[Title 30 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1998 Edition]
[From the U.S. Government Printing Office]


[[Page i]]

          30



          Mineral Resources



          PART 700 TO END

                         Revised as of July 1, 1998

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT
          AS OF JULY 1, 1998

          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration
          as a Special Edition of
          the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1998



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 30:
    Chapter VII--Office of Surface Mining Reclamation and 
        Enforcement, Department of the Interior...............       3
  Finding Aids:
    Material Approved for Incorporation by Reference..........     661
    Table of CFR Titles and Chapters..........................     663
    Alphabetical List of Agencies Appearing in the CFR........     681
    List of CFR Sections Affected.............................     691



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   Cite this Code:  CFR

   To cite the regulations in this volume use title, part and
   section number. Thus,  30 CFR 700.1 refers to title 30, part
   700, section 1.

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[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 1998), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 523-4534.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I), and Acts Requiring Publication 
in the Federal Register (Table II). A list of CFR titles, chapters, and 
parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.

[[Page vii]]

    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, The United States 
Government Manual, the Federal Register, Public Laws, Weekly Compilation 
of Presidential Documents and the Privacy Act Compilation are available 
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(toll-free). E-mail, [email protected]
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 1998.



[[Page ix]]



                               THIS TITLE

    Title 30--Mineral Resources is composed of three volumes. The parts 
in these volumes are arranged in the following order: parts 1 to 199, 
parts 200 to 699, and part 700 to end. The contents of these volumes 
represent all current regulations codified under this title of the CFR 
as of July 1, 1998.

    Redesignation tables appear in the first and second volumes of title 
30.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page x]]




[[Page 1]]



                       TITLE 30--MINERAL RESOURCES




                  (This book contains part 700 to end)

  --------------------------------------------------------------------
                                                                    Part

Chapter vii-- Office of Surface Mining Reclamation and 
  Enforcement, Department of the Interior...................         700

Cross References: 


  Bureau of Land Management, Department of the Interior, regulations 
with respect to mineral lands: 43 CFR, chapter II, subchapter C.

  Foreign Trade Statistics, Bureau of the Census, Department of 
Commerce: 15 CFR part 30.

  Forest Service regulations relating to mineral developments and mining 
in national forests: 36 CFR part 251.

  General Services Administration regulations for stockpiling of 
strategic and critical materials: 41 CFR chapter 101, subchapter C.

  Interstate Commerce Commission: 49 CFR chapter X.

  Bureau of Indian Affairs, Department of the Interior, energy and 
minerals regulations: 25 CFR chapter I, subchapter I.


  Editorial Note: Other regulations issued by the Department of the 
Interior appear in title 18, chapter IV; title 25, chapters I and II; 
title 36, chapter I; title 48, chapter 14; title 43; and title 50, 
chapter I.

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CHAPTER VII--OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
700             General.....................................           9
701             Permanent regulatory program................          16
702             Exemption for coal extraction incidental to 
                    the extraction of other minerals........          30
705             Restriction on financial interests of State 
                    employees...............................          36
706             Restriction on financial interests of 
                    Federal employees.......................          43
707             Exemption for coal extraction incident to 
                    government-financed highway or other 
                    construction............................          49
                SUBCHAPTER B--INITIAL PROGRAM REGULATIONS
710             Initial regulatory program..................          51
715             General performance standards...............          57
716             Special performance standards...............          87
717             Underground mining general performance 
                    standards...............................          95
721             Federal inspections.........................         106
722             Enforcement procedures......................         108
723             Civil penalties.............................         113
724             Individual civil penalties..................         118
725             Reimbursements to States....................         120
  SUBCHAPTER C--PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-
                              INDIAN LANDS
730             General requirements........................         127
731             Submission of State programs................         128

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732             Procedures and criteria for approval or 
                    disapproval of State program submissions         130
733             Maintenance of State programs and procedures 
                    for substituting Federal enforcement of 
                    State programs and withdrawing approval 
                    of State programs.......................         136
735             Grants for program development and 
                    administration and enforcement..........         138
736             Federal program for a State.................         146
                   SUBCHAPTER D--FEDERAL LANDS PROGRAM
740             General requirements for surface coal mining 
                    and reclamation operations on Federal 
                    lands...................................         151
745             State-Federal cooperative agreements........         159
746             Review and approval of mining plans.........         161
                   SUBCHAPTER E--INDIAN LANDS PROGRAM
750             Requirements for surface coal mining and 
                    reclamation operations on Indian lands..         164
755             Tribal-Federal intergovernmental agreements.         169
756             Indian tribe abandoned mine land reclamation 
                    programs................................         169
                SUBCHAPTER F--AREAS UNSUITABLE FOR MINING
761             Areas designated by Act of Congress.........         174
762             Criteria for designating areas as unsuitable 
                    for surface coal mining operations......         178
764             State processes for designating areas 
                    unsuitable for surface coal mining 
                    operations..............................         180
769             Petition process for designation of Federal 
                    lands as unsuitable for all or certain 
                    types of surface coal mining operations 
                    and for termination of previous 
                    designations............................         184
SUBCHAPTER G--SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND 
           COAL EXPLORATION SYSTEMS UNDER REGULATORY PROGRAMS
772             Requirements for coal exploration...........         188
773             Requirements for permits and permit 
                    processing..............................         191
774             Revision; renewal; and transfer, assignment, 
                    or sale of permit rights................         205
775             Administrative and judicial review of 
                    decisions...............................         208
777             General content requirements for permit 
                    applications............................         210
778             Permit applications--minimum requirements 
                    for legal, financial, compliance, and 
                    related information.....................         211

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779             Surface mining permit applications--minimum 
                    requirements for information on 
                    environmental resources.................         215
780             Surface mining permit applications--minimum 
                    requirement for reclamation and 
                    operation plan..........................         217
783             Underground mining permit applications--
                    minimum requirements for information on 
                    environmental resources.................         230
784             Underground mining permit applications--
                    minimum requirements for reclamation and 
                    operation plan..........................         233
785             Requirements for permits for special 
                    categories of mining....................         247
                 SUBCHAPTER H--SMALL OPERATOR ASSISTANCE
795             Permanent regulatory program--small operator 
                    assistance program......................         260
                         SUBCHAPTER I [RESERVED]
SUBCHAPTER J--BONDING AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING 
                       AND RECLAMATION OPERATIONS
800             Bond and insurance requirements for surface 
                    coal mining and reclamation operations 
                    under regulatory programs...............         264
          SUBCHAPTER K--PERMANENT PROGRAM PERFORMANCE STANDARDS
810             Permanent program performance standards--
                    general provisions......................         276
815             Permanent program performance standards--
                    coal exploration........................         277
816             Permanent program performance standards--
                    surface mining activities...............         278
817             Permanent program performance standards--
                    underground mining activities...........         313
819             Special permanent program performance 
                    standards--auger mining.................         350
820             Special permanent program performance 
                    standards--anthracite mines in 
                    Pennsylvania............................         352
822             Special permanent program performance 
                    standards--operations in alluvial valley 
                    floors..................................         352
823             Special permanent program performance 
                    standards--operations on prime farmland.         353
824             Special permanent program performance 
                    standards--mountaintop removal..........         356
825             Special permanent program performance 
                    standards--special bituminous coal mines 
                    in Wyoming..............................         357

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827             Permanent program performance standards--
                    coal preparation plants not located 
                    within the permit area of a mine........         357
828             Special permanent program performance 
                    standards--in situ processing...........         358
  SUBCHAPTER L--PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES
840             State regulatory authority: Inspection and 
                    enforcement.............................         360
842             Federal inspections and monitoring..........         364
843             Federal enforcement.........................         369
845             Civil penalties.............................         378
846             Individual civil penalties..................         384
   SUBCHAPTER M--TRAINING, EXAMINATION, AND CERTIFICATION OF BLASTERS
850             Permanent regulatory program requirements--
                    standards for certification of blasters.         386
                       SUBCHAPTERS N-O [RESERVED]
                  SUBCHAPTER P--PROTECTION OF EMPLOYEES
865             Protection of employees.....................         389
              SUBCHAPTER R--ABANDONED MINE LAND RECLAMATION
870             Abandoned mine reclamation fund--fee 
                    collection and coal production reporting         392
872             Abandoned mine reclamation funds............         402
873             Future reclamation set-aside program........         405
874             General reclamation requirements............         405
875             Noncoal reclamation.........................         408
876             Acid mine drainage treatment and abatement 
                    program.................................         411
877             Rights of entry.............................         412
879             Acquisition, management, and disposition of 
                    lands and water.........................         414
880             Mine fire control...........................         416
881             Subsidence and strip mine rehabilitation, 
                    Appalachia..............................         419
882             Reclamation on private land.................         424
884             State reclamation plans.....................         425
886             State and tribal reclamation grants.........         428

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887             Subsidence insurance program grants.........         433
                         SUBCHAPTER S [RESERVED]
  SUBCHAPTER T--PROGRAMS FOR THE CONDUCT OF SURFACE MINING OPERATIONS 
                            WITHIN EACH STATE
900             Introduction................................         435
901             Alabama.....................................         436
902             Alaska......................................         443
903             Arizona.....................................         446
904             Arkansas....................................         454
905             California..................................         456
906             Colorado....................................         464
910             Georgia.....................................         473
912             Idaho.......................................         479
913             Illinois....................................         484
914             Indiana.....................................         493
915             Iowa........................................         497
916             Kansas......................................         498
917             Kentucky....................................         501
918             Louisiana...................................         505
920             Maryland....................................         507
921             Massachusetts...............................         509
922             Michigan....................................         514
924             Mississippi.................................         520
925             Missouri....................................         522
926             Montana.....................................         526
931             New Mexico..................................         533
933             North Carolina..............................         543
934             North Dakota................................         550
935             Ohio........................................         559
936             Oklahoma....................................         566
937             Oregon......................................         574
938             Pennsylvania................................         580
939             Rhode Island................................         587
941             South Dakota................................         593
942             Tennessee...................................         598
943             Texas.......................................         608
944             Utah........................................         610
946             Virginia....................................         620
947             Washington..................................         627
948             West Virginia...............................         634
950             Wyoming.....................................         642
955             Certification of blasters in Federal program 
                    States and on Indian lands..............         653

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                          SUBCHAPTER A--GENERAL





PART 700--GENERAL--Table of Contents




Sec.
700.1  Scope.
700.2  Objective.
700.3  Authority.
700.4  Responsibility.
700.5  Definitions.
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., as amended; and Pub. L. 100-34.

    Source: 44 FR 15313, Mar. 13, 1979, unless otherwise noted.



Sec. 700.1  Scope.

    The regulations in chapter VII of 30 CFR, consisting of parts 700 
through 899, establish the procedures through which the Secretary of the 
Interior will implement the Surface Mining Control and Reclamation Act 
of 1977 (Pub. L. 95-87, 91 Stat. 445 (30 U.S.C. 1201 et. seq.)). Chapter 
VII is divided into 13 subchapters.
    (a) Subchapter A contains introductory information intended to serve 
as a guide to the rest of the chapter and to the regulatory requirements 
and definitions generally applicable to the programs and persons covered 
by the Act.
    (b) Subchapter B contains regulations covering the initial 
regulatory program which apply before the applicability of permanent 
program regulations to persons conducting surface coal mining and 
reclamation operations and other persons covered by the Act.
    (c) Subchapter C sets forth regulations covering applications for 
and decisions on permanent State programs; the process to be followed 
for substituting a Federal program for an approved State program, if 
necessary; the process for assuming temporary Federal enforcement of an 
approved State program; and the process for implementing a Federal 
program in a State when required by the Act.
    (d) Subchapter D of this chapter identifies the procedures that 
apply to surface coal mining and reclamation operations conducted on 
Federal lands rather than State or private lands and incorporates by 
reference the requirements of the applicable regulatory program and the 
inspection and enforcement requirements of subchapter L of this chapter.
    (e) Subchapter E of this chapter contains regulations that apply to 
surface coal mining and reclamation operations conducted on Indian 
lands.
    (f)(1) Subchapter F implements the requirements of the Act for--
    (i) Designating lands which are unsuitable for all or certain types 
of surface coal mining operations;
    (ii) Terminating designations no longer found to be appropriate; and
    (iii) Prohibiting surface coal mining and reclamation operations on 
those lands or areas where the Act states that surface coal mining 
operations should not be permitted or should be permitted only after 
specified determinations are made.
    (2) Subchapter F does not include regulations governing designation 
of areas unsuitable for noncoal mining under the terms of section 601 of 
the Act or the designation of Federal lands under the Federal lands 
review provisions of section 522(b) of the Act. The Bureau of Land 
Management of the Department of the Interior is responsible for these 
provisions which will be implemented when promulgated by regulations in 
title 43 of the Code of Federal Regulations.
    (g) Subchapter G governs applications for and decisions on permits 
for surface coal mining and reclamation operations on non-Indian and 
non-Federal lands under a State or Federal program. It also governs coal 
exploration and permit application and decisions on permits for special 
categories of coal mining on non-Indian and non-Federal lands under a 
State or Federal program. Regulations implementing the experimental 
practices provision of the Act are also included in subchapter G.
    (h) Subchapter J sets forth requirements for performance bonds and 
public liability insurance for both surface

[[Page 10]]

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.
[44 FR 15313, Mar. 13, 1979, as amended at 48 FR 6934, Feb. 16, 1983; 49 
FR 38477, Sept. 28, 1984]



Sec. 700.2  Objective.

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



Sec. 700.3  Authority.

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



Sec. 700.4  Responsibility.

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

[[Page 11]]

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.
[44 FR 15313, Mar. 13, 1979; 44 FR 49684, Aug. 24, 1979]



Sec. 700.5  Definitions.

    As used throughout this chapter, the following terms have the 
specified meaning except where otherwise indicated--
    Act means the Surface Mining Control and Reclamation Act of 1977 
(Pub. L. 95-87).
    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 Federal Register Library, 800 North Capitol Street, NW., suite 700, 
Washington, DC. 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.
    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 pursuant 
to section 401 of the Act.
    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.

[[Page 12]]

    Office means the Office of Surface Mining Reclamation and 
Enforcement established under title II of the Act.
    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.
    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.
    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.
    State regulatory authority means the department or agency in each 
State which has primary responsibility at the State level for 
administering the initial or permanent State regulatory program.
    Surface coal mining operations mean--
    (a) Activities conducted on the surface of lands in connection with 
a surface coal mine or, subject to the requirements of section 516 of 
the Act, surface operations and surface impacts incident to an 
underground coal mine, the products of which enter commerce or the 
operations of which directly or indirectly affect interstate commerce. 
Such activities include excavation for the purpose of obtaining coal, 
including such common methods as contour, strip, auger, mountain top 
removal, box cut, open pit, and area mining; the use of explosives and 
blasting; in situ distillation or retorting; leaching or other chemical 
or physical processing; and the cleaning, concentrating, or other 
processing or preparation of coal. Such activities also include the 
loading of coal for interstate commerce at or near the mine site. 
Provided, these activities do not include the extraction of coal 
incidental to the extraction of other minerals, where coal does not 
exceed 16\2/3\ percent of the tonnage of minerals removed for purposes 
of commercial use or sale, or coal exploration subject to section 512 of 
the Act; and, Provided further, that excavation for the purpose of 
obtaining coal includes extraction of coal from coal refuse piles; and
    (b) The areas upon which the activities described in paragraph (a) 
of this definition occur or where such activities disturb the natural 
land surface. These areas shall also include any adjacent land the use 
of which is incidental

[[Page 13]]

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).
[44 FR 15313, Mar. 13, 1979; 44 FR 49684, Aug. 24, 1979, as amended at 
45 FR 54753, Aug. 18, 1980; 48 FR 6934, Feb. 16, 1983; 48 FR 20400, May 
5, 1983; 50 FR 28189, July 10, 1985; 52 FR 17729, May 11, 1987; 52 FR 
39407, Oct. 21, 1987]



Sec. 700.10  Information collection.

    The collection of information, and recordkeeping requirements, 
contained in 30 CFR 700.11(d), 700.12(b) and 700.13 has approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1029-0094. The information collected in 
Sec. 700.11(d) is used by OSMRE and States to establish standards for 
determining when a mine site is no longer a surface coal mining and 
reclamation operation and thereby when regulatory jurisdiction may end. 
The information collection under Sec. 700.12(b) is used by OSMRE to 
consider need, costs, and benefits of a proposed regulatory change in 
order to grant or deny a petition that has been submitted. Information 
collected in Sec. 700.13 identifies the person and nature of a citizen's 
suit, so that OSMRE or a state can respond appropriately.
[53 FR 44363, Nov. 2, 1988]



Sec. 700.11  Applicability.

    (a) Except as provided in paragraph (b) of this section, this 
chapter applies to all coal exploration and surface coal mining and 
reclamation operations, except:
    (1) The extraction of coal by a landowner for his or her own 
noncommercial use from land owned or leased by him or her. Noncommercial 
use does not include the extraction of coal by one unit of an integrated 
company or other business or nonprofit entity which uses the coal in its 
own manufacturing or power plants;
    (2) The extraction of 250 tons of coal or less by a person 
conducting a surface coal mining and reclamation operation. A person who 
intends to remove more than 250 tons is not exempted;
    (3) The extraction of coal as an incidental part of Federal, State 
or local government-financed highway or other construction in accordance 
with part 707 of this chapter;
    (4) The extraction of coal incidental to the extraction of other 
minerals where coal does not exceed 16\2/3\ percent of the total tonnage 
of coal and other minerals removed for purposes of commercial use or 
sale in accordance with part 702 of this chapter.
    (5) Coal exploration on lands subject to the requirement of 43 CFR 
parts 3480-3487.
    (b) This chapter does not apply to the extraction of coal for 
commercial purposes where the surface coal mining and reclamation 
operation, together with any related operations, has or will have an 
affected area of two acres or less. For purposes of this paragraph:
    (1) Where a segment of a road is used for access or coal haulage by 
more than one surface coal mining operation, the entire segment shall be 
included in the affected area of each of those operations; provided, 
that two or more operations which are deemed related pursuant to 
paragraph (b)(2) of this section shall be considered as one operation 
for purposes of this paragraph.
    (2) Except as provided in paragraph (b)(3) of this section, surface 
coal mining operations shall be deemed related if they occur within 
twelve months of each other, are physically related, and are under 
common ownership or control.
    (i) Operations shall be deemed physically related if drainage from 
both operations flows into the same watershed

[[Page 14]]

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,

[[Page 15]]

collusion, or misrepresentation of a material fact.
[47 FR 33431, July 2, 1982, as amended at 48 FR 40634, Sept. 8, 1983; 48 
FR 44779, Sept. 30, 1983; 49 FR 38477, Sept. 28, 1984; 53 FR 44363, Nov. 
2, 1988; 54 FR 52120, 54 FR 52120, Dec. 20, 1989]

    Effective Date Note: At 52 FR 21229, June 4, 1987, paragraph (b) of 
Sec. 700.11 was suspended insofar as it excepts from the applicability 
of 30 CFR chapter VII:
    (1) Any surface coal mining operations commencing on or after June 
6, 1987; and
    (2) Any surface coal mining operations conducted on or after 
November 8, 1987.



Sec. 700.12  Petitions to initiate rulemaking.

    (a) Any person may petition the Director to initiate a proceeding 
for the issuance, amendment, or repeal of any regulation under the Act. 
The petition shall be submitted to the Office of the Director, Office of 
Surface Mining Reclamation and Enforcement, Department of the Interior, 
Washington, DC 20240.
    (b) The petition shall be a concise statement of the facts, 
technical justification, and law which require issuance, amendment, or 
repeal of a regulation under the Act and shall indicate whether the 
petitioner desires a public hearing.
    (c) Upon receipt of the petition, the Director shall determine if 
the petition sets forth facts, technical justification and law which may 
provide a reasonable basis for issuance, amendment or repeal of a 
regulation. Facts, technical justification or law previously considered 
in a petition or rulemaking on the same issue shall not provide a 
reasonable basis. If the Director determines that the petition has a 
reasonable basis, a notice shall be published in the Federal Register 
seeking comments from the public on the proposed change. The Director 
may hold a public hearing, may conduct an investigation or take other 
action to determine whether the petition should be granted.
    (d) Within 90 days from receipt of the petition, the Director shall 
issue a written decision either granting or denying the petition. The 
Director's decision shall constitute the final decision for the 
Department.
    (1) If the petition is granted, the Director shall initiate a 
rulemaking proceeding.
    (2) If the petition is denied, the Director shall notify the 
petitioner in writing, setting forth the reasons for denial.



Sec. 700.13  Notice of citizen suits.

    (a) A person who intends to initiate a civil action on his or her 
own behalf under section 520 of the Act shall give notice of intent to 
do so, in accordance with this section.
    (b) Notice shall be given by certified mail to the Secretary and the 
Director in all cases and to the head of the State regulatory authority, 
if a complaint involves or relates to a specific State. A copy of the 
notice shall be sent by first class mail to the Regional Director, if 
the complaint involves or relates to surface coal mining and reclamation 
operations in a specific region of the Office.
    (c) Notice shall be given by certified mail to the alleged violator, 
if the complaint alleges a violation of the Act or any regulation, 
order, or permit issued under the Act.
    (d) Service of notice under this section is complete upon mailing to 
the last known address of the person being notified.
    (e) A person giving notice regarding an alleged violation shall 
state, to the extent known--
    (1) Sufficient information to identify the provision of the Act, 
regulation, order, or permit allegedly violated;
    (2) The act or omission alleged to constitute a violation;
    (3) The name, address, and telephone numbers of the person or 
persons responsible for the alleged violation;
    (4) The date, time, and location of the alleged violation;
    (5) The name, address, and telephone number of the person giving 
notice; and
    (6) The name, address, and telephone number of legal counsel, if 
any, of the person giving notice.
    (f) A person giving notice of an alleged failure by the Secretary or 
a State regulatory authority to perform a mandatory act or duty under 
the Act shall state, to the extent known:

[[Page 16]]

    (1) The provision of the Act containing the mandatory act or duty 
allegedly not performed;
    (2) Sufficient information to identify the omission alleged to 
constitute the failure to perform a mandatory act or duty under the Act;
    (3) The name, address, and telephone number of the person giving 
notice; and
    (4) The name, address, and telephone number of legal counsel, if 
any, of the person giving notice.



Sec. 700.14  Availability of records.

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



Sec. 700.15  Computation of time.

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



PART 701--PERMANENT REGULATORY PROGRAM--Table of Contents




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., as amended; Pub. L. 100-34; and 
Pub. L. 102-486.

    Source: 44 FR 15316, Mar. 13, 1979, unless otherwise noted.



Sec. 701.1  Scope.

    (a) This part provides general introductory material for the 
permanent regulatory program required by the Act.
    (b) The following regulations apply to the permanent regulatory 
program:
    (1) Subchapter C on State program application, approval, withdrawal, 
and grants, and Federal program implementation;
    (2) Subchapter D on surface coal mining and reclamation operations 
on Federal lands;
    (3) Subchapter E on surface coal mining and reclamation operations 
on Indian lands.
    (4) Subchapter F on criteria for designating lands unsuitable for 
surface coal mining operations and the process for designating these 
lands or withdrawing the designation by the regulatory authority; 
Provided, That, part 761 is applicable during the initial regulatory 
program under subchapter B of this chapter and 30 CFR part 211 \1\ and 
that part 769 and other parts incorporated therein are applicable to the 
initial Federal lands program under 30 CFR part 211; \1\
---------------------------------------------------------------------------


    \1\ Editorial Note: 30 CFR part 211 was redesignated as 43 CFR part 
3480 at 48 FR 41589, Sept. 16, 1983.
---------------------------------------------------------------------------

    (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

[[Page 17]]

    (9) Subchapter M on the training, examination, and certification of 
blasters.
[44 FR 15316, Mar. 13, 1979; 44 FR 49685, Aug. 24, 1979, as amended at 
44 FR 77445, Dec. 31, 1979; 49 FR 38477, Sept. 28, 1984]



Sec. 701.2  Objective.

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



Sec. 701.3  Authority.

    The Secretary is required by section 501(b) of the Act to promulgate 
regulations which establish the permanent regulatory program; by section 
523 of the Act to promulgate regulations which establish the Federal 
lands programs; and is authorized by section 710 of the Act to 
promulgate regulations which establish a Federal program for Indian 
lands.
[49 FR 38477, Sept. 28, 1984]



Sec. 701.4  Responsibility.

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

[[Page 18]]

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.
[44 FR 15316, Mar. 13, 1979, as amended at 49 FR 38477, Sept. 28, 1984]



Sec. 701.5  Definitions.

    As used in this chapter, the following terms have the specified 
meanings, except where otherwise indicated:
    Acid drainage means water with a pH of less than 6.0 and in which 
total acidity exceeds total alkalinity, discharged from an active, 
inactive or abandoned surface coal mine and reclamation operation or 
from an area affected by surface coal mining and reclamation operations.
    Acid-forming materials means earth materials that contain sulfide 
minerals or other materials which, if exposed to air, water, or 
weathering processes, form acids that may create acid drainage.
    Adjacent area means the area outside the permit area where a 
resource or resources, determined according to the context in which 
adjacent area is used, are or reasonably could be expected to be 
adversely impacted by proposed mining operations, including probable 
impacts from underground workings.
    Administratively complete application means an application for 
permit approval or approval for coal exploration where required, which 
the regulatory authority determines to contain information addressing 
each application requirement of the regulatory program and to contain 
all information necessary to initiate processing and public review.
    Affected area means any land or water surface area which is used to 
facilitate, or is physically altered by, surface coal mining and 
reclamation operations. The affected area includes the disturbed area; 
any area upon which surface coal mining and reclamation operations are 
conducted; any adjacent lands the use of which is incidental to surface 
coal mining and reclamation operations; all areas covered by new or 
existing roads used to gain access to, or for hauling coal to or from, 
surface coal mining and reclamation operations, except as provided in 
this definition; any area covered by surface excavations, workings, 
impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, 
stockpiles, overburden piles, spoil banks, culm banks, tailings, holes 
or depressions, repair areas, storage areas, shipping areas; any areas 
upon which are sited structures, facilities, or other property material 
on the surface resulting from, or incident to, surface coal mining and 
reclamation operations; and the area located above underground workings. 
The affected area shall include every road used for purposes of access 
to, or for hauling coal to or from, surface coal mining and reclamation 
operations, unless the road (a) was designated as a public road pursuant 
to the laws of the jurisdiction in which it is located; (b) is 
maintained with public funds, and constructed, in a manner similar to 
other public roads of the same classification within the jurisdiction; 
and (c) there is substantial (more than incidental) public use.
    Agricultural activities means, with respect to alluvial valley 
floors, the use of any tract of land for the production of animal or 
vegetable life, based on regional agricultural practices, where the use 
is enhanced or facilitated by subirrigation or flood irrigation. These 
uses include, but are not limited to, farming and the pasturing or 
grazing of

[[Page 19]]

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 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.
    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

[[Page 20]]

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.
    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 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.

[[Page 21]]

    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 Secs. 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

[[Page 22]]

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 relationships among precipitation, 
runoff, evaporation, and changes in ground and surface water storage.
    Hydrologic regime means the entire state of water movement in a 
given area. It is a function of the climate and includes the phenomena 
by which water first occurs as atmospheric water vapor, passes into a 
liquid or solid form, falls as precipitation, moves along or into the 
ground surface, and returns to the atmosphere as vapor by means of 
evaporation and transpiration.
    Imminent danger to the health and safety of the public means the 
existence of any condition or practice, or any violation of a permit or 
other requirements of the Act in a surface coal mining and reclamation 
operation, which could reasonably be expected to cause substantial 
physical harm to persons outside the permit area before the condition, 
practice, or violation can be abated. A reasonable expectation of death 
or serious injury before abatement exists if a rational person, 
subjected to the same condition or practice giving rise to the peril, 
would avoid exposure to the danger during the time necessary for 
abatement.
    Impounding structure means a dam, embankment or other structure used 
to impound water, slurry, or other liquid or semi-liquid material.
    Impoundments means all water, sediment, slurry or other liquid or 
semi-liquid holding structures and depressions, either naturally formed 
or artificially built.
    In situ processes means activities conducted on the surface or 
underground in connection with in-place distillation, retorting, 
leaching, or other chemical or physical processing of coal. The term 
includes, but is not limited to, in situ gasification, in situ leaching, 
slurry mining, solution mining, borehole mining, and fluid recovery 
mining.
    Intermittent stream means--
    (a) A stream or reach of a stream that drains a watershed of at 
least one square mile, or
    (b) A stream or reach of a stream that is below the local water 
table for at least some part of the year, and obtains its flow from both 
surface runoff and ground water discharge.

[[Page 23]]

    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.
    Land use means specific uses or management-related activities, 
rather than the vegetation or cover of the land. Land uses may be 
identified in combination when joint or seasonal uses occur and may 
include land used for support facilities that are an integral part of 
the use. Changes of land use from one of the following categories to 
another shall be considered as a change to an alternative land use which 
is subject to approval by the regulatory authority.
    (a) Cropland. Land used for the production of adapted crops for 
harvest, alone or in rotation with grasses and legumes, that include row 
crops, small grain crops, hay crops, nursery crops, orchard crops, and 
other similar crops.
    (b) Pastureland or land occasionally cut for hay. Land used 
primarily for the long-term production of adapted, domesticated forage 
plants to be grazed by livestock or occasionally cut and cured for 
livestock feed.
    (c) Grazingland. Land used for grasslands and forest lands where the 
indigenous vegetation is actively managed for grazing, browsing, or 
occasional hay production.
    (d) Forestry. Land used or managed for the long-term production of 
wood, wood fiber, or wood-derived products.
    (e) Residential. Land used for single-and multiple-family housing, 
mobile home parks, or other residential lodgings.
    (f) Industrial/Commercial. Land used for--
    (1) Extraction or transformation of materials for fabrication of 
products, wholesaling of products, or long-term storage of products. 
This includes all heavy and light manufacturing facilities.
    (2) Retail or trade of goods or services, including hotels, motels, 
stores, restaurants, and other commercial establishments.
    (g) Recreation. Land used for public or private leisure-time 
activities, including developed recreation facilities such as parks, 
camps, and amusement areas, as well as areas for less intensive uses 
such as hiking, canoeing, and other undeveloped recreational uses.
    (h) Fish and wildlife habitat. Land dedicated wholly or partially to 
the production, protection, or management of species of fish or 
wildlife.
    (i) Developed water resources. Land used for storing water for 
beneficial uses, such as stockponds, irrigation, fire protection, flood 
control, and water supply.
    (j) Undeveloped land or no current use or land management. Land that 
is undeveloped or, if previously developed, land that has been allowed 
to return naturally to an undeveloped state or has been allowed to 
return to forest through natural succession.
    Lands eligible for remining means those lands that would otherwise 
be eligible for expenditures under section 404 or under section 
402(g)(4) of the Act.
    Material damage, in the context of Secs. 784.20 and 817.121 of this 
chapter, means:
    (a) Any functional impairment of surface lands, features, structures 
or facilities;
    (b) Any physical change that has a significant adverse impact on the 
affected land's capability to support any current or reasonably 
foreseeable uses or causes significant loss in production or income; or
    (c) Any significant change in the condition, appearance or utility 
of any structure or facility from its pre-subsidence condition.
    Materially damage the quantity or quality of water means, with 
respect to alluvial valley floors, to degrade or reduce by surface coal 
mining and reclamation operations the water quantity or quality supplied 
to the alluvial valley floor to the extent that resulting changes would 
signficantly decrease the capability of the alluvial valley floor to 
support farming.
    MSHA means the Mine Safety and Health Administration.
    Moist bulk density means the weight of soil (oven dry) per unit 
volume. Volume is measured when the soil is at field moisture capacity 
(1/3 bar moisture tension). Weight is determined after drying the soil 
at 105 deg. C.
    Mulch means vegetation residues or other suitable materials that aid 
in

[[Page 24]]

soil stabilization and soil moisture conservation, thus providing micro-
climatic conditions suitable for germination and growth.
    Non-commercial building means any building, other than an occupied 
residential dwelling, that, at the time the subsidence occurs, is used 
on a regular or temporary basis as a public building or community or 
institutional building as those terms are defined in Sec. 761.5 of this 
chapter. Any building used only for commercial agricultural, industrial, 
retail or other commercial enterprises is excluded.
    Noxious plants means species that have been included on official 
State lists of noxious plants for the State in which the surface coal 
mining and reclamation operation occurs.
    Occupied residential dwelling and structures related thereto means, 
for purposes of Secs. 784.20 and 817.121, any building or other 
structure that, at the 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.
    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

[[Page 25]]

shall include the area of land upon which the operator proposes to 
conduct surface coal mining and reclamation operations under the permit, 
including all disturbed areas; provided that areas adequately bonded 
under another valid permit may be excluded from the permit area.
    Permittee means a person holding or required by the Act or this 
chapter to hold a permit to conduct surface coal mining and reclamation 
operations issued by a State regulatory authority pursuant to a State 
program, by the Director pursuant to a Federal program, by the Director 
pursuant to a Federal lands program, or, where a cooperative agreement 
pursuant to section 523 of the Act has been executed, by the Director 
and the State regulatory authority.
    Precipitation event means a quantity of water resulting from 
drizzle, rain, snow, sleet, or hail in a limited period of time. It may 
be expressed in terms of recurrence interval. As used in these 
regulations, precipitation event also includes that quantity of water 
emanating from snow cover as snowmelt in a limited period of time.
    Previously mined area means land affected by surface coal mining 
operations prior to August 3, 1977, that has not been reclaimed to the 
standards of 30 CFR chapter VII.
    Prime farmland means those lands which are defined by the Secretary 
of Agriculture in 7 CFR part 657 (Federal Register Vol. 4 No. 21) and 
which have historically been used for cropland as that phrase is defined 
above.
    Principal shareholder means any person who is the record or 
beneficial owner of 10 percent or more of any class of voting stock.
    Property to be mined means both the surface estates and mineral 
estates within the permit area and the area covered by underground 
workings.
    Rangeland means land on which the natural potential (climax) plant 
cover is principally native grasses, forbs, and shrubs valuable for 
forage. This land includes natural grasslands and savannahs, such as 
prairies, and juniper savannahs, such as brushlands. Except for brush 
control, management is primarily achieved by regulating the intensity of 
grazing and season of use.
    Reasonably available spoil means spoil and suitable coal mine waste 
material generated by the remining operation or other spoil or suitable 
coal mine waste material located in the permit area that is accessible 
and available for use and that when rehandled will not cause a hazard to 
public safety or significant damage to the environment.
    Recharge capacity means the ability of the soils and underlying 
materials to allow precipitation and runoff to infiltrate and reach the 
zone of saturation.
    Reclamation means those actions taken to restore mined land as 
required by this chapter to a postmining land use approved by the 
regulatory authority.
    Recurrence interval means the interval of time in which a 
precipitation event is expected to occur once, on the average. For 
example, the 10-year 24-hour precipitation event would be that 24-hour 
precipitation event expected to occur on the average once in 10 years.
    Reference area means a land unit maintained under appropriate 
management for the purpose of measuring vegetation ground cover, 
productivity and plant species diversity that are produced naturally or 
by crop production methods approved by the regulatory authority. 
Reference areas must be representative of geology, soil, slope, and 
vegetation in the permit area.
    Refuse pile means a surface deposit of coal mine waste that does not 
impound water, slurry, or other liquid or semi-liquid material.
    Remining means conducting surface coal mining and reclamation 
operations which affect previously mined areas.
    Renewable resource lands means aquifers and areas for the recharge 
of aquifers and other underground waters, areas for agricultural or 
silvicultural 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

[[Page 26]]

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

[[Page 27]]

clay, iron, or aluminum than the A, E, or C horizons; and
    (d) C horizon. The deepest layer of soil profile. It consists of 
loose material or weathered rock that is relatively unaffected by 
biologic activity.
    Soil survey means a field and other investigation, resulting in a 
map showing the geographic distribution of different kinds of soils and 
an accompanying report that describes, classifies, and interprets such 
soils for use. Soil surveys must meet the standards of the National 
Cooperative Soil Survey as incorporated by reference in 30 CFR 
785.17(c)(1).
    Special bituminous coal mines means those mines in existence on 
January 1, 1972, or mines adjoining or having a common boundary with 
those mines for which development began after August 3, 1977, that are 
located in the State of Wyoming and that are being mined or will be 
mined according to the following criteria:
    (a) Surface mining takes place on a relatively limited site for an 
extended period of time. The surface opening of the excavation is at 
least the full size of the excavation and has a continuous border.
    (b) Excavation of the mine pit follows a coal seam that inclines 
15 deg. or more from the horizontal, and as the excavation proceeds 
downward it expands laterally to maintain stability of the pitwall or as 
necessary to accommodate the orderly expansion of the total mining 
operation.
    (c) The amount of material removed from the pit is large in 
comparison to the surface area disturbed.
    (d) There is no practicable alternative to the deep open-pit method 
of mining the coal.
    (e) There is no practicable way to reclaim the land as required in 
subchapter K.
    Spoil means overburden that has been removed during surface coal 
mining operations.
    Stabilize means to control movement of soil, spoil piles, or areas 
of disturbed earth by modifying the geometry of the mass, or by 
otherwise modifying physical or chemical properties, such as by 
providing a protective surface coating.
    State program means a program established by a State and approved by 
the Secretary pursuant to section 503 of the Act to regulate surface 
coal mining and reclamation operations on non-Indian and non-Federal 
lands within that State, according to the requirements of the Act and 
this chapter. If a cooperative agreement under part 745 has been entered 
into, a State program may apply to Federal lands, in accordance with the 
terms of the cooperative agreement.
    Steep slope means any slope of more than 20 deg. or such lesser 
slope as may be designated by the regulatory authority after 
consideration of soil, climate, and other characteristics of a region or 
State.
    Subirrigation means, with respect to alluvial valley floors, the 
supplying of water to plants from underneath or from a semisaturated or 
saturated subsurface 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

[[Page 28]]

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 in 
ownership or other effective control over the right to conduct surface 
coal mining operations under a permit issued by the regulatory 
authority.
    Unanticipated event or condition, as used in Sec. 773.15 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.
    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 violation means an act or omission which violates the Act, 
this chapter, the applicable program, or any permit condition required 
by the Act, this chapter, or the applicable program, committed by a 
person who intends the result which actually occurs.
[44 FR 15316, Mar. 13, 1979]

    Editorial Note: For Federal Register citations affecting Sec. 701.5, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.

    Effective Date Note: In Sec. 701.5, the definition of Affected area, 
insofar as it excludes roads which are included in the definition of

[[Page 29]]

Surface coal mining operations, was suspended at 51 FR 41960, Nov. 20, 
1986.



Sec. 701.11  Applicability.

    (a) Any person who conducts surface coal mining operations on non-
Indian or non-Federal lands on or after 8 months from the date of 
approval of a State program or implementation of a Federal program shall 
have a permit issued pursuant to the applicable State or Federal 
program. However, under conditions specified in 30 CFR 773.11(b), a 
person may continue operations under a previously issued permit after 8 
months from the date of approval of a State program or implementation of 
a Federal program.
    (b) Any person who conducts surface coal mining operations on 
Federal lands on or after 8 months from the date of approval of a State 
program or implementation of a Federal program for the State in which 
the Federal lands are located shall have a permit issued pursuant to 
part 740 of this chapter. However, under conditions specified in 
Sec. 740.13(a)(3) of this chapter, a person may continue such operations 
under a mining plan previously approved pursuant to 43 CFR part 3480 or 
a permit issued by the State under the interim State program after 8 
months after the date of approval of a State program or implementation 
of a Federal program.
    (c) Any person who conducts surface coal mining operations on Indian 
lands on or after eight months from the effective date of the Federal 
program for Indian lands shall have a permit issued pursuant to part 750 
of this chapter. However, a person who is authorized to conduct surface 
coal mining operations may continue to conduct those operations beyond 
eight months from the effective date of the Federal program for Indian 
lands if the following conditions are met:
    (1) An application for a permit to conduct those operations has been 
made to the Director within two months after the effective date of the 
Federal program for Indian lands and the initial administrative decision 
on that application has not been issued; and
    (2) Those operations are conducted in compliance with all terms and 
conditions of the existing authorization to mine, the requirements of 
the Act, 25 CFR part 216, and the requirements of all applicable mineral 
agreements, leases or licenses.
    (d) The requirements of subchapter K of this chapter shall be 
effective and shall apply to each surface coal mining and reclamation 
operation for which the surface coal mining operation is required to 
obtain a permit under the Act, on the earliest date upon which the Act 
and this chapter require a permit to be obtained, except as provided in 
paragraph (e) of this section.
    (e)(1) Each structure used in connection with or to facilitate a 
coal exploration or surface coal mining and reclamation operation shall 
comply with the performance standards and the design requirements of 
subchapter K of this chapter, except that--
    (i) An existing structure which meets the performance standards of 
subchapter K of this chapter but does not meet the design requirements 
of subchapter K of this chapter may be exempted from meeting those 
design requirements by the regulatory authority. The regulatory 
authority may grant this exemption only as part of the permit 
application process after obtaining the information required by 30 CFR 
780.12 or 784.12 and after making the findings required in 30 CFR 
773.15;
    (ii) If the performance standard of subchapter B of this chapter is 
at least as stringent as the comparable performance standard of 
subchapter K of this chapter, an existing structure which meets the 
performance standards of subchapter B of this chapter may be exempted by 
the regulatory authority from meeting the design requirements of 
subchapter K of this chapter. The regulatory authority may grant this 
exemption only as part of the permit application process after obtaining 
the information required by 30 CFR 780.12 or 784.12 and after making the 
findings required in 30 CFR 773.15;
    (iii) An existing structure which meets a performance standard of 
subchapter B of this chapter which is less stringent than the comparable 
performance standards of subchapter K of this chapter or which does not 
meet a performance standard of subchapter K of this chapter, for which 
there was no

[[Page 30]]

equivalent performance standards in subchapter B of this chapter, shall 
be modified or reconstructed to meet the performance and design standard 
of subchapter K of this chapter pursuant to a compliance plan approved 
by the regulatory authority only as part of the permit application as 
required in 30 CFR 780.12 or 784.12 and according to the findings 
required by 30 CFR 773.15;
    (iv) An existing structure which does not meet the performance 
standards of subchapter B of this chapter and which the applicant 
proposes to use in connection with or to facilitate the coal exploration 
or surface coal mining and reclamation operation shall be modified or 
reconstructed to meet the performance and design standards of subchapter 
K prior to issuance of the permit.
    (2) The exemptions provided in paragraphs (e)(1)(i) and (e)(1)(ii) 
of this section shall not apply to--
    (i) The requirements for existing and new coal mine waste disposal 
facilities; and
    (ii) The requirements to restore the approximate original contour of 
the land.
    (f)(1) Any person conducting coal exploration on non-Federal and 
non-Indian lands on or after the date on which a State program is 
approved or a Federal program implemented, shall either file a notice of 
intention to explore or obtain approval of the regulatory authority, as 
required by 30 CFR part 772.
    (2) Coal exploration performance standards in 30 CFR part 815 shall 
apply to coal exploration on non-Federal and non-Indian lands which 
substantially disturbs the natural land surface 2 months after approval 
of a State program or implementation of a Federal program.

(Pub. L. 95-87, 30 U.S.C. 1201 et seq.)

[44 FR 15316, Mar. 13, 1979, as amended at 44 FR 77446, Dec. 31, 1979; 
48 FR 6935, Feb. 16, 1983; 48 FR 44391, Sept. 28, 1983; 48 FR 44779, 
Sept. 30, 1983; 49 FR 38477, Sept. 28, 1984; 54 FR 13822, Apr. 5, 1989]

    Effective Date Note: A document published at 44 FR 67942, Nov. 27, 
1979, temporarily suspended Sec. 701.11(d) (1) and (2), which were 
redesignated as paragraphs (e) (1) and (2) at 49 FR 38477, Sept. 28, 
1984, insofar as it may be read to retain discretion in the regulatory 
authority to grant an exemption from reconstruction of existing 
structures after making the findings in 30 CFR 773.15.



PART 702--EXEMPTION FOR COAL EXTRACTION INCIDENTAL TO THE EXTRACTION OF OTHER MINERALS--Table of Contents




Sec.
702.1  Scope.
702.5  Definitions.
702.10  Information collection.
702.11  Application requirements and procedures.
702.12  Contents of application for exemption.
702.13  Public availability of information.
702.14  Requirements for exemption.
702.15  Conditions of exemption and right of inspection and entry.
702.16  Stockpiling of minerals.
702.17  Revocation and enforcement.
702.18  Reporting requirements.

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

    Source: 54 FR 52120, Dec. 20, 1989, unless otherwise noted.



Sec. 702.1  Scope.

    This part implements the exemption contained in section 701(28) of 
the Act concerning the extraction of coal incidental to the extraction 
of other minerals where coal does not exceed 16\2/3\ percent of the 
total tonnage of coal and other minerals removed for purposes of 
commercial use or sale.



Sec. 702.5  Definitions.

    As used in this part, the following terms have the meaning 
specified, except where otherwise indicated:
    (a) Cumulative measurement period means the period of time over 
which both cumulative production and cumulative revenue are measured.
    (1) For purposes of determining the beginning of the cumulative 
measurement period, subject to regulatory authority approval, the 
operator must select and consistently use one of the following:
    (i) For mining areas where coal or other minerals were extracted 
prior to August 3, 1977, the date extraction of coal or other minerals 
commenced at that mining area or August 3, 1977, or

[[Page 31]]

    (ii) For mining areas where extraction of coal or other minerals 
commenced on or after August 3, 1977, the date extraction of coal or 
other minerals commenced at that mining area, whichever is earlier.
    (2) For annual reporting purposes pursuant to Sec. 702.18 of this 
part, the end of the period for which cumulative production and revenue 
is calculated is either
    (i) For mining areas where coal or other minerals were extracted 
prior to April 1, 1990, March 31, 1990, and every March 31 thereafter; 
or
    (ii) For mining areas where extraction of coal or other minerals 
commenced on or after April 1, 1990, the last day of the calendar 
quarter during which coal extraction commenced, and each anniversary of 
that day thereafter.
    (b) Cumulative production means the total tonnage of coal or other 
minerals extracted from a mining area during the cumulative measurement 
period. The inclusion of stockpiled coal and other mineral tonnages in 
this total is governed by Sec. 702.16.
    (c) Cumulative revenue means the total revenue derived from the sale 
of coal or other minerals and the fair market value of coal or other 
minerals transferred or used, but not sold, during the cumulative 
measurement period.
    (d) Mining area means an individual excavation site or pit from 
which coal, other minerals and overburden are removed.
    (e) Other minerals means any commercially valuable substance mined 
for its mineral value, excluding coal, topsoil, waste and fill material.



