not retained on the bench shall be 
placed in accordance with Sec. Sec.  817.71 through 817.74 of this 
chapter.
    (9) The surface landowner of the permit area has knowingly 
requested, in writing, that a variance be granted, so as to render the 
land, after reclamation, suitable for an industrial, commercial, 
residential, or public use (including recreational facilities).
    (10) Federal, State, and local government agencies with an interest 
in the proposed land use have an adequate period in which to review and 
comment on the proposed use.


Sec.  817.150  Roads: General.

    (a) Road classification system. (1) Each road, as defined in Sec.  
701.5 of this chapter, shall be classified as either a primary road or 
an ancillary road.
    (2) A primary road is any road which is--
    (i) Used for transporting coal or spoil;
    (ii) Frequently used for access or other purposes for a period in 
excess of six months; or
    (iii) To be retained for an approval postmining land use.
    (3) An ancillary road is any road not classified as a primary road
    (b) Performance standards. Each road shall be located, designed, 
constructed, reconstructed, used, maintained, and reclaimed so as to:
    (1) Control or prevent erosion, siltation, and the air pollution 
attendant to erosion, including road dust and dust occurring on other 
exposed surfaces, by measures such as vegetating, watering, using 
chemical or other dust suppressants, or otherwise stabilizing all 
exposed surfaces in accordance with current, prudent engineering 
practices;
    (2) Control or prevent damage to fish, wildlife, or otheir habitat 
and related environmental values;
    (3) Control or prevent additional contributions of suspended solids 
to streamflow or runoff outside the permit area;
    (4) Neither cause nor contribute to, directly or indirectly, the 
violation of State or Federal water quality standard applicable to 
receiving waters;
    (5) Refrain from seriously altering the normal flow of water in 
streambeds or drainage channels;
    (6) Prevent or control damage to public or private property, 
including the prevention or mitigation of adverse effects on lands 
within the boundaries of units of the National Park System, the 
National Wildlife Refuge System, the National System of Trails, the 
National Wilderness Preservation System, the Wild and Scenic Rivers 
System, including designated study rivers, and National Recreation 
Areas designated by Act of Congress; and
    (7) Use nonacid- and nontoxic-forming substances in road surfacing.
    (c) Design and construction limits and establishment of design 
criteria. To ensure environmental protection appropriate for their 
planned duration and use, including consideration of the type and size 
of equipment used, the design and construction or reconstruction of 
roads shall incorporate appropriate limits for grade, width, surface 
materials, surface drainage control, culvert placement, and culvert 
size, in accordance with current, prudent engineering practices, and 
any necessary design criteria established by the regulatory authority.
    (d) Location. (1) No part of any road shall be located in the 
channel of an intermittent or perennial stream unless specifically 
approved by the regulatory authority in accordance with applicable 
Sec. Sec.  817.41 through 817.43 and 817.57 of this chapter.
    (2) Roads shall be located to minimize downstream sedimentation and 
flooding.
    (e) Maintenance. (1) A road shall be maintained to meet the 
performance standards of this part and any additional criteria 
specified by the regulatory authority;
    (2) A road damaged by a catastrophic event, such as a flood or 
earthquake, shall be repaired as soon as is practicable after the 
damage has occurred.
    (f) Reclamation. A road not to be retained under an approved 
postmining land use shall be reclaimed in accordance with the approved 
reclamation plan as soon as practicable after it is no longer needed 
for mining and reclamation operations. This reclamation shall include:
    (1) Closing the road to traffic;
    (2) Removing all bridges and culverts unless approved as part of 
the postmining land use;
    (3) Removing or otherwise disposing of road-surfacing materials 
that are incompatible with the postmining land use and revegetation 
requirements;
    (4) Reshaping cut and fill slopes as necessary to be compatible 
with the postmining land use and to complement the natural drainage 
pattern of the surrounding terrain;
    (5) Protecting the natural drainage patterns by installing dikes or 
cross drains as necessary to control surface runoff and erosion; and
    (6) Scarifying or ripping the roadbed, replacing topsoil or 
substitute material and revegetating disturbed surfaces in accordance 
with Sec. Sec.  817.22 and 817.111 through 817.116 of this chapter.


Sec.  817.151  Primary roads.

