54924 Federal Register / Vol. 82, No. 221 / Friday, November 17, 2017 / Rules and Regulations 

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. 

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. 

■ 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: 

■ 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. 


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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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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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. 

§ 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 § 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 § 875.14 of 

this chapter. For additional eligibility 

requirements for water projects, see 

§ 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 


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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 

162⁄3 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). 

§ 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 § 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 

§ 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 

§ 700.13 identifies the person and 

nature of a citizen’s suit, so that OSMRE 

or a state can respond appropriately. 

§ 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 


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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 162⁄3 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. 

§ 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. 


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(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. 

§ 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. 

§ 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. 

§ 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. 

■ 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. 

§ 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 2111 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. 

§ 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. 

§ 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. 

§ 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 


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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. 

§ 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 


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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 


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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 

§§ 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 


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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 semiliquid holding structures and 

depressions, either naturally formed or 

artificially built. 

In situ processes means activities 

conducted on the surface or 

underground in connection with inplace 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 singleand 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 

§§ 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 presubsidence 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 °C. 

Mulch means vegetation residues or 

other suitable materials that aid in soil 

stabilization and soil moisture 

conservation, thus providing microclimatic 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 

§ 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 §§ 784.20 and 817.121, any 

building or other structure that, at the 


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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 semiliquid 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 


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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° 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 nonIndian 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° 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 


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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 § 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 

§ 843.12 of this chapter. 

(ii) A cessation order under § 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 

§ 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 § 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 § 800.11(e) of this chapter, that 

system requires reimbursement of any 

reclamation costs incurred by the 

system above those covered by any sitespecific 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. 


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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. 

§ 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 

§ 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 nonIndian 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 nonFederal 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. 

■ 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. 


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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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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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. 

§ 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 § 774.13, or renewal of a permit 

under § 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 § 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 § 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 § 774.13, or renewal of a 

permit under § 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 § 774.13, or a renewal of 

a permit under § 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 § 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 § 774.13, or renewal of a permit 

under § 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 § 774.13, or 

renewal of a permit under § 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 § 774.13, or 

renewal of a permit under § 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. 


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(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 

§ 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). 

§ 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 § 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. 

§ 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 §§ 773.9 through 773.11 

of this part. 

(b) We will enter into AVS— 

(1) The information you are required 

to submit under §§ 778.11 and 778.12(c) 

of this subchapter. 

(2) The information you submit under 

§ 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. 

§ 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 

§ 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 § 773.12 

of this part. 

§ 773.10 Review of permit history. 

(a) We, the regulatory authority, will 

rely upon the permit history 

information you, the applicant, submit 

under § 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 

§ 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 § 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. 

§ 773.11 Review of compliance history. 

(a) We, the regulatory authority, will 

rely upon the violation information 

supplied by you, the applicant, under 

§ 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 § 773.12 

of this part. 


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§ 773.12 Permit eligibility determination. 

Based on the reviews required under 

§§ 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 §§ 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 

§ 774.11(c) of this subchapter. 

(c) After we approve your permit 

under § 773.15 of this part, we will not 

issue the permit until you comply with 

the information update and certification 

requirement of § 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 

§ 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. 

§ 773.13 Unanticipated events or 

conditions at remining sites. 

(a) You, the applicant, are eligible for 

a permit under § 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 § 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. 

§ 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 

§ 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 §§ 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 §§ 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. 

§ 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 § 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 

§ 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 


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with § 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 § 816.111(d) or 

§ 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 

§ 816.106 or § 817.106 of this chapter, 

the site of the operation is a previously 

mined area as defined in § 701.5 of this 

chapter. 

(m) For permits to be issued under 

§ 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 

§§ 773.7 through 773.14 of this part. 

§ 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. 

§ 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 §§ 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 § 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. 

§ 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 § 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 

§ 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 


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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. 

§ 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 §§ 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. 