Sec. 702.10  Information collection.

    The collections of information contained in Secs. 702.11, 702.12, 
702.13, 702.15 and 702.18 of this part have been approved by the Office 
of Management and Budget under 44 U.S.C. 3501 et seq. and assigned 
clearance number 1029-0089. The information will be used to determine 
the initial and continuing applicability of the incidental mining 
exemption to a particular mining operation. Response is required to 
obtain and maintain the incidental mining exemption in accordance with 
section 701(28) of the Act.
    Public reporting burden for this collection of information is 
estimated to average one 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 Information Collection Clearance Officer, 
OSM Department of the Interior, 1951 Constitution Avenue, NW., 
Washington, DC 20240; and to the Office of Management and Budget, 
Paperwork Reduction Project (1029-0089), OMB, Washington, DC 20503.



Sec. 702.11  Application requirements and procedures.

    (a)(1) Any person who plans to commence or continue coal extraction 
after April 1, 1990, under a Federal program or on Indian lands, or 
after the effective date of counterpart provisions in a State program, 
in reliance on the incidental mining exemption shall file a complete 
application for exemption with the regulatory authority for each mining 
area.
    (2) Following incorporation of an exemption application approval 
process into a regulatory program, a person may not commence coal 
extraction based upon the exemption until the regulatory authority 
approves such application, except as provided in paragraph (e)(3) of 
this section.
    (b) Existing operations. Any person who has commenced coal 
extraction at a mining area in reliance upon the incidental mining 
exemption prior to April 1, 1990, in a State with a Federal program or 
on Indian lands, or prior to the effective date of counterpart 
provisions in a State program, may continue mining operations for 60 
days after such effective date. Coal extraction may not continue after 
such 60-day period unless that person files an administratively complete 
application for exemption with the regulatory authority. If an 
administratively complete application is filed within 60 days, the 
person may continue extracting coal in reliance on the exemption beyond 
the 60-

[[Page 32]]

day period until the regulatory authority makes an administrative 
decision on such application.
    (c) Additional information. The regulatory authority shall notify 
the applicant if the application for exemption is incomplete and may at 
any time require submittal of additional information.
    (d) Public comment period. Following publication of the newspaper 
notice required by Sec. 702.12(g), the regulatory authority shall 
provide a period of no less than 30 days during which time any person 
having an interest which is or may be adversely affected by a decision 
on the application may submit written comments or objections.
    (e) Exemption determination. (1) No later than 90 days after filing 
of an administratively complete application, the regulatory authority 
shall make a written determination whether, and under what conditions, 
the persons claiming the exemption are exempt under this part, and shall 
notify the applicant and persons submitting comments on the application 
of the determination and the basis for the determination.
    (2) The determination of exemption shall be based upon information 
contained in the application and any other information available to the 
regulatory authority at that time.
    (3) If the regulatory authority fails to provide an applicant with 
the determination as specified in paragraph (e)(1) of this section, an 
applicant who has not begun may commence coal extraction pending a 
determination on the application unless the regulatory authority issues 
an interim finding, together with reasons therefor, that the applicant 
may not begin coal extraction.
    (f) Administrative review. (1) Any adversely affected person may 
request administrative review of a determination under paragraph (e) of 
this section within 30 days of the notification of such determination in 
accordance with procedures established under 43 CFR 4.1280 when OSM is 
the regulatory authority or under corresponding State procedures when a 
State is the regulatory authority.
    (2) A petition for administrative review filed under 43 CFR 4.1280 
or under corresponding State procedures shall not suspend the effect of 
a determination under paragraph (e) of this section.



Sec. 702.12  Contents of application for exemption.

    An application for exemption shall include at a minimum:
    (a) The name and address of the applicant;
    (b) A list of the minerals sought to be extracted;
    (c) Estimates of annual production of coal and the other minerals 
within each mining area over the anticipated life of the mining 
operation;
    (d) Estimated annual revenues to be derived from bona fide sales of 
coal and other minerals to be extracted within the mining area;
    (e) Where coal or the other minerals are to be used rather than 
sold, estimated annual fair market values at the time of projected use 
of the coal and other minerals to be extracted from the mining area;
    (f) The basis for all annual production, revenue, and fair market 
value estimates;
    (g) A description, including county, township if any, and boundaries 
of the land, of sufficient certainty that the mining areas may be 
located and distinguished from other mining areas;
    (h) An estimate to the nearest acre of the number of acres that will 
compose the mining area over the anticipated life of the mining 
operation;
    (i) Evidence of publication, in a newspaper of general circulation 
in the county of the mining area, of a public notice that an application 
for exemption has been filed with the regulatory authority (The public 
notice must identify the persons claiming the exemption and must contain 
a description of the proposed operation and its locality that is 
sufficient for interested persons to identify the operation.);
    (j) Representative stratigraphic cross-section(s) based on test 
borings or other information identifying and showing the relative 
position, approximate thickness and density of the coal and each other 
mineral to be extracted for commercial use or sale and the relative 
position and thickness of any material, not classified as other 
minerals,

[[Page 33]]

that will also be extracted during the conduct of mining activities;
    (k) A map of appropriate scale which clearly identifies the mining 
area;
    (l) A general description of mining and mineral processing 
activities for the mining area;
    (m) A summary of sales commitments and agreements for future 
delivery, if any, which the applicant has received for other minerals to 
be extracted from the mining area, or a description of potential markets 
for such minerals;
    (n) If the other minerals are to be commercially used by the 
applicant, a description specifying the use;
    (o) For operations having extracted coal or other minerals prior to 
filing an application for exemption, in addition to the information 
required above, the following information must also be submitted:
    (1) Any relevant documents the operator has received from the 
regulatory authority documenting its exemption from the requirements of 
the Act;
    (2) The cumulative production of the coal and other minerals from 
the mining area; and
    (3) Estimated tonnages of stockpiled coal and other minerals; and
    (p) Any other information pertinent to the qualification of the 
operation as exempt.



Sec. 702.13  Public availability of information.

    (a) Except as provided in paragraph (b) of this section, all 
information submitted to the regulatory authority under this part shall 
be made immediately available for public inspection and copying at the 
local offices of the regulatory authority having jurisdiction over the 
mining operations claiming exemption until at least three years after 
expiration of the period during which the subject mining area is active.
    (b) The regulatory authority may keep information submitted to the 
regulatory authority under this part confidential if the person 
submitting it requests in writing, at the time of submission, that it be 
kept confidential and the information concerns trade secrets or is 
privileged commercial or financial information of the persons intending 
to conduct operations under this part.
    (c) Information requested to be held as confidential under paragraph 
(b) of this section shall not be made publicly available until after 
notice and opportunity to be heard is afforded persons both seeking and 
opposing disclosure of the information.



Sec. 702.14  Requirements for exemption.

    (a) Activities are exempt from the requirements of the Act if all of 
the following are satisfied:
    (1) The cumulative production of coal extracted from the mining area 
determined annually as described in this paragraph does not exceed 16\2/
3\ percent of the total cumulative production of coal and other minerals 
removed during such period for purposes of bona fide sale or reasonable 
commercial use.
    (2) Coal is produced from a geological stratum lying above or 
immediately below the deepest stratum from which other minerals are 
extracted for purposes of bona fide sale or reasonable commercial use.
    (3) The cumulative revenue derived from the coal extracted from the 
mining area determined annually shall not exceed 50 percent of the total 
cumulative revenue derived from the coal and other minerals removed for 
purposes of bona fide sale or reasonable commercial use. If the coal 
extracted or the minerals removed are used by the operator or 
transferred to a related entity for use instead of being sold in a bona 
fide sale, then the fair market value of the coal or other minerals 
shall be calculated at the time of use or transfer and shall be 
considered rather than revenue.
    (b) Persons seeking or that have obtained an exemption from the 
requirements of the Act shall comply with the following:
    (1) Each other mineral upon which an exemption under this part is 
based must be a commercially valuable mineral for which a market exists 
or which is mined in bona fide anticipation that a market will exist for 
the mineral in the reasonably foreseeable future, not to exceed twelve 
months from the end of the current period for which cumulative 
production is calculated. A legally binding agreement for the future

[[Page 34]]

sale of other minerals is sufficient to demonstrate the above standard.
    (2) If either coal or other minerals are transferred or sold by the 
operator to a related entity for its use or sale, the transaction must 
be made for legitimate business purposes.



Sec. 702.15  Conditions of exemption and right of inspection and entry.

    A person conducting activities covered by this part shall:
    (a) Maintain on-site or at other locations available to authorized 
representatives of the regulatory authority and the Secretary 
information necessary to verify the exemption including, but not limited 
to, commercial use and sales information, extraction tonnages, and a 
copy of the exemption application and exemption approved by the 
regulatory authority;
    (b) Notify the regulatory authority upon the completion of the 
mining operation or permanent cessation of all coal extraction 
activities; and
    (c) Conduct operations in accordance with the approved application 
or when authorized to extract coal under Sec. 702.11(b) or 
Sec. 702.11(e)(3) prior to submittal or approval of an exemption 
application, in accordance with the standards of this part for Federal 
programs and on Indian lands or in accordance with counterpart 
provisions when included in State programs.
    (d) Authorized representatives of the regulatory authority and the 
Secretary shall have the right to conduct inspections of operations 
claiming exemption under this part.
    (e) Each authorized representative of the regulatory authority and 
the Secretary conducting an inspection under this part:
    (1) Shall have a right of entry to, upon, and through any mining and 
reclamation operations without advance notice or a search warrant, upon 
presentation of appropriate credentials;
    (2) May, at reasonable times and without delay, have access to and 
copy any records relevant to the exemption; and
    (3) Shall have a right to gather physical and photographic evidence 
to document conditions, practices or violations at a site.
    (f) No search warrant shall be required with respect to any activity 
under paragraphs (d) and (e) of this section, except that a search 
warrant may be required for entry into a building.



Sec. 702.16  Stockpiling of minerals.

    (a) Coal. Coal extracted and stockpiled may be excluded fom the 
calculation of cumulative production until the time of its sale, 
transfer to a related entity or use:
    (1) Up to an amount equaling a 12-month supply of the coal required 
for future sale, transfer or use as calculated based upon the average 
annual sales, transfer and use from the mining area over the two 
preceding years; or
    (2) For a mining area where coal has been extracted for a period of 
less than two years, up to an amount that would represent a 12-month 
supply of the coal required for future sales, transfer or use as 
calculated based on the average amount of coal sold, transferred or used 
each month.
    (b) Other minerals. (1) The regulatory authority shall disallow all 
or part of an operator's tonnages of stockpiled other minerals for 
purposes of meeting the requirements of this part if the operator fails 
to maintain adequate and verifiable records of the mining area of 
origin, the disposition of stockpiles or if the disposition of the 
stockpiles indicates the lack of commercial use or market for the 
minerals.
    (2) The regulatory authority may only allow an operator to utilize 
tonnages of stockpiled other minerals for purposes of meeting the 
requirements of this part if:
    (i) The stockpiling is necessary to meet market conditions or is 
consistent with generally accepted industry practices; and
    (ii) Except as provided in paragraph (b)(3) of this section, the 
stockpiled other minerals do not exceed a 12-month supply of the mineral 
required for future sales as approved by the regulatory authority on the 
basis of the exemption application.
    (3) The regulatory authority may allow an operator to utilize 
tonnages of stockpiled other minerals beyond the 12-month limit 
established in paragraph (b)(2) of this section if the operator can 
demonstrate to the regulatory

[[Page 35]]

authority's satisfaction that the additional tonnage is required to meet 
future business obligations of the operator, such as may be demonstrated 
by a legally binding agreement for future delivery of the minerals.
    (4) The regulatory authority may periodically revise the other 
mineral stockpile tonnage limits in accordance with the criteria 
established by paragraphs (b) (2) and (3) of this section based on 
additional information available to the regulatory authority.



Sec. 702.17  Revocation and enforcement.

    (a) Regulatory authority responsibility. The regulatory authority 
shall conduct an annual compliance review of the mining area, utilizing 
the annual report submitted pursuant to Sec. 702.18, an on-site 
inspection and any other information available to the regulatory 
authority.
    (b) If the regulatory authority has reason to believe that a 
specific mining area was not exempt under the provisions of this part or 
counterpart provisions of the State regulatory program at the end of the 
previous reporting period, is not exempt, or will be unable to satisfy 
the exemption criteria at the end of the current reporting period, the 
regulatory authority shall notify the operator that the exemption may be 
revoked and the reason(s) therefor. The exemption will be revoked unless 
the operator demonstrates to the regulatory authority within 30 days 
that the mining area in question should continue to be exempt.
    (c)(1) If the regulatory authority finds that an operator has not 
demonstrated that activities conducted in the mining area qualify for 
the exemption, the regulatory authority shall revoke the exemption and 
immediately notify the operator and intervenors. If a decision is made 
not to revoke an exemption, the regulatory authority shall immediately 
notify the operator and intervenors.
    (2) Any adversely affected person may request administrative review 
of a decision whether to revoke an exemption within 30 days of the 
notification of such decision in accordance with procedures established 
under 43 CFR 4.1280 when OSM is the regulatory authority or under 
corresponding State procedures when a State is the regulatory authority.
    (3) A petition for administrative review filed under 43 CFR 4.1280 
or under corresponding State procedures shall not suspend the effect of 
a decision whether to revoke an exemption.
    (d) Direct enforcement. (1) An operator mining in accordance with 
the terms of an approved exemption shall not be cited for violations of 
the regulatory program which occurred prior to the revocation of the 
exemption.
    (2) An operator who does not conduct activities in accordance with 
the terms of an approved exemption and knows or should know such 
activities are not in accordance with the approved exemption shall be 
subject to direct enforcement action for violations of the regulatory 
program which occur during the period of such activities.
    (3) Upon revocation of an exemption or denial of an exemption 
application, an operator shall stop conducting surface coal mining 
operations until a permit is obtained and shall comply with the 
reclamation standards of the applicable regulatory program with regard 
to conditions, areas and activities existing at the time of revocation 
or denial.



Sec. 702.18  Reporting requirements.

    (a)(1) Following approval by the regulatory authority of an 
exemption for a mining area, the person receiving the exemption shall, 
for each mining area, file a written report annually with the regulatory 
authority containing the information specified in paragraph (b) of this 
section.
    (2) The report shall be filed no later than 30 days after the end of 
the 12-month period as determined in accordance with the definition of 
Cumulative measurement period in Sec. 702.5 of this part.
    (3) The information in the report shall cover:
    (i) Annual production of coal and other minerals and annual revenue 
derived from coal and other minerals during the preceding 12-month 
period, and
    (ii) The cumulative production of coal and other minerals and the 
cumulative revenue derived from coal and other minerals.

[[Page 36]]

    (b) For each period and mining area covered by the report, the 
report shall specify:
    (1) The number of tons of extracted coal sold in bona fide sales and 
total revenue derived from such sales;
    (2) The number of tons of coal extracted and used or transferred by 
the operator or related entity and the estimated total fair market value 
of such coal;
    (3) The number of tons of coal stockpiled;
    (4) The number of tons of other commercially valuable minerals 
extracted and sold in bona fide sales and total revenue derived from 
such sales;
    (5) The number of tons of other commercially valuable minerals 
extracted and used or transferred by the operator or related entity and 
the estimated total fair market value of such minerals; and
    (6) The number of tons of other commercially valuable minerals 
removed and stockpiled by the operator.



PART 705--RESTRICTION ON FINANCIAL INTERESTS OF STATE EMPLOYEES--Table of Contents




Sec.
705.1  Purpose.
705.2  Objectives.
705.3  Authority.
705.4  Responsibility.
705.5  Definitions.
705.6  Penalties.
705.10  Information collection.
705.11  Who shall file.
705.13  When to file.
705.15  Where to file.
705.17  What to report.
705.18  Gifts and gratuities.
705.19  Resolving prohibited interests.
705.21  Appeals procedures.

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

    Source: 42 FR 56060, Oct. 20, 1977, unless otherwise noted.



Sec. 705.1  Purpose.

    This part sets forth the minimum policies and procedures that States 
must establish and use to implement section 517(g) of the Act in order 
to eligible for reimbursement of costs of enforcing and administering 
the initial regulatory program under section 502, or for grants for 
developing, administering and enforcing a State regulatory program under 
section 705 of the Act, or to assume primary regulatory authority under 
section 503 of the Act (Pub. L. 95-87). Compliance with the policies and 
procedures in this part will satisfy the requirements of section 517(g) 
of the Act. Section 517(g) prohibits certain employees of the State 
Regulatory Authority from having any direct or indirect financial 
interest in any underground or surface coal mining operation. The 
regulations in this part are applicable to employees of the State 
Regulatory Authority as defined in Sec. 705.5.



Sec. 705.2  Objectives.

    The objectives of this part are:
    (a) To ensure that the States adopt a standard program for 
implementing the provisions in section 517(g) of the Act.
    (b) To establish methods which will ensure, as required by section 
517(g) of the Act, that each employee of the State Regulatory Authority 
who performs any function or duty under the Act does not have a direct 
or indirect financial interest in any underground or surface coal mining 
operation.
    (c) To establish the methods by which the monitoring, enforcing and 
reporting responsibilities of the Secretary of the Interior as stated in 
section 517(g) will be accomplished.



Sec. 705.3  Authority.

    (a) The Secretary of the Interior is authorized by Pub. L. 95-87 to:
    (1) Establish the methods by which he or she and State officials 
will monitor and enforce the provisions contained in section 517(g) of 
the Act;
    (2) Establish appropriate provisions for employees of the State 
Regulatory Authority who perform any function or duty under the Act to 
file a statement and supplements thereto in order to identify any 
financial interest which may be affected by section 517(g), and
    (3) Report annually to the Congress the actions taken and not taken 
during the preceding calendar year under section 517(g) of the Act.
    (b) The Governor of the State, the Head of the State Regulatory 
Authority, or such other State official designated by State law, is 
authorized to expand the provisions in this part in

[[Page 37]]

order to meet the particular needs within the State.
    (c) The Office of Inspector General, U.S. Department of the 
Interior, is authorized to conduct on behalf of the Secretary periodic 
audits related to the provisions contained in section 517(g) of the Act 
and related to the provisions in this part. These audits will be 
conducted on a cyclical basis or upon request of the Secretary or the 
Director.
[42 FR 56060, Oct. 20, 1977, as amended at 56 FR 46987, Sept. 17, 1991]



Sec. 705.4  Responsibility.

    (a) The Head of each State Regulatory Authority shall;
    (1) Provide advice, assistance, and guidance to all State employees 
required to file statements pursuant to Sec. 705.11;
    (2) Promptly review the statement of employment and financial 
interests and supplements, if any, filed by each employee, to determine 
if the employee has correctly identified those listed employment and 
financial interests which constitute a direct or indirect financial 
interest in an underground or surface coal mining operation;
    (3) Resolve prohibited financial interest situations by ordering or 
initiating remedial action or by reporting the violations to the 
Director who is responsible for initiating action to impose the 
penalties of the Act;
    (4) Certify on each statement that review has been made, that 
prohibited financial interests, if any, have been resolved, and that no 
other prohibited interests have been identified from the statement;
    (5) Submit to the Director such Statistics and information as he or 
she may request to enable preparation of the required annual report to 
Congress;
    (6) Submit to the Director the initial listing and the subsequent 
annual listings of positions as required by Sec. 705.11 (b), (c), and 
(d);
    (7) Furnish a blank statement 45 days in advance of the filing date 
established by Sec. 705.13(a) to each State employee required to file a 
statement; and
    (8) Inform annually each State employee required to file a statement 
with the Head of the State Regulatory Authority, or such other official 
designated by State law or regulation, of the name, address, and 
telephone number of the person whom they may contact for advice and 
counseling.
    (b) The Director, Office of Surface Mining Reclamation and 
Enforcement, shall:
    (1) Provide advice, assistance, and counseling to the Heads of all 
State Regulatory Authorities concerning implementation of these 
regulations;
    (2) Promptly review the statement of employment and financial 
interests and supplements, if any, filed by each Head of the State 
Regulatory Authority. The Director will review the statement to 
determine if the Head of the State Regulatory Authority has correctly 
identified those listed employment and financial interests which 
constitute a direct or indirect financial interest in an underground or 
surface coal mining operation;
    (3) Recommend to the State Attorney General, or such other State 
official designated by State law or the Governor of the State, the 
remedial action to be ordered or initiated, recommend to the Secretary 
that action be taken to impose the penalties of the Act, or recommend to 
the Secretary that other appropriate action be taken with respect to 
reimbursements, grants, or State programs;
    (4) Certify on each statement filed by the Head of the State 
Regulatory Authority that the State has completed the review of the 
statement, that prohibited financial interests have been resolved, and 
that no other prohibited interests have been identified from the 
statement;
    (5) Monitor the program by using reports requested from Heads of 
State Regulatory Authorities and by using periodic audits performed by 
the Office of Inspector General, U.S. Department of the Interior;
    (6) Prepare for the Secretary of the Interior a consolidated report 
to the Congress as part of the annual report submitted under section 706 
of the Act, on the actions taken and not taken during the preceding 
calendar year under section 517(g);
    (7) Designate if so desired other qualified Office of Surface Mining 
Reclamation and Enforcement employees as assistant counselors to assist 
with the operational duties associated with

[[Page 38]]

filing and reviewing the statements from the Heads of each State 
Regulatory Authority;
    (8) Furnish a blank statement by December 15 of each year, to the 
Head of each State Regulatory Authority; and
    (9) Inform annually, the head of each State Regulatory Authority of 
the requirement to file his or her statement with the Director and 
supply the name, address, and telephone number of the person whom they 
may contact for advice and counseling.
    (c) State Regulatory Authority employees performing any duties or 
functions under the Act shall:
    (1) Have no direct or indirect financial interest in coal mining 
operations;
    (2) File a fully completed statement of employment and financial 
interest 120 days after these regulations become effective or upon 
entrance to duty, and annually thereafter on the specified filing date; 
and
    (3) Comply with directives issued by persons responsible for 
approving each statement and comply with directives issued by those 
persons responsible for ordering remedial action.
    (d) Members of advisory boards and commissions established in 
accordance with State laws or regulations to represent multiple 
interests, who perform a function or duty under the Act, shall recuse 
themselves from proceedings which may affect their direct or indirect 
financial interests.
[42 FR 56060, Oct. 20, 1977, as amended at 51 FR 37122, Oct. 17, 1986; 
56 FR 46987, Sept. 17, 1991]



Sec. 705.5  Definitions.

    Act. Means the Surface Mining Control and Reclamation Act of 1977, 
Pub. L. 95-87.
    Coal mining operation. Means the business of developing, producing, 
preparing or loading bituminous coal, subbituminous coal, anthracite, or 
lignite, or of reclaiming the areas upon which such activities occur.
    Direct financial interest. Means ownership or part ownership by an 
employee of lands, stocks, bonds, debentures, warrants, partnership 
shares, or other holdings and also means any other arrangement where the 
employee may benefit from his or her holding in or salary from coal 
mining operations. Direct financial interests include employment, 
pensions, creditor, real property and other financial relationships.
    Director. Means the Director or Acting Director of the Office of 
Surface Mining Reclamation and Enforcement within the U.S. Department of 
the Interior.
    Employee. Means (a) any person employed by the State Regulatory 
Authority who performs any function or duty under the Act, and (b) 
advisory board or commission members and consultants who perform any 
function or duty under the Act, if they perform decisionmaking functions 
for the State Regulatory Authority under the authority of State law or 
regulations. However, members of advisory boards or commissions 
established in accordance with State law or regulations to represent 
multiple interests are not considered to be employees. State officials 
may through State law or regulations expand this definition to meet 
their program needs.
    Indirect financial interest. Means the same financial relationships 
as for direct ownership, but where the employee reaps the benefits of 
such interests, including interests held by his or her spouse, minor 
child and other relatives, including in-laws, residing in the employee's 
home. The employee will not be deemed to have an indirect financial 
interest if there is no relationship between the employee's functions or 
duties and the coal mining operation in which the spouse, minor children 
or other resident relatives hold a financial interest.
    Office. Means the Office of Surface Mining Reclamation and 
Enforcement, U.S. Department of the Interior.
    Performing any function or duty under this Act. Means those 
decisions or actions, which if performed or not performed by an 
employee, affect the programs under the Act.
    Prohibited financial interest. Means any direct or indirect 
financial interest in any coal mining operation.
    Secretary. Means the Secretary of the Interior.
    State Regulatory Authority. Means that office in each State which 
has primary responsibility at the State level for administering this 
Act. Until an office is established under the provisions

[[Page 39]]

of section 503 or section 504 of the Act, this term shall refer to those 
existing State offices having primary jurisdiction for regulating, 
enforcing, and inspecting any surface coal mining and reclamation 
operations within the State during the interim period between the 
effective date of the Act and the establishment of the State Regulatory 
Authority under section 503 or section 504.



Sec. 705.6  Penalties.

    (a) Criminal penalties are imposed by section 517(g) of the Surface 
Mining Control and Reclamation Act of 1977, Pub. L. 95-87. Section 
517(g) prohibits each employee of the State Regulatory Authority who 
performs any function or duty under the Act from having a direct or 
indirect financial interest in any underground or surface coal mining 
operation. The Act provides that whoever knowingly violates the 
provisions of section 517(g) shall, upon conviction, be punished by a 
fine of not more than $2,500, or by imprisonment of not more than one 
year, or by both.
    (b) Regulatory penalties are imposed by this part. The provisions in 
section 517(g) of the Act make compliance with the financial interest 
requirements a condition of employment for employees of the State 
Regulatory Authority who perform any functions or duties under the Act. 
Accordingly, an employee who fails to file the required statement will 
be considered in violation of the intended employment provisions of 
section 517(g) and will be subject to removal from his or her position.



Sec. 705.10  Information collection.

    The collections of information contained in Secs. 705.11 and 705.17 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned clearance number 1029-0067. The 
information is being collected on OSM Form 23 and will be used to meet 
the requirements of section 517(g) of the Surface Mining Control and 
Reclamation Act of 1977, which provides that no employee of the State 
regulatory authority shall have direct or indirect financial interests 
in any underground or surface coal mining operation. This information 
will be used by officials of the state regulatory authority to determine 
whether each State employee complies with the financial interest 
provisions of section 517(g). The obligation to respond is mandatory in 
accordance with section 517(g). Public reporting burden for this 
information is estimated to average 20 minutes per response per state 
employee and 30 minutes per response per State regulatory authority, 
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, 1951 
Constitution Avenue NW., room 5415-L, Washington, DC 20240; and the 
Office of Management and Budget, Paperwork Reduction Project 1029-0067, 
Washington, DC 20503.
[56 FR 46988, Sept. 17, 1991]



Sec. 705.11  Who shall file.

    (a) Any employee who performs any function or duty under the Act is 
required to file a statement of employment and financial interests. 
Members of advisory boards and commissions established in accordance 
with State laws or regulations to represent multiple interests, who 
perform a function or duty under the Act, must file a statement of 
employment and financial interests. An employee who occupies a position 
which has been determined by the Head of the State Regulatory Authority 
not to involve performance of any function or duty under the Act or who 
is no longer employed by the State Regulatory Authority at the time a 
filing is due, is not required to file a statement.
    (b) The Head of each State Regulatory Authority shall prepare a list 
of those positions within the State Regulatory Authority that do not 
involve performance of any functions or duties under the Act. State 
Regulatory Authorities may be organized to include more activities than 
are covered by the Act. For example, if a State has identified its 
Department of Natural Resources as the State Regulatory Authority there 
may be only one or two

[[Page 40]]

offices within that Department which have employees who perform any 
functions, or duties under the Act. In those cases, the Head of the 
State Regulatory Authority shall list the title of boards, offices, 
bureaus or divisions within the State Regulatory Authority which do not 
perform any functions or duties under the Act and list the positions not 
performing functions or duties under the Act for only those boards, 
offices, bureaus or divisions that do have some employees performing 
functions or duties under the Act. Only those employees who are employed 
in a listed organizational unit or who occupy a listed position will be 
exempted from the filing requirements of section 517(g) of the Act.
    (c) The Head of each State Regulatory Authority shall prepare and 
submit to the director, an initial listing of positions that do not 
involve performance of any functions or duties under the Act within 60 
days of the effective date of these regulations.
    (d) The Head of each State Regulatory Authority shall annually 
review and update this listing. For monitoring and reporting reasons, 
the listing must be submitted to the Director and must contain a written 
justification for inclusion of the positions listed. Proposed revisions 
or a certification that revision is not required shall be submitted to 
the Director by no later than September 30 of each year. The Head of 
each State Regulatory Authority may revise the listing by the addition 
or deletion of positions at any time he or she determines such revisions 
are required to carry out the purpose of the law or the regulations of 
this part. Additions to and deletions from the listing of positions are 
effective upon notification to the incumbents of the positions added or 
deleted.
    (e) The Secretary or the Director may modify the listing at any time 
one or both of them determines that the listing submitted by the Head of 
a State Regulatory Authority indicates that coverage is not sufficient 
to carry out the purpose of the law or the regulations of this part.
[42 FR 56060, Oct. 20, 1977, as amended at 51 FR 37122, Oct. 17, 1986]



Sec. 705.13  When to file.

    (a) Employees and members of advisory boards and commissions 
representing multiple interests performing functions or duties under the 
Act shall file:
    (1) Within 120 days of the effective date of these regulations; and
    (2) Annually on February 1 of each year, or at such other date as 
may be agreed to by the Director, provided that such alternative date 
will allow sufficient time to obtain information needed by the Director 
for his or her annual report to the Congress.
    (b) New employees and new members of advisory boards and commissions 
representing multiple interest hired, appointed, or transferred to 
perform functions or duties under the Act will be required to file at 
the time of entrance to duty.
    (c) New employees and new members of advisory boards and commissions 
representing multiple interests are not required to file an annual 
statement on the subsequent annual filing date if this date occurs 
within two months after their initial statement was filed. For example, 
an employee entering duty on December 2, 1986 would file a statement on 
that date. Because December 2 is within two months of February 1 the 
employee would not be required to file his or her next annual statement 
until February 1, 1988.
[51 FR 37122, Oct. 17, 1986]



Sec. 705.15  Where to file.

    The head of the State Regulatory Authority shall file his or her 
statement with the Director. All other employees and members of advisory 
boards and commissions representing multiple interests, as provided in 
Sec. 705.11, shall file their statements with the head of the State 
Regulatory Authority or such other official as may be designated by 
State law or regulation.
[51 FR 37122, Oct. 17, 1986]



Sec. 705.17  What to report.

    (a) Each employee shall report all information required on the 
statement of employment and financial interests of the employee, his or 
her spouse, minor children, or other relatives who are fulltime 
residents of the employee's

[[Page 41]]

home. The report shall be on OSM Form 23 as provided by the Office. The 
statement consists of three major parts, (1) a listing of all financial 
interests, including employment, security, real property, creditor and 
other financial interests held during the course of the preceding year, 
(2) a certification that none of the listed financial interests 
represent a direct or indirect financial interest in an underground or 
surface coal mining operation except as specifically identified and 
described by the employee as part of the certificate and (3) a 
certification by the reviewer that the form was reviewed, that 
prohibited interests have been resolved, and that no other prohibited 
interests have been identified from the statement.
    (b) Listing of all financial interests. The statement will set forth 
the following information regarding any financial interest:
    (1) Employment. Any continuing financial interests in business 
entities and nonprofit organizations through a pension or retirement 
plan, shared income, salary or other income arrangement as a result of 
prior or current employment. The employee, his or her spouse or other 
resident relative is not required to report a retirement plan from which 
he or she will receive a guaranteed income. A guaranteed income is one 
which is unlikely to be changed as a result of actions taken by the 
State Regulatory Authority.
    (2) Securities. Any financial interest in business entities and 
nonprofit organizations through ownership of stock, stock options, 
bonds, securities or other arrangements including trusts. An employee is 
not required to report mutual funds, investment clubs or regulated 
investment companies not specializing in underground and surface coal 
mining operations.
    (3) Real Property. Ownership, lease, royalty or other interests or 
rights in lands or minerals. Employees are not required to report lands 
developed and occupied for a personal residence.
    (4) Creditors. Debts owed to business entities and nonprofit 
organizations. Employees are not required to report debts owed to 
financial institutions (banks, savings and loan associations, credit 
unions, and the like) which are chartered to provide commercial or 
personal credit. Also excluded are charge accounts and similar short 
term debts for current and ordinary household and living expenses.
    (c) Employee certification, and, if applicable, a listing of 
exceptions.
    (1) The statement will provide for a signed certification by the 
employee that to the best of his or her knowledge, (i) none of the 
listed financial interests represent an interest in an underground or 
surface coal mining operation except as specifically identified and 
described as exceptions by the employee as part of the certificate, and 
(ii) the information shown on the statement is true, correct, and 
complete.
    (2) An employee is expected to (i) have complete knowledge of his or 
her personal involvement in business enterprises such as a sole 
proprietorship and partnership, his or her outside employment and the 
outside employment of the spouse and other covered relatives, and (ii) 
be aware of the information contained in the annual financial statement 
or other corporate or business reports routinely circulated to investors 
or routinely made available to the public.
    (3) The exceptions shown in the employee certification of the form 
must provide enough information for the Head of the State Regulatory 
Authority to determine the existence of a direct or indirect financial 
interest. Accordingly, the exceptions should:
    (i) List the financial interests;
    (ii) Show the number of shares, estimated value or annual income of 
the financial interests; and
    (iii) Include any other information which the employee believes 
should be considered in determining whether or not the interest 
represents a prohibited interest.
    (4) Employees are cautioned to give serious consideration to their 
direct and indirect financial interests before signing the statement of 
certification. Signing the certification without listing known 
prohibited financial interests may be cause for imposing the penalties 
prescribed in Sec. 705.6(a).
[42 FR 56060, Oct. 20, 1977, as amended at 56 FR 46988, Sept. 17, 1991]

[[Page 42]]



Sec. 705.18  Gifts and gratuities.

    (a) Except as provided in paragraph (b) of this section, employees 
shall not solicit or accept, directly or indirectly, any gift, gratuity, 
favor, entertainment, loan or any other thing of monetary value, from a 
coal company which:
    (1) Conducts or is seeking to conduct, operations or activities that 
are regulated by the State Regulatory Authority; or
    (2) Has interests that may be substantially affected by the 
performance or non-performance of the employee's official duty.
    (b) The prohibitions in paragraph (a) of this section do not apply 
in the context of obvious family or personal relationships, such as 
those between the parents, children, or spouse of the employee and the 
employee, when the circumstances make it clear that it is those 
relationships rather than the business of the persons concerned which 
are the motivating factors. An employee may accept:
    (1) Food and refreshments of nominal value on infrequent occasions 
in the ordinary course of a luncheon, dinner, or other meeting where an 
employee may properly be in attendance; and
    (2) Unsolicited advertising or promotional material, such as pens, 
pencils, note pads, calendars and other items of nominal value.
    (c) Employees found guilty of violating the provisions of this 
section will be subject to administrative remedies in accordance with 
existing or adopted State regulations or policies.



Sec. 705.19  Resolving prohibited interests.

    (a) Actions to be taken by the Head of the State Regulatory 
Authority:
    (1) Remedial action to effect resolution. If an employee has a 
prohibited financial interest, the Head of the State Regulatory 
Authority shall promptly advise the employee that remedial action which 
will resolve the prohibited interest is required within 90 days.
    (2) Remedial action may include:
    (i) Reassignment of the employee to a position which performs no 
function or duty under the Act, or
    (ii) Divestiture of the prohibited financial interest, or
    (iii) Other appropriate action which either eliminates the 
prohibited interest or eliminates the situation which creates the 
conflict.
    (3) Reports of noncompliance. If 90 days after an employee is 
notified to take remedial action that employee is not in compliance with 
the requirements of the Act and these regulations, the Head of the State 
Regulatory Authority shall report the facts of the situation to the 
Director who shall determine whether action to impose the penalties 
prescribed by the Act should be initiated. The report to the Director 
shall include the original or a certified true copy of the employee's 
statement and any other information pertinent to the Director's 
determination, including a statement of actions being taken at the time 
the report is made.
    (b) Actions to be taken by the Director:
    (1) Remedial action to effect resolution. Violations of the 
regulations in this part of the Head of a State Regulatory Authority, 
will be cause for remedial action by the Governor of the State or other 
appropriate State official based on recommendations from the Director on 
behalf of the Secretary. The Governor or other appropriate State 
official shall promptly advise the Head of the State Regulatory 
Authority that remedial action which will resolve the prohibited 
interest is required within 90 days.
    (2) Remedial action should be consistent with the procedures 
prescribed for other State employees by Sec. 705.19(a)(2).
    (3) Reports on noncompliance.
    (i) If 90 days after the Head of State Regulatory Authority is 
notified to take remedial action the Governor or other appropriate State 
official notifies the Director that the Head of the State Regulatory 
Authority is not in compliance with the Act and these regulations, the 
Director shall report the facts of the situation to the Secretary who 
shall determine whether the action to impose the penalties prescribed by 
the Act, or to impose the eligibility restrictions prescribed by 
Sec. 705.1 should be initiated.
    (ii) Within 30 days of receipt of a noncompliance report from the 
Head of a Regulatory Authority under Sec. 705.19(a)(3), the Director 
shall notify

[[Page 43]]

the Head of the State Regulatory Authority and the employee involved of 
additional action to be taken. Actions which the Director may take 
include but are not limited to the granting of additional time for 
resolution or the initiation of action to impose the penalties 
prescribed by the Act.



Sec. 705.21  Appeals procedures.

    Employees have the right to appeal an order for remedial action 
under Sec. 705.19, and shall have 30 days to exercise this right before 
disciplinary action is initiated.
    (a) Employees other than the Head of the State Regulatory Authority, 
may file their appeal, in writing, through established procedures within 
their particular State.
    (b) The Head of the State Regulatory Authority may file his or her 
appeal, in writing, with the Director who will refer it to the Conflict 
of Interest Appeals Board within the U.S. Department of the Interior.



PART 706--RESTRICTION ON FINANCIAL INTERESTS OF FEDERAL EMPLOYEES--Table of Contents




Sec.
706.1  Purpose.
706.2  Objectives.
706.3  Definitions.
706.4  Authority.
706.5  Responsibility.
706.6  Penalties.
706.11  Who shall file.
706.13  When to file.
706.15  Where to file.
706.17  What to report.
706.18  Gifts and gratuities.
706.19  Resolving prohibited interests.
706.21  Appeals procedures.

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

    Source: 42 FR 56060, Oct. 20, 1977, unless otherwise noted.



Sec. 706.1  Purpose.

    This part sets forth the minimum policies and procedures to be 
followed by Federal employees to satisfy the requirements of section 
201(f) of the Act. The requirements of this part are in addition to 
Executive Order 11222 of May 8, 1965, and other applicable regulations 
related to conflict of interest. Section 201(f) prohibits certain 
Federal employees from having any direct or indirect financial interest 
in underground or surface coal mining operations. The regulations of 
this part are applicable to Federal employees as defined in Sec. 706.3.



Sec. 706.2  Objectives.

    The objectives of this part are:
    (a) To ensure that affected Federal agencies adopt a standard 
program for implementing the provisions in section 201(f) of the Act.
    (b) To establish methods which will ensure, as required by section 
201(f) of the Act, that each Federal employee who performs any function 
or duty under the Act does not have a direct or indirect financial 
interest in an underground or surface coal mining operation.
    (c) To establish the methods by which the monitoring, enforcing and 
reporting responsibilities of the Director and the Secretary of the 
Interior under section 201(f) will be accomplished.



Sec. 706.3  Definitions.

    Act. Means the Surface Mining Control and Reclamation Act of 1977, 
Pub. L. 95-87.
    Coal mining operation. Means the business of developing, producing, 
preparing or loading bituminous coal, subbituminous coal, anthracite or 
lignite or of reclaiming the areas upon which such activities occur.
    Direct financial interest. Means ownership or part ownership by an 
employee of lands, stocks, bonds, debentures, warrants, partnership 
shares, or other holdings and also means any other arrangement where the 
employee may benefit from his or her holding in or salary from coal 
mining operations. Direct financial interests include employment, 
pensions, creditor, real property and other financial relationships.
    Director. Means the Director or Acting Director of the Office of 
Surface Mining Reclamation and Enforcement, U.S. Department of the 
Interior.
    Employee. Means any person employed by the Office of Surface Mining 
Reclamation and Enforcement within the U.S. Department of the Interior 
and any other person employed by the Federal Government who performs

[[Page 44]]

functions or duties under the Act without regard to the duration or 
nature of his or her appointment.
    Indirect financial interest. Means the same financial relationships 
as for direct ownership, but where the employee reaps the benefits of 
such interests, including interests held by his or her spouse, minor 
child and other relatives, including inlaws, residing in the employee's 
home. The employee will not be deemed to have an indirect financial 
interest if there is no relationship between the employee's functions or 
duties and the coal mining operation in which the spouse, minor children 
or other resident relatives hold a financial interest.
    Office. Means the Office of Surface Mining Reclamation and 
Enforcement, U.S. Department of the Interior.
    Other Federal agency. Means any executive Federal agency or office 
or part thereof not a part of the U.S. Department of the Interior, and 
includes but is not limited to, the following agencies: The Department 
of Agriculture, the Department of Justice, the Corps of Engineers, the 
Environmental Protection Agency, the Council on Environmental Quality 
and the Energy Research and Development Administration.
    Performing any function or duty under this act. Means those 
decisions or actions, which if performed or not performed by an 
employee, affect the programs under the Act.
    Prohibited financial interest. Means any direct or indirect 
financial interest in any coal mining operation.
    Secretary. Means the Secretary of the Interior.



Sec. 706.4  Authority.

    (a) The Director is authorized by Pub. L. 95-87 to:
    (1) Establish the methods by which the provisions in section 201(f) 
of the Act will be monitored and enforced;
    (2) Establish appropriate provisions for all employees who perform 
any function or duty under the Act to file a statement and supplements 
thereto concerning their financial interests which may be affected by 
section 201(f); and
    (3) Report annually to the Congress on the actions taken and not 
taken during the preceding calendar year under section 201(f) of the 
Act.
    (b) Other Federal agencies with employees who perform functions or 
duties under the Act may adopt financial interest regulations pursuant 
to the Act which are consistent with the requirements in this part. If 
any such agency does not adopt regulations pursuant to this part, that 
agency shall enter into a memorandum of understanding with the Director, 
to have the employees of that agency who perform functions or duties 
under the Act file their statements with the Director. The Director will 
review statements filed with him or her, applying the regulations of the 
Department of the Interior. Where the Director determines that remedial 
action is necessary, he or she will refer the case to the employing 
agency with a recommendation as to the action to be taken.
    (c) The Office of Inspector General within the U.S. Department of 
the Interior, will conduct periodic audits of Interior's compliance with 
the provisions contained in section 201(f) of the Act and the provisions 
of this part. The Office of Inspector General will arrange for such 
periodic audits of other Federal agencies to be performed by the audit 
unit of each such agency. The audits will be conducted on a cyclical 
basis or upon request of the Secretary of the Interior or the Director. 
Copies of all audit reports and related responses on corrective actions 
will be provided to the Director.
[42 FR 56060, Oct. 20, 1977, as amended at 56 FR 46988, Sept. 17, 1991]



Sec. 706.5  Responsibility.