    Primary roads shall meet the requirements of Sec.  817.150 and the 
additional requirements of this section.
    (a) Certification. The construction or reconstruction of primary 
roads shall be certified in a report to the regulatory authority by a 
qualified registered professional engineer, or in any State which 
authorizes land surveyors to certify the construction or reconstruction 
of primary roads, a qualified registered professional land surveyor, 
with experience in the design and construction of roads. The report 
shall indicate that the primary road has been constructed or 
reconstructed as designed and in accordance with the approved plan.
    (b) Safety factor. Each primary road embankment shall have a 
minimum static factor of 1.3 or meet the requirements established under 
Sec.  784.24(c).
    (c) Location. (1) To minimize erosion, a primary road shall be 
located, insofar as is practicable, on the most stable available 
surface.
    (2) Fords of perennial or intermittent streams by primary roads are 
prohibited unless they are specifically approved by the regulatory 
authority as temporary routes during periods of road construction.
    (d) Drainage control. In accordance with the approved plan--
    (1) Each primary road shall be constructed or reconstructed, and 
maintained to have adequate drainage control, using structures such as, 
but not limited to bridges, ditches, cross drains, and ditch relief 
drains. The drainage control system shall be designed to safely pass 
the peak runoff from a 10-

[[Page 55020]]

year, 6-hour precipitation event, or greater event as specified by the 
regulatory authority;
    (2) Drainage pipes and culverts shall be installed as designed, and 
maintained in a free and operating condition and to prevent or control 
erosion at inlets and outlets;
    (3) Drainage ditches shall be constructed and maintained to prevent 
uncontrolled drainage over the road surface and embankment;
    (4) Culverts shall be installed and maintained to sustain the 
vertical soil pressure, the passive resistance of the foundation, and 
the weight of vehicles using the road;
    (5) Natural stream channels shall not be altered or relocated 
without the prior approval of the regulatory authority in accordance 
with applicable Sec. Sec.  816.41 through 816.43 and 816.57 of this 
chapter; and
    (6) Except as provided in paragraph (c)(2) of this section, 
structures for perennial or intermittent stream channel crossings shall 
be made using bridges, culverts, low-water crossings, or other 
structures designed, constructed, and maintained using current, prudent 
engineering practices. The regulatory authority shall ensure that low-
water crossings are designed, constructed, and maintained to prevent 
erosion of the structure or streambed and additional contributions of 
suspended solids to streamflow.
    (e) Surfacing. Primary roads shall be surfaced with material 
approved by the regulatory authority as being sufficiently durable for 
the anticipated volume of traffic and the weight and speed of vehicles 
using the road.


Sec.  817.180  Utility installations.

    All underground mining activities shall be conducted in a manner 
which minimizes damage, destruction, or disruption of services provided 
by oil, gas, and water wells; oil, gas, and coal-slurry pipelines, 
railroads; electric and telephone lines; and water and sewage lines 
which pass over, under, or through the permit area, unless otherwise 
approved by the owner of those facilities and the regulatory authority.


Sec.  817.181  Support facilities.

    (a) Support facilities shall be operated in accordance with a 
permit issued for the mine or coal preparation plant to which it is 
incident or from which its operation results.
    (b) In addition to the other provisions of this part, support 
facilities shall be located, maintained, and used in a manner that--
    (1) Prevents or controls erosion and siltation, water pollution, 
and damage to public or private property; and
    (2) To the extent possible using the best technology currently 
available--
    (i) Minimizes damage to fish, wildlife, and related environmental 
values; and
    (ii) Minimizes additional contributions of suspended solids to 
streamflow or runoff outside the permit area. Any such contributions 
shall not be in excess of limitations of State or Federal law.


Sec.  817.200  Interpretative rules related to general performance 
standards.

    The following interpretations of rules promulgated in part 817 of 
this chapter have been adopted by the Office of Surface Mining 
Reclamation and Enforcement.
    (a)-(b) [Reserved]
    (c) Interpretation of Sec.  816.22(e)--Topsoil Removal. (1) Results 
of physical and chemical analyses of overburden and topsoil to 
demonstrate that the resulting soil medium is equal to or more suitable 
for sustaining revegetation than the available topsoil, provided that 
trials, and tests are certified by an approved laboratory in accordance 
with 30 CFR 816.22(e)(1)(ii), may be obtained from any one or a 
combination of the following sources:
    (i) U.S. Department of Agriculture Soil Conservation Service 
published data based on established soil series;
    (ii) U.S. Department of Agriculture Soil Conservation Service 
Technical Guides;
    (iii) State agricultural agency, university, Tennessee Valley 
Authority, Bureau of Land Management or U.S. Department of Agriculture 
Forest Service published data based on soil series properties and 
behavior, or
    (iv) Results of physical and chemical analyses, field site trials, 
or greenhouse tests of the topsoil and overburden materials (soil 
series) from the permit area.
    (2) If the operator demonstrates through soil survey or other data 
that the topsoil and unconsolidated material are insufficient and 
substitute materials will be used, only the substitute materials must 
be analyzed in accordance with 30 CFR 816.22(e)(1)(i).
    (d) Interpretation of Sec.  817.133: Postmining land use. (1) The 
requirements of 30 CFR 784.15(a)(2), for approval of an alternative 
postmining land use, may be met by requesting approval through the 
permit revision procedures of 30 CFR 774.13 rather than requesting such 
approval through the permit application. The original permit 
application, however, must demonstrate that the land will be returned 
to its premining land use capability as required by 30 CFR 817.133(a).
    An application for a permit revision of this type, (i) must be 
submitted in accordance with the filing deadlines of 30 CFR 774.13, 
(ii) shall constitute a significant alteration from the mining 
operations contemplated by the original permit, and (iii) shall be 
subject to the requirements of 30 CFR part 773 and 775.
    (2) [Reserved]