§ 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 § 773.21(d) of this part, 

we find that a permit was improvidently 

issued under the criteria in § 773.21 

paragraphs (a) and (b) of § 773.21 of this 

part; or 

(2) Your permit was provisionally 

issued under § 773.14(b) of this part and 

one or more of the conditions in 

§§ 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 § 773.23 of this part. 

(f) The regulations for service at 

§ 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. 

§ 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 § 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 § 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. 

§ 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 §§ 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 §§ 773.21 or 774.11(g) of 

this subchapter; or 

(c) An applicant or permittee affected 

by an ownership or control listing or 

finding. 

§ 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 § 773.27(b) of this 

part, to the regulatory authority, as 

identified in the following table. 


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If the challenge concerns . . . Then you must submit a written explanation to . . . 

(1) a pending State or Federal permit application ................................... the regulatory authority with jurisdiction over the application. 

(2) your ownership or control of a surface coal mining operation, and 

you are not currently seeking a permit.

the regulatory authority with jurisdiction over the surface coal mining 

operation. 

(b) The provisions of this section and 

of §§ 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. 

§ 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 

§ 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 § 842.16 of this chapter 

(when OSM is the regulatory authority) 

or under § 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. 

§ 773.28 Written agency decision on 

challenges to ownership or control listings 

or findings. 

(a) Within 60 days of receipt of your 

challenge under § 773.26(a) of this part, 

we, the regulatory authority identified 

under § 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. 

■ 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. 

§ 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. 

§ 774.9 Information collection. 

(a) The collections of information 

contained in part 774 have been 

approved by the Office of Management 


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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. 

§ 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 § 785.14 of this chapter 

(mountaintop removal) and § 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 § 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 

§ 785.13 of this chapter and permits 

with a variance from approximate 

original contour requirements in 

accordance with § 785.16 shall be 

reviewed as set forth in the permit or at 

least every 21⁄2 years from the date of 

issuance as required by the regulatory 

authority, in accordance with 

§§ 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 § 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. 

§ 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 required to be provided by an applicant under 30 CFR 778.11.receiving notice of a change. 

(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 

§§ 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 


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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 §§ 773.25, 

773.26, and 773.27 of this subchapter. 

§ 774.12 Post-permit issuance information 

requirements for permittees. 

(a) Within 30 days after the issuance 

of a cessation order under § 843.11 of 

this chapter, or its State regulatory 

program equivalent, you, the permittee, 

must provide or update all the 

information required under § 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 § 778.11(c) of this 

subchapter, you must provide— 

(1) The information required under 

§ 778.11(d) of this subchapter; and 

(2) The date of any departure. 

§ 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 §§ 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 § 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. 

§ 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 

§ 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 

§ 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 §§ 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 § 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 § 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 § 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 § 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 § 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. 

§ 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 


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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 §§ 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. 

■ 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. 

§ 777.1 Scope. 

This part provides minimum 

requirements concerning the general 

content for permit applications under a 

State or Federal program. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 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 


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authority under the approved regulatory 

program. 

§ 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. 

§ 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. 

■ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 779.20 [Reserved] 

§ 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. 

§ 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; 


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(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 subsurface 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. 

§ 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 noncoal 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. 

■ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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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. 

§ 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 

§ 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. 

§ 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. 

§ 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 §§ 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 

§ 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. 

§ 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 

§§ 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. 

§ 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 


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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. 

§ 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 § 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. 

§ 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 § 816.22 of this chapter. A 

demonstration of the suitability of 

topsoil substitutes or supplements 

under § 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, fieldsite 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, acidforming 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 


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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. 

§ 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°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°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 acidforming 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 toxicforming 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 


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(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 surfaceand 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 §§ 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 groundwater 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 °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 surfacewater 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 surfacewater 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 °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. 

§ 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 toxicforming 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 § 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 


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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 alkalinityproducing 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. 

§ 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 landuse 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. 