    (a) The Director, the Head of each other Federal agency, and the 
Head of each other bureau or office within the U.S. Department of the 
Interior, have the following common responsibilities concerning 
employees within their organizations performing any functions or duties 
under the Act, and shall:
    (1) Provide advice, assistance and counseling to employees 
concerning financial interest matters related to the Act;
    (2) Promptly review the statement of employment and financial 
interests and supplements, if any, filed by each employee to determine 
if the employee

[[Page 45]]

has correctly identified those listed employment and financial interests 
which constitute a direct or indirect financial interest in an 
underground or surface coal mining operation;
    (3) Certify on each statement that review has been made, that 
prohibited financial interests if any, have been resolved, and that no 
other prohibited interests have been identified from the statement;
    (4) Resolve prohibited financial interest situations by promptly 
notifying and ordering the employee to take remedial action within 90 
days, or by initiating action to impose the penalties of the Act;
    (5) Furnish a blank statement by December 15 of each year to each 
employee required to file a statement within his or her employing 
organization; and
    (6) Inform annually each employee required to file a statement 
within his or her employing organization of the name, address, and 
telephone number of the person whom they may contact for advice and 
counseling.
    (b) In addition to the common responsibilities in paragraph (a) of 
this section the Director shall:
    (1) Monitor the program by using reports requested from the Heads of 
other Federal agencies, from the Heads of other bureaus and offices 
within the U.S. Department of the Interior, and by using periodic audits 
performed by the Office of Inspector General, U.S. Department of the 
Interior and by other Federal agencies;
    (2) Prepare for the Secretary a consolidated report to the Congress 
as part of the annual report submitted under section 706 of the Act, on 
the actions taken and not taken during the preceding calendar year under 
section 201(f);
    (3) Refer recommendations to officials of other Federal agencies 
concerning those cases requiring remedial action for employees of the 
other Federal agency who filed with the Director because that other 
Federal agency did not choose to adopt its own financial interest 
regulations pursuant to the Act.
    (4) Report to the Solicitor, U.S. Department of the Interior, 
through the Office of Inspector General, U.S. Department of the 
Interior, cases of knowing violations of the provisions in section 
201(f). The Solicitor will transfer such reports to the U.S. Department 
of Justice.
    (5) Designate, if so desired, other qualified Office employees as 
assistant counselors to assist with the operational duties associated 
with filing and reviewing financial statements;
    (6) Furnish an adequate supply of blank statements to the Heads of 
those other Federal agencies which decide to have their employees file 
with the Director; and
    (7) Submit to the Department of the Interior Ethics Counselor such 
statistics and information he may request in accordance with 43 CFR 
20.735-17 as adopted.
    (c) In addition to the common responsibilities in paragraph (a) of 
this section, the Head of each other Federal agency with employees 
performing any functions or duties under the Act shall:
    (1) Decide whether to adopt independent procedures for the filing 
and review of financial statements or to enter into a memorandum of 
understanding with the Director that the U.S. Department of the Interior 
will provide and review the financial statements and recommend any 
necessary remedial action to the Head of the employing agency;
    (2) Submit to the Director such statistics and information the 
Director may request to enable preparation of the required annual report 
to the Congress, and to ensure uniform application of the provision in 
section 201(f) of the Act; and
    (3) Report to the Director and the U.S. Department of Justice cases 
of knowing violations of the provisions in section 201(f).
    (d) In addition to the common responsibilities in paragraph (a), the 
Heads of other bureaus or offices within the U.S. Department of the 
Interior with employees performing any functions or duties under the Act 
shall:
    (1) Submit to the Director such statistics and information the 
Director may request to enable preparation of the required annual report 
to Congress, and to ensure uniform application of provisions in section 
201(f) of the Act;
    (2) Submit to the Department of the Interior Ethics Counselor such 
statistics and information he may request in

[[Page 46]]

accordance with 43 CFR 20.735-17 as adopted, and
    (3) Report to the Director cases of knowing violations of the 
provisions in section 201(f).
    (e) Employees shall:
    (1) Have no direct or indirect financial interests in coal mining 
operations;
    (2) File a fully completed statement of employment and financial 
interests 120 days after these regulations become effective or upon 
entrance to duty, and annually thereafter on the specified filing date, 
and
    (3) Comply with directives issued by persons responsible for 
approving each statement and comply with directives issued by those 
persons responsible for ordering remedial action.
[42 FR 56060, Oct. 20, 1977, as amended at 56 FR 46988, Sept. 19, 1991]



Sec. 706.6  Penalties.

    (a) Criminal penalties are imposed by section 201(f) of the Surface 
Mining Control and Reclamation Act of 1977, Pub. L. 95-87, which 
prohibits each employee of the Office or any other Federal employee who 
performs any function or duty under the Act from having a direct or 
indirect financial interest in underground or surface coal mining 
operations. The Act provides that whoever knowingly violates the 
provisions of section 201(f) shall, upon conviction, be punished by a 
fine of not more than $2,500, or by imprisonment for not more than one 
year, or both.
    (b) Regulatory penalties are imposed by this part. The provisions in 
section 201(f) of the Act make compliance with the financial interest 
requirements a condition of employment for all Office employees and for 
other Federal employees who perform any functions or duties under the 
Act. Accordingly, an employee who fails to file the required financial 
statement will be considered in violation of the intended employment 
provisions of section 201(f) and will be subject to removal from his or 
her position.



Sec. 706.11  Who shall file.

    (a) Every employee in the Office is required to file a statement of 
employment and financial interests.
    (b) Any other Federal employee who performs any function or duty 
under the Act is required to file a statement of employment and 
financial interests. The Head of each other Federal agency and the Heads 
of other bureaus and offices within the U.S. Department of the Interior 
shall prepare and submit a report within 60 days of the effective date 
of these regulations, either listing the Federal positions identified as 
performing functions or duties under the Act, or listing the 
organizational unit and showing the total number of employees within the 
unit who must file a statement. Revision to the listing or certification 
that revision is not required shall be submitted to the Director by no 
later than September 30 of each year. The Secretary, the Director, or 
the Heads of the other affected Federal organizations may revise the 
list by the addition or deletion of positions at any time such revisions 
are required to carry out the purpose of the law or regulations of this 
part. Additions to or deletions from the list of positions are effective 
upon notification to the incumbents.



Sec. 706.13  When to file.

    (a) Employees performing functions or duties under the Act will be 
required to file:
    (1) Within 120 days of the effective date of these regulations, and
    (2) Annually on February 1 of each year or at such other date as may 
be agreed to by the Director, provided that such alternative date will 
allow sufficient time to obtain information needed by the Director for 
his or her annual report to the Congress.
    (b) New employees hired, appointed, or transferred to perform 
functions or duties under the Act will be required to file at the time 
of entrance to duty.
    (c) New employees are not required to file an annual statement on 
the subsequent annual filing date if this date occurs within two months 
after their initial statement was filed. For example, an employee 
entering duty on December 1, 1978 would file a statement on that date. 
Because December 1 is within two months of February 1 the employee would 
not be required to file his or her next annual statement until February 
1, 1980.

[[Page 47]]



Sec. 706.15  Where to file.

    (a) Each Office employee shall file his or her statement of 
employment and financial interests with the Director.
    (b) Each Department of the Interior employee, who is not an Office 
employee but does perform any function or duty under the Act, shall file 
a statement of employment and financial interests with his or her 
appropriate Ethics Counselor as identified in 43 CFR 20.735-22(c).
    (c) Each employee of another Federal agency who performs a function 
or duty under the Act shall file a statement of employment and financial 
interests with the official designated by the Head of the other Federal 
agency.



Sec. 706.17  What to report.

    (a) Each employee shall report all information required on the 
statement of employment and financial interests of the employee, his or 
her spouse, minor children, or other relatives who are fulltime 
residents of the employee's home. The report shall be on a form provided 
by the Office or on a similar form adopted by another Federal agency. 
The statement shall consist of three major parts, (1) a listing of all 
financial interests, including employment, security, real property, 
creditor and other financial interests held during the course of the 
preceding year, (2) a certification that none of the listed financial 
interests represent a direct or indirect financial interest in an 
underground or surface coal mining operation except as specifically 
identified and described by the employee as part of the certificate, and 
(3) a certification by the reviewer that the form was reviewed, that 
prohibited interests have been resolved, and that no other prohibited 
interests have been identified from the statement.
    (b) Listing of all financial interests. The statement will set forth 
the following information regarding any financial interest:
    (1) Employment. Any continuing financial interests in business 
entities and nonprofit organizations through a pension or retirement 
plan, shared income, salary or other income arrangement as a result of 
prior or current employment. The employee, his or her spouse or other 
resident relative is not required to report a statement plan from which 
he or she will receive a guaranteed income. A guaranteed income is one 
which is unlikely to be changed as a result of actions taken by the 
Federal Government under the Act.
    (2) Securities. Any financial interest in business entities and 
nonprofit organizations through ownership of stock, stock options, 
bonds, securities or other arrangements including trusts. An employee is 
not required to report holdings in widely diversified mutual funds, 
investment clubs or regulated investment companies not specializing in 
underground and surface coal mining operations.
    (3) Real property. Ownership, lease, royalty or other interests or 
rights in lands or minerals. Employees are not required to report lands 
developed and occupied for a personal residence.
    (4) Creditors. Debts owed to business entities and nonprofit 
organizations. Employees are not required to report debts owed to 
financial institutions (banks, savings and loan associations, credit 
unions, and the like) which are chartered to provide commercial or 
personal credit. Also excluded are charge accounts and similar short 
term debts for current and ordinary household and living expenses.
    (c) Employee certification, and if applicable, a listing of 
exceptions.
    (1) The statement will provide for a signed certification by the 
employee that to the best of his or her knowledge, (i) none of the 
listed financial interests represent an interest in an underground or 
surface coal mining operation except as specifically identified and 
described as exceptions by the employee as part of the certificate, and 
(ii) the information shown on the statement is true, correct, and 
complete.
    (2) An employee is expected to (i) have complete knowledge of his or 
her personal involvement in business enterprises such as a sole 
proprietorship and partnership, his or her outside employment and the 
outside employment of the spouse and other covered relatives, and (ii) 
be aware of the information contained in the annual financial

[[Page 48]]

statements or other corporate or business reports routinely circulated 
to investors or routinely made available to the public.
    (3) The exceptions shown in the employee certification of the form 
must provide enough information for the Director, the Head of another 
Federal agency, or the Head of other bureaus or offices within the U.S. 
Department of the Interior to determine the existence of a direct or 
indirect financial interest. Accordingly, the exceptions should:
    (i) List the financial interests;
    (ii) Show the number of shares, estimated value or annual income of 
the financial interests; and
    (iii) Include any other information which the employee believes 
should be considered in determining whether or not the interest 
represents a prohibited interest.
    (4) Employees are cautioned to give serious consideration to their 
direct and indirect financial interests before signing the statement of 
certification. Signing the certification without listing known 
prohibited financial interests may be cause for imposing the penalties 
prescribed in Sec. 706.6(a).



Sec. 706.18  Gifts and gratuities.

    (a) Except as provided in paragraph (b) of this section, employees 
shall not solicit or accept, directly or indirectly, any gift, gratuity, 
favor, entertainment, loan, or any other thing of monetary value, from a 
coal company which:
    (1) Conducts or is seeking to conduct operations or activities that 
are regulated by the Federal Government; or
    (2) Has interests that may be substantially affected by the 
performance or nonperformance of the employee's official duty.
    (b) The prohibitions in paragraph (a) of this section do not apply 
in the context of obvious family or personal relationships, such as 
those between the parents, children, or spouse of the employee and the 
employee, when the circumstances make it clear that it is those 
relationships rather than the business of the persons concerned which 
are the motivating factors. An employee may accept:
    (1) Food and refreshments of nominal value on infrequent occasions 
in the ordinary course of a luncheon, dinner, or other meeting where an 
employee may properly be in attendance, and
    (2) Unsolicited advertising or promotional material, such as pens, 
pencils, note pads, calendars and other items of nominal value.
    (c) Employees found guilty of violating the provisions of this 
section will be subject to administrative remedies in accordance with 
existing Federal regulations or policies.



Sec. 706.19  Resolving prohibited interests.

    Actions to be taken by the Director, the heads of other Federal 
agencies, and the heads of other affected bureaus and offices within the 
U.S. Department of the Interior include:
    (a) Remedial action to effect resolution. If an employee has a 
prohibited financial interest, the head of the organizational entity 
(Department, bureau, office, etc.) where the employee works shall 
promptly advise the employee that remedial action which will resolve the 
prohibited interest is required within 90 days.
    (b) Remedial action may include: (1) Reassignment of the employee to 
a position which performs no function or duty under the Act, or
    (2) Divestiture of the prohibited financial interest, or
    (3) Other appropriate action which either eliminates the prohibited 
financial interest or eliminates the situation which creates the 
conflict.
    (c) Reports of noncompliance. If 90 days after an employee is 
notified to take remedial action that employee is not in compliance with 
the requirements of the Act and these regulations, the official, other 
than the Director, who ordered the remedial action shall promptly report 
the facts of the situation to the Director. The reports to the Director 
shall include the original or a certified true copy of the employee's 
statement and any other information pertinent to the Director, including 
a statement of actions being taken at the time the report is made. 
Within 30 days of receipt of a noncompliance report, the Director shall 
notify the head of the employing organization and the employee involved 
of additional action

[[Page 49]]

to be taken. Actions which the Director may take include but are not 
limited to the granting of additional time for resolution or the 
initiation of action to impose the penalties prescribed by the Act.



Sec. 706.21  Appeals procedures.

    Employees have the right to appeal an order for remedial action 
under Sec. 706.19 and shall have 30 days to exercise this right before 
disciplinary action is initiated.
    (a) Office employees and other Department of the Interior employees 
may file their appeal, in writing, in accordance with the provisions in 
43 CFR 20.735-25(b).
    (b) Employees of other Federal agencies may file their appeal, in 
writing, in accordance with the established procedures of their 
employing agency.



PART 707--EXEMPTION FOR COAL EXTRACTION INCIDENT TO GOVERNMENT-FINANCED HIGHWAY OR OTHER CONSTRUCTION--Table of Contents




Sec.
707.1  Scope.
707.4  Responsibility.
707.5  Definitions.
707.10  Information collection.
707.11  Applicability.
707.12  Information to be maintained on site.

    Authority: Secs. 102, 201, 501, and 528 of Pub. L. 95-87, 91 Stat. 
448, 449, 467, and 514 (30 U.S.C. 1202, 1211, 1251, 1278).

    Source: 44 FR 15322, Mar. 13, 1979, unless otherwise noted.



Sec. 707.1  Scope.

    (a) This part establishes the procedures for determining those 
surface coal mining and reclamation operations which are exempt from the 
Act and this chapter because the extraction of coal is an incidental 
part of Federal, State, or local government-financed highway or other 
construction.
    (b) This part exempts the extraction of coal which is incidental to 
government-financed construction from the requirements of the Act and 
this Chapter, if that extraction meets specified criteria which ensure 
that the construction is government-financed and that the extraction of 
coal is incidental to it.



Sec. 707.4  Responsibility.

    (a) The regulatory authority is responsible for enforcing the 
requirements of this part.
    (b) Any person conducting coal extraction as an incidental part of 
government-financed construction is responsible for possessing, on the 
site of the extraction operation, the documentation required by 30 CFR 
707.12.



Sec. 707.5  Definitions.

    As used in this part, the following terms have the specified 
meaning:
    Extraction of coal as an incidental part means the extraction of 
coal which is necessary to enable the construction to be accomplished. 
For purposes of this part, only that coal extracted from within the 
right-of-way, in the case of a road, railroad, utility line or other 
such construction, or within the boundaries of the area directly 
affected by other types of government-financed construction, may be 
considered incidental to that construction. Extraction of coal outside 
the right-of-way or boundary of the area directly affected by the 
construction shall be subject to the requirements of the Act and this 
chapter.
    Government financing agency means a Federal, State, county, 
municipal, or local unit of government, or a department, bureau, agency 
or office of the unit which, directly or through another unit of 
government, finances construction.
    Government-financed construction means construction funded 50 
percent or more by funds appropriated from a government financing 
agency's budget or obtained from general revenue bonds, but shall not 
mean government financing agency guarantees, insurance, loans, funds 
obtained through industrial revenue bonds or their equivalent, or in-
kind payments.



Sec. 707.10  Information collection.

    Since the information collection requirement contained in 30 CFR 
707.12 has fewer than 10 respondents per year, it is exempt from the 
requirements of the Paperwork Reduction Act (44

[[Page 50]]

U.S.C. 3501 et seq.) and does not require clearance by OMB.

(30 U.S.C. 1201 et seq.)

[47 FR 33684, Aug. 4, 1982]



Sec. 707.11  Applicability.

    (a) Coal extraction which is an incidental part of government-
financed construction is exempt from the Act and this chapter.
    (b) Any person who conducts or intends to conduct coal extraction 
which does not satisfy paragraph (a) of this section shall not proceed 
until a permit has been obtained from the regulatory authority under a 
State, Federal or Federal lands program.



Sec. 707.12  Information to be maintained on site.

    Any person extracting coal incident to government-financed highway 
or other construction who extracts more than 250 tons of coal or affects 
more than two acres shall maintain, on the site of the extraction 
operation and available for inspection, documents which show--
    (a) A description of the construction project;
    (b) The exact location of the construction, right-of-way or the 
boundaries of the area which will be directly affected by the 
construction; and
    (c) The government agency which is providing the financing and the 
kind and amount of public financing, including the percentage of the 
entire construction costs represented by the government financing.

[[Page 51]]



                SUBCHAPTER B--INITIAL PROGRAM REGULATIONS





PART 710--INITIAL REGULATORY PROGRAM--Table of Contents




Sec.
710.1  Scope.
710.2  Objectives.
710.3  Authority.
710.4  Responsibility.
710.5  Definitions.
710.10  Information collection.
710.11  Applicability.
710.12  Special exemption for small operators.

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

    Source: 42 FR 62677, Dec. 13, 1977, unless otherwise noted.



Sec. 710.1  Scope.

    (a) This part provides general introductory and applicability 
material for the initial regulatory program required by section 502 and 
other sections of the Act which require early implementation. The 
initial regulatory program is effective until permanent programs are 
approved in accordance with sections 503, 504, or 523 of the Act.
    (b) The initial regulatory program which this part introduces 
includes--
    (1) Environmental performance standards of parts 715 through 718 of 
this chapter.
    (2) Inspection and enforcement procedures of parts 720 through 723 
of this chapter; and
    (3) Reimbursements to States of part 725 of this chapter.



Sec. 710.2  Objectives.

    The objectives of the initial regulatory program are to--
    (a) Protect the health and safety of the public and minimize the 
damage to the environment resulting from surface coal mining operations 
during the interval between enactment of the Act and adoption of a 
permanent State or Federal regulatory program; and
    (b) Coordinate the State and Federal regulatory programs to 
accomplish the purposes of the Act.



Sec. 710.3  Authority.

    (a) The Secretary is directed to implement an initial regulatory 
program within six months after the date of enactment of the Act in each 
State which regulates any aspect of surface coal mining under one or 
more State laws until a State program has been approved or until a 
Federal program has been implemented.
    (b) The Secretary is also authorized to regulate surface coal mining 
and reclamation operations on Federal Lands by the Mineral Leasing Act 
of February 25, 1920, as amended (30 U.S.C. 181-287) and the Minerals, 
Leasing Act for Acquired Lands (30 U.S.C. 351-359) and on Indian lands 
by various Indian lands acts. Additional regulations under these Acts 
are in 30 CFR part 211,\1\ 43 CFR part 3041 and 25 CFR part 177.
---------------------------------------------------------------------------


    \1\ Editorial Note: 30 CFR part 211 was redesignated as 43 CFR part 
3480 at 48 FR 41589, Sept. 16, 1983.
---------------------------------------------------------------------------



Sec. 710.4  Responsibility.

    (a) Under the general direction of the Assistant Secretary, Energy 
and Minerals, the Director is responsible for administering the initial 
regulatory program established by the Secretary.
    (b) The States are responsible for issuing permits and inspection 
and enforcement on lands on which operations are regulated by a State to 
insure compliance with the initial performance standards in parts 715 
through 718 of this chapter. States are required to file copies of 
inspection reports with the Office. States are also responsible for 
assuring that permits are not issued which would be in conflict with the 
restriction on mining found in section 510 of the Act, particularly in 
regard to alluvial valley floors and prime farm lands, and section 
522(e) of the Act in regard to prohibitions of mining on certain lands.



Sec. 710.5  Definitions.

    As used throughout the initial regulatory program the following 
terms have the specified meanings unless otherwise indicated:
    Acid drainage means water with a pH of less than 6.0 discharged from 
active

[[Page 52]]

or abandoned mines and from areas affected by coal mining operations.
    Acid-forming materials means earth materials that contain sulfide 
mineral or other materials which, if exposed to air, water, or 
weathering processes, will cause acids that may create acid drainage.
    Alluvial valley floors means unconsolidated stream-laid deposits 
holding streams where water availability is sufficient for subirrigation 
or flood irrigation agricultural activities but does not include upland 
areas which are generally overlain by a thin veneer of colluvial 
deposits composed chiefly of debris from sheet erosion, deposits by 
unconcentrated runoff or slope wash, together with talus, other mass 
movement accumulation and windblown deposits.
    Approximate original contour means that surface configuration 
achieved by backfilling and grading of the mined area 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 and spoil piles eliminated; water 
impoundments may be permitted where the regulatory authority determines 
that they are in compliance with Sec. 715.17.
    Aquifer means a zone, stratum, or group of strata that can store and 
transmit water in sufficient quantities for a specific use.
    Combustible material means organic material that is capable of 
burning either by fire or through a chemical process (oxidation) 
accompanied by the evolution of heat and a significant temperature rise.
    Compaction means the reduction of pore spaces among the particles of 
soil or rock, generally done by running heavy equipment over the earth 
materials.
    Disturbed area means those lands that have been affected by surface 
coal mining and reclamation operations.
    Diversion means a channel, embankment, or other manmade structure 
constructed for the purpose of diverting water from one area to another.
    Downslope means the land surface between a valley floor and the 
projected outcrop of the lowest coalbed being mined along each highwall.
    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 other similar purposes.
    Essential hydrologic functions means, with respect to alluvial 
valley floors, the role of the valley floor in collecting, storing, and 
regulating the natural flow of surface water and ground water, and in 
providing a place for irrigated and subirrigated farming, by reason of 
its position in the landscape and the characteristics of its underlying 
material.
    Flood irrigation means irrigation through natural overflow or the 
temporary diversion of high flows in which the entire surface of the 
soil is covered by a sheet of water.
    Ground water means subsurface water that fills available openings in 
rock or soil materials such that they may be considered water-saturated.
    Head-of-hollow fill means a fill structure consisting of any 
material, other than coal processing waste and organic material, placed 
in the uppermost reaches of a hollow where side slopes of the fill 
measured at the steepest point are greater that 20 deg. or the profile 
of the hollow from the toe of the fill to the top of the fill is greater 
than 10 deg.. In fills with less than 250.00 cubic yards of material, 
associated with contour mining, the top surface of the fill will be at 
the elevation of the coal seam. In all other 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.
    Highwall means the face of exposed overburden and coal in an open 
cut of a surface or for entry to an underground coal mine.
    Hydrologic balance means the relationship between the quality and 
quantity of inflow to, outflow from, and storage in a hydrologic unit 
such as a drainage basin, aquifer, soil zone, lake, or reservoir. It 
encompasses the quantity and quality relationships between 
precipitation, runoff, evaporation, and

[[Page 53]]

the change 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 and falls as precipitation, moves thence along or 
into the ground surface, and returns to the atmosphere a vapor by means 
of evaporation and transpiration.
    Impoundment means a closed basin formed naturally or artificially 
built, which is dammed or excavated for the retention of water, 
sediment, or waste.
    Intermittent or perennial stream means a stream or part of a stream 
that flows continuously during all (perennial) or for at least one month 
(intermittent) of the calendar year as a result of ground-water 
discharge or surface runoff. The term does not include an ephemeral 
stream which is one that flows for less than one month of a calendar 
year and only in direct response to precipitation in the immediate 
watershed and whose channel bottom is always above the local water 
table.
    Leachate means a liquid that has percolated through soil, rock, or 
waste and has extracted dissolved or suspended materials.
    Noxious plants means species that have been included on official 
State lists of noxious plants for the State in which the operation 
occurs.
    Overburden means material of any nature, consolidated or 
unconsolidated, that overlies a coal deposit, excluding topsoil.
    Outslope means the exposed area sloping away from a bench or terrace 
being constructed as a part of a surface coal mining and reclamation 
operation.
    Productivity means the vegetative yield produced by a unit area for 
a unit of time.
    Recharge capacity means the ability of the soils and underlying 
materials to allow precipitation and runoff to infiltrate and reach the 
zone of saturation.
    Roads means access and haul roads constructed, used, reconstructed, 
improved, or maintained for use in surface coal mining and reclamation 
operations, including use by coal-hauling vehicles leading to transfer, 
processing, or storage areas. The term includes any such road used and 
not graded to approximate original contour within 45 days of 
construction other than temporary roads used for topsoil removal and 
coal haulage roads within the pit area. Roads maintained with public 
funds such as all Federal, State, county, or local roads are excluded.
    Recurrence interval means the precipitation event expected to occur, 
on the average, once in a specified interval. For example, the 10-year 
24-hour precipitation event would be that 24-hour precipitation event 
expected to be exceeded on the average once in 10 years. Magnitude of 
such events are as defined by the National Weather Service Technical 
Paper No. 40, ``Rainfall Frequency Atlas of the U.S.,'' May 1961, and 
subsequent amendments or equivalent regional or rainfall probability 
information developed therefrom.
    Runoff means precipitation that flows overland before entering a 
defined stream channel and becoming streamflow.
    Safety factor means the ratio of the available shear strength to the 
developed shear stress on a potential surface of sliding determined by 
accepted engineering practice.
    Sediment means undissolved organic and inorganic material 
transported or deposited by water.
    Sedimentation pond means any natural or artifical structure or 
depression used to remove sediment from water and store sediment or 
other debris.
    Slope means average inclination of a surface, measured from the 
horizontal. Normally expressed as a unit of vertical distance to a given 
number of units of horizontal distance (e.g., 1v to 5h=20 percent=11.3 
degrees).
    Soil horizons means contrasting layers of soil lying one below the 
other, parallel or nearly parallel to the land surface. Soil horizons 
are differentiated on the basis of field characteristics and laboratory 
data. The three major soil horizons are--
    (a) A horizon. The uppermost layer in the soil profile often called 
the surface soil. It is the part of the soil in which organic matter is 
most abundant, and where leaching of soluble or suspended particles is 
the greatest.

[[Page 54]]

    (b) B horizon. The layer immediately beneath the A horizon and often 
called the subsoil. This middle layer commonly contains more clay, iron, 
or aluminum than the A or C horizons.
    (c) C horizon. The deepest layer of the soil profile. It consists of 
loose material or weathered rock that is relatively unaffected by 
biologic activity.
    Spoil means overburden that has been removed during surface mining.
    Stabilize means any method used to control movement of soil, spoil 
piles, or areas of disturbed earth and includes increasing bearing 
capacity, increasing shear strength, draining, compacting, or 
revegetating.
    Subirrigation means irrigation of plants with water delivered to the 
roots from underneath.
    Surface water means water, either flowing or standing, on the 
surface of the earth.
    Suspended solids means organic or inorganic materials carried or 
held in suspension in water that will remain on a 0.45 micron filter.
    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 and other areas affected by coal mining operations and 
which contains a substance which 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.
    Valley fill means a fill structure consisting of any material other 
than coal waste and organic material that is placed in a valley where 
side slopes of the fill measured at the steepest point are greater than 
20 deg. or the profile of the hollow from the toe of the fill to the top 
of the fill is greater than 10 deg..
    Waste means earth materials, which are combustible, physically 
unstable, or acid-forming or toxic-forming, wasted or otherwise 
separated from product coal and are slurried or otherwise transported 
from coal processing facilities or preparation plants after physical or 
chemical processing, cleaning, or concentrating of coal.
    Water table means upper surface of a zone of saturation, where the 
body of ground water is not confined by an overlying impermeable zone.
[42 FR 62677, Dec. 13, 1977, as amended at 44 FR 30628, May 25, 1979]



Sec. 710.10  Information collection.

    The collections of information contained in Secs. 710.4, 710.11, and 
710.12 have been approved by the Office of Management and Budget under 
44 U.S.C. 3501 et seq. and assigned clearance number 1029-0095. The 
information will be used in administering the Initial Regulatory 
Program. Response is required to obtain a benefit in accordance with 30 
U.S.C. 1201 et seq. Public reporting burden for this collection of 
information is estimated to average one 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 Information Collection 
Clearance Officer, OSM, Department of the Interior, 1951 Constitution 
Avenue, NW., Washington, DC 20240; and to the Office of Management and 
Budget, Paperwork Reduction Project (1029-0095), OMB, Washington, DC 
20503.
[56 FR 6227, Feb. 14, 1991]



Sec. 710.11  Applicability.

    (a) Operations on lands on which such operations are regulated by a 
State. (1) The requirements of the initial regulatory program do not 
apply to surface mining and reclamation operations which occur on lands 
within a State which does not regulate any part of such operations.
    (2) General obligations. (i) A person conducting coal mining 
operations shall have a permit if required by the State in which he is 
mining and shall comply with State laws and regulations that are not 
inconsistent with the Act and this chapter.

[[Page 55]]

    (ii) A person conducting coal mining operations shall not engage in 
any operations which result in a condition or constitute a practice that 
creates an imminent danger to the health or safety of the public.
    (iii) A person conducting coal mining operations shall not engage in 
any operations which result in a condition or constitute a practice that 
causes or can reasonably be expected to cause significant, imminent 
environmental harm to land, air, or water resources.
    (3) Performance standards obligations. (i) A person who conducts any 
coal mining operations under an initial permit issued by a State on or 
after February 3, 1978, shall comply with the requirements of the 
initial regulatory program. Such permits shall contain terms that comply 
with the relevant performance standards of the initial regulatory 
program.
    (ii) On and after May 3, 1978, any person conducting coal mining 
operations shall comply with the initial regulatory program, except as 
provided in Sec. 710.12 of this part.
    (iii) A person shall comply with the obligations of this section 
until he has received a permit to operate under a permanent State or 
Federal regulatory program.
    (b) Operations on Indian lands. Any person who conducts surface coal 
mining and reclamation operations on Indian lands on or after December 
16, 1977, in accordance with section 750.11(c) of this chapter, or who 
was otherwise subject to 25 CFR Part 216, Subpart B prior to September 
22, 1994; shall comply with the performance standards of this 
subchapter.
    (c) Operations on Federal lands. (1) A person conducting coal mining 
operations on Federal lands under a permit approved on or after February 
3, 1978, shall comply with the performance standards of this chapter.
    (2) Any person conducting coal mining operations on Federal lands on 
and after May 3, 1978, shall comply with the performance standards of 
this chapter.
    (d) Operations on all lands. (1) The requirements of this chapter 
apply to operations conducted after the effective date of these 
regulations on lands from which the coal has not yet been removed and to 
any other lands used, disturbed, or redisturbed in connection with or to 
facilitate mining or to comply with the requirements of the Act or these 
regulations.
    (2) Any pre-existing, nonconforming structure or facility which is 
used in connection with or to facilitate mining after the effective date 
of these regulations shall comply with the requirements of the 
regulations, unless--
    (i) The permittee submits to the regulatory authority by March 1, 
1978, a statement in writing demonstrating that it is physically 
impossible to bring the structure or facility into compliance by May 4, 
1978. The statement shall include the steps to be taken to reconstruct 
the structure or facility in conformance with applicable performance 
standards and a schedule for reconstruction including the estimated date 
of completion;
    (ii) The regulatory authority finds in writing that it is physically 
impossible to bring the structure or facility into compliance by May 4, 
1978;
    (iii) The construction work is to be performed in accordance with 
plans designed by a professional engineer; and
    (iv) The construction work is to be started and completed as soon as 
possible and in no event is to be started later than May 4, 1978 and 
completed later than November 4, 1978.
    (3) Notwithstanding paragraph (d)(2) of this section, any 
sedimentation pond, or related pre-existing, non-conforming structure or 
facility which is used in connection with or to facilitate mining after 
the effective date of these regulations shall comply with the 
requirements of the regulations unless--
    (i) The permittee submits to the regulatory authority and to the 
Director by May 3, 1978, a statement in writing demonstrating that it is 
physically impossible to bring the structure or facility into compliance 
by May 3, 1978. The statement shall include the steps to be taken to 
reconstruct the structure or facility in conformance with applicable 
performance standards and a schedule for reconstruction including the 
estimated date of completion;
    (ii) The regulatory authority finds in writing that it is physically 
impossible to bring the structure or facility into compliance by May 3, 
1978;

[[Page 56]]

    (iii) The construction work is to be performed in accordance with 
plans designed by a professional engineer;
    (iv) The construction work is to be started and completed as soon as 
possible and in no event is to be started later than June 3, 1978 and 
completed later than November 4, 1978; and
    (v) The Director approves of any schedules which contain an 
estimated date of completion beyond October 3, 1978.
    (4) The Director shall be deemed to have approved such schedules 
referred to in paragraph (d)(3)(v) of this section, unless written 
disapproval is received by the operator on or before June 3, 1978.
    (e) Satisfying Permanent Program Performance Standards in lieu of 
Initial Program Performance Standards. Where there is a counterpart 
Permanent Program performance standard in subchapter K of this chapter 
that corresponds to an Initial Program performance standard in 
subchapter B of this chapter, meeting either performance standard will 
satisfy the requirements of subchapter B of this chapter.
[42 FR 62677, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978, as amended at 43 
FR 5001, Feb. 7, 1978; 43 FR 8091, Feb. 27, 1978; 49 FR 38477, Sept. 28, 
1984; 56 FR 6227, Feb. 14, 1991; 59 FR 43419, Aug. 23, 1994]



Sec. 710.12  Special exemption for small operators.

    (a) As used in this section--
    (1) Permittee means a person holding a permit under State law and to 
whom the permit was originally issued.
    (2) Renewed permit means any extension of the original area of 
duration of a permit.
    (b) If a person is an eligible permittee under paragraph (c) of this 
section and intends to conduct surface coal mining operations on or 
after May 3, 1978, that permittee may receive from the Director a 
limited exemption from the performance standards of this chapter. The 
exemption shall not--
    (1) Include the Special Performance Standard of Sec. 716.2(a)(1) of 
this chapter regarding the handling of spoil;
    (2) Apply to surface coal mining operations to be conducted under a 
permit or renewed permit issued on or after August 3, 1977;
    (3) Include any general or special performance standard with which a 
permittee is required to comply by a State;
    (4) Relieve the permittee of the general obligations imposed by 
Sec. 710.11(a) of this part regarding conditions or practices creating 
imminent danger or causing significant, imminent environmental harm; or
    (5) Relieve the permittee of any obligations under State law, 
regulation or permit.
    (c) A permittee is eligible for an exemption under this section--
    (1) If the actual and attributed production of that permittee is 
estimated by the Director not to exceed 100,000 tons of coal during the 
year ending on December 31, 1978; and
    (2) If that permittee--
    (i) Was in existence on July 31, 1976, and during the year ending on 
July 31, 1977, the actual and attributed production of that permittee 
was 100,000 tons of coal or less from all surface and underground coal 
mining operations; or
    (ii) Came into existence after July 31, 1976, and prior to May 2, 
1977, and the actual and attributed production from all surface and 
underground coal mining operations of that permittee in the average 
calendar month was an amount of coal which when multiplied by 12 yields 
a product of 100,000 tons or less.
    (iii) And, in the case of a business organization, has not undergone 
a substantial change in ownership since May 2, 1977, other than a 
substantial change due to the death of an owner.
    (d) Application for an exemption under this section shall be 
submitted to the Director of the Office by March 1, 1978 with a copy to 
the State regulatory authority.
    (e) The request for exemption shall be in the form of an affidavit 
under oath and shall include--
    (1) The name and address of the permittee and of persons who control 
the permittee by reason of stock ownership or otherwise.
    (2) The name, location, Mining Enforcement and Safety Administration 
identification numbers, and permit numbers of the surface coal mining 
operations for which exemption is sought, including a statement of the 
dates each

[[Page 57]]

permit was issued or renewed and will expire.
    (3) The date and method by which the permittee was created if the 
permittee is not an individual.
    (4) A listing of all surface and underground coal mining operations 
showing--
    (i) Actual production for the year ending July 31, 1977, attributed 
to the permittee and the inclusive dates of operation.
    (ii) Estimated production for the year ending December 31, 1978, 
attributed to the permittee and the anticipated dates of operation.
    (5) A copy of coal severance tax returns for coal produced during 
the year ending on July 31, 1977.
    (6) A copy of a notice the permittee has published in a local 
newspaper of general circulation in the area of each mine for which an 
exemption is sought once a week for two weeks stating--
    (i) That an application for a small operator exemption will be 
filed, which if granted would exempt the operator from certain 
environmental protection performance standards in the Act;
    (ii) The name and address of the permittee;
    (iii) The location of the surface coal mining operations to which 
the exemption will apply; and
    (iv) That public comments may be submitted to the Director, Office 
of Surface Mining Reclamation and Enforcement.
    (f) Production from the following operations shall be attributed to 
the permittee--
    (1) All coal produced by operations beneficially owned entirely by 
the permittee, or controlled by reasons of ownership, direction of the 
management, or in any other manner by the permittee.
    (2) The pro rata share, based upon percentage of beneficial 
ownership, of coal produced by operations in which the permittee owns 
more than a 5-percent interest.
    (3) All coal produced by persons who own more than 5 percent of the 
permittee or who directly or indirectly control the permittee by reason 
of stock ownership, direction of the management or in any other manner.
    (4) The pro rata share of coal produced by operations owned or 
controlled by the person who owns or controls the permittee.
    (g) The Director shall grant the request for an exemption if, upon 
the basis of the request and any State regulatory authority or public 
comments, or any other information, he finds that--
    (1) The permittee has satisfied his burden of proof by demonstrating 
eligibility for the exemption; and
    (2) The exemption will not be inconsistent with State law, 
regulation or permit terms.
    (h) Any person aggrieved by the decision of the Director under this 
section may appeal within 20 days from receipt of that decision to The 
Office of Hearing and Appeals under 43 CFR part 4. The Office of 
Hearings and Appeals and the Secretary shall have the authority to stay 
the exemption pending the outcome of the appeal.
    (i) The exemption shall be effective on the date approved. It shall 
remain in effect until expiration or renewal of the State permit to 
which it applies, December 31, 1978, or until revoked, whichever is 
earlier.
    (j) The Director shall revoke the exemption upon finding that the 
exemption was erroneously issued or that the exempted operation has or 
will produce more than 100,000 tons of coal per year.
[42 FR 62677, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978, as amended at 43 
FR 5001, Feb. 7, 1978]



PART 715--GENERAL PERFORMANCE STANDARDS--Table of Contents




Sec.
715.10  Information collection.
715.11  General obligations.
715.12  Signs and markers.
715.13  Postmining use of land.
715.14  Backfilling and grading.
715.15  Disposal of excess spoil.
715.16  Topsoil handling.
715.17  Protection of the hydrologic system.
715.18  Dams constructed of or impounding waste material.
715.19  Use of explosives.
715.20  Revegetation.
715.200  Interpretative rules related to general performance standards.

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

[[Page 58]]


    Source: 42 FR 62680, Dec. 13, 1977, unless otherwise noted.



Sec. 715.10  Information collection.

    The information collection requirements contained in 30 CFR 
715.13(d); 715.17 (b)(1)(v) and (j)(3); 715.18(b) (2) and (6); and 
715.19 (b), (c), (d) and (e)(4) have been approved by the Office of 
Management and Budget under 44 U.S.C. 3507 and assigned clearance number 
1029-0007. The information is being collected to meet the performance 
standards in section 515(b)(2) of P.L. 95-87 and are applicable during 
the initial regulatory program. This information will be used by OSM in 
measuring compliance with the performance standards until permanent 
programs are in effect in the States. The obligation to respond is 
mandatory.
[47 FR 33685, Aug. 4, 1982]



Sec. 715.11  General obligations.

    (a) Compliance. All surface coal mining and reclamation operations 
conducted on lands where any element of the operations is regulated by a 
State shall comply with the initial performance standards of this part 
according to the time schedule specified in Sec. 710.11. Part 717 of 
this chapter establishes performance standards for surface effects of 
underground coal mines. Initial regulations regarding the special 
Initial Performance Standards are established by part 716 of this 
chapter for--
    (1) Surface coal mining operations on steep slopes;
    (2) Surface coal mining operations involving mountaintop removal;
    (3) Special bituminous coal mines;
    (4) Anthracite surface coal mining operations;
    (5) Surface coal mining operations in Alaska; and
    (6) Surface coal mining operations on prime farmlands.

Where State environmental protection standards are adopted for a 
specific State because they are more stringent than the standards of 
parts 715, 716, and 717, they will be published in part 718 of this 
chapter.
    (b) Authorizations to operate. A copy of all current permits, 
licenses, approved plans, or other authorizations to operate the mine 
shall be available for inspection at or near the mine site.
    (c)(1) Mine maps. Any person conducting surface coal mining and 
reclamation operations on and after May 3, 1978, shall submit two copies 
of an accurate map of the mine and permit area at a scale of 1:6000 or 
larger. The map shall show as of May 3, 1978, the lands from which coal 
has not yet been removed and the lands and structures which have been 
used or disturbed to facilitate mining. One copy of the mine map shall 
be submitted to the State regulatory authority and one copy shall be 
submitted to the Regional Director, OSM, before July 3, 1978.
    (2) In addition to the requirements of paragraph (c)(1) of this 
section, any person who conducted surface coal mining and reclamation 
operations pursuant to a small operator's exemption shall submit before 
March 15, 1979, two copies of an accurate map of each mine showing the 
permit area at a scale of 1:6000 or larger. One copy shall be submitted 
to the state regulatory authority and one copy to the appropriate 
Regional Director, OSM. The map shall show as of December 31, 1978 or 
the expiration date of the exemption (whichever is earlier) the lands 
from which coal had not yet been removed, the lands and structures which 
had been used or disturbed to facilitate mining, and the lands which had 
not been disturbed. The map need not be submitted if these areas have 
already been shown on mine maps submitted to the state regulatory 
authority, if a copy is available to the appropriate Regional Director 
pursuant to paragraph (c)(1) of this section or 30 CFR 720.13(b).
    (d) Indian lands--(1) Mine maps. Any person conducting surface coal 
mining and reclamation operations on Indian lands under this part shall 
submit no fewer than 7 copies of an accurate map of the mine and 
authorized mining areas at a scale of 1:6000 or larger. The map shall 
show, as of December 16, 1977, the lands where coal has not yet been 
removed and the lands and structures that have been used or disturbed to 
facilitate surface coal mining operations.
    (2) Consultation with tribal governments. Any requirement in this 
part for consultation with or notification to

[[Page 59]]

State and local governments shall be interpreted as requiring, in like 
manner, consultation with or notification to tribal governments. OSM 
shall consult with the Bureau of Indian Affairs with respect to special 
requirements relating to the protection of noncoal resources and with 
the Bureau of Land Management with respect to the requirements relating 
to the development, production, and recovery of mineral resources on 
Indian lands.
[42 FR 62680, Dec. 13, 1977, as amended at 44 FR 6682, Feb. 1, 1979; 59 
FR 43419, Aug. 23, 1994]



Sec. 715.12  Signs and markers.

    (a) Specifications. All signs required to be posted shall be of a 
standard design that can be seen and read easily and shall be made of 
durable material. The signs and other markers shall be maintained during 
all operations to which they pertain and shall conform to local 
ordinances and codes.
    (b) Mine and permit identification signs. Signs identifying the mine 
area shall be displayed at all points of access to the permit area from 
public roads and highways. Signs shall show the name, business address, 
and telephone number of the permittee and identification numbers of 
current mining and reclamation permits or other authorizations to 
operate. Such signs shall not be removed until after release of all 
bonds.
    (c) Perimeter markers. The perimeter of the permit area shall be 
clearly marked by durable and easily recognized markers, or by other 
means approved by the regulatory authority.
    (d) Buffer zone markers. Buffer zones as defined in Sec. 715.17 
shall be marked in a manner consistent with the perimeter markers along 
the interior boundary of the buffer zone.
    (e) Blasting signs. If blasting is necessary to conduct surface coal 
mining operations, signs reading ``Blasting Area'' shall be displayed 
conspicuously at the edge of blasting areas along access and haul roads 
within the mine property. Signs reading ``Blasting Area'' and explaining 
the blasting warning and all-clear signals shall be posted at all 
entrances to the permit area.
    (f) Topsoil markers. Where topsoil or other vegetation-supporting 
material is segregated and stockpiled according to Sec. 715.16(c), the 
stockpiled material shall be marked. Markers shall remain in place until 
the material is removed.



Sec. 715.13  Postmining use of land.

    (a) General. All disturbed areas shall be restored in a timely 
manner (1) to conditions that are capable of supporting the uses which 
they were capable of supporting before any mining, or (2) to higher or 
better uses achievable under criteria and procedures of paragraph (d) of 
this section.
    (b) Determining premining use 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 had not been previously mined and 
had been properly managed.
    (1) The postmining land use for land that has been previously mined 
and not reclaimed shall be judged on the basis of the highest and best 
use that can be achieved and is compatible with surrounding areas.
    (2) The postmining land use for land that has received improper 
management shall be judged on the basis of the premining use of 
surrounding lands that have received proper management.
    (3) If the premining use of the land was changed within 5 years of 
the beginning of mining, the comparison of postmining use to premining 
use shall include a comparison with the historic use of the land as well 
as its use immediately preceding mining.
    (c) Land-use categories. Land use is categorized in the following 
groups. Change from one to another land use category in premining to 
postmining constitutes an alternate land use and the permittee shall 
meet the requirements of paragraph (d) of this section and all other 
applicable environmental protection performance standards of this 
chapter.
    (1) Heavy industry. Manufacturing facilities, powerplants, airports 
or similar facilities.
    (2) Light industry and commercial services. Office buildings, 
stores, parking facilities, apartment housed, motels, hotels, or similar 
facilities.