0
14. Revise part 824 to read as follows:

PART 824--SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS--
MOUNTAINTOP REMOVAL

Sec.
824.1 Scope.
824.2 Objectives.
824.11 Mountaintop removal: Performance standards.

    Authority:  Secs. 102, 201, 501, 503, 504, 506, 508, 510, 515, 
517, 701 Pub. L. 95-87, 91 Stat. 448, 449, 467, 470, 471, 474, 478, 
480, 486, 498, 516 (30 U.S.C. 1202, 1211, 1251, 1253, 1254, 1256, 
1258, 1260, 1265, 1267, 1291).


Sec.  824.1  Scope.

    This part sets forth special environmental protection performance, 
reclamation, and design standards for surface coal mining activities 
constituting mountaintop removal mining.


Sec.  824.2  Objectives.

    The objectives of this part are to--
    (a) Enhance coal recovery;
    (b) Reclaim the land to equal or higher postmining use; and
    (c) Protect and enhance environmental and other values protected 
under the Act and this chapter.


Sec.  824.11  Mountaintop removal: Performance standards.

    (a) Under an approved regulatory program, surface coal mining 
activities may be conducted under a variance from the requirement of 
this subchapter for restoring affected areas to their approximate 
original contour, if--
    (1) The regulatory authority grants the variance under a permit, in 
accordance with 30 CFR 785.14;
    (2) The activities involve the mining of an entire coal seam 
running through the upper fraction of a mountain, ridge, or hill, by 
removing all of the overburden and creating a level plateau or gently 
rolling contour with no highwalls remaining;
    (3) An industrial, commercial, agricultural, residential, or public 
facility (including recreational facilities)

[[Page 55021]]

use is proposed and approved for the affected land;
    (4) The alternative land use requirements of Sec.  816.133(a) 
through (c) of this chapter are met;
    (5) All applicable requirements of this subchapter and the 
regulatory program, other than the requirement to restore affected 
areas to their approximate original contour, are met;
    (6) An outcrop barrier of sufficient width, consisting of the toe 
of the lowest coal seam, and its associated overburden, are retained to 
prevent slides and erosion, except that the regulatory authority may 
permit an exemption to the retention of the coal barrier requirement if 
the following conditions are satisfied:
    (i) The proposed mine site was mined prior to May 3, 1978, and the 
toe of the lowest seam has been removed; or
    (ii) A coal barrier adjacent to a head-of-hollow fill may be 
removed after the elevation of a head-of-hollow fill attains the 
elevation of the coal barrier if the head-of-hollow fill provides the 
stability otherwise ensured by the retention of a coal barrier;
    (7) The final graded slopes on the mined area are less than 1v:5h, 
so as to create a level plateau or gently rolling configuration, and 
the outslopes of the plateau do not exceed 1v:2h except where 
engineering data substantiates, and the regulatory authority finds, in 
writing, and includes in the permit under 30 CFR 785.14, that a minimum 
static safety factor of 1.5 will be attained;
    (8) The resulting level or gently rolling contour is graded to 
drain inward from the outslope, except at specified points where it 
drains over the outslope in stable and protected channels. The drainage 
shall not be through or over a valley or head-of-hollow fill.
    (9) Natural watercourses below the lowest coal seam mined are not 
damaged;
    (10) All waste and acid-forming or toxic-forming materials, 
including the strata immediately below the coal seam, are covered with 
non-toxic spoil to prevent pollution and achieve the approved 
postmining land use; and
    (11) Spoil is placed on the mountaintop bench as necessary to 
achieve the postmining land use approved under paragraphs (a)(3) and 
(a)(4) of this section. All excess spoil material not retained on the 
mountaintop shall be placed in accordance with 30 CFR 816.41 and 816.43 
and 816.71 through 816.74.