§ 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, § 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 


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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 §§ 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 

§ 816.46 of this chapter. 

(c) Permanent and temporary 

impoundments. (1) Permanent and 

temporary impoundments shall be 

designed to comply with the 

requirements of § 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 

§§ 77.216–1 and 77.216–2 of this title. 

The plan required to be submitted to the 

District Manager of MSHA under 

§ 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 

§ 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 § 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. 

§ 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. 

§ 780.28 [Reserved] 

§ 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. 

§ 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 § 761.16 of 

this chapter, or if joint agency approval 

is to be obtained under § 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. 

§ 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 § 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. 

§ 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 


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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), rocktoe 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 keyway cuts which shall be determined in 

accordance with paragraph (b)(5) of this 

section. 

§ 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 § 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 

§ 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 

§ 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 § 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 

§ 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 § 816.151(b) of this chapter. 

§ 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 

§ 816.181 of this chapter for each 

facility. 

■ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 783.11 General requirements. 

Each permit application shall include 

a description of the existing, premining 

environmental resources within the 


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proposed permit area and adjacent areas 

that may be affected or impacted by the 

proposed underground mining 

activities. 

§ 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. 

§ 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. 

§ 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. 

§ 783.20 [Reserved] 

§ 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. 

§ 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 subsurface 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. 

§ 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; 


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(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. 

■ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 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. 

§ 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. 

§ 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. 


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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 § 817.22 of this chapter. A 

demonstration of the suitability of 

topsoil substitutes or supplements 

under § 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, fieldsite 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, acidforming 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. 

§ 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°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°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 acidforming 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 


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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 toxicforming 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 surfaceand 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 §§ 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 groundwater 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°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 surfacewater 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 surfacewater 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°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 


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authority may require additional 

monitoring. 

§ 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 landuse 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. 

§ 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, § 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 §§ 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 

§ 817.46 of this chapter. 

(c) Permanent and temporary 

impoundments. (1) Permanent and 

temporary impoundments shall be 


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designed to comply with the 

requirements of § 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 

§§ 77.216–1 and 77.216–2 of this title. 

The plan required to be submitted to the 

District Manager of MSHA under 

§ 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 

§ 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 § 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. 

§ 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 § 761.16 of 

this chapter, or if joint agency approval 

is to be obtained under § 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. 

§ 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 § 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. 

§ 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. 

§ 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 § 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 noncommercial 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 


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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 plannedsubsidence 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 § 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 §§ 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 § 817.121 

of this chapter. 

§ 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 § 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. 


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§ 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 groundwater monitoring is necessary; 

(2) Determining all potentially acidor 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 § 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 § 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 alkalinityproducing 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. 

§ 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 

§§ 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 


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cross sections, maps and plans, a 

qualified, registered, professional, land 

surveyor, with assistance from experts 

in related fields such as landscape 

architecture. 

§ 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 § 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 

§ 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 

§ 817.151(c)(2) of this chapter; 

(4) Contain a description of measures 

to be taken to obtain approval of the 

regulatory authority for alteration or 

relocation of a natural stream channel 

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

(5) Contain the drawings and 

specifications for each low-water 

crossing of perennial or intermittent 

stream channels so that the regualtory 

authority can maximize the protection 

of the stream in accordance with 

§ 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 § 817.151(b) of this chapter. 

§ 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. 

§ 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. 

§ 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 § 817.43 of 

this chapter. 

§ 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 

§ 817.181 of this chapter for each 

facility. 

§ 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 § 784.15: 

Reclamation plan: Postmining land 

uses. (1) The requirements of 

§ 784.15(a)(2), for approval of an 

alternative postmining land use, may be 

met by requesting approval through the 

permit revision procedures of § 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 § 817.133(a). 

An application for a permit revision of 

this type, (i) must be submitted in 

accordance with the filing deadlines of 

§ 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] 

■ 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. 