[[Page 60]]

    (3) Public services. Schools, hospitals, churches, libraries, water-
treatment facilities, solid-waste disposal facilities, public parks and 
recreation facilities, major transmission lines, major pipelines, 
highways, underground and surface utilities, and other servicing 
structures and appurtenances.
    (4) Residential. Single- and multiple-family housing (other than 
apartment houses) with necessary support facilities. Support facilities 
may include commercial services incorporated in and comprising less than 
5 percent of the total land area of housing capacity, associated open 
space, and minor vehicle parking and recreation facilities supporting 
the housing.
    (5) Cropland. Land used primarily for the production of cultivated 
and close-growing crops for harvest alone or in association with sod 
crops. Land used for facilities in support of farming operations are 
included.
    (6) Rangeland. Includes rangelands and forest lands which support a 
cover of herbaceous or scrubby vegetation suitable for grazing or 
browsing use.
    (7) Hayland or pasture. Land used primarily for the long-term 
production of adapted, domesticated forage plants to be grazed by 
livestock or cut and cured for livestock feed.
    (8) Forest land. Land with at least a 25 percent tree canopy or land 
at least 10 percent stocked by forest trees of any size, including land 
formerly having had such tree cover and that will be naturally or 
artificially reforested.
    (9) Impoundments of water. Land used for storing water for 
beneficial uses such as stock ponds, irrigation, fire protection, 
recreation, or water supply.
    (10) Fish and wildlife habitat and recreation lands. Wetlands, fish 
and wildlife habitat, and areas managed primarily for fish and wildlife 
or recreation.
    (11) Combined uses. Any appropriate combination of land uses where 
one land use is designated as the primary land use and one or more other 
land uses are designated as secondary land uses.
    (d) Criteria for approving alternative postmining use of land. An 
alternative postmining land use shall be approved by the regulatory 
authority, after consultation with the landowner or the land-management 
agency having jurisdiction over State or Federal lands, if the following 
criteria are met. Proposals to remove an entire coal seam running 
through the upper part of a mountain, ridge, or hill must also meet 
these criteria in addition to the requirements of Sec. 716.3 of this 
chapter.
    (1) The proposed land use is compatible with adjacent land use and, 
where applicable, with existing local, State or Federal land use 
policies and plans. A written statement of the views of the authorities 
with statutory responsibilities for land use policies and plans shall 
accompany the request for approval. The permittee shall obtain any 
required approval of local, State or Federal land management agencies, 
including any necessary zoning or other changes necessarily required for 
the final land use.
    (2) Specific plans have been prepared which show the feasibility of 
the proposed land use as related to needs, projected land use trends, 
and markets and that include a schedule showing how the proposed use 
will be developed and achieved within a reasonable time after mining and 
be sustained. The regulatory authority may require appropriate 
demonstrations to show that the planned procedures are feasible, 
reasonable, and integrated with mining and reclamation, and that the 
plans will result in successful reclamation.
    (3) Provision of any necessary public facilities is assured as 
evidenced by letters of commitment from parties other than the 
permittee, as appropriate, to provide them in a manner compatible with 
the permittee's plans.
    (4) Specific and feasible plans for financing attainment and 
maintenance of the postmining land use including letters of commitment 
from parties other than the permittee as appropriate, if the postmining 
land use is to be developed by such parties.
    (5) The plans are designed under the general supervision of a 
registered professional engineer, or other appropriate professional, who 
will ensure that the plans conform to applicable accepted standards for 
adequate land stability, drainage, and vegetative cover, and aesthetic 
design appropriate for the postmining use of the site.
    (6) The proposed use or uses will neither present actual or probable 
hazard

[[Page 61]]

to public health or safety nor will they pose any actual or probable 
threat of water flow diminution or pollution.
    (7) The use or uses will not involve unreasonable delays in 
reclamation.
    (8) Necessary approval of measures to prevent or mitigate adverse 
effects on fish and wildlife has been obtained from the regulatory 
authority and appropriate State and Federal fish and wildlife management 
agencies.
    (9) Proposals to change premining land uses of range, fish and 
wildlife habitat, forest land, hayland, or pasture to a postmining 
cropland use, where the cropland would require continous maintenance 
such as seeding, plowing, cultivation, fertilzation, or other similar 
practices to be practicable or to comply with applicable Federal, State, 
and local laws, shall be reviewed by the regulatory authority to assure 
that--
    (i) There is a firm written commitment by the permittee or by the 
landowner or land manager to provide sufficient crop management after 
release of applicable performance bonds to assure that the proposed 
postmining cropland use remains practical and reasonable;
    (ii) There is sufficient water available and committed to maintain 
crop production; and
    (iii) Topsoil quality and depth are shown to be sufficient to 
support the proposed use.
    (10) The regulatory authority has provided by public notice not less 
than 45 days nor more than 60 days for interested citizens and local, 
State and Federal agencies to review and comment on the proposed land 
use.
[42 FR 62680, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978]



Sec. 715.14  Backfilling and grading.

    In order to achieve the approximate orginal contour, the permittee 
shall, except as provided in this section, transport, backfill, compact 
(where advisable to ensure stability or to prevent leaching of toxic 
materials), and grade all spoil material to eliminate all highwalls, 
spoil piles, and depressions. Cut-and-fill terraces may be used only in 
those situations expressly identified in this section. The postmining 
graded slopes must approximate the premining natural slopes in the area 
as defined in paragraph (a).
    (a) Slope measurements. (1) To determine the natural slopes of the 
area before mining, sufficient slopes to adequately represent the land 
surface configuration, and as approved by the regulatory authority in 
accordance with site conditions, must be accurately measured and 
recorded. Each measurement shall consist of an angle of inclination 
along the prevailing slope extending 100 linear feet above and below or 
beyond the coal outcrop or the area to be disturbed; or, where this is 
impractical, at locations specified by the regulatory authority. Where 
the area has been previously mined, the measurements shall extend at 
least 100 feet beyond the limits of mining disturbances as determined by 
the regulatory authority to be representative of the premining 
configuration of the land. Slope measurements shall take into account 
natural variations in slope so as to provide accurate representation of 
the range of natural slopes and shall reflect geomorphic differences of 
the area to be disturbed. Slope measurements may be made from 
topographic maps showing contour lines, having sufficient detail and 
accuracy consistent with the submitted mining and reclamation plan.
    (2) After the disturbed area has been graded, the final graded 
slopes shall be measured at the beginning and end of lines established 
on the prevailing slope at locations representative of premining slope 
conditions and approved by the regulatory authority. These measurements 
must not be made so as to allow unacceptably steep slopes to be 
constructed.
    (b) Final graded slopes. (1) The final graded slopes shall not 
exceed either the approximate premining slopes as determined according 
to paragraph (a)(1) and approved by the regulatory authority or any 
lesser slope specifed by the regulatory based on consideration of soil, 
climate, or other characteristics of the surrounding area. Postmining 
final graded slopes need not be uniform. The requirements of this 
paragraph may be modifed by the regulatory authority where the mining is 
reaffecting previously mined lands that have not been restored to the

[[Page 62]]

standards of this section and sufficient spoil is not available to 
return to the slope determined according to paragraph (a)(1). Where such 
modifications are approved, the permittee shall, as a minimum, be 
required to--
    (i) Retain all overburden and spoil on the solid portion of existing 
or new benches; and
    (ii) Backfill and grade to the most moderate slope possible to 
eliminate the highwall which does not exceed the angle of repose or such 
lesser slopes as is necessary to assure stability.
    (2) On approval by the regulatory authority and in order to conserve 
soil moisture, ensure stability, and control erosion on final graded 
slopes, cut-and-fill terraces may be allowed if the terraces are 
compatible with the postmining land use approved under Sec. 715.13, and 
are appropriate substitutes for construction of lower grades on the 
reclaimed lands. The terraces shall meet the following requirements:
    (i) Where specialized grading, foundation conditions, or roads are 
required for the approved postmining land use, 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.
    (ii) The vertical distance between terraces shall be as specified by 
the regulatory authority to prevent excessive erosion and to provide 
long-term stability.
    (iii) The slope of the terrace outslope shall not exceed 1v:2h (50 
percent). Outslopes which exceed 1v:2h (50 percent) may be approved if 
they have a minimum static safety factor of more than 1.5 and provide 
adequate control over erosion and closely resemble the surface 
configuration of the land prior to mining. In no case may highwalls be 
left as part of terraces.
    (iv) Culverts and underground rock drains shall be used on the 
terrace only when approved by the regulatory authority.
    (3) All operations on steep slopes of 20 degrees or more or on such 
lesser slopes as the regulatory authority defines as a steep slope shall 
meet the provisions of Sec. 716.2 of this chapter.
    (c) Mountaintop removal. The requirements of this paragraph and of 
Sec. 716.3 shall apply to surface mining operations which remove entire 
coal seams in the upper part of a mountain, ridge, or hill by removing 
all of the overburden, and where the requirements for achieving the 
approximate original contour of this section cannot be met. Final graded 
top plateau slopes on the mined area shall be less than 1v:5h so as to 
create a level plateau or gently rolling configuration and the outslopes 
of the plateau shall not exceed 1v:2h, except where engineering data 
substantiates and the regulatory authority finds that a minimum static 
safety factor of 1.5 (or higher factors specified by the regulatory 
authority) will be attained. Although the area need not be restored to 
approximate original contour, all highwalls, spoil piles, and 
depressions except as provided in paragraphs (d) and (e) of this section 
shall be eliminated. All mountaintop removal operations shall in 
addition meet the provisions of Sec. 716.3 of this chapter.
    (d) Small depressions. The requirement of this section to achieve 
approximate original contour does not prohibit construction of small 
depressions if they are approved by the regulatory authority to minimize 
erosion, conserve soil moisture or promote revegetation. These 
depressions shall be compatible with the approved postmining land use 
and shall not be inappropriate substitutes for construction of lower 
grades on the reclaimed lands. Depressions approved under this section 
shall have a holding capacity of less than 1 cubic yard of water or, if 
it is necessary that they be larger, shall not restrict normal access 
throughout the area or constitute a hazard. Large, permanent 
impoundments shall be governed by paragraph (e) of this section and by 
Sec. 715.17.
    (e) Permanent impoundments. Permanent impoundments may be retained 
in mined and reclaimed areas provided all highwalls are eliminated by 
grading to appropriate contour and the provisions for postmining land 
use (Sec. 715.13) and protection of the hydrologic balance (Sec. 715.17) 
are met. No impoundments shall be constructed on top of areas in which 
excess materials are deposited pursuant to Sec. 715.15 of this part. 
Impoundments shall not be used to meet

[[Page 63]]

the requirements of paragraph (j) of this section.
    (f) Definition of thin and thick restored overburden. The thin 
overburden provisions of paragraph (g) of this section may apply only 
where the final thickness is less than 0.8 of the initial thickness. The 
thick overburden provisions of paragraph (h) of this section may apply 
only where the final thickness is greater than 1.2 of the initial 
thickness. Initial thickness is the sum of the overburden thickness and 
coal thickness. Final thickness is the product of the overburden 
thickness times the bulking factor to be determined for each mine area. 
The provisions of paragraphs (g) and (h) apply only when operations 
cannot be carried out to comply with the requirements of paragraph (a) 
of this section to achieve the approximate original contour.
    (g) Thin overburden. In surface coal mining operations carried out 
continuously in the same limited pit area for more than 1 year from the 
day coal-removal operations begin and where the volume of all available 
spoil and suitable waste materials is demonstrated to be insufficient to 
achieve approximate original contour, surface coal mining operations 
shall be conducted to meet, at a minimum, the following standards:
    (1) Transport, backfill, and grade, using all available spoil and 
suitable waste materials from the entire mine area, to attain the lowest 
practicable stable grade, which may not exceed the angle of repose, and 
to provide adequate drainage and long-term stability of the regraded 
areas.
    (2) Eliminate highwalls by grading or backfilling to stable slopes 
not exceeding 1v:2h (50 percent), or such lesser slopes as the 
regulatory authority may specify to reduce erosion, maintain the 
hydrologic balance, or allow the approved postmining land use.
    (3) Transport, backfill, grade, and revegetate to achieve an 
ecologically sound land use compatible with the prevailing land use in 
unmined areas surrounding the permit area.
    (4) Transport, backfill, and grade to ensure the impoundments are 
constructed only where it has been demonstrated to the regulatory 
authority's satisfaction that all requirements of Sec. 715.17 have been 
met and that the impoundments have been approved by the regulatory 
authority as meeting the requirements of this part and all other 
applicable Federal and State regulations.
    (h) Thick overburden. In surface coal mining operations where the 
volume of spoil is demonstrated to be more than sufficient to achieve 
the approximate original contour surface coal mining operations shall be 
conducted to meet at a minimum the following standards:
    (1) Transport, backfill, and grade all spoil and wastes not required 
to achieve approximate original contour in the surface mining area to 
the lowest practicable grade.
    (2) Deposit, backfill, and grade excess spoil and wastes only within 
the permit area and dispose of such materials in conformance with this 
part.
    (3) Transport, backfill, and grade excess spoil and wastes to 
maintain the hydrologic balance in accordance with this part and to 
provide long-term stability.
    (4) Transport, backfill, grade, and revegetate wastes and excess 
spoil to achieve an ecologically sound land use compatible with the 
prevailing land uses in unmined areas surrounding the permit area.
    (5) Eliminate all highwalls and depressions except as stated in 
paragraph (e) of this section by backfilling with spoil and suitable 
waste materials.
    (i) Regrading or stabilizing rills and gullies. When rills or 
gullies deeper than 9 inches form in areas that have been regraded and 
the topsoil replaced but vegetation has not yet been established the 
permittee shall fill, grade, or otherwise stabilize the rills and 
gullies and reseed or replant the areas according to Sec. 715.20. The 
regulatory authority shall specify that rills or gullies of lesser size 
be stabilized if the rills or gullies will be disruptive to the approved 
postmining land use or may result in additional erosion and 
sedimentation.
    (j) Covering coal and acid-forming, toxic-forming, combustible, and 
other waste materials; stabilizing backfilled materials; and using waste 
material for fill--(1) Cover. All exposed coal seams remaining after 
mining and any acid-forming, toxic-forming, combustible

[[Page 64]]

materials, or any other waste materials identified by the regulatory 
authority that are exposed, used, or produced during mining shall be 
covered with a minimum of 4 feet of nontoxic and noncombustible 
material; or, if necessary, treated to neutralize toxicity in order to 
prevent water pollution and sustained combustion, and to minimize 
adverse effects on plant growth and land uses. Where necessary to 
protect against upward migration of salts, exposure by erosion, to 
provide an adequate depth for plant growth, or to otherwise meet local 
conditions, the regulatory authority shall specify thicker amounts of 
cover using nontoxic material. Acid-forming or toxic-forming material 
shall not be buried or stored in proximity to a drainage course so as to 
cause or pose a threat of water pollution or otherwise violate the 
provisions of Sec. 715.17 of this part.
    (2) Stabilization. Backfilled materials shall be selectively placed 
and compacted wherever necessary to prevent leaching of toxic-forming 
materials into surface or subsurface waters in accordance with 
Sec. 715.17 and wherever necessary to ensure the stability of the 
backfilled materials. The method of compacting material and the design 
specifications shall be approved by the regulatory authority before the 
toxic materials are covered.
    (3) Use of waste materials as fill. Before waste materials from a 
coal preparation or conversion facility or from other activities 
conducted outside the permit area such as municipal wastes are used for 
fill material, it must be demonstrated to the regulatory authority by 
hydrogeological means and chemical and physical analyses that use of 
these materials will not adversely affect water quality, water flow, and 
vegetation; will not present hazards to public health and safety; and 
will not cause instability in the backfilled area.
    (k) Grading along the contour. All final grading, preparation of 
overburden before replacement of topsoil, and placement of topsoil, in 
accordance with Sec. 715.16, shall be done along the contour to minimize 
subsequent erosion and instability. If such grading, preparation or 
placement along the contour would be hazardous to equipment operators 
then grading, preparation or placement in a direction other than 
generally parallel to the contour may be used. In all cases, grading, 
preparation, or placement shall be conducted in a manner which minimizes 
erosion and provides a surface for replacement of topsoil which will 
minimize slippage.
[42 FR 62680, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978, as amended at 47 
FR 18553, Apr. 29, 1982]



Sec. 715.15  Disposal of excess spoil.

    (a) General requirements. (1) Spoil not required to achieve the 
approximate original contour within the area where overburden has been 
removed shall be hauled or conveyed to and placed in designated disposal 
areas within a permit area, if the disposal areas are authorized for 
such purposes in the approved permit application in accordance with 
paragraphs (a) through (d) of this section. The spoil shall be placed in 
a controlled manner to ensure--
    (i) That leachate and surface runoff from the fill will not degrade 
surface or ground waters or exceed the effluent limitations of 
Sec. 715.17(a)
    (ii) Stability of the fill; and
    (iii) That the land mass designated as the disposal area is suitable 
for reclamation and revegetation compatible with the natural 
surroundings.
    (2) The fill shall be designed using recognized professional 
standards, certified by a registered professional engineer, and approved 
by the regulatory authority.
    (3) All vegetative and organic materials shall be removed from the 
disposal area and the topsoil shall be removed, segregated, and stored 
or replaced under Sec. 715.16. 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.
    (4) Slope protection shall be provided to minimize surface erosion 
at the site. Diversion design shall conform with the requirements of 
Sec. 715.17(c). All disturbed areas, including diversion ditches that 
are not riprapped, shall be vegetated upon completion of construction.

[[Page 65]]

    (5) The disposal areas shall be located on the most moderately 
sloping and naturally stable areas available as approved by the 
regulatory authority. If such placement provides additional stability 
and prevents mass movement, fill materials suitable for disposal shall 
be placed upon or above a natural terrace, bench, or berm.
    (6) The spoil shall be hauled or conveyed and placed in horizontal 
lifts in a controlled manner, concurrently compacted as necessary to 
ensure mass stability and prevent mass movement, covered, and graded to 
allow surface and subsurface drainage to be compatible with the natural 
surroundings and ensure a long-term static safety factor of 1.5.
    (7) The final configuration of the fill must be suitable for 
postmining land uses approved in accordance with Sec. 715.13, except 
that no depressions or impoundments shall be allowed on the completed 
fill.
    (8) Terraces may be utilized to control erosion and enhance 
stability if approved by the regulatory authority and consistent with 
Sec. 715.14(b)(2).
    (9) Where the slope in the disposal area exceeds 1v:2.8h (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 stabilize the 
fill. Where the toe of the spoil rests on a downslope, stability 
analyses shall be performed to determine the size of rock toe buttresses 
and key way cuts.
    (10) The fill shall be inspected for stability by a registered 
engineer or other qualified professional specialist experienced in the 
construction of earth and rockfill embankments at least quarterly 
throughout construction and during the following critical construction 
periods: (i) Removal of all organic material and topsoil, (ii) placement 
of underdrainage systems, (iii) installation of surface drainage 
systems, (iv) placement and compaction of fill materials, and (v) 
revegetation. The registered engineer or other qualified professional 
specialist shall provide to the regulatory authority a certified report 
within 2 weeks after each inspection that the fill has been constructed 
as specified in the design approved by the regulatory authority. A copy 
of the report shall be retained at the minesite.
    (11) Coal processing wastes shall not be disposed of in head-of-
hollow or valley fills, and may only be disposed of in other excess 
spoil fills, if such waste is--
    (i) Demonstrated to be nontoxic and nonacid forming; and
    (ii) Demonstrated to be consistent with the design stability of the 
fill.
    (12) If the disposal area contains springs, natural or manmade 
watercourses, or wet-weather seeps, an underdrain system consisting of 
durable rock shall be constructed from the wet areas in a manner that 
prevents infiltration of the water into the spoil material. The 
underdrain system shall be protected by an adequate filter and shall be 
designed and constructed using standard geotechnical engineering 
methods.
    (13) The foundation and abutments of the fill shall be stable under 
all conditions of construction and operation. Sufficient foundation 
investigation and laboratory testing of foundation materials shall be 
performed in order to determine the design requirements for stability of 
the foundation. Analyses of foundation conditions shall include the 
effect of underground mine workings, if any, upon the stability of the 
structure.
    (14) Excess spoil may be returned to underground mine workings, but 
only in accordance with a disposal program approved by the regulatory 
authority and MSHA.
    (15) Disposal of excess spoil from an upper actively mined bench to 
a lower pre-existing bench by means of gravity transport is permitted 
provided that:
    (i) The operator receives the prior written approval of the 
regulatory authority upon demonstration by the operator that the spoil 
to be disposed of by gravity transport is not necessary for elimination 
of the highwall and return of the upper bench to approximate original 
contour;
    (ii) The following conditions and performance standards in addition 
to the environmental performance standards of this part are met:
    (A) The highwall of the lower bench intersects (meets) the upper 
actively

[[Page 66]]

mined bench with no natural slope between them;
    (B) The gravity transport points are determined on a site specific 
basis by the operator and approved by the regulatory authority to 
minimize hazards to health and safety and to ensure that damage will be 
minimized should spoil accidentally move down-slope of the lower bench;
    (C) The excess spoil is placed only on solid portions of the lower 
pre-existing bench;
    (D) All excess spoil on the lower solid bench, including that spoil 
immediately below the gravity transport points, is rehandled and placed 
in a controlled manner to eliminate as much of the lower highwall as 
practicable. Rehandling and placing the excess spoil on the lower solid 
bench shall consist of placing the excess spoil in horizontal lifts in a 
controlled manner, concurrently compacted as necessary to ensure mass 
stability and prevent mass movement, and graded to allow surface and 
subsurface drainage to be compatible with the natural surroundings to 
ensure a long term static safety factor of 1.3. Spoil on the bench prior 
to the current mining operation need not be rehandled except to ensure 
stability of the fill.
    (E) 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 spoil necessary for the construction of the berm may 
be gravity transported to the lower bench prior to construction of the 
berm. The safety berm must be removed by the operator by final grading 
operations;
    (F) The area of the lower bench used to facilitate the disposal of 
excess spoil is considered a disturbed area.
    (b) Valley fills. Valley fills shall meet all of the requirements of 
paragraph (a) of this section and the additional requirements of this 
section.
    (1) The fill shall be designed to attain a long-term static safety 
factor of 1.5 based upon data obtained from subsurface exploration, 
geotechnical testing, foundation design, and accepted engineering 
analyses.
    (2) A subdrainage system for the fill shall be constructed in 
accordance with the following:
    (i) A system of underdrains constructed of durable rock shall meet 
the requirements of paragraph (2)(iv) of this section and:
    (A) Be installated along the natural drainage system;
    (B) Extend from the toe to the head of the fill; and
    (C) Contain lateral drains to each area of potential drainage or 
seepage.
    (ii) A filter system to insure the proper functioning of the rock 
underdrain system shall be designed and constructed using standard 
geotechnical engineering methods.
    (iii) In constructing the underdrains, no more than 10 percent of 
the rock may be less than 12 inches in size and no single rock may be 
larger than 25 percent of the width of the drain. Rock used in 
underdrains shall meet the requirements of paragraph (2)(iv) of this 
section. The minimum size of the main underdrain shall be:

                                                                        
------------------------------------------------------------------------
                                                         Minimum size of
                                   Predominant type of   drain, in feet 
  Total amount of fill material       fill material    -----------------
                                                         Width    Height
------------------------------------------------------------------------
Less than 1,000,000 yd \3\.......  Sandstone..........       10        4
    Do...........................  Shale..............       16        8
More than 1,000,000 yd \3\.......  Sandstone..........       16        8
    Do...........................  Shale..............       16       16
------------------------------------------------------------------------

    (iv) Underdrains shall consist of nondegradable, non-acid or toxic 
forming rock such as natural sand and gravel, sandstone, limestone, or 
other durable rock that will not slake in water and will be free of 
coal, clay or shale.
    (3) Spoil shall be hauled or conveyed and placed in a controlled 
manner and concurrently compacted as specified by the regulatory 
authority, in lifts no greater than 4 feet or less if required by the 
regulatory authority to--
    (i) Achieve the densities designed to ensure mass stability;
    (ii) Prevent mass movement;
    (iii) Avoid contamination of the rock underdrain or rock core; and
    (iv) Prevent formation of voids.
    (4) Surface water runoff from the area above the fill shall be 
diverted away from the fill and into stabilized diversion channels 
designed to pass safely the runoff from a 100-year, 24-hour 
precipitation event or larger

[[Page 67]]

event specified by the regulatory authority. Surface runoff from the 
fill surface shall be diverted to stabilized channels off the fill which 
will safely pass the runoff from a 100-year, 24-hour precipitation 
event. Diversion design shall comply with the requirements of 
Sec. 715.17(c).
    (5) The tops of the fill and any terrace constructed to stabilize 
the face shall be graded no steeper than 1v:20h (5 percent). The 
vertical distance between terraces shall not exceed 50 feet.
    (6) Drainage shall not be directed over the outslope of the fill.
    (7) The outslope of the fill shall not exceed 1v:2h (50 percent). 
The regulatory authority may require a flatter slope.
    (c) Head-of-hollow fills. Disposal of spoil in the head-of-hollow 
fill shall meet all standards set forth in paragraphs (a) and (b) and 
the additional requirements of this section.
    (1) The fill shall be designed to completely fill the disposal site 
to the approximate elevation of the ridgeline. A rock-core chimney drain 
may be utilized instead of the subdrain and surface diversion system 
required for valley fills. If the crest of the fill is not approximately 
at the same elevation as the low point of the adjacent ridgeline, the 
fill must be designed as specified in paragraph (b), with diversion of 
runoff around the fill. A fill associated with contour mining and placed 
at or near the coal seam, and which does not exceed 250,000 cubic yards 
may use the rock-core chimney drain.
    (2) The alternative rock-core chimney drain system shall be designed 
and incorporated into the construction of head-of-hollow fills as 
follows:
    (i) 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. Rocks used 
in the rock core and underdrains shall meet the requirements of 
paragraph (b)(2)(iv).
    (ii) A filter system to ensure the proper functioning of the rock 
core shall be designed and constructed using standard geotechnical 
engineering methods.
    (iii) The grading may drain surface water away from the outslope of 
the fill and toward the rock core. The maximum slope of the top of the 
fill shall be 1v:33h (3 percent). Instead of the requirements of 
paragraph (a)(7) of this section, 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 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.
    (3) The drainage control system shall be capable of passing safely 
the runoff from a 100-year, 24-hour precipitation event, or larger event 
specified by the regulatory authority.
    (d) Durable rock fills. In lieu of the requirements of paragraphs 
(b) and (c) of this section the regulatory authority may approve 
alternate methods for disposal of hard rock spoil, including fill 
placement by dumping in a single lift, on a site specific basis, 
provided the services of a registered professional engineer experienced 
in the design and construction of earth and rockfill embankments are 
utilized and provided the requirements of this paragraph and paragraph 
(a) are met. For this section, hard rock spoil shall be defined as 
rockfill consisting of at least 80 percent by volume of sandstone, 
limestone, or other rocks that do not slake in water. Resistance of the 
hard rock spoil to slaking shall be determined by using the slake index 
and slake durability tests in accordance with guidelines and criteria 
established by the regulatory authority.
    (1) Spoil is to be transported and placed in a specified and 
controlled manner which will ensure stability of the fill.

[[Page 68]]

    (i) The method of spoil placement shall be designed to ensure mass 
stability and prevent mass movement in accordance with the additional 
requirements of this section.
    (ii) Loads of noncemented clay shale and/or clay spoil in the fill 
shall be mixed with hard rock spoil in a controlled manner to limit on a 
unit basis concentrations of noncemented clay shale and clay in the 
fill. Such materials shall comprise no more than 20 percent of the fill 
volume as determined by tests performed by a registered engineer and 
approved by the regulatory authority.
    (2)(i) Stability analyses shall be made by the registered 
professional engineer. Parameters used in the stability analyses shall 
be based on adequate field reconnaissance, subsurface investigations, 
including borings, and laboratory tests.
    (ii) The embankment which constitutes the valley fill or head-of-
hollow fill shall be designed with the following factors of safety:

                                                                        
------------------------------------------------------------------------
                                                                Minimum 
                Case                     Design condition      factor of
                                                                safety  
------------------------------------------------------------------------
I...................................  End of construction...         1.5
II..................................  Earthquake............         1.1
------------------------------------------------------------------------

    (3) The design of a head-of-hollow fill shall include an internal 
drainage system which will ensure continued free drainage of anticipated 
seepage from precipitation and from springs or wet weather seeps.
    (i) Anticipated discharge from springs and seeps and due to 
precipitation shall be based on records and/or field investigations to 
determine seasonal variation. The design of the internal drainage system 
shall be based on the maximum anticipated discharge.
    (ii) All granular material used for the drainage system shall be 
free of clay and consist of durable particles such as natural sands and 
gravels, sandstone, limestone or other durable rock which will not slake 
in water.
    (iii) The internal drain shall be protected by a properly designed 
filter system.
    (4) Surface water runoff from the areas adjacent to and above the 
fill shall not be allowed to flow onto the fill and shall be diverted 
into stabilized channels which are designed to pass safely the runoff 
from a 100-year, 24-hour precipitation event. Diversion design shall 
comply with the requirements of Sec. 715.17(c).
    (5) The top surface of the completed fill shall be graded such that 
the final slope after settlement will be no steeper than 1v:20h (5 
percent) toward properly designed drainage channels in natural ground 
along the periphery of the fill. Surface runoff from the top surface of 
the fill shall not be allowed to flow over the outslope of the fill.
    (6) Surface runoff from the outslope of the fill shall be diverted 
off the fill to properly designed channels which will pass safely a 100-
year, 24-hour precipitation event. Diversion design shall comply with 
the requirements of Sec. 715.17(c).
    (7) Terraces shall be constructed on the outslope if required for 
control of erosion or for roads included in the approved postmining land 
use plan. Terraces shall meet the following requirements:
    (i) The slope of the outslope between terrace benches shall not 
exceed 1v:2h (50 percent.).
    (ii) To control surface runoff, each terrace bench shall be graded 
to a slope of 1v:20h (5 percent) toward the embankment. Runoff shall be 
collected by a ditch along the intersection of each terrace bench and 
the outslope.
    (iii) Terrace ditches shall have a 5-percent slope toward the 
channels specified in paragraph (d)(6) of this section, unless steeper 
slopes are necessary in conjunction with approved roads.
    (e) Preexisting benches. (1) The regulatory authority may approve 
the disposal of excess spoil through placement on preexisting benches: 
Provided, That the standards set forth in paragraphs (a)(1)-(a)(5) and 
(a)(7)-(a)(14) of this section and the requirements of this paragraph 
(e) are met.
    (2) All spoil shall be placed on the solid portion of the 
preexisting bench.
    (3) The fill shall be designed, using standard geotechnical 
analysis, to attain a long-term static safety factor of 1.3 for all 
portions of the fill.
    (4) The preexisting bench shall be backfilled and graded to--

[[Page 69]]

    (i) Achieve the most moderate slope possible which does not exceed 
the angle of repose, and
    (ii) Eliminate the highwall to the extent practicable.
[44 FR 30628, May 25, 1979, as amended at 46 FR 37233, July 17, 1981; 47 
FR 18555, Apr. 29, 1982]



Sec. 715.16  Topsoil handling.

    To prevent topsoil from being contaminated by spoil or waste 
materials, the permittee shall remove the topsoil as a separate 
operation from areas to be disturbed. Topsoil shall be immediately 
redistributed according to the requirements of paragraph (b) of this 
section on areas graded to the approved postmining configuration. The 
topsoil shall be segregated, stockpiled, and protected from wind and 
water erosion and from contaminants which lessen its capability to 
support vegetation if sufficient graded areas are not immediately 
available for redistribution.
    (a) Topsoil removal. All topsoil to be salvaged shall be removed 
before any drilling for blasting, mining, or other surface disturbance.
    (1) All topsoil shall be removed unless use of alternative materials 
is approved by the regulatory authority in accordance with paragraph 
(a)(4) of this section. Where the removal of topsoil results in erosion 
that may cause air or water pollution, the regulatory authority shall 
limit the size of the area from which topsoil may be removed at any one 
time and specify methods of treatment to control erosion of exposed 
overburden.
    (2) All of the A horizon of the topsoil as identified by soil 
surveys shall be removed according to paragraph (a) and then replaced on 
disturbed areas as the surface soil layers. Where the A horizon is less 
than 6 inches, a 6-inch layer that includes the A horizon and the 
unconsolidated material immediately below the A horizon (or all 
unconsolidated material if the total available is less than 6 inches) 
shall be removed and the mixture segregated and replaced as the surface 
soil layer.
    (3) Where necessary to obtain soil productivity consistent with 
postmining land use, the regulatory authority may require that the B 
horizon or portions of the C horizon or other underlying layers 
demonstrated to have comparable quality for root development be 
segregated and replaced as subsoil.
    (4) Selected overburden materials may be used instead of, or as a 
supplement to, topsoil where the resulting soil medium is equal to or 
more suitable for vegetation, and if all the following requirements are 
met:
    (i) The permittee demonstrates that the selected overburden 
materials or an overburden-topsoil mixture is more suitable for 
restoring land capability and productivity by the results of chemical 
and physical analyses. These analyses shall include determinations of 
pH, percent organic material, nitrogen, phosphorus, potassium, texture 
class, and water-holding capacity, and such other analyses as required 
by the regulatory authority. The regulatory authority also may require 
that results of field-site trials or greenhouse tests be used to 
demonstrate the feasibility of using such overburden materials.
    (ii) The chemical and physical analyses and the results of field-
site trials and greenhouse tests are accompanied by a certification from 
a qualified soil scientist or agronomist.
    (iii) The alternative material is removed, segregated, and replaced 
in conformance with this section.
    (b) Topsoil redistribution. (1) After final grading and before the 
topsoil is replaced, regraded land shall be scarified or otherwise 
treated to eliminate slippage surfaces and to promote root penetration.
    (2) Topsoil shall be redistributed in a manner that--
    (i) Achieves an approximate uniform thickness consistent with the 
postmining land uses;
    (ii) Prevents excess compaction of the spoil and topsoil; and
    (iii) Protects the topsoil from wind and water erosion before it is 
seeded and planted.
    (c) Topsoil storage. If the permit allows storage of topsoil, the 
stockpiled topsoil shall be placed on a stable area within the permit 
area where it will not be disturbed or be exposed to excessive water, 
wind erosion, or contaminants which lessen its capability to support 
vegetation before it can be redistributed on terrain graded to final

[[Page 70]]

contour. Stockpiles shall be selectively placed and protected from wind 
and water erosion, unnecessary compaction, and contamination by 
undesirable materials either by a vegetative cover as defined in 
Sec. 715.20(g) or by other methods demonstrated to provide equal 
protection such as snow fences, chemical binders, and mulching. Unless 
approved by the regulatory authority, stockpiled topsoil shall not be 
moved until required for redistribution on a disturbed area.
    (d) Nutrients and soil amendments. Nutrients and soil amendments in 
the amounts and analyses as determined by soil tests shall be applied to 
the surface soil layer so that it will support the postmining 
requirements of Sec. 715.13 and the revegetation requirements of 
Sec. 715.20.



Sec. 715.17  Protection of the hydrologic system.

    The permittee shall plan and conduct coal mining and reclamation 
operations to minimize disturbance to the prevailing hydrologic balance 
in order to prevent long-term adverse changes in the hydrologic balance 
that could result from surface coal mining and reclamation operations, 
both on- and off-site. Changes in water quality and quantity, in the 
depth to ground water, and in the location of surface water drainage 
channels shall be minimized such that the postmining land use of the 
disturbed land is not adversely affected and applicable Federal and 
State statutes and regulations are not violated. The permittee shall 
conduct operations so as to minimize water pollution and shall, where 
necessary, use treatment methods to control water pollution. The 
permittee shall emphasize surface coal mining and reclamation practices 
that will prevent or minimize water pollution and changes in flows in 
preference to the use of water treatment facilities. Practices to 
control and minimize pollution include, but are not limited to, 
stabilizing disturbed areas through grading, diverting runoff, achieving 
quick growing stands of temporary vegetation, lining drainage channels 
with rock or vegetation, mulching, sealing acid-forming and toxic-
forming materials, and selectively placing waste materials in backfill 
areas. If pollution can be controlled only by treatment, the permittee 
shall operate and maintain the necessary water-treatment facilities for 
as long as treatment is required.
    (a) Water quality standards and effluent limitations. All surface 
drainage from the disturbed area, including disturbed areas that have 
been graded, seeded, or planted, shall be passed through a sedimentation 
pond or a series of sedimentation ponds before leaving the permit area. 
Sedimentation ponds shall be retained until drainage from the disturbed 
areas has met the water quality requirements of this section and the 
revegetation requirements of Sec. 715.20 have been met. The regulatory 
authority may grant exemptions from this requirement only when the 
disturbed drainage area within the total disturbed area is small and if 
the permittee shows that sedimentation ponds are necessary to meet the 
effluent limitations of this paragraph and to maintain water quality in 
downstream receiving waters. For purpose of this section only, disturbed 
area shall not include those areas in which only diversion ditches, 
sedimentation ponds, or roads are installed in accordance with this 
section and the upstream area is not otherwise disturbed by the 
permittee. Sedimentation ponds required by this paragraph shall be 
constructed in accordance with paragraph (e) of this section in 
appropriate locations prior to any mining in the affected drainage area 
in order to control sedimentation or otherwise treat water in accordance 
with this paragraph. Discharges from areas disturbed by surface coal 
mining and reclamation operations must meet all applicable Federal and 
State laws and regulations and, at a minimum, the following numerical 
effluent limitations:

   Effluent Limitations, in Milligrams Per Liter, mg/l, Except For pH   
------------------------------------------------------------------------
                                                              Average of
                                                                daily   
                                                              values for
          Effluent characteristics               Maximum          30    
                                              allowable \1\  consecutive
                                                              discharge 
                                                               days \1\ 
------------------------------------------------------------------------
Iron, total.................................           7.0           3.5
Manganese, total............................           4.0           2.0
Total suspended solids \2\..................          70.0          35.0

[[Page 71]]

                                                                        
pH \3\......................................        (\4\ )        (\4\ )
------------------------------------------------------------------------
\1\ Based on representative sampling.                                   
\2\ In Arizona, Colorado, Montana, New Mexico, North Dakota, South      
  Dakota, Utah, and Wyoming, total suspended solids limitations will be 
  determined on a case-by-case basis, but they must not be greater than 
  45 mg/l (maximum allowable) and 30 mg/l (average of daily value for 30
  consecutive discharge days) based on a representative sampling.       
\3\ Where the application of neutralization and sedimentation treatment 
  technology results in inability to comply with the manganese          
  limitation set forth, the regulatory authority may allow the pH level 
  in the discharge to exceed to a small extent the upper limit of 9.0 in
  order that the manganese limitations will be achieved.                
\4\ Within the range 6.0 to 9.0.                                        

    (1) Any overflow or other discharge of surface water from the 
disturbed area within the permit area demonstrated by the permittee to 
result from a precipitation event larger than a 10-year, 24-hours 
frequency event will not be subject to the effluent limitations of 
paragraph (a).
    (2) The permittee shall install, operate, and maintain adequate 
facilities to treat any water discharged from the disturbed area that 
violates applicable federal or State laws or regulations or the 
limitations of paragraph (a). If the pH of waters to be discharged from 
the disturbed area is normally less than 6.0, an automatic line feeder 
or other neutralization process approved by the regulatory authority 
shall be installed operated, and maintained. If, the regulatory 
authority finds (i) that small and infrequent treatment requirements to 
meet applicable standards do not necessitate use of an automatic 
neutralization process, and (ii) that the mine normally produces less 
than 500 tons of coal per day, then the regulatory authority may approve 
the use of a manual system if the permittee ensures consistent and 
timely treatment.
    (3) The effluent limitations for manganese shall be applicable only 
to acid drainage.
    (b) Surface-water monitoring. (1) The permittee shall submit for 
approval by the regulatory authority a surface-water monitoring program 
which meets the following requirements:
    (i) Provides adequate monitoring of all discharge from the disturbed 
area.
    (ii) Provides adequate data to describe the likely daily and 
seasonal variation in discharges from the disturbed area in terms of 
water flow, pH, total iron, total managanese, and total suspended solids 
and, if requested by the regulatory authority, any other parameter 
characteristic of the discharge.
    (iii) Provides monitoring at appropriate frequencies to measure 
normal and abnormal variations in concentrations.
    (iv) Provides an analytical quality control system including 
standard methods of analysis such as those specified in 40 CFR 136.
    (v) Within sixty (60) days of the end of each sixty (60) day sample 
collection period, a report of all samples shall be made to the 
regulatory authority, unless the discharge for which water monitoring 
reports are required is subject to regulation by a National Pollution 
Discharge Elimination System (NPDES) permit issued in compliance with 
the Clean Water Act of 1977 (33 U.S.C. 1251-1378), (A) which includes 
equivalent reporting requirements, and (B) which requires filing of the 
water monitoring report within 90 days or less of sample collection. For 
such discharges, the reporting requirements of this paragraph may be 
satisfied by submitting to the regulatory authority on the same time 
schedule as required by the NPDES permit or within ninety (90) days 
following sample collection, whichever is earlier, either (1) a copy of 
the completed reporting form filed to meet the NPDES permit 
requirements, or (2) a letter identifying the State or Federal 
government official with whom the reporting form was filed to meet the 
NPDES permit requirements and the date of filing. In all cases in which 
analytical results of the sample collections indicate a violation of a 
permit condition or applicable standard has occurred, the operator shall 
notify the regulatory authority immediately. Where an NPDES permit 
effluent limitation requirement has been violated, the permittee should 
forward a copy of the Discharge Monitoring Report, EPA Form 3320-1, 
concurrently with notification of the violation.
    (2) After disturbed areas have been regraded and stabilized in 
accordance

[[Page 72]]

with this part, the permittee shall monitor surface water flow and 
quality. Data from this monitoring shall be used to demonstrate that the 
quality and quantity of runoff without treatment will be consistent with 
the requirement of this section to minimize disturbance to the 
prevailing hydrologic balance and with the requirements of this part to 
attain the approved postmining land use. These data shall provide a 
basis for approval by the regulatory authority for removal of water 
quality or flow control systems and for determining when the 
requirements of this section are met. The regulatory authority shall 
determine the nature of data, frequency of collection, and reporting 
requirements.
    (3) Equipment, structures, and other measures necessary to 
accurately measure and sample the quality and quantity of surface water 
discharges from the disturbed area of the permit area shall be properly 
installed, maintained, and operated and shall be removed when no longer 
required.
    (c) Diversion and conveyance of overland flow away from disturbed 
areas. In order to minimize erosion and to prevent or remove water from 
contacting toxic-producing deposits, overland flow from undisturbed 
areas may, if required or approved by the regulatory authority, be 
diverted away from disturbed areas by means of temporary or permanent 
diversion structures. The following requirements shall be met:
    (1) Temporary diversion structures shall be constructed to safely 
pass the peak runoff from a precipitation event with a one year 
recurrence interval, or a larger event as specified by the regulatory 
authority. The design criteria must assure adequate protection of the 
environment and public during the existence of the temporary diversion 
structure.
    (2) Permanent diversion structures are those remaining after mining 
and reclamation and approved for retention by the regulatory authority 
and other appropriate State and Federal agencies. To protect fills and 
property and to avoid danger to public health and safety, permanent 
diversion structures shall be constructed to safely pass the peak runoff 
from a precipitation event with a 100-year recurrence interval, or a 
larger event as specified by the regulatory authority. Permanent 
diversion structures shall be constructed with gently sloping banks that 
are stabilized by vegetation. Asphalt, concrete, or other similar 
linings shall not be used unless specifically required to prevent 
seepage or to provide stability and are approved by the regulatory 
authority.
    (3) Diversions shall be designed, constructed, and maintained in a 
manner to prevent additional contributions of suspended solids to 
streamflow or to runoff outside the permit area to the extent possible, 
using the best technology currently available. In no event shall such 
contributions be in excess of requirements set by applicable State or 
Federal law. Appropriate sediment control measures for these diversions 
shall include, but not be limited to, maintenances of appropriate 
gradients, channel lining, revegetation, roughness structures, and 
detention basins.
    (d) Stream channel diversions. (1) Flow from perennial and 
intermittent streams within the permit area may be diverted only when 
the diversions are approved by the regulatory authority and they are in 
compliance with local, State, and Federal statutes and regulations. When 
streamflow is allowed to be diverted, the new stream channel shall be 
designed and constructed to meet the following requirements:
    (i) The average stream gradient shall be maintained and the channel 
designed, constructed, and maintained to remain stable and to prevent 
additional contributions of suspended solids to streamflow, or to runoff 
outside the permit area to the extent possible, using the best 
technology currently available. In no event shall such contributions be 
in excess of requirements set by applicable State or Federal law. 
Erosion control structures such as channel lining structures, retention 
basins, and artificial channel roughness structures shall be used only 
when approved by the regulatory agency for temporary diversions where 
necessary or for permanent diversions where they are stable and will 
require only infrequent maintenance.
    (ii) Channel, bank, and flood-plain configurations shall be adequate 
to

[[Page 73]]

safely pass the peak runoff of a precipitation event with a 10-year 
recurrence interval for temporary diversions and a 100-year recurrence 
interval for permanent diversions, or larger events as specified by the 
regulatory authority.
    (iii) Fish and wildlife habitat and water and vegetation of 
significant value for wildlife shall be protected in consultation with 
appropriate State and Federal fish and wildlife management agencies.
    (2) All temporary diversion structures shall be removed and the 
affected land regraded and revegetated consistent with the requirements 
of Secs. 715.14 and 715.20. At the time such diversions are removed, the 
permittee shall ensure that downstream water treatment facilities 
previously protected by the diversion are modified or removed to prevent 
overtopping or failure of the facilities.
    (3) Buffer zone. No land within 100 feet of an intermittent or 
perennial stream shall be disturbed by surface coal mining and 
reclamation operations unless the regulatory authority specifically 
authorizes surface coal mining and reclamation operations through such a 
stream. The area not to be disturbed shall be designated a buffer zone 
and marked as specified in Sec. 715.12.
    (e) Sedimentation ponds--(1) General requirements. Sedimentation 
ponds shall be used individually or in series and shall--
    (i) Be constructed before any disturbance of the undisturbed area to 
be drained into the pond;
    (ii) Be located as near as possible to the disturbed area and out of 
perennial streams; unless approved by the regulatory authority;
    (iii) Meet all the criteria of this section.
    (2) Sediment storage volume. Sedimentation ponds shall provide a 
minimum sediment storage volume.
    (3) Detention time. Sedimentation ponds shall provide the required 
theoretical detention time for the water inflow or runoff entering the 
pond from a 10-year, 24-hour precipitation event (design event).
    (4) Dewatering. The water storage resulting from inflow shall be 
removed by a nonclogging dewatering device or a conduit spillway 
approved by the regulatory authority. The dewatering device shall not be 
located at a lower elevation than the maximum elevation of the 
sedimentation storage volume.
    (5) Each person who conducts surface mining activities shall design, 
construct, and maintain sedimentation ponds to prevent short-circuiting 
to the extent possible.
    (6) The design, construction, and maintenance of a sedimentation 
pond or other sediment control measures in accordance with this section 
shall not relieve the person from compliance with applicable effluent 
limitations as contained in paragraph (a) of this section.
    (7) There shall be no out-flow through the emergency spillway during 
the passage of the runoff resulting from the 10-year, 24-hour 
precipitation event or lesser events through the sedimentation pond.
    (8) Sediment shall be removed from sedimentation ponds.
    (9) An appropriate combination of principal and emergency spillways 
shall be provided to safely discharge the runoff from a 25-year, 24-hour 
precipitation event, or larger event specified by the regulatory 
authority. The elevation of the crest of the emergency spillway shall be 
a minimum of 1.0 foot above the crest of the principal spillway. 
Emergency spillway grades and allowable velocities shall be approved by 
the regulatory authority.
    (10) The minimum elevation at the top of the settled embankment 
shall be 1.0 foot above the water surface in the pond with the emergency 
spillway flowing at design depth. For embankments subject to settlement, 
this 1.0 foot minimum elevation requirement shall apply at all times, 
including the period after settlement.
    (11) The constructed height of the dam shall be increased a minimum 
of 5 percent over the design height to allow for settlement, unless it 
has been demonstrated to the regulatory authority that the material used 
and the design will ensure against all settlement.
    (12) The minimum top width of the embankment shall not be less than 
the quotient of (H+35)/5, where H is the height, in feet, of the 
embankment as