0
15. Revise part 827 to read as follows:

PART 827--PERMANENT PROGRAM PERFORMANCE STANDARDS--COAL PREPARATION 
PLANTS NOT LOCATED WITHIN THE PERMIT AREA OF A MINE

Sec.
827.1 Scope.
827.11 General requirements.
827.12 Coal preparation plants: Performance standards.
827.13 Coal preparation plants: Interim performance standards.

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


Sec.  827.1  Scope.

    This part sets forth requirements for coal preparation plants 
operated in connection with a coal mine but outside the permit area for 
a specific mine.


Sec.  827.11  General requirements.

    Each person who operates a coal preparation plant subject to this 
part shall obtain a permit in accordance with Sec.  785.21 of this 
chapter, obtain a bond in accordance with subchapter J of this chapter, 
and operate that plant in accordance with the requirements of this 
part.


Sec.  827.12  Coal preparation plants: Performance standards.

    Except as provided in Sec.  827.13 of this part, the construction, 
operation, maintenance, modification, reclamation, and removal 
activities at coal preparation plants shall comply with the following:
    (a) Signs and markers for the coal preparation plant, coal 
processing waste disposal area, and water-treatment facilities shall 
comply with Sec.  816.11 of this chapter.
    (b) Any stream channel diversion shall comply with Sec.  816.43 of 
this chapter.
    (c) Drainage from any disturbed area related to the coal 
preparation plant shall comply with Sec. Sec.  816.45 through 816.47 of 
this chapter, and all discharges from these areas shall meet the 
requirements of Sec. Sec.  816.41 and 816.42 of this chapter and any 
other applicable State or Federal law.
    (d) Permanent impoundments associated with coal preparation plants 
shall meet the requirements of Sec. Sec.  816.49 and 816.56 of this 
chapter. Dams constructed of, or impounding, coal processing waste 
shall comply with Sec.  816.84 of this chapter.
    (e) Disposal of coal processing waste, noncoal mine waste, and 
excess spoil shall comply with Sec. Sec.  816.81, 816.83, 816.84, 
816.87, 816.89, and 816.71 through 816.74 of this chapter, 
respectively.
    (f) Fish, wildlife, and related environmental values shall be 
protection in accordance with Sec.  816.97 of this chapter.
    (g) Support facilities related to the coal preparation plant shall 
comply with Sec.  816.181 of this chapter.
    (h) Roads shall comply with Sec. Sec.  816.150 and 816.151 of this 
chapter.
    (i) Cessation of operations shall be in accordance with Sec. Sec.  
816.131 and 816.132 of this chapter.
    (j) Erosion and air pollution attendant to erosion shall be 
controlled in accordance with Sec.  816.95 of this chapter.
    (k) Adverse effects upon, or resulting from, nearby underground 
coal mining activities shall be minimized by appropriate measures 
including, but not limited to, compliance with Sec.  816.79 of this 
chapter.
    (l) Reclamation shall follow proper topsoil handling, backfilling 
and grading, revegetation, and postmining land use procedures in 
accordance with Sec. Sec.  816.22, 816.100. 816.102, 816.104, 816.106, 
816.111, 816.113, 816.114, 816.116, and 816.133 of this chapter, 
respectively.


Sec.  827.13  Coal preparation plants: Interim performance standards.

    (a) Persons operating or who have operated coal preparation plants 
after July 6, 1984, which were not subject to this chapter before July 
6, 1984, shall comply with the applicable interim or permanent program 
performance standards of the State in which such plants are located, as 
follows:

[[Page 55022]]

    (1) If located in a State in which either interim or permanent 
program performance standards apply to such plants, the applicable 
program standards of the State program shall apply;
    (2) If located in a State with a State program which must be 
amended in order to regulate such plants, the interim program 
performance standards in subchapter B of this chapter shall apply; and
    (3) If located in a State with a Federal program, all such plants 
shall be subject to the interim program performance standards in 
subchapter B of this chapter.
    (b) After a person described in paragraph (a) of this section 
obtains a permit to operate a coal preparation plant, the performance 
standards specified in Sec.  827.12 shall be applicable to the 
operation of that plant instead of those specified in paragraph (a) of 
this section.

    Dated: October 26, 2017.
Katharine S. MacGregor,
Acting Assistant Secretary, Land and Minerals Management.
[FR Doc. 2017-24307 Filed 11-16-17; 8:45 am]
 BILLING CODE 4310-05-P