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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 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 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 


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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 

21⁄2 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 

§ 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 

§ 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. 

§ 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 §§ 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 

§ 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 §§ 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. 

§ 785.15 Steep slope mining. 

(a) This section applies to any persons 

who conducts or intends to conduct 


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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 § 785.14; or 

(3) To the extent that a person obtains 

a permit incorporating a variance under 

§ 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 § 816.107 or § 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 

§ 816.107 or § 817.107 of this chapter. 

§ 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 §§ 816.102, 816.104, 

816.105, and 816.107, or §§ 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 § 816.133 or 

§ 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 

§ 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 § 816.133(d) 

or § 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. 

§ 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, 


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prior to August 3, 1977, the noncontiguous 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, soilhorizon 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— 


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(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. 

§ 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 § 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 § 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, §§ 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 

§ 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, 

§§ 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. 

§ 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— 


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(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 

§ 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. 


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§ 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. 

§ 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 § 773.4 of this 

chapter and except as prohibited by 

§ 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 

§ 827.13 of this chapter. 

§ 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, toxicforming 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. 

§ 785.25 Lands eligible for remining. 

(a) This section contains permitting 

requirements to implement § 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. 

■ 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. 


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800.70 Bonding for anthracite operations in 

Pennsylvania. 

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

amended; and Pub. L. 100–34. 

§ 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. 

§ 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 § 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 

§ 800.15. 

(d) The regulatory authority may 

accept a self-bond if the permittee meets 

the requirements of § 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 § 800.40. 

(f) If the conditions specified in 

§ 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 § 800.16(e)(2), operating 

without a bond is a violation of a 

condition upon which the permit is 

issued. 

§ 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 federallyinsured 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 federallyinsured 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. 

§ 800.10 Information collection. 

The collection of information 

contained in §§ 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. 

§ 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 § 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 § 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 


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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. 

§ 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. 

§ 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 § 816.116 or 

§ 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 §§ 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 § 816.133 or § 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 § 816.133 or § 817.133 

of this chapter. 

(2) Implementation of an alternative 

postmining land use approved under 

§§ 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 § 800.40(c)(2). 

§ 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 § 817.121(c) of this 

chapter for repairing material damage 

resulting from subsidence may be 

satisfied by the liability insurance 

policy required under § 800.60. 

§ 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 § 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 

§ 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. 

§ 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 § 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 § 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 

§ 816.132 or § 817.132 of this chapter 

and shall immediately begin to conduct 

reclamation operations in accordance 

with the reclamation plan. Mining 


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operations shall not resume until the 

regulatory authority has determined that 

an acceptable bond has been posted. 

§ 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 § 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 

§ 800.40, or until the bond has been 

replaced or extended in accordance 

with § 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, boreholes, 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 

§ 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. 

§ 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. 

§ 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 

§ 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 

§ 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 federallyinsured 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 § 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 


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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. 

§ 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 nonparent corporate guarantee, the total 

amount of the non-parent corporate 

guarantor’s present and proposed selfbonds 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. 


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(2) Corporations applying for a selfbond, 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 § 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 nonparent 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 § 800.16(e) shall apply. 

§ 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 

§ 800.40. 

§ 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 § 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 § 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 


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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 

§ 816.116 or § 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 § 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 § 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. 

§ 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 

§ 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 § 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 § 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 


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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. 

§ 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. 

§ 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. 

■ 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. 

§ 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. 

§ 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. 

§ 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. 


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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. 

§ 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 § 816.57. 

(f) Topsoil markers. Where topsoil or 

other vegetation-supporting material is 

segregated and stockpiled as required 

under § 816.22, the stockpiled material 

shall be clearly marked. 

§ 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 

§ 816.41 of this part. This section does 

not apply to holes solely drilled and 

used for blasting. 

§ 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. 

§ 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 § 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 § 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. 

§ 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 


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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 §§ 816.111, 816.113, 

816.114, and 816.116 of this chapter. 