[[Page 74]]

measured from the upstream toe of the embankment.
    (13) The combined upstream and downstream side slopes of the settled 
embankment shall not be less than 1v:5h, with neither slope steeper than 
1v:2h. Slopes shall be designed to be stable in all cases, even if 
flatter side slopes are required.
    (14) The embankment foundation areas shall be cleared of all organic 
matter, all surfaces sloped to no steeper than 1v:1h, and the entire 
foundation surface scarified.
    (15) The fill material shall be free of sod, large roots, other 
large vegetative matter, and frozen soil, and in on case shall coal-
processing waste be used.
    (16) The placing and spreading of fill material shall be started at 
the lowest point of the foundation. The fill shall be brought up in 
horizontal layers of such thickness as is required to facilitate 
compaction and meet the design requirements of this section. Compaction 
shall be conducted as specified in the design approved by the regulatory 
authority.
    (17) If a sedimentation pond has an embankment that is more than 20 
feet in height, as measured from the upstream toe of the embankment to 
the crest of the emergency spillway, or has a storage volume of 20 acre-
feet or more, the following additional requirements shall be met:
    (i) An appropriate combination of principal and emergency spillways 
shall be provided to discharge safely the runoff resulting from a 100-
year, 24-hour precipitation event, or a larger event specified by the 
regulatory authority.
    (ii) The embankment shall be designed and constructed with a static 
safety factor of at least 1.5, or a higher safety factor as designated 
by the regulatory authority to ensure stability.
    (iii) Appropriate barriers shall be provided to control seepage 
along conduits that extend through the embankment.
    (iv) The criteria of the Mine Safety and Health Administration as 
published in 30 CFR 77.216 shall be met.
    (18) Each pond shall be designed and inspected during construction 
under the supervision of, and certified after construction by, a 
registered professional engineer.
    (19) The entire embankment including the surrounding areas disturbed 
by construction shall be stabilized with respect to erosion by a 
vegetative cover or other means immediately after the embankment is 
completed. The active upstream face of the embankment where water will 
be impounded may be riprapped or otherwise stabilized. Areas in which 
the vegetation is not successful or where rills and gullies develop 
shall be repaired and revegetated in accordance with Sec. 715.20.
    (20) All ponds, including those not meeting the size or other 
criteria of 30 CFR 77.216(a), shall be examined for structural weakness, 
erosion, and other hazardous conditions, and reports and modifications 
shall be made to the regulatory authority, in accordance with 30 CFR 
77.216-3. With the approval of the regulatory authority, dams not 
meeting these criteria (30 CFR 77.216(a)) shall be examined four times 
per year.
    (21) Sedimentation ponds shall not be removed until the disturbed 
area has been restored, and the vegetation requirements of Sec. 715.20 
are met and the drainage entering the pond has met the applicable State 
and Federal water quality requirements for the receiving stream. When 
the sedimentation pond is removed, the affected land shall be regraded 
and revegetated in accordance with Secs. 715.14, 715.16, and 715.20, 
unless the pond has been approved by the regulatory authority for 
retention as being compatible with the approved postmining land use. If 
the regulatory authority approves retention, the sedimentation pond 
shall meet all the requirements for permanent impoundments of paragraph 
(k) of this section.
    (22)(i) Where surface mining activities are proposed to be conducted 
on steep slopes, as defined in Sec. 716.2 of this chapter, special 
sediment control measures may be followed if the person has demonstrated 
to the regulatory authority that a sedimentation pond (or series of 
ponds) constructed according to paragraph (e) of this section--
    (A) Will jeopardize public health and safety; or

[[Page 75]]

    (B) Will result in contributions of suspended solids to streamflow 
in excess of the incremental sediment volume trapped by the additional 
pond size required.
    (ii) Special sediment control measures shall include but not be 
limited to--
    (A) Designing, constructing, and maintaining a sedimentation pond as 
near as physically possible to the disturbed area which complies with 
the design criteria of this section to the maximum extent possible.
    (B) A plan and commitment to employ sufficient onsite sedimentation 
control measures including bench sediment storage, filtration by natural 
vegetation, mulching, and prompt revegetation which, in conjunction with 
the required sediment pond, will achieve and maintain applicable 
effluent limitations. The plan submitted pursuant to this paragraph 
shall include a detailed description of all onsite control measures to 
be employed, a quantitative analysis demonstrating that onsite 
sedimentation control measures, in conjunction with the required 
sedimentation pond, will achieve and maintain applicable effluent 
limitations, and maps depicting the location of all onsite sedimentation 
control measures.
    (f) Discharge structures. Discharges from sedimentation ponds and 
diversions shall be controlled, where necessary, using energy 
dissipators, surge ponds, and other devices to reduce erosion and 
prevent deepening or enlargement of stream channels and to minimize 
disturbances to the hydrologic balance.
    (g) Acid and toxic materials. Drainage from acid-forming and toxic-
forming mine waste materials and soils into ground and surface water 
shall be avoided by--
    (1) Identifying, burying, and treating where necessary, spoil or 
other materials that, in the judgment of the regulatory authority, will 
be toxic to vegetation or that will adversely affect water quality if 
not treated or buried. Such material shall be disposed of in accordance 
with the provision of Sec. 715.14(j);
    (2) Preventing or removing water from contact with toxic-producing 
deposits;
    (3) Burying or otherwise treating all toxic or harmful materials 
within 30 days, if such materials are subject to wind and water erosion, 
or within a lesser period designated by the regulatory authority. If 
storage of such materials is approved, the materials shall be placed on 
impermeable material and protected from erosion and contact with surface 
water. Coal waste ponds and other coal waste materials shall be 
maintained according to paragraph (g)(4) of this section, and 
Sec. 715.18 shall apply;
    (4) Burying or otherwise treating waste materials from coal 
preparation plants no later than 90 days after the cessation of the 
filling of the disposal area. Burial or treatment shall be in accordance 
with Sec. 715.14(j);
    (5) Casing, sealing or otherwise managing boreholes, shafts, wells, 
and auger holes or other more or less horizontal holes to prevent 
pollution of surface or ground water and to prevent mixing of ground 
waters of significantly different quality. All boreholes that are within 
the permit area but are outside the surface coal mining area or which 
extend beneath the coal to be mined and into water bearing strata shall 
be plugged permanently in a manner approved by the regulatory authority, 
unless the boreholes have been approved for use in monitoring;
    (6) Taking such other actions as required by the regulatory 
authority.
    (h) Ground water--(1) Recharge capacity of reclaimed lands. The 
disturbed area shall be reclaimed to restore approximate premining 
recharge capacity through restoration of the capability of the reclaimed 
areas as a whole to transmit water to the ground water system. The 
recharge capacity should be restored to support the approved postmining 
land use and to minimize disturbances to the prevailing hydrologic 
balance at the mined area and in associated offsite areas. The permittee 
shall be responsible for monitoring according to paragraph (h)(3) of 
this section to ensure operations conform to this requirement.
    (2) Ground water systems. Backfilled materials shall be placed to 
minimize

[[Page 76]]

adverse effects on ground water flow and quality, to minimize offsite 
effects, and to support the approved postmining land use. The permittee 
shall be responsible for performing monitoring according to paragraph 
(h)(3) of this section to ensure operations conform to this requirement.
    (3) Monitoring. Ground water levels, infiltration rates, subsurface 
flow and storage characteristics, and the quality of ground water shall 
be monitored in a manner approved by the regulatory authority to 
determine the effects of surface coal mining and reclamation operations 
on the recharge capacity of reclaimed lands and on the quantity and 
quality of water in ground water systems at the mine area and in 
associated offsite areas. When operations are conducted in such a manner 
that may affect the ground water system, ground water levels and ground 
water quality shall be periodically monitored using wells that can 
adequately reflect changes in ground water quantity and quality 
resulting from such operations. Sufficient water wells must be used by 
the permittee. The regulatory authority may require drilling and 
development of additional wells if needed to adequately monitor the 
ground water system. As specified and approved by the regulatory 
authority, additional hydrologic tests, such as infiltration tests and 
aquifer tests, must be undertaken by the permittee to demonstrate 
compliance with paragraph (h) (1) and (2) of this section.
    (i) Water rights and replacement. The permittee shall replace the 
water supply of an owner of interest in real property who obtains all or 
part of his supply of water for domestic, agricultural, industrial, or 
other legitimate use from an underground or surface source where such 
supply has been affected by contamination, diminution, or interruption 
proximately resulting from surface coal mine operation by the permittee.
    (j) Alluvial valley floors west of the 100th meridian west 
longitude. (1) Surface coal mining operations conducted in or adjacent 
to alluvial valley floors shall be planned and conducted so as to 
preserve the essential hydrologic functions of these alluvial valley 
floors throughout the mining and reclamation process. These functions 
shall be preserved by maintaining or reestablishing those hydrologic and 
biologic characteristics of the alluvial valley floor that are necessary 
to support the functions. The permittee shall provide information to the 
regulatory authority as required in paragraph (j)(3) of this section to 
allow identification of essential hydrologic functions and demonstrate 
that the functions will be preserved. The characteristics of an alluvial 
valley floor to be considered include, but are not limited to--
    (i) The longitudinal profile (gradient), cross-sectional shape, and 
other channel characteristics of streams that have formed within the 
alluvial valley floor and that provide for maintenance of the prevailing 
conditions of surface flow;
    (ii) Aquifers (including capillary zones and perched water zones) 
and confining beds within the mined area which provide for storage, 
transmission, and regulation of natural ground water and surface water 
that supply the alluvial valley floors;
    (iii) Quantity and quality of surface and ground water that supply 
alluvial valley floors;
    (iv) Depth to and seasonal fluctuations of ground water beneath 
alluvial valley floors;
    (v) Configuration and stability of the land surface in the flood 
plain and adjacent low terraces in alluvial valley floors as they allow 
or facilitate irrigation with flood waters or subirrigation and maintain 
erosional equilibrium; and
    (vi) Moisture-holding capacity of soils (or plant growth medium) 
within the alluvial valley floors, and physical and chemical 
characteristics of the subsoil which provide for sustained vegetation 
growth or cover through dry months.
    (2) Surface coal mining operations located west of the 100th 
meridian west longitude shall not interrupt, discontinue, or preclude 
farming on alluvial valley floors and shall not materially damage the 
quantity or quality of surface or ground water that supplies these 
valley floors unless the premining land use has been undeveloped 
rangeland which is not significant to farming on the alluvial valley 
floors

[[Page 77]]

or unless the area of affected alluvial valley floor is small and 
provides negligible support for the production from one or more farms. 
This paragraph (j)(2) does not apply to those surface coal mining 
operations that--
    (i) Were in production in the year preceding August 3, 1977, were 
located in or adjacent to an alluvial valley floor, and produced coal in 
commercial quantities during the year preceding August 3, 1977; or
    (ii) Had specific permit approval by the State regulatory authority 
before August 3, 1977, to conduct surface coal mining operations for an 
area within an alluvial valley floor.
    (3)(i) Before surface mining and reclamation operations authorized 
under paragraph (j)(2) of this section may be issued a new revised or 
amended permit, the permittee shall submit, for regulatory authority 
approval, detailed surveys and baseline data to establish standards 
against which the requirements of paragraph (j)(1) of this section may 
be measured and from which the degree of material damage to the quantity 
and quality of surface and ground water that supply the alluvial valley 
floors may be assessed. The surveys and date shall include--
    (A) A map at a scale determined by the regulatory authority, showing 
the location and configuration of the alluvial valley floor;
    (B) Baseline data covering a full water year for each of the 
hydrologic functions identified in paragraph (j)(1) of this section;
    (C) Plans showing how the operation will avoid, during mining and 
reclamation, interruption, discontinuance, or preclusion of farming on 
the alluvial valley floors and will not materially damage the quantity 
or quality of water in surface and ground water systems that supply such 
valley floors;
    (D) Historic land use data for the proposed permit area and for 
farms to be affected; and
    (E) Such other data as the regulatory authority may require.
    (ii) Surface mining operations which qualify for the exceptions in 
paragraph (j)(2) of this section are not required to submit the plans 
prescribed in paragraph (j)(3)(i)(C) of this section.
    (4) The holder of a Federal coal lease or the fee holder of any coal 
deposit located within or adjacent to an alluvial valley floor west of 
the 100th meridian west from which coal was not produced in commercial 
quantities between August 3, 1976, and August 3, 1977, and for which no 
specific permit by the appropriate State or Federal regulatory authority 
to conduct surface coal mining operations in the alluvial valley floors 
has been obtained, may be entitled to an exchange of the Federal coal 
lease for a lease of other Federal coal deposits under section 510(b)(5) 
of the Act, or to the conveyance by the Secretary of fee title to other 
available Federal coal deposits in exchange for the fee title to such 
deposits under section 206 of the Federal Land Policy and Management Act 
of 1976 (90 Stat. 2743), if the Secretary determines that substantial 
financial and legal commitments were made by the operator prior to 
January 1, 1977, in connection with surface coal mining operations on 
such lands.
    (k) Permanent impoundments. The permittee may construct, if 
authorized by the regulatory agency pursuant to this paragraph and 
Sec. 715.13, permanent water impoundments on mining sites as a part of 
reclamation activities only when they are adequately demonstrated to be 
incompliance with Secs. 715.13 and 715.14 in addition to the following 
requirements:
    (1) The size of the impoundment is adequate for its intended 
purposes.
    (2) The impoundment dam construction is designed to achieve 
necessary stability with an adequate margin of safety compatible with 
that of structures constructed under Pub. L. 83-566 (16 U.S.C. 1006).
    (3) The quality of the impounded water will be suitable on a 
permanent basis for its intended use and discharges from the impoundment 
will not degrade the quality of receiving waters below the water quality 
standards established pursuant to applicable Federal and State law.
    (4) The level of water will be reasonably stable.
    (5) Final grading will comply with the provisions of Sec. 715.14 and 
will provide adequate safety and access for proposed water users.

[[Page 78]]

    (6) Water impoundments will not result in the diminution of the 
quality or quantity of water used by adjacent or surrounding landowners 
for agricultural, industrial, recreational, or domestic uses.
    (l) Hydrologic impact of roads. (1) General. Access and haul roads 
and associated bridges, culverts, ditches, and road rights-of-way shall 
be constructed, maintained, and reclaimed to prevent additional 
contributions of suspended solids to streamflow, or to runoff outside 
the permit area to the extent possible, using the best technology 
currently available. In no event shall the contributions be in excess of 
requirements set by applicable State or Federal law. All access and haul 
roads shall be removed and the land affected regraded and revegetated 
consistent with the requirements of Secs. 715.14 and 715.20, unless 
retention of a road is approved as part of a postmining land use under 
Sec. 715.13 as being nessary to support the postmining land use or 
necessary to adequately control erosion and the necessary maintenance is 
assured.
    (2) Construction. (i) All roads, insofar as possible, shall be 
located on ridges or on the available flatter and more stable slopes to 
minimize erosion. Stream fords are prohibited unless they are 
specifically approved by the regulatory authority as temporary routes 
across dry streams that will not adversely affect sedimentation and that 
will not be used for coal haulage. Other stream crossings shall be made 
using bridges, culverts or other structures designed and constructed to 
meet the requirements of this paragraph. Roads shall not be located in 
active stream channels nor shall they be constructed or maintained in a 
manner that increases erosion or causes significant sedimentation or 
flooding. However, nothing in this paragraph will be construed to 
prohibit relocation of stream channels in accordance with paragraph (d) 
of this section.
    (ii) In order to minimize erosion and subsequent disturbances of the 
hydrologic balance, roads shall be constructed in compliance with the 
following grade restrictions or other grades determined by the 
regulatory authority to be necessary to control erosion:
    (A) The overall sustained grade shall not exceed 1v:10h (10 
percent).
    (B) The maximum grade greater than 10 percent shall not exceed 
1v:6.5h (15 percent) for more than 300 feet.
    (C) There shall not be more than 300 feet of grade exceeding 10 
percent within each 1,000 feet.
    (iii) All access and haul roads shall be adequately drained using 
structures such as, but not limited to, ditches, water barriers, cross 
drains, and ditch relief drains. For access and haul roads that are to 
be maintained for more than 1 year, water-control structures shall be 
designed with a discharge capacity capable of passing the peak runoff 
from a 10-year, 24-hour precipitation event. Drainage pipes and culverts 
shall be constructed to avoid plugging or collapse and erosion at inlets 
and outlets. Drainage ditches shall be provided at the toe of all cut 
slopes formed by construction of roads. Trash racks and debris basins 
shall be installed in the drainage ditches wherever debris from the 
drainage area could impair the functions of drainage and sediment 
control structures. Ditch relief and cross drains shall be spaced 
according to grade. Effluent limitations of paragraph (a) of this 
section shall not apply to drainage from access and hauls roads located 
outside the disturbed area as defined in this section unless otherwise 
specified by the regulatory authority.
    (iv) Access and haul roads shall be surfaced with durable material. 
Toxic- or acid-forming substances shall not be used. Vegetation may be 
cleared only for the essential width necessary for road and associated 
ditch construction and to serve traffic needs.
    (3) Maintenance. (i) Access and haul roads shall be routinely 
maintained by means such as, but not limited to, wetting, scraping or 
surfacing.
    (ii) Ditches, culverts, drains, trash racks, debris basins and other 
structures serving to drain access and haul roads shall not be 
restricted or blocked in any manner that impedes drainage or adversely 
affects the intended purpose of the structure.
    (m) Hydrologic impacts of other transport facilities. Railroad 
loops, spurs, sidings and other transport facilities shall

[[Page 79]]

be constructed, maintained and reclaimed to control diminution or 
degradation of water quality and quantity and to prevent additional 
contributions of suspended solids to streamflow, or to run-off outside 
the permit area to the extent possible, using the best technology 
currently available. In no event shall contributions be in excess of 
requirements set by applicable State or Federal law.
    (n) Discharge of waters into underground mines. Surface and ground 
waters shall not be discharged or diverted into underground mine 
workings.

(Secs. 101, 102, 201, 501, 503-510, 515-517, 523, and 701, Surface 
Mining Act of 1977, Pub. L. 95-87), 30 U.S.C. 1201, 1202, 1211, 1251-
1260, 1265-1267, 1273, 1291))

[42 FR 62680, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978; 43 FR 3705, Jan. 
27, 1978, as amended at 43 FR 8091, Feb. 27, 1978; 43 FR 21458, May 18, 
1978; 44 FR 30631, May 25, 1979; 44 FR 36887, June 22, 1979; 44 FR 
77451, Dec. 31, 1979; 45 FR 6913, Jan. 30, 1980]

    Effective Date Note: A document published at 44 FR 77451, Dec. 31, 
1979 temporarily suspended Sec. 715.17(a)(1) insofar as it applies to 
total suspended solids (TSS) discharges.



Sec. 715.18  Dams constructed of or impounding waste material.

    (a) General. No waste material shall be used in or impounded by 
existing or new dams without the approval of the regulatory authority. 
The permittee shall design, locate, construct, operate, maintain, 
modify, and abandon or remove all dams (used either temporarily or 
permanently) constructed of waste materials, in accordance with the 
requirements of this section.
    (b) Construction of dams. (1) Waste shall not be used in the 
construction of dams unless demonstrated through appropriate engineering 
analysis, to have no adverse effect on stability.
    (2) Plans for dams subject to this section, and also including those 
dams that do not meet the size or other criteria of Sec. 77.216(a) of 
this title, shall be approved by the regulatory authority before 
construction and shall contain the minimum plan requirements established 
by the Mining Enforcement and Safety Administration pursuant to 
Sec. 77.216-2 of this title.
    (3) Construction requirements are as follows:
    (i) Design shall be based on the flood from the probable maximum 
precipitation event unless the permittee shows that the failure of the 
impounding structure would not cause loss of life or severely damage 
property or the environment, in which case depending on site conditions, 
a design based on a precipitations event of no less than 100-year 
frequency may be approved by the regulatory authority.
    (ii) The design freeboard distance between the lowest point on the 
embankment crest and the maximum water elevation shall be at least 3 
feet to avoid overtopping by wind and wave action.
    (iii) Dams shall have minimum safety factors as follows:

                                                                        
------------------------------------------------------------------------
                                                                Minimum 
                Case                     Loading condition      safety  
                                                                factor  
------------------------------------------------------------------------
I...................................  End of construction...         1.3
II..................................  Partial pool with              1.5
                                       steady seepage                   
                                       saturation.                      
III.................................  Steady seepage from            1.5
                                       spillway or decant               
                                       crest.                           
IV..................................  Earthquake (cases II           1.0
                                       and III with seismic             
                                       loading).                        
------------------------------------------------------------------------

    (iv) The dam, foundation, and abutments shall be stable under all 
conditions of construction and operation of the impoundment. Sufficient 
foundation investigations and laboratory testing shall be performed to 
determine the factors of safety of the dam for all loading conditions in 
paragraph (b)(3)(iii) of this section and for all increments of 
construction.
    (v) Seepage through the dam, foundation, and abutments shall be 
controlled to prevent excessive uplift pressures, internal erosion, 
sloughing, removal of material by solution, or erosion of material by 
loss into cracks, joints, and cavities. This may require the use of 
impervious blankets, pervious drainage zones or blankets, toe drains, 
relief wells, or dental concreting of jointed rock surface in contact 
with embankment materials.
    (vi) Allowances shall be made for settlement of the dams and the 
foundation so that the freeboard will be maintained.
    (vii) Impoundments created by dams of waste materials shall be 
subject to a

[[Page 80]]

minimum drawdown criteria that allows the facility to be evacuated by 
spillways or decants of 90 percent of the volume of water stored during 
the design precipitation event within 10 days.
    (viii) During construction of dams subject to this section, the 
structures shall be periodically inspected by a registered professional 
engineer to ensure construction according to the approved design. On 
completion of construction, the structure shall be certified by a 
registered professional engineer experienced in the field of dam 
construction as having been constructed in accordance with accepted 
professional practice and the approved design.
    (ix) A permanent identification marker, at least 6 feet high that 
shows the dam number assigned pursuant to Sec. 77.216-1 of this title 
and the name of the person operating or controlling the dam, shall be 
located on or immediately adjacent to each dam within 30 days of 
certification of design pursuant to this section.
    (4) All dams, including those not meeting the size or other criteria 
of Sec. 77.216 (a) of this title, shall be routinely inspected by a 
registered professional engineer, or someone under the supervision of a 
registered professional engineer, in accordance with Mining Enforcement 
and Safety Administration regulations pursuant to Sec. 77.216-3 of this 
title.
    (5) All dams shall be routinely maintained. Vegetative growth shall 
be cut where necessary to facilitate inspection and repairs. Ditches and 
spillways shall be cleaned. Any combustible materials present on the 
surface, other than that used for surface stability such as mulch or dry 
vegetation, shall be removed and any other appropriate maintenance 
procedures followed.
    (6) All dams subject to this section shall be certified annually as 
having been constructed and modified in accordance with current prudent 
engineering practices to minimize the possibility of failures, Any 
changes in the geometry of the impounding structure shall be highlighted 
and included in the annual certification report. These certifications 
shall include a report on existing and required monitoring procedures 
and instrumentation, the average and maximum depths and elevations of 
any impounded waters over the past year, existing storage capacity of 
impounding structures, any fires occurring in the material over the past 
year and any other aspects of the structures affecting their stability.
    (7) Any enlargements, reductions in size, reconstruction or other 
modification of the dams shall be approved by the regulatory authority 
before construction begins.
    (8) All dams shall be removed and the disturbed areas regraded, 
revegetated, and stabilized before the release of bond unless the 
regulatory authority approves retention of such dams as being compatible 
with an approved postmining land use (Sec. 715.13).



Sec. 715.19  Use of explosives.

    (a) General. (1) The permittee shall comply with all applicable 
local, State, and Federal laws and regulations and the requirements of 
this section in the storage, handling, preparation, and use of 
explosives.
    (2) Blasting operations that use more than the equivalent of 5 
pounds of TNT shall be conducted according to a time schedule approved 
by the regulatory authority.
    (3) All blasting operations shall be conducted by experienced, 
trained, and competent persons who understand the hazards involved. 
Persons working with explosive materials shall--
    (i) Have demonstrated a knowledge of, and a willingness to comply 
with, safety and security requirements;
    (ii) Be capable of using mature judgment in all situations;
    (iii) Be in good physical condition and not addicted to intoxicants, 
narcotics, or other similar types of drugs;
    (iv) Possess current knowledge of the local, State and Federal laws 
and regulations applicable to his work; and
    (v) Have obtained a certificate of completion of training and 
qualification as required by State law or the regulatory authority.
    (b) Preblasting survey. (1) On the request to the regulatory 
authority of a resident or owner of a manmade dwelling or structure that 
is located within one-half mile of any part of the permit area, the 
permittee shall conduct a

[[Page 81]]

preblasting survey of the dwelling or structure and submit a report of 
the survey to the regulatory authority.
    (2) Personnel approved by the regulatory authority shall conduct the 
survey to determine the condition of the dwelling or structure and to 
document any preblasting damage and other physical factors that could 
reasonably be affected by the blasting. Assessments of structures such 
as pipes, cables, transmission lines, and wells and other water systems 
shall be limited to surface condition and other readily available data. 
Special attention shall be given to the preblasting condition of wells 
and other water systems used for human, animal, or agricultural purposes 
and to the quantity and quality of the water.
    (3) A written report of the survey shall be prepared and signed by 
the person or persons who conducted the survey and prepared the written 
report. The report shall include recommendations of any special 
conditions or proposed adjustments to the blasting procedures outlined 
in paragraph (e) of this section which should be incorporated into the 
blasting plan to prevent damage. Copies of the report shall be provided 
to the person requesting the survey and to the regulatory authority.
    (c) Public notice of blasting schedule. At least 10 days, but not 
more than 20 days before beginning a blasting program in which 
explosives that use more than the equivalent of 5 pounds of TNT are 
detonated, the permittee shall publish a blasting schedule in a 
newspaper of general circulation in the locality of the proposed site. 
Copies of the schedule shall be distributed by mail to local governments 
and public utilities and to each residence within one-half mile of the 
blasting sites described in the schedule. The permittee shall republish 
and redistribute the schedule by mail at least every 3 months. Blasting 
schedules shall not be so general as to cover all working hours but 
shall identify as accurately as possible the location of the blasting 
sites and the time periods when blasting will occur. The blasting 
schedule shall contain at a minimum--
    (1) Identification of the specific areas in which blasting will take 
place. The specific blasting areas described shall not be larger than 
300 acres with a generally contiguous border;
    (2) Dates and times when explosives are to be detonated expressed in 
not more than 4-hour increments;
    (3) Methods to be used to control access to the blasting area;
    (4) Types of audible warnings and all-clear signals to be used 
before and after blasting; and
    (5) A description of possible emergency situations (defined in 
paragraph (e)(1)(ii) of this section), which have been approved by the 
regulatory authority, when it may be necessary to blast at times other 
than those described in the schedule.
    (d) Public notice of changes to blasting schedules. Before blasting 
in areas not covered by a previous schedule or whenever the proposed 
frequency of individual detonations are materially changed, the 
permittee shall prepare a revised blasting schedule in accordance with 
the procedures in paragraph (c) of this section. If the change involves 
only a temporary adjustment of the frequency of blasts, the permittee 
may use alternate methods to notify the governmental bodies and 
individuals to whom the original schedule was sent.
    (e) Blasting procedures--(1) General. (i) All blasting shall be 
conducted only during the daytime hours, defined as sunrise until 
sunset. Based on public requests or other considerations, including the 
proximity to residential areas, the regulatory authority may specify 
more restrictive time periods.
    (ii) Blasting may not be conducted at times different from those 
announced in the blasting schedule except in emergency situations where 
rain, lightning, other atmospheric conditions, or operator or public 
safety requires unscheduled detonation.
    (iii) Warning and all-clear signals of different character that are 
audible within a range of one-half mile from the point of the blast 
shall be given. All persons within the permit area shall be notified of 
the meaning of the signals through appropriate instructions and signs 
posted as required by Sec. 715.12.
    (iv) Access to the blasting area shall be regulated to protect the 
public and livestock from the effects of blasting.

[[Page 82]]

Access to the blasting area shall be controlled to prevent unauthorized 
entry at least 10 minutes before each blast and until the permittee's 
authorized representative has determined that no unusual circumstances 
such as imminent slides or undetonated charges exist and access to and 
travel in or through the area can safely resume.
    (v) Areas in which charged holes are awaiting firing shall be 
guarded, barricaded and posted, or flagged against unauthorized entry.
    (vi) Airblast shall be controlled such that it does not exceed 128 
decibel linear-peak at any manmade dwelling or structure located within 
one-half mile of the permit area.
    (vii) Except where lesser distances are approved by the regulatory 
authority (based upon a preblasting survey or other appropriate 
investigations) blasting shall not be conducted within--
    (A) 1,000 feet of any building used as a dwelling, school, church, 
hospital, or nursing facility;
    (B) 500 feet of facilities including, but not limited to, disposal 
wells, petroleum or gas-storage facilities, municipal water-storage 
facilities, fluid-transmission pipelines, gas or oil-collection lines, 
or water and sewage lines; and
    (C) 500 feet of an underground mine not totally abandoned except 
with the concurrence of the Mining Enforcement and Safety 
Administration.
    (2) Blasting standards. (i) 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 ground or surface waters outside the 
permit area.
    (ii) Ground vibration--(A) General. In all blasting operations, 
except as otherwise authorized in paragraph (e)(2)(iii) of this section, 
the maximum ground vibration shall not exceed a value approved by the 
regulatory authority. It shall be established in accordance with the 
maximum peak-particle-velocity limit of paragraph (e)(2)(ii)(B), the 
scaled-distance equation of paragraph (e)(2)(ii)(C), or the blasting-
level chart of paragraph (e)(2)(ii)(D), or such other standard 
established under paragraph (e)(2)(ii)(E), of this section. All 
structures in the vicinity of the blasting area, not listed in paragraph 
(e)(2)(ii)(B), 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.
    (B) Maximum peak-particle velocity. (1) 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.

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

    (2) A seismographic record shall be provided for each blast.
    (C) Scaled-distance equation. (1) The operator may use the scaled-
distance equation, W=(D/Ds)\2\, to determine the allowable charge weight 
of explosives to be detonated in any 8-millisecond period without 
seismic monitoring; where W=the maximum weight of explosives, in pounds; 
D=the distance, in feet, from the blasting site to the nearest protected 
structure; and Ds=the scaled-distance factor, which may initially be 
approved by the regulatory authority using the values for scaled-
distance factor listed in paragraph (e)(2)(ii)(B)(1), of this section.
    (2) 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

[[Page 83]]

determined such that the particle velocity of the predicted ground 
vibration will not exceed the prescribed maximum allowable peak particle 
velocity of paragraph (e)(2)(B)(1) of this section at a 95-percent 
confidence level.
    (D) Blasting-level chart. (1) An operator may use the ground-
vibration limits in Figure 1 to determine the maximum allowable ground 
vibration.
[GRAPHIC] [TIFF OMITTED] TC21OC91.049

    (2 ) If the Figure 1 limits are used, a seismographic record 
including both particle-velocity and vibration-frequency levels shall be 
provided for each blast. The method for the analysis of the predominant 
frequency contained in the blasting records shall be approved by the 
regulatory authority before application of this alternative blasting 
criterion.
    (E) The maximum allowable ground vibration shall be reduced by the 
regulatory authority beyond the limits otherwise provided by this 
section, if determined necessary to provide damage protection.
    (F) The regulatory authority may require an operator to conduct 
seismic monitoring of any or all blasts and may specify the location at 
which the

[[Page 84]]

measurements are taken and the degree of detail necessary in the 
measurement.
    (iii) If blasting is conducted in accordance with paragraph 
(e)(2)(i) of this section, the maximum ground-vibration and airblast 
standards shall not apply at the following locations:
    (A) At structures owned by the permittee and not leased to another 
person.
    (B) 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.
    (3) Records of blasting operations. A record of each blast, 
including seismograph reports, shall be retained for at least 3 years 
and shall be available for inspection by the regulatory authority and 
the public on request. The record shall contain the following data--
    (i) Name of permittee, operator, or other person conducting the 
blast;
    (ii) Location, date, and time of blast;
    (iii) Name, signature, and license number of blaster-in-charge;
    (iv) Direction and distance, in feet, to nearest dwelling, school, 
church, or commercial or institutional building neither owned or leased 
by the permittee;
    (v) Weather conditions;
    (vi) Type of material blasted;
    (vii) Number of holes, burden, and spacing;
    (viii) Diameter and depth of holes;
    (ix) Types of explosives used;
    (x) Total weight of explosives used;
    (xi) Maximum weight of explosives detonated within any 8 millisecond 
period;
    (xii) Maximum number of holes detonated within any 8 millisecond 
period;
    (xiii) Methods of firing and type of circuit;
    (xiv) Type and length of stemming;
    (xv) If mats or other protections were used;
    (xvi) Type of delay detonator used, and delay periods used;
    (xvii) Seismograph records, where required, including--
    (A) Seismograph reading, including exact location of seismograph and 
its distance from the blast;
    (B) Name of person taking the seismograph reading; and
    (C) Name of person and firm analyzing the seismograph record.
[42 FR 62680, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1978, as amended at 48 
FR 9805, Mar. 8, 1983]



Sec. 715.20  Revegetation.

    (a) General. (1) The permittee shall establish on all land that has 
been disturbed, a diverse, effective, and permanent vegetative cover of 
species native to the area of disturbed land or species that will 
support the planned postmining uses of the land approved according to 
Sec. 715.13. For areas designated as prime farmland, the reclamation 
procedures of Sec. 716.7 shall apply.
    (2) Revegetation shall be carried out in a manner that encourages a 
prompt vegetative cover and recovery of productivity levels compatible 
with approved land uses. The vegetative cover shall be capable of 
stabilizing the soil surface with respect to erosion. All disturbed 
lands, except water areas and surface areas of roads that are approved 
as a part of the postmining land use, shall be seeded or planted to 
achieve a vegetative cover of the same seasonal variety native to the 
area of disturbed land. If both the pre- and postmining land use is 
intensive agriculture, planting of the crops normally grown will meet 
the requirement. Vegetative cover will be considered of the same 
seasonal variety when it consists of a mixture of species of equal or 
superior utility for the intended land use when compared with the 
utility of naturally occurring vegetation during each season of the 
year.
    (3) On Federal lands, the surface management agency shall be 
consulted for approval prior to revegetation regarding what species are 
selected, and following revegetation, to determine when the area is 
ready to be used.
    (b) Use of introduced species. Introduced species may be substituted 
for native species only if appropriate field trials have demonstrated 
that the introduced species are of equal or superior utility for the 
approved postmining land use, or are necessary

[[Page 85]]

to achieve a quick, temporary, and stabilizing cover. Such species 
substitution shall be approved by the regulatory authority. Introduced 
species shall meet applicable State and Federal seed or introduced 
species statutes, and shall not include poisonous or potentially toxic 
species.
    (c) Timing of revegetation. Seeding and planting of disturbed areas 
shall be conducted during the first normal period for favorable planting 
conditions after final preparation. The normal period for favorable 
planting shall be that planting time generally accepted locally for the 
type of plant materials selected to meet specific site conditions and 
climate. Any disturbed areas, except water areas and surface areas or 
roads that are approved under Sec. 715.13 as part of the postmining land 
use, which have been graded shall be seeded with a temporary cover of 
small grains, grasses, or legumes to control erosion until an adequate 
permanent cover is established. When rills or gullies, that would 
preclude the successful establishment of vegetation or the achievement 
of the postmining land use, form in regraded topsoil and overburden 
materials as specified in Sec. 715.14, additional regrading or other 
stabilization practices will be required before seeding and planting.
    (d) Mulching. Mulch shall be used on all regraded and topsoiled 
areas to control erosion, to promote germination of seeds, and to 
increase the moisture retention of the soil. Mulch shall be anchored to 
the soil surface where appropriate, to insure effective protection of 
the soil and vegetation. Mulch means vegetation residues or other 
suitable materials that aid in soil stabilization and soil moisture 
conservation, thus providing micro-climatic conditions suitable for 
germination and growth, and do not interfere with the postmining use of 
the land. Annual grains such as oats, rye and wheat may be used instead 
of mulch when it is shown to the satisfaction of the regulatory 
authority that the substituted grains will provide adequate stability 
and that they will later be replaced by species approved for the 
postmining use.
    (e) Methods of revegetation. (1) The permittee shall use technical 
publications or the results of laboratory and field tests approved by 
the regulatory authority to determine the varieties, species, seeding 
rates, and soil amendment practices essential for establishment and 
self-regeneration of vegetation. The regulatory authority shall approve 
species selection and planting plans.
    (2) Where hayland, pasture, or range is to be the postmining land 
use, the species of grasses, legumes, browse, trees, or forbes for 
seeding or planting and their pattern of distribution shall be selected 
by the permittee to provide a diverse, effective, and permanent 
vegetative cover with the seasonal variety, succession, distribution, 
and regenerative capabilities native to the area. Livestock grazing will 
not be allowed on reclaimed land until the seedlings are established and 
can sustain managed grazing. The regulatory authority, in consultation 
with the permittee and the landowner or in concurrence with the 
governmental landmanaging agency having jurisdiction over the surface, 
shall determine when the revegetated area is ready for livestock 
grazing.
    (3) Where forest is to be the postmining land use, the permittee 
shall plant trees adapted for local site conditions and climate. Trees 
shall be planted in combination with an herbaceous cover of grains, 
grasses, legumes, forbs, or woody plants to provide a diverse, 
effective, and permanent vegetation cover with the seasonal variety, 
sucession, and regeneration capabilities native to the area.
    (4) Where wildlife habitat is to be included in the postmining land 
use, the permittee shall consult with appropriate State and Federal 
wildlife and land management agencies and shall select those species 
that will fulfill the needs of wildlife, including food, water, cover, 
and space. Plant groupings and water resources shall be spaced and 
distributed to fulfill the requirements of wildlife.
    (f) Standards for measuring success of revegetation. (1) Success of 
revegetation shall be measured on the basis of reference areas approved 
by the regulatory authority. Reference areas mean land units of varying 
size and shape

[[Page 86]]

identified and maintained under appropriate management for the purpose 
of measuring ground cover, productivity and species diversity that are 
produced naturally. The reference areas must be representative of 
geology, soils, slope, aspect, and vegetation in the permit area. 
Management of the reference area shall be comparable to that which will 
be required for the approved postmining land use of the area to be 
mined. The regulatory authority shall approve the estimating techniques 
that will be used to determine the degree of success in the revegetated 
area.
    (2) The ground cover of living plants on the revegetated area shall 
be equal to the ground cover of living plants of the approved reference 
area for a minimum of two growing seasons. The ground cover shall not be 
considered equal if it is less than 90 percent of the ground cover of 
the reference area for any significant portion of the mined area. 
Exceptions may be authorized by the regulatory authority for--
    (i) Previously mined areas that were not reclaimed to the standards 
required by this chapter prior to the effective date of these 
regulations. The ground cover of living plants for such areas shall not 
be less than required to control erosion, and in no case less than that 
existing before redisturbance.
    (ii) Areas to be developed immediately for industrial or residential 
use. The ground cover of living plants shall not be less than required 
to control erosion. As used in this paragraph, immediately means less 
than 2 years after regrading has been completed for the area to be used; 
and
    (iii) Areas to be used for agricultural cropland purposes. Success 
in revegetation of cropland shall be determined on the basis of crop 
production from the mined area compared to the reference area. Crop 
production from the mined area shall be equal to that of the approved 
reference area for a minimum of two growing seasons. Production shall 
not be considered equal if it is less than 90 percent of the production 
of the reference area for any significant portion of the mined area.
    (3) Species diversity, distribution, seasonal variety, and vigor 
shall be evaluated on the basis of the results which could reasonably be 
expected using the methods of revegetation approved under paragraph (e) 
of this section.
    (g) Seeding of stockpiled topsoil. Topsoil stockpiled in compliance 
with Sec. 715.16 must be seeded or planted with an effective cover of 
nonnoxious, quick growing annual and perennial plants during the first 
normal period for favorable planting conditions or protected by other 
approved measures as specified in Sec. 715.16.



Sec. 715.200  Interpretative rules related to general performance standards.

    The following interpretations of rules promulgated in part 715 of 
this chapter have been adopted by the Office of Surface Mining 
Reclamation and Enforcement.
    (a)-(b) [Reserved]
    (c) Interpretation of Sec. 715.16(a)(4)--Topsoil Removal. (1) 
Results of physical and chemical analyses of topsoil and selected 
overburden materials to demonstrate that the selected overburden 
materials or overburden materials/topsoil mixture is more suitable for 
restoring land capability and productivity than the available topsoil, 
provided the analyses, trials, or tests are certified by a qualified 
soil scientist or agronomist, 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

[[Page 87]]

materials must be analyzed in accordance with 30 CFR 715.16(a)(4)(i).

(Sec. 501, 502, 504, 508, 515, 516, Pub. L. 95-87, 91 Stat. 467, 468, 
471, 478, 492, 496 (30 U.S.C. 1251, 1252, 1254, 1258, 1265, 1266))

[45 FR 26000, Apr. 16, 1980 and 45 FR 39447, June 10, 1980, as amended 
at 45 FR 73946, Nov. 7, 1980]



PART 716--SPECIAL PERFORMANCE STANDARDS--Table of Contents




Sec.
716.1  General obligations.
716.2  Steep-slope mining.
716.3  Mountaintop removal.
716.4  Special bituminous coal mines.
716.5  Anthracite coal mines.
716.6  Coal mines in Alaska.
716.7  Prime farmland.
716.10  Information collection.

    Authority: Secs. 201, 501, 527 and 529, Pub. L. 95-87, 91 Stat. 445 
(30 U.S.C. 1201).

    Source: 42 FR 62691, Dec. 13, 1977, unless otherwise noted.



Sec. 716.1  General obligations.

    (a) This part establishes special initial performance standards that 
apply in the following special circumstances--
    (1) Sec. 716.2 applies to surface coal mining operations on steep 
slopes.
    (2) Sec. 716.3 applies to surface coal mining operations involving 
mountaintop removal.
    (3) Sec. 716.4 applies to special bituminous coal mines.
    (4) Sec. 716.5 applies to anthracite surface coal mining operations.
    (5) Sec. 716.6 applies to surface coal mining operations in Alaska.
    (6) Sec. 716.7 applies to surface coal mining operations on prime 
farmlands.
    (b) All surface coal mining and reclamation operations subject to 
this part shall comply with the applicable special performance standards 
in this part. Such operations shall also comply with all general 
performance standards in part 715 of this chapter unless specifically 
exempted in this part from the requirements of part 715.



Sec. 716.2  Steep-slope mining.

    The permittee conducting surface coal mining and reclamation 
operations on natural slopes that exceed 20 degrees, or on lesser slopes 
that require measures to protect the area from disturbance, as 
determined by the regulatory authority after consideration of soils, 
climate, the method of operation, geology, and other regional 
characteristics, shall meet the following performance standards. The 
standards of this section do not apply where mining is done on a 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 
the mining is governed by Sec. 716.3.
    (a) Spoil, waste materials or debris, including that from clearing 
and grubbing, and abandoned or disabled equipment, shall not be placed 
or allowed to remain on the downslope.
    (b) The highwall shall be completely covered with spoil and the 
disturbed are a graded to comply with the provisions of Sec. 715.14 of 
this chapter. Land above the highwall shall not be disturbed unless the 
regulatory authority finds that the disturbance will facilitate 
compliance with the requirements of this section.
    (c) Material in excess of that required to meet the provisions of 
Sec. 715.14 of this chapter shall be disposed of in accordance with the 
requirements of Sec. 715.15 of this chapter.
    (d) Woody materials may be buried in the backfilled area only when 
burial does not cause, or add to, instability of the backfill. Woody 
materials may be chipped and distributed through the backfill when 
approved by the regulatory authority.
    (e) Variances from approximate original contour restoration 
requirements. (1) This section applies to surface coal mining operations 
on steep slopes where the operation is not to be reclaimed to achieve 
the approximate original contour and is not a mountaintop removal 
operation.
    (2) The objective of this subsection is to allow for a variance from 
the approximate original contour restoration requirements on steep 
slopes to--
    (i) Improve watershed control of the area; and
    (ii) Allow the land to be used for an industrial, commercial, 
residential, or public use, including recreational facilities.