§ 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 § 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 groundwater system. 

(c) Ground-water monitoring. (1) 

Ground-water monitoring shall be 

conducted according to the groundwater monitoring plan approved under 

§ 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 §§ 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 

§ 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 

§ 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 § 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 § 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 § 780.21(h) of this 

chapter. 

(e) Surface-water monitoring. (1) 

Surface-water monitoring shall be 


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conducted according to the surfacewater monitoring plan approved under 

§ 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 §§ 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 § 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 

§ 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 toxicforming 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 §§ 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 §§ 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 

§§ 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 § 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-minedrainage treatment facility; 

(v) Flue-gas desulfurization sludge; 

(vi) Inert materials used for stabilizing 

underground mines; and 

(vii) Underground mine development 

wastes. 

§ 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. 

§ 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 § 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 § 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 


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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. 

§ 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 § 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 § 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. 

§ 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 § 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 § 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 

§§ 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 


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(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 sitespecific conditions and on a 

demonstration by the operator that the 

effluent limitations of § 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 coalprocessing 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 § 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 § 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 § 816.42 and the 

applicable State and Federal water 

quality standards for the receiving 

waters. 

§ 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. 

§ 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 § 77.216(a) of this 

title shall comply with the requirements 

of § 77.216 of this title and this section. 

(3) Design certification. The design of 

impoundments shall be certified in 

accordance with § 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 § 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 

§ 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 § 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 


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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 

§ 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 § 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 

§ 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 § 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 § 77.216 

of this title must be examined in 

accordance with § 77.216–3 of this title. 

Impoundments not meeting the SCS 

Class B or C criteria for dams in TR–60, 

or subject to § 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 § 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 § 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. 

§ 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 


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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. 

§ 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 § 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 

§ 816.11. 

§ 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. 

§ 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 § 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 groundvibration standards in § 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. 

§ 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. 

§ 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 

§ 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 


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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. 

§ 816.66 Use of explosives: Blasting signs, 

warnings, and access control. 

(a) Blasting signs. Blasting signs shall 

meet the specifications of § 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. 

§ 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 

(±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. 

1Only 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 § 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 § 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 scaleddistance 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: 


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Distance (D), from the blasting site, in feet 

Maximum allowable 

peak particle velocity 

(V max) for ground 

vibration, in 

inches/second 1

Scaled-distance factor 

to be applied without 

seismic monitoring 2

(Ds) 

0 to 300 .................................................................................................................................... 1.25 50 

301 to 5,000 ............................................................................................................................. 1.00 55 

5,001 and beyond .................................................................................................................... 0.75 65 

1Ground 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. 2Applicable 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 scaleddistance 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. 

(ii) If the Figure 1 limits are used, a 

seismographic record including both 

particle velocity and vibrationfrequency 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 


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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. 

§ 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 

§ 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. 

§ 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 § 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 

§ 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 § 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 toxicforming 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 § 816.41, to prevent sustained 

combustion, and to minimize adverse 


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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 § 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 § 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 

§ 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 § 784.25 of 

this chapter. 

§ 816.72 Disposal of excess spoil: Valley 

fills/head-of-hollow fills. 

Valley fills and head-of-hollow fills 

shall meet the requirements of § 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 § 816.43 and, in 

addition, to safely pass the runoff from 

a 100-year, 6-hour precipitation event. 

(b) Rock-core chimney drains. A rockcore 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 

§ 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. 

§ 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 


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placement in single or multiple lifts, 

provided the following conditions are 

met: 

(a) Except as provided in this section, 

the requirements of § 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 § 816.43 and to safely 

pass the runoff from a 100-year, 6-hour 

precipitation event. 

§ 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 §§ 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 § 816.22 of this part. 

Substitute or supplemental materials 

may be used in accordance with 

§ 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 

§ 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 § 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. 

§ 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. 

§ 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 


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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 § 784.25 of this chapter. 

§ 816.83 Coal mine waste: Refuse piles. 

Refuse piles shall meet the 

requirements of § 816.81, the additional 

requirements of this section, and the 

requirements of §§ 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 § 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 § 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 

§ 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 §§ 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. 

§ 816.84 Coal mine waste: Impounding 

structures. 

New and existing impounding 

structures constructed of coal mine 

waste or intended to impound coal mine 


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waste shall meet the requirements of 

§ 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 § 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 § 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 § 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 

§ 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. 

§ 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. 

§ 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 Stateapproved 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 

§§ 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. 

§ 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. 

§ 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 


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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 cropmanagement 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. 

§ 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. 

§ 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 § 785.18 

of this chapter. 

§ 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 

§ 780.18(b)(3) of this chapter that 

additional time is necessary. 

§ 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 longterm 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 §§ 816.71 through 

816.74, shall be returned to the minedout 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 

§ 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 §§ 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 

§ 816.41, to prevent sustained 

combustion, and to minimize adverse 

effects on plant growth and the 

approved postmining land use. 


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(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 §§ 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 § 816.104 are met; 

(2) The standards for thick 

overburden in § 816.105 are met; or 

(3) Approval is obtained from the 

regulatory authority for— 

(i) Mountaintop removal operations in 

accordance with § 785.14 of this 

chapter; 

(ii) A variance from approximate 

original contour requirements in 

accordance with § 785.16 of this 

chapter; or 

(iii) Incomplete elimination of 

highwalls in previously mined areas in 

accordance with § 816.106. 

§ 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 

§§ 816.102(a)(2) through (j) of this part. 

§ 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 

§§ 816.102 (a)(2) through (j) of this part; 

and 

(3) Dispose of any excess spoil in 

accordance with §§ 816.71 through 

816.74 of this part. 

§ 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 §§ 816.102 through 

816.107 of this chapter, except as 

provided in this section. 

(b) The requirements of § 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. 

§ 816.107 Backfilling and grading: Steep 

slopes. 

(a) Surface mining activities on steep 

slopes shall be conducted so as to meet 

the requirements of §§ 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. 


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§ 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. 

§ 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. 

§ 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. 

§ 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 § 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. 


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(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 

§ 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 

§ 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 § 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. 

§ 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. 

§ 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. 

§ 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 § 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 


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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 §§ 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. 

§ 816.150 Roads: general. 

(a) Road classification system. (1) 

Each road, as defined in § 701.5 of this 

chapter, shall be classified as either a 

primary road or an ancillary road. 

(2) A primary road is any road which 

is— 

(i) Used for transporting coal or spoil; 

(ii) 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 nontoxicforming 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 

§§ 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 §§ 816.22 and 816.111 

through 816.116 of this chapter. 

§ 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 

§ 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- 


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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 § 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. 

§ 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 coalslurry 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. 

§ 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. 

§ 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 § 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). 

■ 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. 


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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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 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 § 817.22, the stockpiled material 

shall be clearly marked. 

§ 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 § 817.41 of this part. This 

section does not apply to holes drilled 

and used for blasting, in the area 

affected by surface operations. 

§ 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. 

§ 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 § 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 § 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. 

§ 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 


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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 §§ 817.111, 817.113, 

817.114, and 817.116 of this chapter. 

§ 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 § 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 groundwater monitoring plan approved under 

§ 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 §§ 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 

§ 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 

§ 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 § 784.14(g) of this 

chapter, and the following: 

(1) Surface-water quality shall be 

protected by handling earth materials, 


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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 § 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 § 784.14(g) of this 

chapter. 

(e) Surface-water monitoring. (1) 

Surface-water monitoring shall be 

conducted according to the surfacewater monitoring plan approved under 

§ 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 §§ 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 § 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 

§ 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 toxicforming 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 §§ 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 

§§ 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 § 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-minedrainage 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 §§ 780.21 and 784.14 of this 

chapter and the geologic information 

concerning baseline hydrologic 

conditions required in §§ 780.21 and 

784.22 of this chapter will be used to 

determine the impact of mining 

activities upon the water supply. 