[[Page 88]]

    (3) The regulatory authority may grant a variance from the 
requirement for restoration of the affected lands to their approximate 
original contour only if it first finds, in writing, on the basis of a 
showing made by the permittee, that all of the following requirements 
are met:
    (i) The permittee has demonstrated that the purpose of the variance 
is to make the lands to be affected within the permit area suitable for 
an industrial, commercial, residential, or public use postmining land 
use and that the proposed industrial, commercial, residential, or public 
use is likely to occur.
    (ii) The proposed use, after consultation with the appropriate land-
use planning agencies, if any, constitutes an equal or better economic 
or public use.
    (iii) The permittee has demonstrated that compliance with the 
requirements for acceptable alternative postmining industrial, 
commercial, residential or public land uses of 30 CFR 715.13 has been 
achieved except for the requirement at Sec. 715.13(d)(3) and (4) to 
provide letters of commitment. The permittee must demonstrate to the 
regulatory authority that necessary public facilities are likely to be 
provided and that the plan is financially feasible.
    (iv) The permittee has demonstrated that the watershed of the area 
will be improved as compared to the condition of the watershed before 
mining. The watershed will be deemed improved only if--
    (A) There will be a reduction in the amount of total suspended 
solids or other pollutants discharged to ground or surface waters from 
the area as compared to such discharges; or, there will be reduced flood 
hazards or more even flow within the watershed containing the area due 
to reduction of the peak flow discharges from precipitation events or 
thaws; or any other criterion authority in the granting of the variance. 
While improving one or more variables, the permittee must also at least 
maintain the variables not improved at their premining levels;
    (B) The total volume of flows from the proposed affected lands, 
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
    (C) The appropriate State environmental agency approves the plan.
    (v) The permittee has demonstrated that the owner of the surface of 
the lands within the permit area has knowingly requested, in writing, as 
a part of the application, that a variance be granted. The request shall 
be made separately from any surface owner consent given for the 
operation and shall show an understanding that the variance could not be 
granted without the surface owner's request.
    (vi) The proposal 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.
    (vii) All other requirements of the Act and these regulations will 
be met by the proposed operations.
    (4) Every permittee who obtains a variance under this subsection 
shall:
    (i) Backfill completely the highwall with spoil material, in a 
manner which results in a static factor of safety of at least 1.3 using 
general geotechnical analysis.
    (ii) Improve the watershed control of the area by reducing the peak 
flow from precipitation or thaw or reducing the total suspended solids 
or other pollutants in the surface water discharge during precipitation 
or thaw or by attaining the criteria approved by the regulatory 
authority in the granting of the variance. While improving one or more 
variables, the permittee must also at least maintain the variables not 
improved at their premining levels. The total volume of flow during 
every season of the year shall not vary in a way that adversely affects 
the ecology of any surface or ground water.
    (iii) Disturb land above the highwall only to the extent that the 
regulatory authority deems appropriate and approves as necessary to 
facilitate compliance with the provisions of this section. The 
regulatory authority may authorize such a disturbance above the highwall 
if it finds the disturbance is necessary to--

[[Page 89]]

    (A) Blend the solid highwall and the backfilled material; or
    (B) Control surface runoff; or
    (C) Provide access to the area above the highwall.
    (iv) Place off the mine bench no more than the amount of spoil 
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 parts 710 through 725 of this chapter. All spoil not retained on the 
bench shall be placed in accordance with the Act and these regulations.
    (5) The regulatory authority shall review every variance granted 
pursuant to this subsection not more than three years from the date of 
issuance of the permit to ensure that the proposed alternative 
postmining use is proceeding in accordance with the terms of the 
approved plan, unless the permittee affirmatively so demonstrates.
[42 FR 62691, Dec. 13, 1977, as amended at 45 FR 83168, Dec. 17, 1980]



Sec. 716.3  Mountaintop removal.

    (a) Surface coal mining and reclamation operations that remove 
entire coal seams 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 are exempt 
from the requirements of Sec. 715.14 of this chapter for achieving 
approximate original contour, if the following requirements are met:
    (1) An industrial, commercial, agricultural, residential, or public 
facility (including recreational facilities) use is proposed for the 
affected land.
    (2) The alternative land use criteria in Sec. 715.13(d) of this 
chapter are met and the proposal is approved by the regulatory 
authority.
    (3) All other applicable requirements of part 715 of this chapter 
can be met.
    (b) Surface coal mining and reclamation operations conducted under 
this section shall comply with the following standards:
    (1) An outcrop barrier of sufficient width consisting of the toe of 
the lowest coal seam, and its associated overburden shall be retained to 
prevent slides and erosion.
    (2) The final graded top plateau slopes on the mined area shall be 
less than 1v:5h so as to create a level plateau or gently rolling 
configuration and the outslopes of the plateau shall not exceed 1v:2h, 
except where engineering data substantiates and the regulatory authority 
finds that a minimum static safety factor of 1.5 will be attained.
    (3) The resulting level or gently rolling contour shall be graded to 
drain inward from the outslope except at specific points where it drains 
over the outslope in protected stable channels.
    (4) Damage to natural watercourses below the area to be mined shall 
be prevented.
    (5) Spoil shall be placed on the mountaintop bench as is necessary 
to achieve the postmining land use approved under Sec. 715.13 of this 
chapter. All excess spoil material not retained on the mountaintop shall 
be placed in accordance with the standards of Sec. 715.15 of this 
chapter.
    (c)(1) All permits giving approval for mountaintop removal shall be 
reviewed not more than 3 years from the date of issuance of the permit, 
unless the permittee affirmatively demonstrates and the regulatory 
authority finds that all operations are proceeding in accordance with 
the terms of the permit and applicable requirements of the Act and the 
regulations of this part. The terms of the permit shall be in accordance 
with the requirements of the Act and the regulations of this part.
    (2) The terms of a permit for mountaintop removal may be modified by 
the regulatory authority if it determines that more stringent measures 
are necessary to prevent or control slides and erosion, prevent damage 
to natural water courses, avoid water pollution, or to assure successful 
revegetation.



Sec. 716.4  Special bituminous coal mines.

    (a) Definition. Special bituminous coal surface mines as used in 
this section means those bituminous coal surface mines that are located 
in the State of Wyoming and that are being mined or will be mined 
according to the following criteria:
    (1) Excavation of the mine pit takes place on a relatively limited 
site for an

[[Page 90]]

extended period of time. For the purposes of this section, mine pit 
means an open-pit mine in which the surface opening is at least the full 
size of the excavation and has a contiguous border. The pit generally is 
quite deep and is formed by the removal of relatively large amounts of 
overburden to obtain lesser amounts of coal. The term as used in this 
section applies only to mining operations that extract coal from seams 
dipping 15 degrees or more from the horizontal.
    (2) Excavation of the mine pit follows a coal seam that inclines 15 
degrees 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 
operations.
    (3)(i) Surface coal mining operations in the mine pit have taken 
place since January 1, 1972, and
    (A) Operations in the mine pit are removing more than one coal seam, 
and
    (B) Mining has begun on the deepest coal seam scheduled to be mined; 
or
    (ii) Surface coal mining operations which may be developed after 
August 3, 1977, and are conducted on lands immediately adjacent to 
operations meeting the criteria of paragraph (a)(3)(i) of this section.
    (4) The amount of material removed from the pit is large in 
proportion to the surface area disturbed.
    (5) There is no practicable alternative to the deep open-pit method 
of mining the coal.
    (6) There is no practicable way to entirely reclaim the land as 
required by part 715 of this chapter.
    (b) Requirements for special bituminous coal mines operating prior 
to July 1, 1973. Those portions of a special bituminous coal mine 
approved for operation prior to July 1, 1973, including the orderly 
expansion of such a mine pit to the extent authorized by State law, 
shall at a minimum meet the general performance standards of part 715 of 
this chapter for all operations conducted on the permit area outside the 
mine pit and for those operations associated with spoil storage areas. 
The standards of part 715 also apply to the mine pit with the exception 
of Sec. 715.14, which relates to backfilling and grading. Special 
requirements for backfilling and grading the mine pit area are as 
follows:
    (1) In the final mine area, highwalls will be allowed to remain and 
benches will be allowed. Details of the benches shall be included in the 
mine plans submitted to the regulatory authority for approval.
    (2) The exposed pit floors will be sloped and graded to provide 
access to the area, and topsoil shall be applied and the floor area 
seeded according to the requirements of Secs. 715.16 and 715.20. Where 
water impoundments are included as part of the mine plan, riprap may be 
used if necessary to prevent erosion.
    (3) Spoil piles will be graded and contoured with no more than 
overall slope of 17 degrees allowed, and terraces may be used to break 
the slope when it can be shown that terraces will accomplish the 
required reclamation. For the postmining land use, steeper slopes may be 
permitted upon approval of the regulatory authority, provided it can be 
demonstrated that such method will provide the required results.
    (c) Requirements for other special bituminous coal mines. Those 
portions of a special bituminous coal mine which do not meet the 
criteria of paragraph (b) of this section shall, at minimum meet the 
general performance standards of part 715 of this chapter for all 
operations conducted on the permit area outside the mine pit and for 
these operations associated with spoil storage areas. The standards of 
part 715 also apply to the mine pit with the exception of Sec. 715.14, 
which relates to backfilling and grading. Special requirements for 
backfilling and grading the mine pit area are as follows:
    (1) Slope specifications. Slope specifications for the postmining 
land use shall be based on an average of the natural slopes measured in 
the immediate area of the mine site, and the maximum inclination of the 
slopes in the reclaimed area shall not be greater than this average 
slope. However, slopes steeper than the average of the natural slopes 
may be approved by the regulatory authority if it can be demonstrated 
that returning the minded area to a slope equal to or less than the 
average natural slope would greatly increase the amount of disturbed 
land.

[[Page 91]]

Measurements of individual slopes, locations at which measurements are 
made, and the average natural slope as determined from the individual 
slope measurements shall be submitted for approval to the regulatory 
authority. The regulatory authority may make an independent slope survey 
to verify the average natural slope.
    (2) Postmining land uses that do not include permanent water 
impoundments. (i) The final mine area shall be backfilled, graded, and 
contoured to the extent necessary to return the land to the use approved 
by the regulatory authority.
    (ii) All backfilling, grading, and contouring shall be done in a 
manner to preserve the original drainage system or to provide substitute 
drainage systems approved by the regulatory authority.
    (iii) Terraces or benches may be used only if it can be demonstrated 
that contouring methods will not provide the required results. Detailed 
plans of dimensions and design of the terraces or benches, check dams, 
erosion prevention techniques, and slopes of the terraces or benches and 
their intervals shall be submitted to the regulatory authority for 
approval before construction.
    (iv) Depressions that will accumulate water shall not be allowed 
unless they are approved under paragraph (3).
    (3) Postmining land uses that include permanent water impoundments. 
(i) The exposed mine pit area shall be sloped, graded, and contoured to 
blend with the topography of the surrounding terrain and to provide for 
access to the area. Where necessary to prevent erosion, riprap shall be 
used.
    (ii) Under certain conditions where it can be demonstrated by the 
permittee that the pitwall can be stabilized by terracing or other 
techniques it may be permissible to leave one-half the proposed 
shoreline, as measured along the circumference, composed of the 
stabilized pitwall. The remaining part of the shoreline shall be graded 
and contoured to blend with the topography of the surrounding terrain 
and to provide access to the area. Detailed explanations of the 
techniques to be used to stabilize the pitwalls shall be submitted for 
approval to the regulatory authority. The regulatory authority may 
verify the effectiveness of the proposed stabilization techniques from a 
study made by an independent engineering company and based on this 
information and an onsite inspection, the regulatory authority will then 
determine the acceptability of the proposed stabilization techniques.
    (d) In the event of an amendment or revision to the State of 
Wyoming's regulatory program, regulations, or decisions made thereunder 
governing special bituminous coal mines, the Secretary shall issue such 
additional regulations as necessary to meet the purposes of the Act.



Sec. 716.5  Anthracite coal mines.

    (a) Permittees of anthracite surface coal mining and reclamation 
operations in those States where the mines are regulated by State 
environmental protection standards shall be subject to the environmental 
protection standards of the State regulatory program in existence on 
August 3, 1977, instead of part 715 and part 717 of this chapter.
    (b) The environmental protection provisions of Title 25, Rules and 
Regulations, part 1, Department of Environmental Resources, Commonwealth 
of Pennsylvania, shall apply to reclamation of anthracite surface coal 
mining and reclamation operations in the Commonwealth of Pennsylvania 
instead of part 715 and part 717 of this chapter. In addition, the 
regulations of the Commonwealth of Pennsylvania pertaining to standards 
for air and water quality shall apply instead of the regulations of part 
715 and part 717 of this chapter.
    (c) If a State's regulatory program or regulations for anthracite 
surface coal mining and reclamation operations in force at the time of 
this Act are amended, the Secretary, upon receipt of a notice of 
amendment, shall issue additional regulations as necessary to meet the 
purposes of this Act.
[45 FR 61259, Sept. 15, 1980]



Sec. 716.6  Coal mines in Alaska.

    (a) Permittees of surface coal mining operations in Alaska from 
which coal has been mined on or after August 3, 1977, shall conduct 
operations in a manner that, at a minimum, meets the performance 
standards of this chapter.

[[Page 92]]

    (b) The Secretary, after consultation with the Governor of Alaska, 
may modify the applicability of any environmental protection standard to 
any surface coal mining operation if he determines that it is necessary 
to ensure the continued operation of the mine.
    (c) Any person may petition the Secretary to modify the 
applicability of a performance standard to a coal mine in Alaska. No 
particular form of petition is required. However, the petition shall be 
in writing and shall identify clearly--
    (1) The performance standard involved;
    (2) The alternative methods to be used to protect the environment 
and public health and safety;
    (3) The reasons why a modification is requested with full 
descriptions of the impacts continued requirements for compliance with 
the performance standard to be modified would have on mining and 
reclamation and of the impacts the proposed method would have on the 
environment and public health and safety; and
    (4) The location of the mine.
    (d) If the Secretary determines that the petition presents 
reasonable justification for modifying the performance standard, he may 
grant a temporary suspension of enforcement of the performance standard, 
and he shall publish a notice of intention to modify the applicability 
of the performance standard in the Federal Register and in a newspaper 
of general circulation in the area of Alaska where the affected coal 
mine is located. A public hearing shall be held in Alaska and any person 
may testify for or against the proposed modification. The Secretary, 
after considering the public comments, and consulting with the Governor 
of Alaska, shall publish his decision in the Federal Register and in the 
same newspaper in which the original notice was published.



Sec. 716.7  Prime farmland.

    (a) Applicability. (1) Permittees of surface coal mining and 
reclamation operations conducted on prime farmland shall comply with the 
general performance standards of part 715 of this chapter in addition to 
the special requirements of this section.
    (2) Except as otherwise provided in this paragraph, the requirements 
of the section are applicable to any lands covered by a permit 
application filed on or after August 3, 1977. This section does not 
apply to:
    (i) Lands on which surface coal mining and reclamation operations 
are conducted pursuant to any permit issued prior to August 3, 1977; or
    (ii) 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
    (iii) 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:
    (A) Such lands are part of a single continuous surface coal mining 
operation begun under a permit issued before August 3, 1977; and
    (B) 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
    (C) 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.
    (3) 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

[[Page 93]]

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, prior to August 3, 1977, the contiguous parcels were part 
of a single permitted operation. For the purposes of this paragraph, 
clear and convincing evidence includes, but is not limited to, 
contracts, leases, deeds or other properly executed legal documents (not 
including options) that specifically treat physically separate parcels 
as one surface coal mining operation.
    (b) Definitions. For purposes of this section, the following 
definitions are applicable.
    (1) Prime farmland means those lands which are defined by the 
Secretary of Agriculture in 7 CFR 657 and which have been historically 
used for cropland.
    (2) Historically used for cropland means (i) 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; (ii) 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, or (iii) lands that would likely have been used as cropland 
for any 5 out of the last 10 years immediately preceding such acquistion 
but for some fact of ownership or control of the land unrelated to the 
productivity of the land, 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 protected.
    (3) 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 speciality crops.
    (4) The soils either have no water table or have a water table that 
is maintained at a sufficient depth during the cropping season to allow 
food, feed, fiber, forage, and oilseed crops common to the area to be 
grown.
    (5) The soils can be managed so that in all horizons within a depth 
of 40 inches or in the root zone if the root zone is less than 40 inches 
deep, during part of each year the conductivity of saturation extract is 
less than 4 mmhos/cm and the exchangeable sodium percentage (ESP) is 
less than 15.
    (6) The soils are not flooded frequently during the growing season 
(less often than once in 2 years).
    (7) The soils have a product of K (erodibility factor)  x  percent 
slope of less than 2.0 and a product of I (soil erodibility)  x  C 
(climatic factor) not exceeding 60.
    (8) The soils have a permeability rate of at least 0.06 inch per 
hour in the upper 20 inches and the mean annual soil temperature at a 
depth of 20 inches is less than 59 degrees F.; the permeability rate is 
not a limiting factor if the mean annual soil temperature is 59 degress 
F. or higher.
    (9) Less than 10 percent of the surface layer (upper 6 inches) in 
these soils consists of rock fragments coarser than 3 inches.
    (c) Indentification of prime farmland. Prime farmland shall be 
identified on the basis of soil surveys submitted by the applicant. The 
regulatory authority also may require data on irrigation, drainage, 
flood control, and subsurface water managament. The requirement for 
submission of soil surveys may be waived by the regulatory authority, if 
the applicant can demonstrate according to the procedures in paragraph 
(d) of this section that no prime farmlands are involved. Soil surveys 
shall be conducted according to standards of the National Cooperative 
Soil Survey, which include the procedures set forth in U.S. Department 
of Agriculture Handbooks 436 (Soil Taxonomy) and 18 (Soil Survey 
Manual), and shall include--
    (1) Data on moisture availability, temperature regime, flooding, 
water table, erosion characteristics, permeability, or other information 
that is needed to determine prime farmland in accordance with paragraph 
(b) of this section;

[[Page 94]]

    (2) A map designating the exact location and extent of the prime 
farmland; and
    (3) A description of each soil mapping unit.
    (d) Negative determination of prime farmland. The land shall not be 
considered as prime farmland where the applicant can demonstrate one or 
more of the following situations--
    (1) Lands within the proposed permit boundaries have not been 
historically used for cropland.
    (2) The slope of all land within the permit area is 10 percent or 
greater.
    (3) Land within the permit area is not irrigated or naturally 
subirrigated, has no developed water supply that is dependable and of 
adequate quality, and the average annual precipitation is 14 inches or 
less.
    (4) Other factors exist, such as a very rocky surface, or the land 
is frequently flooded, which clearly place all land within the area 
outside the purview of prime farmland.
    (5) A written notification based on scientific findings and soil 
surveys that land within the proposed mining area does not meet the 
applicability requirements in paragraph (a) of this section is submitted 
to the regulatory authority by a qualified person other than the 
applicant, and is approved by the regulatory authority.
    (e) Plan for restoration of prime farmland. The applicant shall 
submit to the regulatory authority a plan for the mining and restoration 
of any prime farmland within the proposed permit boundaries. This plan 
shall be used by the regulatory authority in judging the technological 
capability of the applicant to restore prime farmlands. The plan shall 
include--
    (1) A description of the original undisturbed soil profile, as 
determined from a soil survey, showing the depth and thickness of each 
of the soil horizons that collectively constitute the root zone of the 
locally adapted crops and are to be removed, stored, and replaced;
    (2) The proposed method and type of equipment to be used for 
removal, storage, and replacement of the soil in accordance with 
paragraph (g) of this section;
    (3) The location of areas to be used for the separate stockpiling of 
the soil and plans for soil stabilization before redistribution;
    (4) If applicable, documentation such as agricultural school studies 
or other scientific data from comparable areas that supports the use of 
other suitable material, instead of the A, B or C soil horizon to obtain 
on the restored area equivalent or higher levels of yield as non-mined 
prime farmlands in the surrounding area under equivalent levels of 
management; and
    (5) Plans for seeding or cropping the final graded mine land and the 
conservation practices to control erosion and sedimentation during the 
first 12 months after regrading is completed. Proper adjustments for 
seasons must be made so that final graded land is not exposed to erosion 
during seasons when vegetation or conservation practices cannot be 
established due to weather conditions; and
    (6) Available agricultural school studies, company data, or other 
scientific data for comparable areas that demonstrate that the applicant 
using his proposed method of reclamation will achieve, within a 
reasonable time equivalent or higher levels of yield after mining as 
existed before mining.
    (f) Consultation with Secretary of Agriculture and issuance of 
permit. (1) The regulatory authority may grant a permit which shall 
incorporate the plan submitted under paragraph (e) of this section, if 
it finds in writing that the applicant--
    (i) Has the technological capability to restore the prime farmland 
within the proposed permit area, within a reasonable time, to equivalent 
or higher levels of yield as nonmined prime farmland in the surrounding 
area under equivalent levels of management; and
    (ii) Will achieve compliance with the standards of paragraph (g) of 
this section.
    (2) Before any permit is issued for areas that include prime 
farmlands, the regulatory authority shall consult with the Secretary of 
Agriculture. The Secretary of Agriculture will provide a review of the 
proposed method of soil reconstruction and comment on possible revisions 
that will result in a

[[Page 95]]

more complete and adequate restoration. The Secretary of Agriculture has 
assigned his responsibilities under this paragraph to the Administrator 
of the U.S. Soil Conservation Service and the U.S. Soil Conservation 
Service will carry out the consultation and review through their State 
Conservationist, located in each State.
    (g) Special requirements. For all prime farmlands to be mined and 
reclaimed, the applicant shall meet the following special requirements:
    (1) All soil horizons to be used in the reconstruction of the soil 
shall be removed before drilling, blasting, or mining ro prevent 
contaminating the soil horizons with undesirable materials. Where 
removal of soil horizons result in erosion that may cause air and water 
pollution, the regulatory authority shall specify methods of treatment 
to control erosion of exposed overburden. The permittee shall--
    (i) Remove separately the entire A horizon or other suitable soil 
materials which will create a final soil having an equal or greater 
productive capacity than that which existed prior to mining in a manner 
that prevents mixing or contamination with other material before 
replacement;
    (ii) Remove separately the B horizon of the natural soil or a 
combination of B horizon and underlying C horizon or other suitable soil 
material that will create a reconstructed root zone of equal or greater 
productivity capacity than that which existed prior to mining in a 
manner that prevents mixing or contamination with other material; and
    (iii) Remove separately the underlying C horizons or other strata, 
or a combination of such horizons or other strata, to be used instead of 
the B horizon that are of equal or greater thickness and that can be 
shown to be equal or more favorable for plant growth than the B horizon, 
and that when replaced will create in the reconstructed soil a final 
root zone of comparable depth and quality to that which existed in the 
natural soil.
    (2) If stockpiling of soil horizons is allowed by the regulatory 
authority in lieu of immediate replacement, the A horizon and B horizon 
must be stored separately from each other. The stockpiles must be placed 
within the permit area and where they will not be disturbed or exposed 
to excessive erosion by water or wind before the stockpiled horizons can 
be redistributed on terrain graded to final contour. Stockpiles in place 
for more than 30 days must meet the requirements of Sec. 715.16(c).
    (3) Scarify the final graded land before the soil horizons are 
replaced.
    (4) Replace the material from the B horizon, or other suitable 
material specified in paragraph (g)(1)(ii) or (g)(1)(iii) of this 
section in such a manner as to avoid excessive compaction of overburden 
and to a thickness comparable to the root zone that existed in the soil 
before mining.
    (5) Replace the A horizon or other suitable soil materials, which 
will create a final soil having an equal or greater productive capacity 
than existed prior to mining, as the final surface soil layer to the 
thickness of the original soil as determined in paragraph (g)(1)(i) of 
this section in a manner that--
    (i) Prevents excess compaction of both the surface layer and 
underlying material and reduction of permeability to less than 0.06 inch 
per hour in the upper 20 inches of the reconstructed soil profile; and
    (ii) Protects the surface layer from wind and water erosion before 
it is seeded or planted.
    (6) Apply nutrients and soil amendments as needed to establish quick 
vegetative growth.
[42 FR 62691, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1978, as amended at 46 
FR 47529, Sept. 28, 1981; 46 FR 47721, Sept. 29, 1981]



Sec. 716.10  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in 30 CFR part 716 do not 
require approval under the Paperwork Reduction Act.
[59 FR 43420, Aug. 23, 1994]



PART 717--UNDERGROUND MINING GENERAL PERFORMANCE STANDARDS--Table of Contents




Sec.
717.10  Information collection.
717.11  General obligations.

[[Page 96]]

717.12  Signs and markers.
717.13  [Reserved]
717.14  Backfilling and grading of road cuts, mine entry area cuts, and 
          other surface work areas.
717.15  Disposal of excess rock and earth materials on surface areas.
717.16  [Reserved]
717.17  Protection of the hydrologic system.
717.18  Dams constructed of or impounding waste material.
717.19  [Reserved]
717.20  Topsoil handling and revegetation.

    Authority: Secs. 201 and 501, Pub. L. 95-87, 91 Stat. 445 (30 U.S.C. 
1201).

    Source: 42 FR 62695, Dec. 13, 1977, unless otherwise noted.



Sec. 717.10  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in 30 CFR part 717 do not 
require approval under the Paperwork Reduction Act.
[59 FR 43420, Aug. 23, 1994]



Sec. 717.11  General obligations.

    (a) Compliance. All underground coal mining and associated 
reclamation operations conducted on lands where any element of the 
operations is regulated by a State shall comply with the initial 
performance standards of this part according to the time schedule 
specified in Sec. 710.11.
    (1) For the purposes of this part, underground coal mining and 
associated reclamation operations mean a combination of surface 
operations and underground operations. Surface operations include 
construction, use, and reclamation of new and existing access and haul 
roads, aboveground repair areas, storage areas, processing areas, 
shipping areas, and areas upon which are sited support facilities 
including hoist and ventilating ducts, and on which materials incident 
to underground mining operations are placed. Underground operations 
include underground construction, operation, and reclamation of shafts, 
adits, underground support facilities, underground mining, hauling, 
storage, and blasting.
    (2) For the purpose of this part the term permittee means the person 
permitted to conduct underground mining operations by a State or if no 
permit is issued in the State, the person operating a mine.
    (3) For the purpose of this part, Disturbed areas means surface work 
areas and lands affected by surface operations including, but not 
limited to, roads, mine entry excavations, above ground (surface) work 
areas, such as tipples, coal processing facilities and other operating 
facilities, waste work and spoil disposal areas, and mine waste 
impoundments or embankments.
    (4) Where State environmental protection standards are adopted for a 
specific State because they are more stringent than the standards of 
this part, they will be published in part 718 of this chapter.
    (b) Authorizations to operate. A copy of all current permits, 
licenses, approved plans or other authorizations to operate the mine 
shall be available for inspection at or near the mine site.



Sec. 717.12  Signs and markers.

    (a) Specifications. All signs required to be posted shall be of a 
standard design that can be seen and read easily and shall be made of 
durable material, and shall conform to local ordinances and codes. The 
signs and other markers shall be maintained during all operations to 
which they pertain.
    (b) Mine and permit identification signs. Signs identifying the mine 
area shall be displayed at all points of access to the permit area from 
public highways. Signs shall show the name, business address, and 
telephone number of the permittee and identification numbers of current 
mining and reclamation permits or other authorizations to operate. Such 
signs shall not be removed until after release of all bonds.



Sec. 717.13  [Reserved]



Sec. 717.14  Backfilling and grading of road cuts, mine entry area cuts, and other surface work areas.

    (a) Upon completion of underground mining, surface work areas which 
are involved in excavation, disposal of materials, or otherwise 
affected, shall be regraded to approximate original contour. The 
permittee shall transport, backfill and compact fill material to assure 
stability or to prevent leaching of toxic pollutants. Barren rock or 
similar materials excess to the mining

[[Page 97]]

operations and which are disposed on the land surface shall be subject 
to the provision of Sec. 717.15 of this part. Roads and support facility 
areas existing prior to the effective date of this part and used in 
support of underground mining operations which are subject to this part 
shall be regraded to the extent deemed feasible by the regulatory 
authority based on the availability of backfill material and resulting 
stability of the affected lands after reclamation. As a minimum, the 
permittee shall be required to:
    (1) Retain all earth, rock and other mineral nonwaste materials on 
the solid portion of existing or new benches, except that the regulatory 
authority may permit placement of such material at the site of the 
faceup as a means of disposing of excavated spoil when additional 
working space is needed to facilitate operations. Such placement of 
material shall be limited to minimize disturbance of land and to the 
hydrologic balance. Such fills shall be stabilized with vegetation and 
shall achieve a minimum static safety factor of 1.5. In no case shall 
the outslope exceed the angle of repose.
    (2) Backfill and grade to the most moderate slope possible to 
eliminate any highwall along roads, mine entry faces or other areas. 
Slopes shall not exceed the angle of repose or such lesser slopes as 
required by the regulatory authority to maintain stability.
    (b) On approval by the regulatory authority and in order to conserve 
soil moisture, ensure stability, and control erosion on final graded 
slopes, cut-and-fill terraces may be allowed if the terraces are 
appropriate substitutes for construction of lower grades on the 
reclaimed lands. The terraces shall meet the following requirements:
    (1) The width of the individual terrace bench shall not exceed 20 
feet unless specifically approved by the regulatory authority as 
necessary for stability erosion control, or roads.
    (2) The vertical distance between terraces shall be as specified by 
the regulatory authority to prevent excessive erosion and to provide 
long/term stability.
    (3) The slope of the terrace outslope shall not exceed 1v:2h (50 
percent). Outslopes which exceed 1v:2h (50 percent) may be approved if 
they have a minimum static safety factor of 1.5 of more and provide 
adequate control over erosion and closely resemble the surface 
configuration of the land prior to mining. In no case may highwalls be 
left as part of terraces.
    (4) Culverts and underground rock drains shall be used on the 
terrace only when approved by the regulatory authority.
    (c) All surface operations on steep slopes of 20 degrees or more or 
on such lesser slopes as the regulatory authority define as a steep 
slope shall be conducted so as not to place any material on the 
downslope below road cuts, mine working or other benches, other than in 
conformance with paragraph (a)(1) of this part.
    (d) Regrading or stabilizing rills and gullies. When rills or 
gullies deeper than 9 inches form in areas tht have been regraded and 
the topsoil replaced but vegetation has not yet been established, the 
permittee shall fill, grade, or otherwise stabilize the rills and 
gullies and reseed or replant the areas according to Sec. 717.20. The 
regulatory authority shall specify that erosional features of lesser 
size be stabilized if they result in additional erosion and 
sedimentation.
    (e) Covering coal and acid-forming, toxic-forming, combustible, and 
other waste materials; stabilizing backfilled materials; and using waste 
material for fill. Any acid-forming, toxic-forming, combustible 
materials, or any other waste materials as identified by the regulatory 
authority that are exposed, used, or produced during underground mining 
and which are deposited on the land surface shall, after placement in 
accordance with Sec. 717.15 of this part, be covered with a minimum of 4 
feet of nontoxic and noncombustible material; or, if necessary, treated 
to neutralize toxicity, in order to prevent water pollution and 
sustained combustion, and to minimize adverse effects on plant growth 
and land uses. Where necessary to protect against upward migration of 
salts, exposure by erosion, to provide an adequate depth for plant 
growth, or to otherwise meet local conditions, the regulatory authority 
shall specify thicker amount of cover using nontoxic

[[Page 98]]

material. Acid-forming or toxic-forming material shall not be buried or 
stored in proximity to a drainage course so as to cause or pose a threat 
of water pollution or otherwise violate the provisions of Sec. 717.17 of 
this part.
    (f) Grading along the contour. All final grading, preparation of 
earth, rock and other nonwaste materials before replacement of topsoil, 
and placement of topsoil in accordance with Sec. 717.20, shall be done 
along the contour to minimize subsequent erosion and instability. If 
such grading, preparation or placement along the contour would be 
hazardous to equipment operators, grading, preparation or placement in a 
direction other than generally parallel to the contour may be used. In 
all cases, grading, preparation or placement shall be conducted in a 
manner which minimizes erosion and provides a surface for replacement of 
topsoil which will minimize slippage.



Sec. 717.15  Disposal of excess rock and earth materials on surface areas.

    Excess rock and earth materials produced from an underground mine 
and not disposed in underground workings or used in backfilling and 
grading operations shall be placed in surface disposal areas in 
accordance with requirements of Sec. 715.15. Where the volume of such 
material is small and its chemical and physical characteristics do not 
pose a threat to either public safety or the environment, the regulatory 
authority may modify the requirements of Sec. 715.15 in accordance with 
Sec. 717.14(a)(1).



Sec. 717.16  [Reserved]



Sec. 717.17  Protection of the hydrologic system.

    The permittee shall plan and conduct underground coal mining and 
reclamation operations to minimize disturbance of the prevailing 
hydrologic balance in order to prevent long-term adverse changes in the 
hydrologic balance that could result from underground coal mining 
operations, both on and off site. changes in water quality and quantity, 
in the depth to ground water, and in the location of surface water 
drainage channels shall be minimized and applicable Federal and State 
statutes and regulations shall not be violated. The permittee shall 
conduct operations so as to minimize water pollution and shall, where 
necessary, use treatment methods to control water pollution. The 
permittee shall emphasize underground coal mining and reclamation 
practices that will prevent or minimize water pollution and changes in 
flows in preference to the use of water treatment facilities prior to 
discharge to surface waters. Practices to control and minimize pollution 
include, but are not limited to, diverting water from underground 
workings or preventing water contact with acid- or toxic-forming 
materials, and minimizing water contact time with waste materials, 
maintaining mine barriers to enhance postmining inundation and sealing, 
establishing disturbed areas through grading, diverting runoff, 
achieving quick growing stands of temporary vegetation, and lining 
drainage channels. If treatment is required to eliminate pollution of 
surface or ground waters, the permittee shall operate and maintain the 
necessary water treatment facilities as set forth in this section.
    (a) Water quality standards and effluent limitations. (1) All 
surface drainage from the disturbed area, including disturbed areas that 
have been graded, seeded or planted and which remain subject to the 
requirements of this section, except for drainage from disturbed areas 
that have met the requirements of Sec. 717.20 shall be passed through a 
sedimentation pond or a series of sedimentation ponds prior to leaving 
the permit area. All waters which flow or are removed from underground 
operations or underground waters which are removed from other areas to 
facilitate mining and which discharge to surface waters must be passed 
through appropriate treatment facilities prior to discharge where 
necessary to meet effluent limitations.
    (2) For purposes of this section only, disturbed areas shall include 
areas of surface operations but shall not include those areas in which 
only diversion ditches, sedimentation ponds, or roads are installed in 
accordance with this section and the upstream area is not otherwise 
disturbed by the permittee. Disturbed areas shall not include

[[Page 99]]

those surface areas overlying the underground working unless those areas 
are also disturbed by surface operations such as fill (disposal) areas, 
support facilities areas, or other major activities which create a risk 
of pollution.
    (3) The regulatory authority may grant exemptions from this 
requirement only when the disturbed drainage area within the total 
disturbed area is small and if the permittee shows that sedimentation 
ponds are not necessary to meet effluent limitations of this paragraph 
and to maintain water quality in downstream receiving waters. 
Sedimentation ponds required by this paragraph shall be constructed in 
accordance with paragraph (e) of this section in appropriate locations 
prior to any mining in the affected drainage area in order to control 
sedimentation or otherwise treat water in accordance with this 
paragraph. Discharges from areas disturbed by underground operation and 
by surface operation and reclamation activities conducted thereon, must 
meet all applicable Federal and State regulations and, at a minimum, the 
following numerical effluent limitations:

    Effluent Limitations, in Milligrams Per Liter, mg/l Except for pH   
------------------------------------------------------------------------
                                                              Average of
                                                                daily   
                                                              values for
          Effluent characteristics               Maximum          30    
                                              allowable \1\  consecutive
                                                              discharge 
                                                              days  \1\ 
------------------------------------------------------------------------
Iron, total.................................           7.0           3.5
Manganese, total............................           4.0           2.0
Total suspended solids \2\..................          70.0          35.0
pH \3\......................................         (\4\)         (\4\)
------------------------------------------------------------------------
\1\ Based on representative sampling.                                   
\2\ In Arizona, Colorado, Montana, New Mexico, North Dakota, South      
  Dakota, Utah, and Wyoming, total suspended solids limitations will be 
  determined on a case-by-case basis, but they must not be greater than 
  45/mg/l (maximum allowable) and 30 mg/l (average of daily value for 30
  consecutive discharge days) based on a representative sampling.       
\3\ Where the application of neutralization and sedimentation treatment 
  technology results in inability to comply with the manganese          
  limitations set forth, the regulatory authority may allow the pH level
  in the discharge to exceed to a small extent the upper limit of 9.0 in
  order that the manganese limitations will be achieved.                
\4\ Within the range 6.0 to 9.0.                                        

    (i) Any overflow or other discharge of surface water from the 
disturbed area within the permit area demonstrated by the permittee to 
result from a precipitation event larger than the 10-year 24-hour 
frequency event will not be subject to the effluent limitations of 
paragraph (a).
    (ii) The permittee shall install, operate, and maintain adequate 
facilities to treat any water discharged from the disturbed area that 
violates applicable Federal or State regulations or the limitations of 
paragraph (a). If the pH of waters to be discharged from the disturbed 
area is normally less than 6.0, an automatic lime feeder or other 
neutralization process approved by the regulatory authority shall be 
installed, operated, and maintained. If the regulatory authority finds 
that small and infrequent treatment requirements to meet applicable 
standards do not necessitate use of an automatic neutralization process, 
and the mine normally produces less than 500 tons of coal per day, the 
regulatory authority can approve the use of a manual system if the 
permittee agrees to insure that consistent and timely treatment is 
carried out.
    (iii) The effluent limitations for manganese shall be applicable 
only to acid drainage.
    (b) Surface water monitoring. (1) The permittee shall submit for 
approval by the regulatory authority a surface water monitoring program 
which meets the following requirements:
    (i) Provides adequate monitoring of all discharge from the disturbed 
area and from the underground operations.
    (ii) Provides adequate data to describe the likely daily and 
seasonal variation in discharges from the disturbed area in terms of 
flow, pH, total iron, total manganese, and total suspended solids and, 
as requested by the regulatory authority, any other parameter 
characteristic of the discharge.
    (iii) Provides monitoring at appropriate frequencies to measure 
normal and abnormal variations in concentration.
    (iv) Provides an analytical quality control system including 
standard methods of analysis such as those specified in 40 CFR part 136.
    (v) Within sixty (60) days of the end of each sixty (60) day sample 
collection period, a report of all samples shall be made to the 
regulatory authority, unless the discharge for which water

[[Page 100]]

monitoring reports are required is subject to regulation by a National 
Pollution Discharge Elimination System (NPDES) permit issued in 
compliance with the Clean Water Act of 1977 (33 U.S.C. 1251--1378), (A) 
which includes equivalent reporting requirements, and (B) which requires 
filing of the water monitoring reports within 90 days or less of sample 
collection.

For such discharges, the reporting requirements of this paragraph may be 
satisfied by submitting to the regulatory authority on the same time 
schedule as required by the NPDES permit or within ninety (90) days 
following sample collection, whichever is earlier, either (1) a copy of 
the completed reporting form filed to meet the NPDES permit 
requirements, or (2) a letter identifying the State or Federal 
government official with whom the reporting form was filed to meet the 
NPDES permit requirements and the date of filing. In all cases in which 
analytical results of the sample collections indicate a violation of a 
permit condition or applicable standard has occurred, the operator shall 
notify the regulatory authority immediately. Where an NPDES permit 
effluent limitation requirement has been violated, the permittee should 
forward a copy of the Discharge Monitoring Report, EPA Form 3320-1, 
concurrently with notification of the violation.
    (2) Equipment, structures, or other measures necessary to accurately 
measure and sample the quality and quantity of surface water discharges 
from the disturbed area of the permit area shall be properly installed, 
maintained and operated and shall be removed when no longer required.
    (c) Diversion and conveyance of overland flow away from disturbed 
areas. In order to minimize erosion and to prevent or remove water from 
contacting toxic-producing deposits, overland flow from undisturbed 
areas may, as required or approved by the regulatory authority, be 
diverted away from disturbed areas by means of temporary or permanent 
diversion structures. The following requirements shall be met for such 
diversions:
    (1) Temporary diversion structures shall be constructed to safely 
pass the peak runoff from a precipitation event with a one year 
recurrence interval, or a larger event as specified by the regulatory 
authority. The design criteria must assure adequate protection of the 
environment and public during the existence of the temporary diversion 
structure.
    (2) Permanent diversion structures are those remaining after mining 
and reclamation and approved for retention by the regulatory authority 
and other appropriate State and Federal agencies. To protect fills and 
property, to prevent water from contacting toxic-producing deposits, and 
to avoid danger to public health and safety, permanent diversion 
structures shall be constructed to safely pass the peak runoff from a 
precipitation event with a 100-year recurrence interval or a larger 
event as specified by the regulatory authority. Permanent diversion 
structures shall be constructed with gently sloping banks that are 
stabilized by vegetation. Asphalt, concrete, or other similar linings 
shall not be used unless specifically required to prevent seepage or to 
provide stability and they are approved by the regulatory authority.
    (3) Diversions shall be designed, constructed, and maintained in a 
manner so as to prevent additional contributions of suspended solids to 
streamflow, or to runoff outside the permit area to the extent possible, 
using the best technology currently available. In no event shall such 
contributions be in excess of requirements set by applicable State or 
Federal law. Appropriate sediment control measures for these diversions 
shall include, but not be limited to, maintenance of appropriate 
gradients, channel lining, vegetation, and roughness structures and 
detention basins.
    (d) Stream channel diversions. In the event that the regulatory 
authority permits diversion of streams, the regulations of 
Sec. 715.17(d) shall apply.
    (e) Sedimentation ponds--(1) General requirements. Sedimentation 
ponds shall be used individually or in series and shall:
    (i) Be constructed before any disturbance of the undisturbed area to 
be drained into the pond and prior to any discharge of water to surface 
waters from underground mine workings;

[[Page 101]]

    (ii) Be located as near as possible to the disturbed area and out of 
perennial streams, unless approved by the regulatory authority,
    (iii) Meet all the criteria of the section.
    (2) Sediment storage volume. Sedimentation ponds shall provide a 
minimum sediment storage volume.
    (3) Detention time. Sedimentation ponds shall provide the required 
theoretical detention time for the water inflow or runoff entering the 
pond from a 10-year, 24-hour precipitation event (design event), plus 
the average inflow from the underground mine.
    (4) Dewatering. The water storage resulting from inflow shall be 
removed by a nonclogging dewatering device or a conduit spillway 
approved by the regulatory authority. The dewatering device shall not be 
located at a lower elevation than the maximum elevation of the 
sedimentation storage volume.
    (5) Each person who conducts underground mining activities shall 
design, construct, and maintain sedimentation ponds to prevent short-
circuiting to the extent possible.
    (6) The design, construction, and maintenance of a sedimentation 
pond or other sediment control measures in accordance with this section 
shall not relieve the person from compliance with applicable effluent 
limitations as contained in paragraph (a) of this section.
    (7) There shall be no out-flow through the emergency spillway during 
the passage of the runoff resulting from the 10-year, 24-hour 
precipitation events and lesser events through the sedimentation pond, 
regardless of the volume of water and sediment present from the 
underground mine during the runoff.
    (8) Sediment shall be removed from sedimentation ponds.
    (9) An appropriate combination of principal and emergency spillways 
shall be provided to discharge safely the runoff from a 25-year, 24-hour 
precipitation event, or larger event specified by the regulatory 
authority, plus any inflow from the underground mine. The elevation of 
the crest of the emergency spillway shall be a Minimum of 1.0 foot above 
the crest of the principal spillway. Emergency spillway grades and 
allowable velocities shall be approved by the regulatory authority.
    (10) The minimum elevation of the top of the settled embankment 
shall be 1.0 foot above the water surface in the pond with the emergency 
spillway flowing at design depth. For embankments subject to settlement, 
this 1.0 foot minimum elevation requirement shall apply at all times, 
including the period after settlement.
    (11) The constructed height of the dam shall be increased a minimum 
of 5 percent over the design height to allow for settlement, unless it 
has been demonstrated to the regulatory authority that the material used 
and the design will ensure against all settlement.
    (12) The minimum top width of the embankment shall not be less than 
the quotient of (H+35)/5, where H, in feet, is the height of the 
embankment as measured from the upstream toe of the embankment.
    (13) The combined upstream and downstream side slopes of the settled 
embankment shall not be less than 1v:5h, with neither slope steeper than 
1v:2h, Slopes shall be designed to be stable in all cases, even if 
flatter side slopes are required.
    (14) The embankment foundation area shall be cleared of all organic 
matter, all surfaces sloped to no steeper than 1v:1h, and the entire 
foundation surface scarified.
    (15) The fill material shall be free of sod, large roots, other 
large vegetative matter, and frozen soil, and in no case shall coal-
processing waste be used.
    (16) The placing and spreading of fill material shall be started at 
the lowest point of the foundation. The fill shall be brought up in 
horizontal layers of such thickness as is required to facilitate 
compaction and meet the design requirement of this section. Compaction 
shall be conducted as specified in the design approved by the regulatory 
authority.
    (17) If a sedimentation pond has an embankment that is more than 20 
feet in height, as measured from the upstream top of the embankment to 
the crest of the emergency spillway, or has a storage volume of 20 acre-
feet or more, the following additional requirements shall be met:

[[Page 102]]

    (i) An appropriate combination of principal and emergency spillways 
shall be provided to safely discharge the runoff resulting from a 100-
year, 24-hour precipitation event, or a larger event specified by the 
regulatory authority, plus any in-flow from the underground mine.
    (ii) The embankment shall be designed and constructed with an 
acceptable static safety factor of at least 1.5, or a higher safety 
factor as designated by the regulatory authority to ensure stability.
    (iii) Appropriate barriers shall be provided to control seepage 
along conduits that extend through the embankment.
    (iv) The criteria of the Mine Safety and Health Administration as 
published in 30 CFR 77.216 shall be met.
    (18) Each pond shall be designed and inspected during construction 
under the supervision of, and certified after construction by, a 
registered professional engineer.
    (19) The entire embankment including the surrounding areas disturbed 
by construction shall be stabilized with respect to erosion by a 
vegetative cover or other means immediately after the embankment is 
completed. The active upstream face of the embankment where water is 
being impounded may be riprapped or otherwise stabilized. Areas in which 
the vegetation is not successful or where rills and guillies develop 
shall be repaired and revegetated, in accordance with Sec. 717.20.
    (20) All ponds, including those not meeting the size or other 
criteria of 30 CFR 77.216(a), shall be examined for structural weakness, 
erosion, and other hazardous conditions and reports and notifications 
shall be made to the regulatory authority, in accordance with 30 CFR 
77.216-3. With the approval of the regulatory authority, dams not 
meeting these criteria (30 CFR 77.216(a)) shall be examined four times 
per year.
    (21) Sedimentation ponds shall not be removed until the disturbed 
area has been restored and the vegetation requirements of Sec. 715.20 
are met and the drainage entering the pond has met the applicable State 
and Federal water quality requirements for the receiving stream. When 
the sedimentation pond is removed, the affected land shall be regraded 
and revegetated in accordance with Secs. 717.14 and 717.20, unless the 
pond has been approved by the regulatory authority for retention as 
compatible with the approved post-mining land use paragraph (k) of this 
section. If the regulatory authority approves retention, the 
sedimentation pond shall meet all the requirements for permanent 
impoundments of paragraph (k).
    (22)(i) Where surface mining activities are proposed to be conducted 
on steep slopes, as defined in Sec. 716.2 of this chapter, special 
sediment control measures may be followed if the person has demonstrated 
to the regulatory authority that a sedimentation pond (or series of 
ponds) constructed according to paragraph (e) of this section--
    (A) Will jeopardize public health or safety; or
    (B) Will result in contributions of suspended solids to streamflow 
in excess of the incremental sediment volume trapped by the additional 
pond size required.
    (ii) Special sediment control measures shall include but not be 
limited to--
    (A) Designing, constructing, and maintaining a sedimentation pond as 
near as physically possible to the disturbed area which complies with 
the design criteria of this section to the maximum extent possible.
    (B) A plan and commitment to employ sufficient onsite sedimentation 
control measures including bench sediment storage, filtration by natural 
vegetation, mulching, and prompt revegetation which, in conjunction with 
the required sediment pond, will achieve and maintain applicable 
effluent limitations. The plan submitted pursuant to this paragraph 
shall include a detailed description of all onsite control measures to 
be employed, a quantitative analysis demonstrating that onsite 
sedimentation control measures, in conjunction with the required 
sedimentation pond, will achieve and maintain applicable effluent 
limitations, and maps depicting the location of all onsite sedimentation 
control measures.
    (f) Discharge structures. Discharges from sedimentation ponds and 
diversion structures shall be controlled, where necessary, using energy

[[Page 103]]

dissipators, surge ponds, and other devices to reduce erosion and 
prevent deepening or enlargement of stream channels and to minimize 
disturbances to the hydrologic balance.
    (g) Acid and toxic materials. Drainage to ground and surface waters 
which emanates from acid-forming or toxic-forming mine waste materials 
and spoils placed on the land surface shall be avoided by--
    (1) Identifying, burying, and treating where necessary, spoil or 
other materials that, in the judgment of the regulatory authority, will 
be toxic to vegetation or that will adversely affect water quality if 
not treated or buried. Such material shall be disposed in accordance 
with the provision of Sec. 717.14(e);
    (2) Preventing or removing water from contact with toxic-producing 
deposits;
    (3) Burying or otherwise treating all toxic or harmful materials 
within 30 days if such materials are subject to wind and water erosion, 
or within a lesser period designated by the regulatory authority. If 
storage of such materials is approved, the materials shall be placed on 
impermeable material and protected from erosion and contact with surface 
water. Coal waste ponds and other coal waste materials shall be 
maintained according to paragraph (g)(4) of this section and Sec. 717.18 
shall apply;
    (4) Burying or otherwise treating waste materials from coal 
preparation plants no later than 90 days after the cessation of the 
filling of the disposal area. Burial or treatment shall be in accordance 
with Sec. 717.14(e) of this part;
    (5) Casing, sealings, or otherwise managing boreholes, shafts, 
wells, and auger holes or other more or less horizontal holes to prevent 
pollution of surface or ground water and to prevent mixing of ground 
waters of significantly different quality. All boreholes that are within 
the permit area but are outside the surface coal mining area or which 
extend beneath the coal to be mined and into water-bearing strata shall 
be plugged permanently in a manner approved by the regulatory authority, 
unless boreholes have been approved for use in monitoring.
    (h) Ground water systems. (1) Underground operations shall be 
conducted to minimize adverse effects on ground water flow and quality, 
and to minimize offsite effects. The permittee will be responsible for 
performing monitoring according to paragraph (h)(2) of this section to 
ensure operations conform to this requirement.
    (2) Ground water levels, subsurface flow and storage 
characteristics, and the quality of ground water shall be monitored in a 
manner approved by the regulatory authority to determine the effects of 
underground coal mining operations on the quantity and quality of water 
in ground water systems at the mine area and in associated offsite 
areas. When operations are conducted in such a manner that may affect 
the ground water system, ground water levels and ground water quality 
shall be periodically monitored using wells which can adequately reflect 
changes in ground water quantity and quality resulting from such 
operations. Sufficient water wells must be used by the permittee. The 
regulatory authority may require drilling and development of additional 
wells if needed to adequately monitor the ground water system. As 
specified and approved by the regulatory authority, additional 
hydrologic tests, such as aquifer tests, must be undertaken by the 
permittee to demonstrate compliance with paragraph (h)(1) of this 
section.
    (i) Water rights and replacement. The permittee shall replace the 
water supply of an owner of interest in real property who obtains all or 
part of his supply of water for domestic, agricultural, industrial, or 
other legitimate use from an underground or surface source where such 
supply has been affected by contamination, diminution, or interruption 
proximately resulting from surface coal mine operation by the permittee.
    (j) Hydrologic impact of roads. (1) General. Access and haul roads 
and associated bridges, culverts, ditches, and road rights-of-way shall 
be constructed, maintained, and reclaimed so as to the extent possible, 
using the best

[[Page 104]]

technology currently available, prevent additional contributions of 
suspended solids to streamflow, or to runoff outside the permit area to 
the extent possible, using the best technology currently available. In 
no event shall the contributions be in excess of requirements set by 
applicable State or Federal law. All haul and access roads shall be 
removed and the land affected shall be regraded and revegetated 
consistent with the requirements of Secs. 717.14 and 717.20, unless 
retention of a road is approved and assured of necessary maintenance to 
adequately control erosion.
    (2) Construction. (i) All roads, insofar as possible, shall be 
located on ridges or on flatter and more stable slopes to minimize 
erosion. Stream fords are prohibited unless they are specifically 
approved by the regulatory authority as temporary routes across dry 
streams that will not adversely affect sedimentation and that will not 
be used for coal haulage. Other stream crossings shall be made using 
bridges, culverts, or other structures designed and constructed to meet 
the requirements of this paragraph. Roads shall not be located in active 
stream channels nor shall they be constructed or maintained in a manner 
that increases erosion or causes significant sedimentation or flooding. 
However, nothing in this paragraph will be construed to prohibit 
relocation of stream channels in accordance with paragraph (d) of this 
section.
    (ii) In order to minimize erosion and subsequent disturbances of the 
hydrologic balance, roads shall be constructed in compliance with the 
following grade restrictions or other grades determined by the 
regulatory authority to be necessary to control erosion:
    (A) The overall sustained grade shall not exceed 1v:10h (10 
percent).
    (B) The maximum grade greater than 10 percent shall not exceed 
1v:6.5h (15 percent) for more than 300 feet.
    (C) There shall not be more than 300 feet of grade exceeding 10 
percent within each 1,000 feet.
    (iii) All access and haul roads shall be adequately drained using 
structures such as, but not limited to, ditches, water barriers, cross 
drains, and ditch relief drains. For access and haul roads that are to 
be maintained for more than 1 year, water-control structures shall be 
designed with a discharge capacity capable of passing the peak runoff 
from a 10-year, 24-hour precipitation event. Drainage pipes and culverts 
shall be constructed to avoid plugging or collapse and erosion at inlets 
and outlets. Drainage ditches shall be provided at the toe of all cut 
slopes formed by construction of roads. Trash racks and debris basis 
shall be installed in the drainage ditches wherever debris from the 
drainage area could impair the functions of drainage and sediment 
control structures. Ditch relief and cross drains shall be spaced 
according to grade. Effluent limitations of paragraph (a) of this 
section shall not apply to drainage from access and haul roads located 
outside the disturbed area as defined in this section unless otherwise 
specified by the regulatory authority.
    (iv) Access and haul roads shall be surfaced with durable material. 
Toxic- or acid-forming substances shall not be used. Vegetation may be 
cleared only for the essential width necessary for road and associated 
ditch construction and to serve traffic roads.
    (3) Maintenance. (i) Access and haul roads shall be routinely 
maintained by means such as, but not limited to, wetting, scraping, or 
surfacing.
    (ii) Ditches, culverts, drains, trash racks, debris basins, and 
other structures serving to drain access and haul roads shall not be 
restricted or blocked in any manner that impedes drainage or adversely 
affects the intended purpose of the structure.
    (4) Access roads constructed for and used only to provide infrequent 
service to surface facilities, such as ventilators or monitoring devices 
shall be exempt from the requirements of paragraph (j)(2) of this 
section provided adequate stabilization to control erosion is achieved 
through use of alternative measures.
    (k) Hydrologic impacts of other transport facilities. Railroad 
loops, spurs, conveyors, or other transport facilities shall be 
constructed, maintained, and reclaimed to prevent additional 
contributions of suspended solids to streamflow, or to runoff outside 
the permit area to the extent possible, using the best technology 
currently

[[Page 105]]

available and to control other diminution or degradation of water 
quality and quantity. In no event shall contributions be in excess of 
requirements set by applicable State or Federal law.
    (l) Discharge of waters into underground mines. Surface and ground 
waters shall not be discharged or diverted into underground mine 
workings.

(Secs. 101, 102, 201, 501, 503-510, 515-517, 523, and 701, Surface 
Mining Reclamation Act of 1977, Pub. L. 95-87 (30 U.S.C. 1201, 1202, 
1211, 1251-1260, 1265-1267, 1273, 1291))

[42 FR 62695, Dec. 13, 1977, as amended at 43 FR 8092, Feb. 27, 1978; 43 
FR 21459, May 18, 1978; 44 FR 30632, May 25, 1979; 44 FR 36887, June 22, 
1979; 44 FR 77452, Dec. 31, 1979]

    Effective Date Note: A document published at 44 FR 77452, Dec. 31, 
1979 suspended Sec. 717.17(a)(3)(i) insofar as it applies to total 
suspended solids (TSS) discharges.



Sec. 717.18  Dams constructed of or impounding waste material.

    (a) General. No waste material shall be used in or impounded by 
existing or new dams without the approval of regulatory authority. The 
permittee shall design, locate, construct, operate, maintain, modify, 
and abandon or remove all dams (used either temporarily or permanently) 
constructed of waste materials, in accordance with the requirements of 
this section.
    (b) Construction of dams. (1) Waste shall not be used in the 
construction of dams unless demonstrated through appropriate engineering 
analysis, to have no adverse effect on stability.
    (2) Plans for dams subject to this section, and also including those 
dams that do not meet the size or other criteria of Sec. 77.216(a) of 
this title, shall be approved by the regulatory authority before 
construction and shall contain the minimum plan requirements established 
by the Mining Enforcement and Safety Administration pursuant to 
Sec. 77.216-2 of this title.
    (3) Construction requirements are as follows: (i) Design shall be 
based on the flood from the probable maximum precipitation event unless 
the permittee shows that the failure of the impounding structure would 
not cause loss of life or severely damage property or the environment, 
in which case, depending on site conditions, a design based on a 
precipitation event of no less than 100-year frequency may be approved 
by the regulatory authority.
    (ii) The design freeboard distance between the lowest point on the 
embankment crest and the maximum water elevation shall be at least 3 
feet to avoid overtopping by wind and wave action.
    (iii) Dams shall have minimum safety factors as follows:

                                                                        
------------------------------------------------------------------------
                                                                Minimum 
                Case                     Loading condition      safety  
                                                                factor  
------------------------------------------------------------------------
I...................................  End of construction...         1.3
II..................................  Partial pool with              1.5
                                       steady seepage                   
                                       saturation.                      
III.................................  Steady seepage from            1.5
                                       spillway or decant               
                                       crest.                           
IV..................................  Earthquake (cases II           1.0
                                       and III with seismic             
                                       loading).                        
------------------------------------------------------------------------

    (iv) The dam, foundation, and abutment shall be stable under all 
conditions of construction and operation of the impoundment. Sufficient 
foundation investigations and laboratory testing shall be performed to 
determine the factors of safety of the dam for all loading conditions in 
paragraph (b)(3)(iii) of this section and for all increments of 
construction.
    (v) Seepage through the dam, foundation, and abutments shall be 
controlled to prevent excessive uplift pressures, internal erosion, 
sloughing, removal of material by solution, or erosion of material by 
loss into cracks, joints, and cavities. This may require the use of 
impervious blankets, pervious drainage zones or blankets, toe drains, 
relief wells, or dental concreting of jointed rock surface in contact 
with embankment materials.
    (vi) Allowances shall be made for settlement of the dams and the 
foundation so that the freeboard will be maintained.
    (vii) Impoundments created by dams of waste materials shall be 
subject to a minimum drawdown criteria that allows the facility to be 
evacuated by spillways or decants of 90 percent of the volume of water 
stored during the design precipitation event within 10 days.
    (viii) During construction of dams subject to this section, the 
structures shall be periodically inspected by a

[[Page 106]]

registered professional engineer to ensure construction according to the 
approved design. On completion of construction, the structure shall be 
certified by a registered professional engineer experienced in the field 
of dam construction as having been constructed in accordance with 
accepted professional practice and the approved design.
    (ix) A permanent identification marker, at least 6 feet high that 
shows the dam number assigned pursuant to Sec. 77.216-1 of this title 
and the name of the person operating or controlling the dam, shall be 
located on or immediately adjacent to each dam within 30 days of 
certification of design pursuant to this section.
    (4) All dams including those not meeting the size or other criteria 
of Sec. 77.216(a) of this title, shall be routinely inspected by a 
registered professional engineer, or someone under the supervision of a 
registered professional engineer, in accordance with Mining Enforcement, 
and Safety Administration regulations pursuant to Sec. 77.216-3 of this 
title.
    (5) All dams shall be routinely maintained. Vegetative growth shall 
be cut where necessary to facilitate inspection and repairs. Ditches and 
spillways shall be cleaned. Any combustible materials present on the 
surface, other than that used for surface stability such as mulch or dry 
vegetation, shall be removed and any other appropriate maintenance 
procedures followed.
    (6) All dams subject to this section shall be recertified annually 
as having been constructed and modified in accordance with current 
prudent enginnering practices to minimize the possibility of failures. 
Any changes in the geometry of the impounding structure shall be 
highlighted and included in the annual recertification report. These 
certifications shall include a report on existing and required 
monitoring procedures and instrumentation, the average and maximum 
depths and elevations of any impounded waters over the past year, 
existing storage capacity of impounding structures, any fires occurring 
in the material over the past year and any other aspects of the 
structures affecting their stability.
    (7) Any enlargements, reductions in size, reconstruction or other 
modification of the dams shall be approved by the regulatory authority 
before construction begins.
    (8) All dams shall be removed and the disturbed areas regraded, 
revegetated, and stabilized before the release of bond unless the 
regulatory authority approves retention of such dams as being compatible 
with an approved postmining land use (Sec. 715.13).



Sec. 717.19  [Reserved]



Sec. 717.20  Topsoil handling and revegetation.

    (a) Topsoil shall be removed as a separate operation from areas to 
be disturbed by surface operations, such as roads and areas upon which 
support facilities are to be sited. Selected overburden materials may be 
used instead of, or as a substitute for topsoil where the resulting soil 
medium is determined by the regulatory authority to be equal to or more 
suitable for revegetation. Topsoil shall be segregated, stockpiled, and 
protected from wind and water erosion, or contaminants. Disturbed areas 
no longer required for the conduct of mining operations shall be 
regraded, topsoil distributed, and revegetated.
    (b) The permittee shall establish on all land that has been 
disturbed by mining operations a diverse, effective, and permanent 
vegetative cover capable of self-regeneration and plant succession, and 
adequate to control soil erosion. Introduced species may be substituted 
for native species if approved by the regulatory authority. Introduced 
species shall meet applicable State and Federal seed or introduced 
species statutes, and may not include poisonous or potentially toxic 
species.



PART 721--FEDERAL INSPECTIONS--Table of Contents




Sec.
721.11  Extent.
721.12  Right of entry.
721.13  Inspections based on citizen requests.
721.14  Failure to give notice and lack of reasonable belief.

    Authority: Secs. 201, 501, and 502, Pub. L. 95-87, 91 Stat. 445 (30 
U.S.C. 1201).

[[Page 107]]


    Source: 42 FR 62700, Dec. 13, 1977, unless otherwise noted.



Sec. 721.11  Extent.

    The authorized representative of the Secretary shall conduct 
inspections of surface coal mining and reclamation operations subject to 
regulation under the Act--
    (a) On the basis of not less than two consecutive State inspection 
reports indicating a violation of the Act, regulations or permit 
conditions required by the Act;
    (b) On the basis of information provided by a State or any person 
which gives rise to a reasonable belief that the provisions of the Act, 
regulations or permit conditions required by the Act are being violated, 
or that a condition or practice exists which creates an imminent danger 
to the health or safety of the public, or is causing or can reasonably 
be expected to cause significant, imminent environmental harm to land, 
air, or water resources; and
    (c) On a random basis of at least one complete inspection each 6 
months. A complete inspection is an onsite review of the operator's 
compliance with all applicable standards in these regulations within the 
entire area disturbed or affected by mining.



Sec. 721.12  Right of entry.

    (a) Authorized representatives of the Secretary, without advance 
notice and upon presentation of appropriate credentials and without a 
search warrant, shall have the right of entry to, upon, or through any 
surface coal mining and reclamation operations or any premises in which 
any records required to be maintained are located.
    (b) The authorized representatives may at reasonable times, and 
without delay, have access to and copy any records, and inspect any 
monitoring equipment or method of operation required under this Act, the 
regulations or the permit.



Sec. 721.13  Inspections based on citizen requests.

    (a) Citizens reports. (1) Any person who believes that there is a 
violation of the Act, regulations or permit conditions rquired by the 
Act or that any imminent danger or harm exists may report this 
information to the Office of Surface Mining Reclamation and Enforcement. 
Written reports must be signed and include a phone number where the 
reporting party can be contacted. Oral reports will be accepted but must 
be followed by a written and signed statement including the information 
reported. The complaint or other information shall be considered as 
having a reasonable basis if it alleges facts which, if proven to be 
true, would be sufficient to show a violation of the Act, regulations or 
permit. Unless the Office has reason to believe that the information is 
incorrect, or determines that even if true it would not constitute a 
violation, the Office shall conduct an inspection within 15 days of 
receipt of the complaint. If the complaint alleges an imminent danger or 
harm, the inspection shall be conducted promptly.
    (2) The identity of any person supplying information to the Office 
relating to possible violations or imminent dangers or harms shall 
remain confidential with the Office, if requested by the person 
supplying the information, unless disclosure is required under the 
Freedom of Information Act (5 U.S.C. 552) or by other Federal law.
    (b) Right to accompany the authorized representative of the 
Secretary. (1) If a Federal inspection is conducted as a result of 
information provided to the Office, the person who provided the 
information shall be notified when the inspection is to occur and the 
person will be allowed to accompany the authorized representative of the 
Secretary during the inspection.
    (2) Any person accompanying an authorized representative of the 
Secretary has a right of entry to, upon and through the mining and 
reclamation operations about which he supplied information, only if he 
is in the presence of and is under the control, direction and 
supervision of the authorized representative while on the mine property.
    (c) Notification of results of investigation. Within 10 days of the 
inspection or, if no inspection, within 15 days of the complaint, the 
Office shall notify the person in writing of the following--

[[Page 108]]

    (1) The results of the investigation, including a description of any 
inspection which occurred and any enforcement action taken; copies of 
Federal inspection reports, notices of violation, and cessation orders 
may be forwarded to the person in satisfaction of this requirement;
    (2) If no inspection was conducted, an explanation of the reason for 
not inspecting;
    (3) A statement as to the person's right to informal review of the 
actions or inactions of the Office.
    (4) The permittee shall receive copies of all such reports which 
have not already been given to the permittee, except that the name of 
the complainant shall be removed.
    (d) Review of action of local offices. A person who does not agree 
with the action taken by the Office on their report may request the 
Regional Director to review the complaint and actions taken. The 
Regional Director shall advise the person in writing, within 30 days of 
the results of the review. Informal review under this subsection shall 
not affect any rights to formal review or a citizen's suit.



Sec. 721.14  Failure to give notice and lack of reasonable belief.

    No notice of violation or cessation order may be vacated by reason 
of failure to give notice required by the Act or these regulations prior 
to the inspection; or by reason of a subsequent determination that prior 
to the inspection the Office did not have information sufficient to 
create a reasonable belief that a violation had occurred.



PART 722--ENFORCEMENT PROCEDURES--Table of Contents




Sec.
722.1  Scope.
722.11  Imminent dangers and harms.
722.12  Non-imminent dangers or harms.
722.13  Failure to abate.
722.14  Service of notices of violation, cessation orders, and orders to 
          show cause.
722.15  Informal public hearing.
722.16  Pattern of violations.
722.17  Inability to comply.

    Authority: Secs. 201, 501, and 502, Pub. L. 95-87, 91 Stat. 445 (30 
U.S.C. 1201).

    Source: 42 FR 62701, Dec. 13, 1977, unless otherwise noted.



Sec. 722.1  Scope.

    The regulations of this part set forth general procedures governing 
issuance of orders of cessation, notices of violation, and orders to 
show cause under section 521 of the Act.



Sec. 722.11  Imminent dangers and harms.

    (a) If an authorized representative of the Secretary finds 
conditions or practices, or violations of any requirement of the Act, or 
any requirement of this chapter applicable during the interim regulatory 
program, which create an imminent danger to the health or safety of the 
public, the authorized representative shall immediately order a 
cessation of surface coal mining and reclamation operations or that 
portion of the operation relevant to the condition, practice, or 
violation.
    (b) If an authorized representative of the Secretary finds 
conditions or practices, or violations of any requirement of the Act, or 
any requirement of this chapter applicable during the interim regulatory 
program, which are causing, or can reasonably be expected to cause, 
significant, imminent environmental harm to land, air, or water 
resources, the authorized representative shall immediately order a 
cessation of surface coal mining and reclamation operations or that 
portion of the operation relevant to the condition, practice, or 
violation.
    (c) Surface coal mining and reclamation operations conducted by any 
person without a valid surface coal mining permit required by this 
subchapter constitute a condition or practice which causes or can 
reasonably be expected to cause significant, imminent environmental harm 
to land, air or water resources, unless such operations are an integral, 
uninterrupted extension of previously permitted operations, and the 
person conducting such operations has filed a timely and complete 
application for a permit to conduct such operations.
    (d) An authorized representative of the Secretary shall impose 
affirmative obligations on an operator which the authorized 
representative deems necessary to abate the condition, practice, or 
violation if--
    (1) A cessation order is issued under paragraph (a) or (b) of this 
section; and

[[Page 109]]

    (2) The cessation of mining or reclamation activities will not 
completely abate the imminent danger or harm or eliminate the practices 
or conditions that contributed to the imminent danger or harm.
    (e) When imposing affirmative obligations under this section, the 
authorized representative of the Secretary shall require abatement of 
the imminent danger or harm in the most expeditious manner physically 
possible. The affirmative obligation shall include a time by which 
abatement shall be accomplished and may include, among other things, the 
use of existing or additional personnel and equipment.
    (f) Reclamation operations not directly the subject of the order or 
affirmative obligation shall continue during any cessation order.
    (g) An authorized representative of the Secretary shall terminate a 
cessation order issued under paragraph (a) or (b) of this section by 
written notice when the authorized representative determines that the 
conditions or practices or violations that contributed to the imminent 
danger to life or the environment have been eliminated.
[42 FR 62701, Dec. 13, 1977, as amended at 45 FR 67501, Oct. 10, 1980; 
47 FR 18558, Apr. 29, 1982]



Sec. 722.12  Non-imminent dangers or harms.

    (a) If an authorized representative of the Secretary finds 
conditions or practices, or violations of any requirement of the Act, or 
of any requirement of this chapter applicable during the interim 
regulatory program, but such violations do not create an imminent danger 
to the health or safety of the public, or are not causing and cannot 
reasonably be expected to cause significant, imminent environmental harm 
to land, air, or water resources, the authorized representative shall 
issue a notice of violation fixing a reasonable time for abatement.
    (b) An authorized representative of the Secretary may extend the 
time to abate a violation by written notice if the failure to abate 
within the time set was not caused by the permittee's lack of diligence.
    (c) An authorized representative of the Secretary may establish 
interim steps in an abatement period. If the permittee fails to meet any 
interim step within the time set, the authorized representative may 
extend the time set for meeting the interim step, in accordance with 
this section, or may issue a cessation order pursuant to Sec. 722.13 of 
this part.
    (d) The total time for abatement as originally fixed and 
subsequently extended shall not exceed 90 days except upon a showing by 
the permittee that it is not feasible to abate the violation within 90 
calendar days due to one or more of the circumstances in Sec. 722.12(e). 
An extended abatement date pursuant to this section shall not be granted 
when the permittee's failure to abate within 90 days has been caused by 
a lack of diligence or intentional delay by the permittee in completing 
the remedial action required.
    (e) Circumstances which may qualify a surface coal mining operation 
for an abatement period of more than 90 days are:
    (1) Where the permittee of an ongoing permitted operation has timely 
applied for and diligently pursued a permit renewal or other necessary 
approval of designs or plans but such permit or approval has not been or 
will not be issued within 90 days after a valid permit expires or is 
required, for reasons not within the control of the permittee;
    (2) Where there is a valid judicial order precluding abatement 
within 90 days as to which the permittee has diligently pursued all 
rights of appeal and as to which he or she has no other effective legal 
remedy;
    (3) Where the permittee cannot abate within 90 days due to a labor 
strike;
    (4) Where climatic conditions preclude abatement within 90 days, or 
where, due to climatic conditions, abatement within 90 days clearly:
    (i) Would cause more environmental harm than it would prevent; or
    (ii) Requires action that would violate safety standards established 
by statute or regulation under the Mine Safety and Health Act.
    (f) Whenever an abatement time in excess of 90 days is permitted, 
interim abatement measures shall be imposed to the extent necessary to 
minimize harm to the public or the environment.

[[Page 110]]

    (g) If any of the conditions in paragraphs (e) (1) through (4) 
exist, the permittee may request the authorized representative to grant 
an abatement period exceeding 90 days. The authorized representative 
shall not grant such an abatement period without the concurrence of the 
Director or his or her designee and the abatement period granted shall 
not exceed the shortest possible time necessary to abate the violation. 
The permittee shall have the burden of establishing by clear and 
convincing proof that he or she is entitled to an extension under the 
provisions of Sec. 722.12 (d) and (e). In determining whether or not to 
grant an abatement period exceeding 90 days the authorized 
representative may consider any relevant written or oral information 
from the permittee or any other source. The authorized representative 
shall promptly and fully document in the file his or her reasons for 
granting or denying the request. The inspector's immediate supervisor 
shall review this document before concurring in or disapproving the 
extended abatement date and shall promptly and fully document the 
reasons for his or her concurrence or disapproval in the file.
    (h) Any determination made under paragraph (g) shall be in writing 
and shall contain a right of appeal to the Office of Hearings and 
Appeals in accordance with 43 CFR 4.1281 and the regulations at 43 CFR 
part 4.
    (i) No extension granted under paragraph (b) may exceed 90 days in 
length. Where the condition or circumstance which prevented abatement 
within 90 days exists at the expiration of any such extension, the 
permittee may request a further extension in accordance with the 
procedures of paragraph (g).
[42 FR 62701, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1978, as amended at 45 
FR 67501, Oct. 10, 1980; 46 FR 41704, Aug. 17, 1981]



Sec. 722.13  Failure to abate.

    An authorized representative of the Secretary shall order cessation 
of surface coal mining and reclamation operations, or the portion 
relevant to the violation, when a notice of violation has been issued 
under Sec. 722.12 of this part and the permittee fails to abate the 
violation within the time originally fixed or subsequently extended. In 
a cessation order issued under this section, the authorized 
representative shall impose affirmative obligations to abate the 
violation in the manner provided in Sec. 722.11 of this part. 
Reclamation operations not directly the subject of the order or 
affirmative obligation shall continue during any cessation order. A 
cessation order issued under this section shall be terminated as 
provided in Sec. 722.11 of this part.



Sec. 722.14  Service of notices of violation, cessation orders, and orders to show cause.

    (a) A notice of violation or cessation order shall be served on the 
person to whom it is directed or his designated agent promptly after 
issuance, as follows:
    (1) By tendering a copy at the surface coal mining and reclamation 
operation to the designated agent or to the person to whom it is 
directed. If no such agent is reasonably available, a copy may be 
tendered to the individual who, based upon reasonable inquiry by the 
authorized representative, appears to be in charge of the surface coal 
mining and reclamation operation referred to in the notice or order. If 
no such individual can be located at the site, a copy may be tendered to 
any individual at the site who appears to be an employee or agent of the 
person to whom the notice or order is issued. Service shall be complete 
upon tender of the notice or order and shall not be deemed incomplete 
because of refusal to accept.
    (2) As an alternative to paragraph (a)(1) of this section, service 
may be made by sending a copy of the notice or order by certified mail 
or by hand to the person to whom it is issued or his or her designated 
agent, or by any alternative means consistent with the rules governing 
service of a summons and complaint under rule 4 of the Federal Rules of 
Civil Procedure. Service shall be complete upon tender of the notice or 
order or of the certified mail and shall not be deemed incomplete 
because of refusal to accept.
    (b) A show cause order, or a vacation, modification or termination 
of a notice or order, may be served on the person to whom it is issued 
in either manner

[[Page 111]]

provided in paragraph (a) of this section.
    (c) Designation by any person of an agent for service of notices and 
orders shall be made in a conspicuous, easy-to-read manner on the mine 
identification sign, or on the mine bulletin board posted by the 
minesite office.
    (d) The Office shall furnish copies of notices and orders to the 
State regulatory authority, if any, after their issuance. The Office may 
furnish copies to any person having an interest in the surface coal 
mining and reclamation operation or the permit area, such as the owner 
of the fee, a corporate officer of the permittee, or the bonding 
company.

(Surface Mining Control and Reclamation Act of 1977, secs. 201, 501, 
521(a)(5) (30 U.S.C. 1211, 1251, 1271(a)(5)))

[45 FR 2628, Jan. 11, 1980, as amended at 56 FR 28445, June 20, 1991]



Sec. 722.15  Informal public hearing.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
notice of violation or cessation order which requires cessation of 
mining, expressly or by necessary implication, shall expire within 30 
days after it is served unless an informal public hearing has been held 
within that time. The hearing shall be held at or reasonably close to 
the minesite so that it may be viewed during the hearing or at any other 
location acceptable to the Office and the person to whom the notice or 
order was issued. The Office of Surface Mining office nearest to the 
minesite shall be deemed to be reasonably close to the minesite unless a 
closer location is requested and agreed to by the Office. Expiration of 
a notice or order shall not affect the Office's right to assess civil 
penalties with respect to the period during which the notice or order 
was in effect. No hearing will be required where the condition, practice 
or violation in question has been abated, or the hearing has been 
waived. For purposes of this section only, mining means (1) extracting 
coal from the earth or from coal waste piles and transporting it within 
or from the permit area, and (2) the processing, cleaning, 
concentrating, preparing or loading of coal where such operations occur 
at a place other than at a minesite.
    (b) A notice of violation or cessation order shall not expire as 
provided in paragraph (a) of this section if the informal public hearing 
has been waived or if, with the consent of the person to whom the notice 
or order was issued, the informal public hearing is held later than 30 
days after the notice or order was served. For purposes of this section:
    (1) The informal public hearing will be deemed waived if the person 
to whom the notice or order is issued:
    (i) Is informed, by written notice served in the manner provided in 
paragraph (b)(2) of this section, that he will be deemed to have waived 
an informal public hearing unless he requests one within 30 days after 
service of the notice or order, and
    (ii) Fails to request an informal public hearing within that time.
    (2) The written notice referred to in paragraph (b)(1)(i) of this 
section shall be delivered to such person by an authorized 
representative or sent by certified mail to such person no later than 
five days after the notice or order is served on such person.
    (3) The person to whom the notice or order is issued shall be deemed 
to have consented to an extension of the time for holding the informal 
public hearing if his request is received on or after the 21st day after 
the service of the notice of order. The extension of time shall be equal 
to the number of days elapsed after the 21st day.
    (c) The Office shall give as much advance notice as is practicable 
of the time, place, and subject matter of the informal public hearing 
to:
    (1) The person to whom the notice or order was issued;
    (2) Any person who filed a report which led to the notice or order; 
and
    (3) The State regulatory authority, if any.
    (d) The Office shall also post notice of the hearing at the regional 
district or field office closest to the minesite, and publish it, where 
practicable, in a newspaper of general circulation in the area of the 
mine.
    (e) Section 554 of Title 5 of the United States Code, regarding 
requirements for formal adjudicatory hearings, shall

[[Page 112]]

not govern the conduct of these informal public hearings. An informal 
public hearing shall be conducted by a representative of the Office, who 
may accept oral or written arguments and any other relevant information 
from any person attending.
    (f) Within five business days after the date of the informal public 
hearing, the Office shall affirm, modify, or vacate the notice or order 
in writing and send its decision to:
    (1) The person to whom the notice or order was issued;
    (2) Any person who filed a report which led to the notice or order; 
and
    (3) The State regulatory authority, if any.
    (g) The granting or waiver of an informal public hearing shall not 
affect the right of any person to formal review under sections 518(b), 
521(a)(4), or 525 of the Act.
    (h) The person conducting the hearing for the Office shall determine 
whether or not the minesite should be viewed during the hearing. In 
making this determination the only consideration shall be whether a view 
of the minesite will assist the person conducting the hearing in 
reviewing the appropriateness of the enforcement action or the required 
remedial action.

(Surface Mining Control and Reclamation Act of 1977, secs. 201, 501, 
521(a)(5) (30 U.S.C. 1211, 1251, 1271(a)(5)))

[45 FR 2628, Jan. 11, 1980]



Sec. 722.16  Pattern of violations.

    (a) The regulations of this section set forth the procedures 
governing the suspension or revocation of State permits and rights to 
mine under this Act based on a pattern of violations arising during 
Federal inspections during the initial regulatory program.
    (b) Definitions. As used in this section--
    (1) Violations of the same or related requirements of the Act, 
regulations or permit conditions means noncompliance with any single 
section of parts 715, 716, or 717 of this chapter.
    (2) Violations of different requirements of the Act, regulations, or 
permit conditions means noncompliance with different sections of parts 
715, 716, or 717 of this chapter.
    (3) Unwarranted failure to comply means the failure of a permittee 
to prevent the occurrence of any violation of his permit or any 
requirement of the Act or these regulations due to indifference, lack of 
diligence, lack of reasonable care; or the failure to abate any 
violation of such permit, the Act or regulations due to indifference, 
lack of diligence, or lack of reasonable care.
    (4) Willful violation means an intentional action or omission which 
violates the Act, regulations or permit conditions required under the 
Act.
    (5) Inspection as used in this section means any visit to the mine.
    (c) Order to show cause. (1) If the Director determines that a 
pattern of violations of any requirements of the Act, the regulations, 
or a permit condition imposed under the Act or regulations exists, or 
has existed, and that such violations are caused by the unwarranted 
failure of the permittee or were willful violations, the Director shall 
issue an order to the permittee to show cause why the permit should not 
be suspended or revoked.
    (2) The Director may determine that a pattern of violations exists 
or has existed, after considering the circumstances, including--
    (i) The number of willful violations or violations caused by 
unwarranted failure to comply with the same or related requirements of 
the Act, regulations, or permit conditions during two or more Federal 
inspections;
    (ii) The number of willful violations or violations caused by 
unwarranted failure to comply with different requirements of the Act, 
regulations, or permit conditions; and
    (iii) The extent to which the violations were isolated departures 
from lawful conduct.
    (3) Violations of the same or related requirements of the Act, 
regulations, or permit conditions required by the Act during three or 
more Federal inspections within any 12-month period which were either 
caused by the unwarranted failure of the permittee to comply with the 
Act, the regulations or permit conditions required by the Act, or were 
willful violations, shall constitute a pattern of violations. A show 
cause order shall issue unless the Director finds that it would not 
further

[[Page 113]]

enforcement of the performance standards of the Act.
    (d) Suspension or revocation of permit. (1) The order to show cause 
shall be issued and a public hearing, if requested, shall be conducted 
under the procedures of 43 CFR part 4.
    (2) If the Secretary finds that a pattern of violations exists or 
has existed, the permit and right to mine under this Act shall be either 
suspended or revoked and the permittee directed to complete necessary 
corrective measures and reclamation operations.
    (e) Whenever a permittee fails to abate a violation contained in a 
notice of violation or cessation order within the abatement period set 
in the notice or order or as subsequently extended, the Director shall 
review the permittee's history of violations to determine whether a 
pattern of violations exists pursuant to this section, and shall issue 
an order to show cause as appropriate pursuant to 30 CFR 723.15(b)(2).
[42 FR 62701, Dec. 13, 1977 and 46 FR 58783, Sept. 4, 1980]



Sec. 722.17  Inability to comply.

    (a) Neither a notice of violation nor a cessation order issued under 
this part may be vacated because of inability to comply.
    (b) A permittee may not be deemed to have shown good cause for not 
suspending or revoking a permit by showing inability to comply.
    (c) Unless caused by lack of diligence, inability to comply may be 
considered in mitigation of the amount of a civil penalty under part 723 
of this chapter and of the duration of the suspension of the permit 
under Sec. 722.16 of this part.



PART 723--CIVIL PENALTIES--Table of Contents




Sec.
723.1  Scope.
723.2  Objective.
723.11  How assessments are made.
723.12  When penalty will be assessed.
723.13  Point system for penalties.
723.14  Determination of amount of penalty.
723.15  Assessment of separate violations for each day.
723.16  Waiver of use of formula to determine civil penalty.
723.17  Procedures for assessment of civil penalties.
723.18  Procedures for assessment conference.
723.19  Request for hearing.
723.20  Final assessment and payment of penalty.

    Authority:  30 U.S.C. 1201 et seq., Pub. L. 100-34, Pub. L. 101-410, 
and Pub. L. 104-134.

    Source: 45 FR 58783, Sept. 4, 1980, unless otherwise noted.



Sec. 723.1  Scope.

    This part covers the assessment of civil penalties under section 518 
of the Act for violations of a permit condition, any provision of Title 
V of the Act, or any implementing regulations, except for the assessment 
of individual civil penalties under section 518(f), which is covered by 
part 724. This part governs when a civil penalty is assessed and how the 
amount is determined, and sets forth applicable procedures. This part 
applies to cessation orders and notices of violation issued under part 
722 of this chapter during a Federal inspection.
[53 FR 3674, Feb. 8, 1988]



Sec. 723.2  Objective.

    Civil penalties are assessed under section 518 of the Act and this 
part to deter violations and to ensure maximum compliance with the terms 
and purpose of the Act on the part of the coal mining industry.



Sec. 723.11  How assessments are made.

    The Office shall review each notice of violation and cessation order 
in accordance with the assessment procedures described in Secs. 723.12, 
723.13, 723.14, 723.15, and 723.16 to determine whether a civil penalty 
will be assessed, the amount of the penalty, and whether each day of a 
continuing violation will be deemed a separate violation for purposes of 
the total penalty assessed.



Sec. 723.12  When penalty will be assessed.

    (a) The Office shall assess a penalty for each cessation order.
    (b) The Office shall assess a penalty for each notice of violation, 
if the violation is assigned 31 points or more under the point system 
described in Sec. 723.13.
    (c) The Office may assess a penalty for each notice of violation 
assigned 30

[[Page 114]]

points or less under the point system described in Sec. 723.13. In 
determining whether to assess a penalty, the Office shall consider the 
factors listed in Sec. 723.13(b).



Sec. 723.13  Point system for penalties.

    (a) The Office shall use the point system described in this section 
to determine the amount of the penalty and, in the case of notices of 
violation, whether a mandatory penalty should be assessed as provided in 
Sec. 723.12(b).
    (b) Points shall be assigned as follows:
    (1) History of previous violations. The Office shall assign up to 30 
points based on the history of previous violations. One point shall be 
assigned for each past violation contained in a notice of violations. 
Five points shall be assigned for each violation (but not a condition or 
practice) contained in a cessation order. The history of previous 
violations for the purpose of assigning points, shall be determined and 
the points assigned with respect to a particular surface coal mining 
operation. Points shall be assigned as follows:
    (i) A violation shall not be counted if the notice or order is the 
subject of pending administrative or judicial review or if the time to 
request such review or to appeal any administrative or judicial decision 
has not expired, and thereafter it shall be counted for only one year.
    (ii) No violation for which the notice or order has been vacated 
shall be counted; and
    (iii) Each violation shall be counted without regard to whether it 
led to a civil penalty assessment.
    (2) Seriousness. The Office shall assign up to 30 points based on 
the seriousness of the violation, as follows:
    (i) Probability of occurrence. The Office shall assign up to 15 
points based on the probability of the occurrence of the event which a 
violated standard is designed to prevent. Points shall be assessed 
according to the following schedule:

                        Probability of Occurrence                       
------------------------------------------------------------------------
                                                                  Points
------------------------------------------------------------------------
None...........................................................        0
Insignificant..................................................      1-4
Unlikely.......................................................      5-9
Likely.........................................................    10-14
Occurred.......................................................       15
------------------------------------------------------------------------

    (ii) Extent of potential or actual damage. The Office shall assign 
up to 15 points, based on the extent of the potential or actual damage, 
in terms of area and impact on the public or environment, as follows:
    (A) If the damage or impact which the violated standard is designed 
to prevent would remain within the permit area, the Office shall assign 
zero to seven points, depending on the duration and extent of the damage 
or impact.
    (B) If the damage or impact which the violated standard is designed 
to prevent would extend outside the permit area, the Office shall assign 
eight to fifteen points, depending on the duration and extent of the 
damage or impact.
    (iii) Alternative. In the case of a violation of an administrative 
requirement, such as a requirement to keep records, the Office shall, in 
lieu of paragraphs (i) and (ii), assign up to 15 points for seriousness, 
based upon the extent to which enforcement is obstructed by the 
violation.
    (3) Negligence. (i) The Office shall assign up to 25 points based on 
the degree of fault of the person to whom the notice or order was issued 
in causing or failing to correct the violation, condition, or practice 
which led to the notice or order, either through act or omission. Points 
shall be assessed as follows:
    (A) A violation which occurs through no negligence shall be assigned 
no penalty points for negligence;
    (B) A violation which is caused by negligence shall be assigned 12 
points or less, depending on the degree of negligence;
    (C) A violation which occurs through a greater degree of fault than 
negligence shall be assigned 13 to 25 points, depending on the degree of 
fault.
    (ii) In determining the degree of negligence involved in a violation 
and the number of points to be assigned, the following definitions 
apply:

[[Page 115]]

    (A) No negligence means an inadvertent violation which was 
unavoidable by the exercise of reasonable care.
    (B) Negligence means the failure of a permittee to prevent the 
occurrence of any violation of his or her permit or any requirement of 
the Act or this chapter due to indifference, lack of diligence, or lack 
of reasonable care, or the failure to abate any violation of such permit 
or the Act due to indifference, lack of diligence, or lack of reasonable 
care.
    (C) A greater degree of fault than negligence means reckless, 
knowing, or intentional conduct.
    (iii) In calculating points to be assigned for negligence, the acts 
of all persons working on the surface coal mining and reclamation site 
shall be attributed to the person to whom the notice or order was 
issued, unless than person establishes that they were acts of deliberate 
sabotage.
    (4) Good faith in attemping to achieve compliance. (i) The Office 
shall add points based on the degree of good faith of the person to whom 
the notice or order was issued in attempting to achieve rapid compliance 
after notification of the violation. Points shall be assigned as 
follows:

                          Degree of Good Faith                          
------------------------------------------------------------------------
                                                                Points  
------------------------------------------------------------------------
Rapid compliance...........................................    -1 to -10
Normal compliance..........................................            0
------------------------------------------------------------------------

    (ii) The following definitions shall apply under paragraph (b)(4)(i) 
of this section:
    (A) Rapid compliance means that the person to whom the notice or 
order was issued took extraordinary measures to abate the violation in 
the shortest possible time and that abatement was achieved before the 
time set for abatement.
    (B) Normal compliance means the person to whom the notice or order 
was issued abated the violation within the time given for abatement.
    (iii) If the consideration of this criterion is impractical because 
of the length of the abatement period, the assessment may be made 
without considering this criterion and may be reassessed after the 
violation has been abated.



Sec. 723.14  Determination of amount of penalty.