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§ 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. 

§ 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 § 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 § 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. 

§ 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 § 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 § 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. 

§ 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. 


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(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 § 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 § 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 

§§ 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 § 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 sitespecific conditions and on a 

demonstration by the operator that the 

effluent limitations of § 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 coalprocessing 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 § 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 § 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 § 817.42 and 

the applicable State and Federal water 

quality standards for the receiving 

waters. 

§ 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. 

§ 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 § 77.216(a) of this 

title shall comply with the requirements 

of § 77.216 of this title and this section. 

(3) Design certification. The design of 

impoundments shall be certified in 

accordance with § 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 § 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 


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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 

§ 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 § 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 

§ 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 § 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 

§ 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 § 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 § 77.216 

of this title must be examined in 

accordance with § 77.216–3 of this title. 

Impoundments not meeting the SCS 

Class B or C Criteria for dams in TR–60, 

or subject to § 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. 


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(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 § 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 § 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. 

§ 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. 

§ 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 § 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 

§ 817.11. 

§ 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. 

§ 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 groundvibration standards in § 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. 

§ 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, 


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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. 

§ 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 § 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. 

§ 817.66 Use of explosives: Blasting signs, 

warnings, and access control. 

(a) Blasting signs. Blasting signs shall 

meet the specifications of § 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 § 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. 

§ 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 (±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. 

1Only 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 § 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 scaleddistance 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: 


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Distance (D), from the blasting site, in feet 

Maximum allowable 

peak particle velocity 

(V max) for ground 

vibration, 

in inches/second 1

Scaled-distance factor to 

be applied without seismic monitoring 2 (Ds) 

0 to 300 .................................................................................................................................... 1.25 50 

301 to 5,000 ............................................................................................................................. 1.00 55 

5,001 and beyond .................................................................................................................... 0.75 65 

1Ground 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. 2Applicable 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 scaleddistance 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. 

(ii) If the Figure 1 limits are used, a 

seismographic record including both 

particle velocity and vibrationfrequency 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 


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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. 

§ 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 § 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. 

§ 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 § 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 

§ 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 § 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 toxicforming 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 § 817.41, to prevent sustained 

combustion, and to minimize adverse 


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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 § 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 § 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 

§ 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 § 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 

§ 817.71. 

§ 817.72 Disposal of excess spoil: Valley 

fill/head-of-hollow fills. 

Valley fills and head-of-hollow fills 

shall meet the requirements of § 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 § 817.43 and to safely 

pass the runoff from a 100-year, 6-hour 

precipitation event. 

(b) Rock-core chimney drains. A rockcore 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 

§ 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 


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graded with a 3 to 5 percent grade 

toward the fill and a 1 percent slope 

toward the rock core. 

§ 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 § 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 § 817.43 and to safely 

pass the runoff from a 100-year, 6-hour 

precipitation event. 

§ 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 § 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 § 817.22 of this part. 

Substitute or supplemental materials 

may be used in accordance with 

§ 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 

§ 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 § 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. 

§ 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 


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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 § 784.25 of this chapter. 

§ 817.83 Coal mine waste: Refuse piles. 

Refuse piles shall meet the 

requirements of § 817.81, the additional 

requirements of this section, and the 

requirements of §§ 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 § 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 § 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 

§ 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 §§ 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. 

§ 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 

§ 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 


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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 § 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 § 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 § 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 § 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. 

§ 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. 

§ 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 Stateapproved 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 

§§ 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. 

§ 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. 

§ 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 


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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 cropmanagement 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. 

§ 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. 

§ 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 § 785.18 of this chapter. The 

regulatory authority may establish 

schedules that define contemporaneous 

reclamation. 

§ 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 longterm 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 §§ 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 

§ 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 §§ 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 

§ 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 §§ 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 § 785.16 of this 

chapter; or 

(2) Incomplete elimination of 

highwalls in previously mined areas in 

accordance with § 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 


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paragraph (l)(1) or (l)(2) of this section 

are met. 

(1)(i) Settled and revegetated fills 

shall be composed of spoil or non-acidor 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 § 817.116, and 

surface runoff shall be controlled in 

accordance with § 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. 

§ 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 §§ 817.102 through 

817.107 of this chapter, except as 

provided in this section. 

(b) The requirements of § 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. 

§ 817.107 Backfilling and grading: Steep 

slopes. 

(a) Underground mining activities on 

steep slopes shall be conducted so as to 

meet the requirements of §§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 817.111. 


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(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 

§ 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 

§ 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 § 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. 

§ 817.121 Subsidence control. 

(a) Measures to prevent or minimize 

damage. (1) The permittee must either 


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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 noncommercial 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 

§ 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 premiumprepaid 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 sitespecific 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 § 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 subsidencerelated 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 § 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. 


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(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 § 773.6(d) of this 

chapter. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 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, 


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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 §§ 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. 

§ 817.150 Roads: General. 

(a) Road classification system. (1) 

Each road, as defined in § 701.5 of this 

chapter, shall be classified as either a 

primary road or an ancillary road. 

(2) A primary road is any road which 

is— 

(i) Used for transporting coal or spoil; 

(ii) 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 nontoxicforming 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 

§§ 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 §§ 817.22 and 817.111 

through 817.116 of this chapter. 

§ 817.151 Primary roads. 

Primary roads shall meet the 

requirements of § 817.150 and the 

additional requirements of this section. 

(a) Certification. The construction or 

reconstruction of primary roads 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 

§ 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- 


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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 §§ 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. 

§ 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 coalslurry 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. 

§ 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. 

§ 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 § 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 § 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] 

■ 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). 

§ 824.1 Scope. 

This part sets forth special 

environmental protection performance, 

reclamation, and design standards for 

surface coal mining activities 

constituting mountaintop removal 

mining. 

§ 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. 

§ 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) 


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use is proposed and approved for the 

affected land; 

(4) The alternative land use 

requirements of § 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 headof-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-ofhollow 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. 

■ 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. 

§ 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. 

§ 827.11 General requirements. 

Each person who operates a coal 

preparation plant subject to this part 

shall obtain a permit in accordance with 

§ 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. 

§ 827.12 Coal preparation plants: 

Performance standards. 

Except as provided in § 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 § 816.11 of 

this chapter. 

(b) Any stream channel diversion 

shall comply with § 816.43 of this 

chapter. 

(c) Drainage from any disturbed area 

related to the coal preparation plant 

shall comply with §§ 816.45 through 

816.47 of this chapter, and all 

discharges from these areas shall meet 

the requirements of §§ 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 §§ 816.49 

and 816.56 of this chapter. Dams 

constructed of, or impounding, coal 

processing waste shall comply with 

§ 816.84 of this chapter. 

(e) Disposal of coal processing waste, 

noncoal mine waste, and excess spoil 

shall comply with §§ 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 § 816.97 

of this chapter. 

(g) Support facilities related to the 

coal preparation plant shall comply 

with § 816.181 of this chapter. 

(h) Roads shall comply with 

§§ 816.150 and 816.151 of this chapter. 

(i) Cessation of operations shall be in 

accordance with §§ 816.131 and 816.132 

of this chapter. 

(j) Erosion and air pollution attendant 

to erosion shall be controlled in 

accordance with § 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 § 816.79 of 

this chapter. 

(l) Reclamation shall follow proper 

topsoil handling, backfilling and 

grading, revegetation, and postmining 

land use procedures in accordance with 

§§ 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. 

§ 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: 


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(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 § 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 


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