    The Office shall determine the amount of any civil penalty by 
converting the total number of points assigned under 30 CFR 723.13 to a 
dollar amount, according to the following schedule:

                                                                        
------------------------------------------------------------------------
                           Points                              Dollars  
------------------------------------------------------------------------
 1.........................................................           22
 2.........................................................           44
 3.........................................................           66
 4.........................................................           88
 5.........................................................          110
 6.........................................................          132
 7.........................................................          154
 8.........................................................          176
 9.........................................................          198
10.........................................................          220
11.........................................................          242
12.........................................................          264
13.........................................................          286
14.........................................................          308
15.........................................................          330
16.........................................................          352
17.........................................................          374
18.........................................................          396
19.........................................................          418
20.........................................................          440
21.........................................................          462
22.........................................................          484
23.........................................................          506
24.........................................................          528
25.........................................................          550
26.........................................................          660
27.........................................................          770
28.........................................................          880
29.........................................................          990
30.........................................................        1,100
31.........................................................        1,210
32.........................................................        1,320
33.........................................................        1,430
34.........................................................        1,540
35.........................................................        1,650
36.........................................................        1,760
37.........................................................        1,870
38.........................................................        1,980
39.........................................................        2,090
40.........................................................        2,200
41.........................................................        2,310
42.........................................................        2,420
43.........................................................        2,530
44.........................................................        2,640
45.........................................................        2,750
46.........................................................        2,860
47.........................................................        2,970
48.........................................................        3,080
49.........................................................        3,190
50.........................................................        3,300
51.........................................................        3,410
52.........................................................        3,520
53.........................................................        3,630
54.........................................................        3,740
55.........................................................        3,850
56.........................................................        3,960
57.........................................................        4,070
58.........................................................        4,180
59.........................................................        4,290
60.........................................................        4,400
61.........................................................        4,510
62.........................................................        4,620
63.........................................................        4,730

[[Page 116]]

                                                                        
64.........................................................        4,840
65.........................................................        4,950
66.........................................................        5,060
67.........................................................        5,170
68.........................................................        5,280
69.........................................................        5,390
70.........................................................        5,500
------------------------------------------------------------------------

[45 FR 58783, Sept. 4, 1980, as amended at 62 FR 63276, Nov. 28, 1997]



Sec. 723.15  Assessment of separate violations for each day.

    (a) The Office may assess separately a civil penalty for each day 
from the date of issuance of the notice of violation or cessation order 
to the date set for abatement of the violation. In determining whether 
to make such an assessment, the Office shall consider the factors listed 
in 30 CFR 723.13 and may consider the extent to which the person to whom 
the notice or order was issued gained any economic benefit as a result 
of a failure to comply. For any violation which continues for two or 
more days and which is assigned more than 70 points under 30 CFR 
723.13(b), the Office shall assess a civil penalty for a minimum of two 
separate days.
    (b) In addition to the civil penalty provided for in paragraph (a), 
whenever a violation contained in a notice of violation or cessation 
order has not been abated within the abatement period set in the notice 
or order or as subsequently extended pursuant to section 521(a) of the 
Act, a civil penalty of not less than $825 shall be assessed for each 
day during which such failure to abate continues, except that:
    (1)(i) If suspension of the abatement requirements of the notice or 
order is ordered in a temporary relief proceeding under section 525(c) 
of the Act, after a determination that the person to whom the notice or 
order was issued will suffer irreparable loss or damage from the 
application of the requirements, the period permitted for abatement 
shall not end until the date on which the Office of Hearing and Appeals 
issues a final order with respect to the violation in question; and
    (ii) If the person to whom the notice or order was issued initiates 
review proceedings under section 526 of the Act with respect to the 
violation, in which the obligations to abate are suspended by the court 
pursuant to section 526(c) of the Act, the daily assessment of a penalty 
shall not be made for any period before entry of a final order by the 
court.
    (2) Such penalty for the failure to abate a violation shall not be 
assessed for more than 30 days for such violation. If the permittee has 
not abated the violation within the 30-day period, the Office shall take 
appropriate action pursuant to sections 518(e), 518(f), 521(a)(4) or 
521(c) of the Act within 30 days to ensure that abatement occurs or to 
ensure that there will not be a reoccurrence of the failure to abate.
[45 FR 58783, Sept. 4, 1980, as amended at 62 FR 63276, Nov. 28, 1997]



Sec. 723.16  Waiver of use of formula to determine civil penalty.

    (a) The Director, upon his own initiative or upon written request 
received within 15 days of issuance of a notice of violation or a 
cessation order, may waive the use of formula contained in 30 CFR 723.13 
to set the civil penalty, if he or she determines that, taking into 
account exceptional factors present in the particular case, the penalty 
is demonstrably unjust. However, the Director shall not waive the use of 
the formula or reduce the proposed assessment on the basis of an 
argument that a reduction in the proposed penalty could be used to abate 
violations of the Act, this chapter, any applicable program, or any 
condition of any permit or exploration approval. The basis for every 
waiver shall be fully explained and documented in the records of the 
case.
    (b) If the Director waives the use of the formula, he or she shall 
use the criteria set forth in 30 CFR 723.13(b) to determine the 
appropriate penalty. When the Director has elected to waive the use of 
the formula, he or she shall give a written explanation of the basis for 
the assessment made to the person to whom the notice or order was 
issued.



Sec. 723.17  Procedures for assessment of civil penalties.

    (a) Within 15 days of service of a notice or order, the person to 
whom it was issued may submit written information about the violation to 
the Office and to the inspector who issued the

[[Page 117]]

notice of violation or cessation order. The Office shall consider any 
information so submitted in determining the facts surrounding the 
violation and the amount of the penalty.
    (b) The Office shall serve a copy of the proposed assessment and of 
the work sheet showing the computation of the proposed assessment on the 
person to whom the notice or order was issued, by certified mail, or by 
any alternative means consistent with the rules governing service of a 
summons and complaint under Rule 4 of the Federal Rules of Civil 
Procedure, within 30 days of the issuance of the notice or order. If a 
copy of the proposed assessment and work sheet or the certified mail is 
tendered at the address of that person set forth in the sign required 
under 30 CFR 715.12(b) or at any address at which that person is in fact 
located, and he or she refuses to accept delivery or to collect such 
documents, the requirements of this paragraph shall be deemed to have 
been complied with upon such tender.
    (c) Unless a conference has been requested, the Office shall review 
and reassess any penalty if necessary to consider facts which were not 
reasonably available on the date of issuance of the proposed assessment 
because of the length of the abatement period. The Office shall serve a 
copy of any such reassessment and of the worksheet showing the 
computation of the reassessment in the manner provided in paragraph (b) 
of this section, within 30 days after the date the violation is abated.
[45 FR 58783, Sept. 4, 1980, as amended at 56 FR 28445, June 20, 1991]



Sec. 723.18  Procedures for assessment conference.

    (a) The Office shall arrange for a conference to review the proposed 
assessment or reassessment, upon written request of the person to whom 
the notice or order was issued, if the request is received within 30 
days from the date the proposed assessment or reassessment is received.
    (b)(1) The Office shall assign a conference officer to hold the 
assessment conference. The assessment conference shall not be governed 
by section 554 of title 5 of the United States Code, regarding 
requirements for formal adjudicatory hearings. The assessment conference 
shall be held within 60 days from the date the conference request is 
received or the end of the abatement period, whichever is later.
    (2) The Office shall post notice of the time and place of the 
conference at the regional, district or field office closest to the mine 
at least 5 days before the conference. Any person shall have a right to 
attend and participate in the conference.
    (3) The conference officer shall consider all relevant information 
on the violation. Within 30 days after the conference is held, the 
conference officer shall either:
    (i) Settle the issues, in which case a settlement agreement shall be 
prepared and signed by the conference officer on behalf of the Office 
and by the person assessed; or
    (ii) Affirm, raise, lower, or vacate the penalty.
    (4) An increase or reduction of a proposed civil penalty assessment 
of more than 25 percent and more than $500 shall not be final and 
binding on the Secretary, until approved by the Director or his 
designee.
    (c) The conference officer shall promptly serve the person assessed 
with a notice of his or her action in the manner provided in 30 CFR 
723.17(b) and shall include a worksheet if the penalty has been raised 
or lowered. The reasons for the conference officer's action shall be 
fully documented in the file.
    (d)(1) If a settlement agreement is entered into, the person 
assessed will be deemed to have waived all rights to further review of 
the violation or penalty in question, except as otherwise expressly 
provided for in the settlement agreement. The settlement agreement shall 
contain a clause to this effect.
    (2) If full payment of the amount specified in the settlement 
agreement is not received by the Office within 30 days after the date of 
signing, the Office may enforce the agreement or rescind it and proceed 
according to paragraph (b)(3)(ii) of this section within 30 days from 
the date of the rescission.

[[Page 118]]

    (e) The conference officer may terminate the conference when he 
determines that the issues cannot be resolved or that the person 
assessed is not diligently working toward resolution of the issues.
[45 FR 58783, Sept. 4, 1980, as amended at 53 FR 3674, Feb. 8, 1988; 56 
FR 10063, Mar. 8, 1991]



Sec. 723.19  Request for hearing.

    (a) The person charged with the violation may contest the proposed 
penalty or the fact of the violation by submitting a petition and an 
amount equal to the proposed penalty or, if a conference has been held, 
the reassessed or affirmed penalty to the Office of Hearings and Appeals 
(to be held in escrow as provided in paragraph (b) of this section) 
within 30 days from receipt of the proposed assessment or reassessment 
or 30 days from the date of service of the conference officer's action, 
whichever is later. The fact of the violation may not be contested, if 
it has been decided in a review proceeding commenced under section 525 
of the Act and 43 CFR part 4.
    (b) The Office of Hearings and Appeals shall transfer all funds 
submitted under paragraph (a) of this section to the Office, which shall 
hold them in escrow pending completion of the administrative and 
judicial review process, at which time it shall disburse them as 
provided in 30 CFR 723.20.
[45 FR 58783, Sept. 4, 1980, as amended at 56 FR 10063, Mar. 8, 1991]



Sec. 723.20  Final assessment and payment of penalty.

    (a) If the person to whom a notice of violation or cessation order 
is issued fails to request a hearing as provided in 30 CFR 723.19, the 
proposed assessment shall become a final order of the Secretary and the 
penalty assessed shall become due and payable upon expiration of the 
time allowed to request a hearing.
    (b) If any party requests judicial review of a final order of the 
Secretary, the proposed penalty shall continue to be held in escrow 
until completion of the review. Otherwise, subject to paragraph (c) of 
this section, the escrowed funds shall be transferred to the Office in 
payment of the penalty, and the escrow shall end.
    (c) If the final decision in the administrative and judicial review 
results in an order or eliminating the proposed penalty assessed under 
this part, the Office shall within 30 days of receipt of the order 
refund to the person assessed all or part of the escrowed account, with 
interest from the date of payment into escrow to the date of the refund 
at the rate of 6 percent or at the prevailing Department of the Treasury 
rate, whichever is greater.
    (d) If the review results in an order increasing the penalty, the 
person to whom the notice or order was issued shall pay the difference 
to the Office within 15 days after the order is mailed to such person.



PART 724--INDIVIDUAL CIVIL PENALTIES--Table of Contents




Sec.
724.1  Scope.
724.5  Definitions.
724.12  When an individual civil penalty may be assessed.
724.14  Amount of individual civil penalty.
724.17  Procedure for assessment of individual civil penalty.
724.18  Payment of penalty.

    Authority:  30 U.S.C. 1201 et seq., Pub. L. 100-34, Pub. L. 101-410, 
and Pub. L. 104-134.

    Source: 53 FR 3674, Feb. 8, 1988, unless otherwise noted.



Sec. 724.1  Scope.

    This part covers the assessment of individual civil penalties under 
section 518(f) of the Act.



Sec. 724.5  Definitions.

    For purposes of this part:
    Knowingly means that an individual knew or had reason to know in 
authorizing, ordering or carrying out an act or omission on the part of 
a corporate permittee that such act or omission constituted a violation, 
failure or refusal.
    Violation, failure or refusal means--
    (1) A violation of a condition of a permit issued pursuant to a 
Federal program, a Federal lands program, Federal enforcement pursuant 
to section 502 of the Act, or Federal enforcement of a

[[Page 119]]

State program pursuant to section 521 of the Act; 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.
    Willfully means that an individual acted
    (1) Either intentionally, voluntarily or consciously, and
    (2) With intentional disregard or plain indifference to legal 
requirements in authorizing, ordering or carrying out a corporate 
permittee's action or omission that constituted a violation, failure or 
refusal.



Sec. 724.12  When an individual civil penalty may be assessed.

    (a) Except as provided in paragraph (b) of this section, the Office 
may assess an individual civil penalty against any corporate director, 
officer or agent of a corporate permittee who knowingly and willfully 
authorized, ordered or carried out a violation, failure or refusal.
    (b) The Office shall not assess an individual civil penalty in 
situations resulting from a permit violation by a corporate permittee 
until a cessation order has been issued by the Office to the corporate 
permittee for the violation, and the cessation order has remained 
unabated for 30 days.



Sec. 724.14  Amount of individual civil penalty.

    (a) In determining the amount of an individual civil penalty 
assessed under Sec. 724.12, the Office shall consider the criteria 
specified in Sec. 518(a) of the Act, including:
    (1) The individual's history of authorizing, ordering or carrying 
out previous violations, failures or refusals at the particular surface 
coal mining operation;
    (2) The seriousness of the violation, failure or refusal (as 
indicated by the extent of damage and/or the cost of reclamation), 
including any irreparable harm to the environment and any hazard to the 
health or safety of the public; and
    (3) The demonstrated good faith of the individual charged in 
attempting to achieve rapid compliance after notice of the violation, 
failure or refusal.
    (b) The penalty shall not exceed $5,500 for each violation. Each day 
of a continuing violation may be deemed a separate violation and the 
Office may assess a separate individual civil penalty for each day the 
violation, failure or refusal continues, from the date of service of the 
underlying notice of violation, cessation order or other order 
incorporated in a final decision issued by the Secretary, until 
abatement or compliance is achieved.
[53 FR 3674, Feb. 8, 1988, as amended at 62 FR 63276, Nov. 28, 1997]



Sec. 724.17  Procedure for assessment of individual civil penalty.

    (a) Notice. The Office shall serve on each individual to be assessed 
an individual civil penalty a notice of proposed individual civil 
penalty assessment, including a narrative explanation of the reasons for 
the penalty, the amount to be assessed, and a copy of any underlying 
notice of violation and cessation order.
    (b) Final order and opportunity for review. The notice of proposed 
individual civil penalty assessment shall become a final order of the 
Secretary 30 days after service upon the individual unless:
    (1) The individual files within 30 days of service of the notice of 
proposed individual civil penalty assessment a petition for review with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203 
(Phone: 703-235-3800), in accordance with 43 CFR 4.1300 et seq.; or
    (2) The Office and the individual or responsible corporate permittee 
agree within 30 days of service of the notice of proposed individual 
civil penalty assessment to a schedule or plan for the abatement or 
correction of the violation, failure or refusal.
    (c) Service. For purposes of this section, service shall be 
performed on the individual to be assessed an individual civil penalty, 
by certified mail, or by any alternative means consistent with the rules 
governing service of a summons and complaint under rule 4 of the

[[Page 120]]

Federal Rules of Civil Procedure. Service shall be complete upon tender 
of the notice of proposed assessment and included information or of the 
certified mail and shall not be deemed incomplete because of refusal to 
accept.
[53 FR 3674, Feb. 8, 1988, as amended at 56 FR 28445, June 20, 1991]



Sec. 724.18  Payment of penalty.

    (a) No abatement or appeal. If a notice of proposed individual civil 
penalty assessment becomes a final order in the absence of a petition 
for review or abatement agreement, the penalty shall be due upon 
issuance of the final order.
    (b) Appeal. If an individual named in a notice of proposed 
individual civil penalty assessment files a petition for review in 
accordance with 43 CFR 4.1300 et seq., the penalty shall be due upon 
issuance of a final administrative order affirming, increasing or 
decreasing the proposed penalty.
    (c) Abatement agreement. Where the Office and the corporate 
permittee or individual have agreed in writing on a plan for the 
abatement of or compliance with the unabated order, an individual named 
in a notice of proposed individual civil penalty assessment may postpone 
payment until receiving either a final order from the Office stating 
that the penalty is due on the date of such final order, or written 
notice that abatement or compliance is satisfactory and the penalty has 
been withdrawn.
    (d) Delinquent payment. Following the expiration of 30 days after 
the issuance of a final order assessing an individual civil penalty, any 
delinquent penalty shall be subject to interest at the rate established 
quarterly by the U.S. Department of the Treasury for use in applying 
late charges on late payments to the Federal Government, pursuant to 
Treasury Financial Manual 6-8020.20. The Treasury current value of funds 
rate is published by the Fiscal Service in the notices section of the 
Federal Register. Interest on unpaid penalties will run from the date 
payment first was due until the date of payment. Failure to pay overdue 
penalties may result in one or more of the actions specified in 
Secs. 870.15 (e)(1) through (e)(5) of this chapter. Delinquent penalties 
are subject to late payment penalties specified in Sec. 870.15(f) of 
this chapter and processing and handling charges specified in 
Sec. 870.15(g) of this chapter.



PART 725--REIMBURSEMENTS TO STATES--Table of Contents




Sec.
725.1  Scope.
725.2  Objectives.
725.3  Authority.
725.4  Responsibility.
725.5  Definitions.
725.10  Information collection.
725.11  Eligibility.
725.12  Coverage of grants.
725.13  Amount of grants.
725.14  Grant periods.
725.15  Grant application procedures.
725.16  Grant agreement.
725.17  Grant amendments.
725.18  Grant reduction and termination.
725.19  Audit.
725.20  Administrative procedures.
725.21  Allowable costs.
725.22  Financial management.
725.23  Reports.
725.24  Records.
725.25  Disclosure of information.

    Authority: Secs. 201, 501, and 502, Pub. L. 95-87, 91 Stat. 445 (30 
U.S.C. 1201).

    Source: 42 FR 62704, Dec. 13, 1977, unless otherwise noted.



Sec. 725.1  Scope.

    This part sets forth policies and procedures for reimbursements to 
States for costs of enforcing the initial performance standards set 
forth in this chapter.



Sec. 725.2  Objectives.

    The objectives of assistance under this part are:
    (a) To assist the States in meeting the increased costs of 
administering the initial performance standards.
    (b) To encourage the States to build strong reclamation and 
enforcement programs.



Sec. 725.3  Authority.

    Section 502(e)(4) of the Surface Mining Control and Reclamation Act 
of 1977 (30 U.S.C. 1201) authorizes the Secretary to reimburse States 
for costs of enforcing the performance standards of the initial 
regulatory program.

[[Page 121]]



Sec. 725.4  Responsibility.

    (a) The Director shall administer the grant program for 
reimbursement to States for costs of enforcing performance standards 
during the initial regulatory program.
    (b) The Director or his authorized designee shall receive, review 
and approve grant applications under this part.
[42 FR 62704, Dec. 13, 1977, as amended at 47 FR 38490, Aug. 31, 1982]



Sec. 725.5  Definitions.

    As used in this part, the following terms have the specified 
meanings:
    Agency means the State agency designated by the Governor to receive 
and administer grants under this part.
    Base program means the State program to regulate surface coal mining 
prior to August 3, 1977.



Sec. 725.10  Information collection.

    The information collection requirements contained in 30 CFR 725.15, 
725.23(a) and 725.24 have fewer than 10 respondents per year, they are 
exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.) and do not require clearance by OMB.
[47 FR 38490, Aug. 31, 1982]



Sec. 725.11  Eligibility.

    (a) Assumption of responsibility. To be eligible for a grant for 
reimbursements for the cost of enforcing performance standards during 
the initial regulatory program the State shall assume responsibility for 
enforcement of the initial regulatory program including the specific 
responsibilities identified under Sec. 710.4(b) and part 720 of this 
chapter.
    (b) Designation of State agency. In order to receive a grant for 
reimbursements for costs of enforcing performance standards during the 
initial regulatory program, the Governor of a State shall designate in 
writing one agency to submit grant applications, receive and administer 
grants under this part.
    (c) Periods covered by reimbursement grants. An agency may apply for 
a reimbursement grant for any period during the initial regulatory 
program and for a reasonable start-up period beginning no later than 
August 3, 1977.



Sec. 725.12  Coverage of grants.

    An agency may use grant money under this part to cover costs in 
excess of the base program for administering and enforcing the initial 
regulatory program. The Director or his authorized designee shall 
determine the base program from the State fiscal year budget in effect 
on August 3, 1977. Costs of the following items are eligible for 
reimbursement--
    (a) Incorporation of the initial performance standards of this 
chapter in new permits issued by the State.
    (b) Modification of existing permits to include the initial 
performance standards of this chapter.
    (c) Additional inspections required to enforce the initial 
performance standards of this chapter.
    (d) Inspections which are more detailed than inspections before the 
initial regulatory program.
    (e) Responses to complaints related to the initial performance 
standards of this chapter.
    (f) Enforcement actions required to secure compliance with the 
initial performance standards of this chapter.
    (g) Additional administrative activities and supporting costs 
related to hiring additional inspectors and other personnel, revising 
permits, conducting inspections, preparing, copying and submitting 
reports required by part 720, and submitting applications for 
reimbursement grants under this part.
    (h) Additional equipment required for inspection or support of 
inspections, as follows:
    (1) An agency may charge any required item of equipment to the grant 
on a use bases in accordance with the principles set forth in Federal 
Management Circular 74-4, ``Cost principles applicable to grants and 
contracts with State and local governments'' (34 CFR part 255).
    (2) An agency may purchase equipment, with grant funds where cost 
recovery through use charges is prohibited, made impractical or more 
costly than purchase by existing State laws or procedures.
[42 FR 62704, Dec. 13, 1977, as amended at 45 FR 34880, May 23, 1980]

[[Page 122]]



Sec. 725.13  Amount of grants.

    The Office shall pay up to 100 percent of the costs to the agency in 
excess of the base program for administering and enforcing the 
performance standards during the initial regulatory program.



Sec. 725.14  Grant periods.

    The Director or his authorized designee shall normally approve a 
grant for a period of one year or less. OSM shall fund a program that 
extends over more than one year by consecutive annual grants or 
amendments to the existing grant.
[47 FR 38490, Aug. 31, 1982]



Sec. 725.15  Grant application procedures.

    (a) The agency may submit its application (three copies) for a grant 
to the Director or his authorized designee at least sixty days prior to 
the beginning of the intended grant period, or as soon thereafter as 
possible.
    (b) The agency shall use the application forms and procedures 
applicable to non-construction and/or construction programs specified by 
OSM in accordance with Office of Management and Budget Circular No. A-
102, ``Uniform administrative requirements for grants-in-aid to State 
and local governments'' (42 FR 45828). No preapplication is required. 
Each application must include the following:
    (1) Part I, Application Form coversheet, SF 424.
    (2) Part II, Project Approval Information.
    (i) For non-construction grants use Form OSM-50A, Project Approval 
Information--Section A.
    (ii) For construction grants use Form OSM-50A, Project Approval 
Information--Section A and Form OSM-50B, Project Approval Information--
Section B.
    (3) Part III, Budget Information.
    (i) For non-construction grants use Form OSM-47, Budget Information 
Report, with a narrative explanation of computations.
    (ii) For construction grants use Form OSM-48, Budget Information--
Construction with a narrative explanation of computations.
    (4) Part IV, Program Narrative Statement, Form OSM-51, providing the 
narrative for the goals to be achieved for both construction and non-
construction grants.
    (i) Form OSM-51 is supplemented by completion of column 5A of Forms 
OSM-51A and OSM-51B which reports the quantitative program management 
information of the Interim Regulatory grants.
    (ii) Form OSM-51 is supplemented by completion of Column 5A of Form 
OSM-51C which reports the quantitative program management information of 
the Small Operator Program Administration and Operational grants.
    (5) Part V, The standard assurance for non-construction activities 
or construction activities as specified in Office of Management and 
Budget Circular No. A-102, Attachment M.
    (c) The agency shall include sufficient information to enable the 
Director or his authorized designee to determine the agency's base 
program and increases over the base program eligible for reimbursement 
grants. The agency shall include the following information, plus any 
other relevant data:
    (1) A summary of the State permit, inspection and enforcement 
program prior to the addition of the requirements of the Act of 1977, 
including--
    (i) Permit requirements and the system for issuing permits;
    (ii) Mining-and-reclamation plan requirements;
    (iii) Coverage and frequency of inspections;
    (iv) Actions required to enforce mining and reclamation 
requirements;
    (v) The number and nature of responses to complaints; and
    (vi) Other regulatory activities and related administrative 
functions affected by the performance standards of the initial 
regulatory program of this chapter.
    (2) A statement of the number of employees and annual budget 
required to carry out functions described in paragraph (c)(1) of this 
section.
    (3) A copy of all State constitutional, statutory and regulatory 
provisions applicable to the enforcement and administration of the 
initial regulatory program.
    (4) An opinion of the State's chief legal officer as to whether and 
to what

[[Page 123]]

extent the State is authorized to enforce and administer the initial 
regulatory program.
    (5) A statement of the additional work required to enforce the 
initial regulatory program for each of the agency activities described 
in paragraph (c)(1) of this section.
    (6) The additional staff and funds required for the increased 
workload described in paragraph (c)(5) of this section.
    (7) The number and types of major equipment (equipment with a unit 
acquisition cost of $500 or more and having a life of more than two 
years) which the agency plans to purchase with grant funds.
    (d) The Director or his authorized designee may waive the 
resubmission of information required by paragraphs (c) (1), (2), (3) and 
(4) of this section in applications for the following grants.
    (e) The Director or his authorized designee shall notify the agency 
within thirty days after the receipt of a complete application, or as 
soon thereafter as possible, whether it is or is not approved. If the 
application is not approved, the Director or his authorized designee 
shall set forth in writing the reasons it is not approved, and may 
propose modifications if appropriate. The agency may resubmit the 
application within thirty days. The Director or his authorized designee 
shall process the revised application as an original application.
[42 FR 62704, Dec. 13, 1977, as amended at 47 FR 38490, Aug. 31, 1982]



Sec. 725.16  Grant agreement.

    (a) If a Director or his authorized designee approves an agency's 
grant application, the Director or his authorized designee shall prepare 
a grant agreement which includes--
    (1) The approved scope of the program to be covered by the grant, 
including functions to be accomplished by other agencies.
    (2) The base program budget and estimated costs in excess of the 
base program.
    (3) The amount of the grant.
    (4) Commencement and completion dates for the segment of the program 
covered by this grant and for major phases of the program to be 
completed during the grant period.
    (5) Permissible transfers of funds to other State agencies.
    (b) The Director or his authorized designee shall limit grants under 
this part to the additional costs to an agency for administering and 
enforcing the initial regulatory program.
    (c) The Director or his authorized designee may permit the agency to 
assign functions and funds to other State agencies. The Director or his 
authorized designee shall require the grantee agency to retain 
responsibility for overall administration of the grant, including use of 
funds, accomplishment of functions and reporting.
    (d) Except as may be provided by the grant agreement, costs may not 
be incurred prior to the execution of the agreement.
    (e) The Director or his authorized designee shall transmit four 
copies of the grant agreement, by certified mail, return receipt 
requested, to the agency for signature. The agency shall execute the 
grant agreement and return all copies within 3 calendar weeks after 
receipt, or within an extension of such time that may be granted by the 
Director or his authorized designee.
    (f) The Director or his authorized designee shall sign the grant 
agreement upon its return from the agency and return one copy to the 
agency. The grant is effective and constitutes an obligation of Federal 
funds in the amount and for the purposes stated in the grant agreement 
at the time the Director or his authorized designee signs the agreement.
    (g) Neither the approval of a program nor the award of any grant 
will commit or obligate the United States to award any continuation 
grant or to enter into any grant amendment, including grant increases to 
cover cost overruns.



Sec. 725.17  Grant amendments.

    (a) A grant amendment is a written alteration to the grant amount, 
grant terms or conditions, budget or period, or other administrative, 
technical, or financial agreement whether accomplished on the initiative 
of the agency

[[Page 124]]

or the Director or his authorized designee or by mutual action of the 
agency and the Director or his authorized designee.
    (b) The agency shall promptly notify the Director or his authorized 
designee in writing of events or proposed changes which require a grant 
amendment, such as:
    (1) Rebudgeting;
    (2) Changes which may affect the approved scope or objective of a 
program; or
    (3) Changes which may increase or substantially decrease the total 
cost of a program.
    (c) The Director or his authorized designee shall approve or 
disapprove each proposed amendment within 30 days of receipt, or as soon 
thereafter as possible, and shall notify the agency in writing of the 
approval or disapproval of the amendment.
    (d) The date the Director or his authorized designee signs the grant 
amendment establishes the effective date of the action. If no time 
period is specified in the grant amendment then the amendment applies to 
the entire grant period.
[42 FR 62704, Dec. 13, 1977, as amended at 47 FR 38490, Aug. 31, 1982]



Sec. 725.18  Grant reduction and termination.

    (a) Conditions for reduction or termination. (1) If an agency fails 
to carry out its responsibilities pursuant to Sec. 710.4(b) and part 720 
of this chapter the Director or his authorized designee shall reduce or 
terminate the grant.
    (2) If an agency violates the terms of a grant agreement, the 
Director or his authorized designee may reduce or terminate the grant.
    (3) If an agency fails to enforce the initial performance standards 
of this chapter the Director or his authorized designee may reduce or 
terminate the grant.
    (4) If an agency is not in compliance with the following 
nondiscrimination provisions, the Director or his authorized designee 
shall terminate the grant--
    (i) Title VI of the Civil Rights Act of 1964 (78 Stat. 252), 
Nondiscrimination in Federally Assisted Programs, which provides that no 
person in the United States shall on the grounds of race, color or 
national origin be excluded from participation in, be denied the 
benefits of or be subjected to discrimination under any program or 
activity receiving Federal financial assistance, and the implementing 
regulations at 43 CFR 17.
    (ii) Executive Order 11246, as amended by Executive Order 11375, 
Equal Employment Opportunity, requiring that employees or applicants for 
employment not be discriminated against because of race, creed, color, 
sex or national orgin, and the implementing regulations at 41 CFR 60.
    (iii) Section 504 of the Rehabilitation Act of 1973, as amended by 
Executive Order 11914, Nondiscrimination with Respect to the Handicapped 
in Federally Assisted Programs.
    (5) If an agency fails to enforce the financial interest provisions 
of part 705 of this chapter the Director shall terminate the grant.
    (6) If an agency fails to submit reports required by this part or 
parts 705 and 720 of this chapter the Director shall reduce or terminate 
the grant.
    (b) Grant reduction and termination procedures. (1) The Director or 
his authorized designee shall give at least 10 days written notice to 
the agency by certified mail, return receipt requested, of intent to 
reduce or terminate a grant. The Director or his authorized designee 
shall include in the notice the reasons for the proposed action and the 
proposed effective date of the action.
    (2) The Director or his authorized designee shall afford the agency 
opportunity for consultation and remedial action prior to reducing or 
terminating a grant.
    (3) The Director or his authorized designee shall notify the agency 
of the termination or reduction of the grant in writing by certified 
mail, return reciept requested.
    (4) Upon termination the agency shall refund or credit to the United 
States that portion of the grant money paid or owed to the agency and 
allocated to the terminated portion of the grant. However any portion of 
the grant that is required to meet commitments made prior to the 
effective date

[[Page 125]]

of termination shall be retained by the agency.
    (5) Upon termination, the agency shall reduce the amount of 
outstanding commitments insofar as possible and report to the Director 
or his authorized designee the uncommitted balance of funds awarded 
under the grant.
    (6) Upon notification of intent to terminate, the agency shall not 
make any new commitments without the approval of the Director or his 
authorized designee.
    (7) The Director or his authorized designee may allow termination 
costs as determined by applicable Federal cost principles listed in 
Federal management Circular 74-4.
    (c) Appeals. (1) An Agency may appeal the Director or his authorized 
designee's decision to reduce or terminate a grant to the Director 
within 30 days of the Director or his authorized designee's decision.
    (2) An Agency shall include in an appeal:
    (i) The decision being appealed, and
    (ii) The facts which the Agency believes justify a reversal or 
modification of the decision.
    (3) The Director shall act on appeals within 30 days of their 
receipt, or as soon thereafter as possible.



Sec. 725.19  Audit.

    The agency shall arrange for an independent audit no less frequently 
than once every two years, pursuant to the requirements of Office of 
Management and Budget Circular No. A-102, Attachment P. The audits will 
be performed in accordance with the ``Standards for Audit of 
Governmental Organizations, Programs, Activities, and Functions'' and 
the ``Guidelines for Financial and Compliance Audits of Federally 
Assisted Programs'' published by the Comptroller General of the United 
States and guidance provided by the cognizant Federal audit agency.
[48 FR 38490, Aug. 31, 1983]



Sec. 725.20  Administrative procedures.

    The Agency shall follow administrative procedures governing 
accounting, payment property, and related requirements contained in 
Office of Management and Budget Circular No. A-102.



Sec. 725.21  Allowable costs.

    (a) The Director or his authorized designee shall determine costs 
which may be reimbursed according to Office of Management nd Budget 
Circular No. A-87.
    (b) Costs must be in conformity with any limitations conditions or 
exclusions set forth in the grant agreement or this part.
    (c) Costs must be allocated to the grant to the extent of benefit 
properly attributable to the period covered by the grant.
    (d) Costs must not be allocated to or included as a cost of any 
other federally assisted program.
[42 FR 62704, Dec. 13, 1977, as amended at 47 FR 38490, Aug. 31, 1982]



Sec. 725.22  Financial management.

    (a) The agency shall account for grant funds in accordance with the 
requirements of Office of Management and Budget Circular A-102. An 
agency shall use generally accepted accounting principles and practices, 
consistently applied. Accounting for grant funds must be accurate and 
current.
    (b) The agency shall adequately safeguard all funds, property, and 
other assets and shall assure that they are used solely for authorized 
purposes.
    (c) The agency shall provide a comparison of actual amounts spent 
with budgeted amounts for each grant.
    (d) When advances are made by a letter-of-credit method, the agency 
shall make drawdowns from the U.S. Treasury through its commercial bank 
as closely as possible to the time of making the disbursements.
    (e) The agency shall support accounting records by source 
documentation.
    (f) The agency shall design a systematic method to assure timely and 
appropriate resolution of audit findings and recommendations.



Sec. 725.23  Reports.

    (a) The agency shall, for each grant made under this part, submit 
semiannually to the Director or his authorized designee a Financial 
Status Report, SF 269, for non-construction grant activities in 
accordance with Office of Management and Budget Circular No. A-102, 
Attachment H and

[[Page 126]]

OSM requirements. This report shall be accompanied by a Performance 
Report, Form OSM-51, comparing actual accomplishments to the goals 
established for the period, prepared according to Attachment I of OMB 
Circular No. A-102 and OSM requirements. The agency shall also submit 
semiannually a separate Outlay Report and Request for Reimbursement for 
Construction Programs, SF 271, and accompanying narrative performance 
report comparing actual accomplishments with planned goals on grant 
funded construction activities.
    (b) The Director or his authorized designee shall require through 
the grant agreement that semiannual reports also describe the 
relationship of financial information to performance and productivity 
data, including unit cost information. This quantitative information 
will be reported on Forms OSM-51A and OSM-51B or OSM-51C, Quantitative 
Program Management Information, as applicable.
    (c) The Director or his authorized designee shall require that when 
a grant is closed out in accordance with Attachment L to Office of 
Management and Budget Circular No. A-102 the following actions are 
taken:
    (1) The grantee shall account for any property acquired with grant 
funds or received from the Government in accordance with the provisions 
of Attachment N to Office of Management and Budget Circular No. A-102. 
This may be accomplished by the submission of the Report of Government 
Property, Form OSM-60.
    (2) The grantee shall submit a final financial report and thus 
release OSM from obligations under each grant or cooperative agreement 
that is being closed out.
[47 FR 38491, Aug. 31, 1982]



Sec. 725.24  Records.

    (a) The agency shall maintain complete records in accordance with 
Office of Management and Budget Circular No. A-102. This includes books, 
records, documents, maps, and other evidence and accounting procedures 
and practices, sufficient to reflect properly--
    (1) The amount, receipt, and disposition by the agency of all 
assistance received for the program.
    (2) The total costs of the program, including all direct and 
indirect costs of whatever nature incurred for the performance of the 
program for which the grant has been awarded.
    (b) Subgrantees and contractors, including contractors for 
professional services, shall maintain books, documents, papers, maps, 
and records which are pertinent to a specific grant award.
    (c) The agency's records and the records of its subgrantees and 
contractors, including professional services contracts, shall be subject 
at all reasonable times to inspection, reproduction, copying, and audit 
by the Office, the Department of the Interior, the Comptroller General 
of the United States, the Department of Labor, or any authorized 
representative.
    (d) For completed or terminated grants, the agency, subgrantees and 
contractors shall preserve and make their records available to the 
Office, the Department of the Interior, the Comptroller General of the 
United States, Department of Labor, or any authorized representative 
pursuant to OMB Circular A-102.



Sec. 725.25  Disclosure of information.

    All grant applications received by the Director or his authorized 
designee constitute agency records. As such, their release may be 
requested by any member of the public under the Freedom of Information 
Act (5 U.S.C. 552), and shall be disclosed unless exempt from disclosure 
under 5 U.S.C. 552(b).

[[Page 127]]



SUBCHAPTER C--PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-INDIAN LANDS





PART 730--GENERAL REQUIREMENTS--Table of Contents




Sec.
730.1  Scope.
730.5  Definitions.
730.11  Inconsistent and more stringent State laws and regulations.
730.12  Requirements for regulatory programs in States.

    Authority: Secs. 501(b), 503, 504, 505 and 521 of Pub. L. 95-87 (30 
U.S.C. 1251(b), 1253, 1254, 1255 and 1271).



Sec. 730.1  Scope.

    This subchapter sets forth standards and procedures for the 
submission, review, and approval or disapproval of State programs, for 
coal exploration and surface coal mining and reclamation operations on 
non-Indian and non-Federal lands. In addition it sets forth criteria and 
procedures for amending approved programs, substituting Federal 
enforcement for State enforcement of State programs, and withdrawing 
approval of those programs not adequately implemented or maintained. 
Requirements are also included for State program grants and for the 
adoption of a Federal program in a State which does not have a State 
program or which has failed to implement, enforce or maintain an 
approved State program consistent with this subchapter.
[44 FR 15323, Mar. 13, 1979]



Sec. 730.5  Definitions.

    As used in this subchapter unless otherwise indicated Consistent 
with and in accordance with mean:
    (a) With regard to the Act, the State laws and regulations are no 
less stringent than, meet the minimum requirements of and include all 
applicable provisions of the Act.
    (b) With regard to the Secretary's regulations, the State laws and 
regulations are no less effective than the Secretary's regulations in 
meeting the requirements of the Act.
[44 FR 15323, Mar. 13, 1979, as amended at 46 FR 53384, Oct. 28, 1981]



Sec. 730.11  Inconsistent and more stringent State laws and regulations.

    (a) No State law or regulation shall be superseded by any provision 
of the Act or the regulations of this chapter, except to the extent that 
the State law or regulation is inconsistent with, or precludes 
implementation of, requirements of the Act or this chapter. The Director 
shall publish a notice of proposed action in the Federal Register 
setting forth the text or a summary of any State law or regulation 
initially determined by him to be inconsistent with the Act or this 
chapter. The notice shall provide 30 days for public comment. Following 
the close of the public comment period, the Director shall make a final 
determination which shall be published in the Federal Register.
    (b) Any State law or regulation which provides for more stringent 
land use and environmental controls and regulations of coal exploration 
and surface coal mining and reclamation operations than do the 
provisions of the Act and this chapter, or which provides for the 
control and regulation of coal exploration and surface coal mining and 
reclamation operations for which no provision is contained in the Act or 
this chapter, shall not be construed to be inconsistent with the Act or 
this chapter.
[44 FR 15323, Mar. 13, 1979, as amended at 47 FR 26364, June 17, 1982]



Sec. 730.12  Requirements for regulatory programs in States.

    (a) Not later than January 3, 1981, for each State in which coal 
exploration and surface coal mining and reclamation operations are or 
may be conducted on non-Federal and non-Indian land, either a State 
program or a Federal program adopted under this subchapter shall be in 
effect. However, the inability of a State to take any action the purpose 
of which is to prepare, submit or enforce a State program, or any part 
thereof, because the action is enjoined by the issuance of an injunction 
by any court of competent jurisdiction

[[Page 128]]

shall not result in the imposition of a Federal program for regulation 
of surface coal mining and reclamation operations. Regulation of surface 
coal mining and reclamation operations covered or to be covered by the 
State program subject to an injunction shall be conducted by the State 
pursuant to section 502 of the Act until such time as the injunction 
terminates or for one year from issuance of the injunction, whichever is 
shorter, at which time the requirements of sections 503 and 504 shall 
again be fully applicable. States in which no coal exploration or 
surface coal mining and reclamation operations are in existence or 
planned on January 3, 1981, on non-Federal and non-Indian lands but in 
which such exploration or operations may occur at some later date, shall 
have a State or Federal program in effect before commencement of any 
such exploration or operations.
    (b) The State shall notify the Director of the issuance of any 
injunction which prevents or prohibits the State from preparing, 
submitting or enforcing a State program or portion thereof.
[44 FR 15323, Mar. 13, 1979, as amended at 45 FR 33927, May 20, 1980]



PART 731--SUBMISSION OF STATE PROGRAMS--Table of Contents




Sec.
731.1  Scope.
731.12  Submission of State programs.
731.14  Content requirements for program submissions.

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



Sec. 731.1  Scope.

    This part establishes standards and procedures for the preparation 
and submission of State programs.
[44 FR 15324, Mar. 13, 1979]



Sec. 731.12  Submission of State programs.

    Each State that wishes to regulate coal exploration and surface coal 
mining and reclamation operations on non-Federal and non-Indian lands 
within its boundaries shall submit three copies of a proposed program to 
the Director. A State may submit a proposed program at any time. The 
State shall retain sufficient copies of the program for public 
inspection under Sec. 732.11(a).
[47 FR 26364, June 17, 1982]



Sec. 731.14  Content requirements for program submissions.

    The program shall demonstrate that the State has the capability of 
carrying out the provisions of the Act and this chapter and achieving 
their purposes by providing a complete description of the system for 
implementing, administering and enforcing a State program including, at 
a minimum --
    (a) A copy of the State laws in effect at the time of submission of 
the program which regulate coal exploration and surface coal mining and 
reclamation operations, a copy of any State regulations promulgated to 
implement and enforce those State laws and any amendments to State laws 
and regulations which are in the process of enactment and have been 
determined by the State to be essential to allow for program approval;
    (b) Copies of other State laws and regulations directly affecting 
the regulation of coal exploration and surface coal mining and 
reclamation operations, and amendments to such other laws or regulations 
which affect the regulation of coal exploration and surface coal mining 
and reclamation operations which are being considered or are pending;
    (c)(1) A legal opinion from the Attorney General of the State or 
chief legal officer of the State regulatory authority stating that the 
State has the legal authority under existing laws and regulations, or 
will have authority under amendments to laws and regulations which are 
in the process of enactment, to implement, administer and enforce the 
program and to regulate coal exploration and surface coal mining and 
reclamation operations in accordance with the Act and consistent with 
this chapter.
    (2) A section-by-section comparison of the State's law and 
regulations and amendments which are in the process of enactment with 
the Act and this chapter, explaining any differences and their legal 
effect;
    (d) A copy of the legal document which designates one State agency 
as

[[Page 129]]

the regulatory authority and authorizes that agency to implement, 
administer and enforce a State program and to submit grant applications 
and receive and administer grants under this subchapter;
    (e)(1) A description, including appropriate charts, of the existing 
and proposed structural organization of the agency designated as the 
regulatory authority and of other agencies or applicable divisions or 
departments of those agencies which will have duties in the State 
program. The description must indicate the coordination system between 
these agencies and lines of authority and the staffing functions within 
each agency and between agencies.
    (2) A summary table of the existing and proposed State program 
staff, showing job functions, title and required job experience and 
training, and a description of how the staffing proposed for the State 
program will be adequate to carry out the functions, including 
permitting, inspection and legal actions for the projected workload to 
ensure that coal exploration and surface coal mining and reclamation 
operations will be regulated in accordance with the requirements of the 
Act and this chapter;
    (f) A copy of supporting agreements between agencies which will have 
duties in the State program;
    (g) Narrative descriptions, flow charts or other appropriate 
documents of the proposed systems for--
    (1) Receiving notices of intention to explore and applications for 
new, revised or renewed approvals for coal exploration and permits for 
surface coal mining and reclamation operations, reviewing those 
applications, approving or disapproving requests for exploration 
approvals, permits, permit revisions and renewals;
    (2) Assessing fees for permit applications;
    (3) Implementing, administering and enforcing a system of 
performance bonds and liability insurance or other equivalent 
guarantees;
    (4) Inspecting and monitoring coal exploration and surface coal 
mining and reclamation operations including provisions for public 
participation in the process;
    (5) Enforcing the administrative, civil and criminal sanctions of 
State laws and regulations for violation of any requirement of those 
laws relating to the regulation of coal exploration and surface coal 
mining and reclamation operations;
    (6) Administering and enforcing the permanent program performance 
standards;
    (7) Assessing and collecting civil penalties;
    (8) Issuing public notices and holding public hearings;
    (9) Coordinating issuance of permits required under the Act and this 
chapter with other State, Federal and local agencies;
    (10) Consulting with State and Federal agencies having 
responsibility for the protection or management of fish and wildlife and 
related environmental values.
    (11) Designating lands unsuitable for surface coal mining 
operations, including provisions for terminating those designations and 
for public participation in the designation process;
    (12) Monitoring, reviewing and enforcing restrictions against direct 
and indirect financial interests of State employees in surface coal 
mining and reclamation operations;
    (13) Training, examining and certifying blasters, except that no 
State program is required to implement this provision until six months 
after the Federal regulations for the provision have been promulgated;
    (14) Providing for public participation in the development, revision 
and enforcement of State regulations, the State program, and permits 
under the State program;
    (15) Providing administrative and judicial review of actions 
provided for in the State program including inspection and enforcement 
actions; and
    (16) Providing the determination of probable hydrologic consequences 
and the statement of the results of test borings or core samples 
required by section 507(c) of the Act.
    (17) Consulting with State, Federal, and local agencies having 
responsibility for historic, cultural, and archeological resources, and 
for making decisions regarding such resources.

[[Page 130]]

    (h) Statistical information describing coal exploration and surface 
coal mining and reclamation operations in the State, adequate to 
demonstrate that the provisions of the State program and the resources 
available to it are sufficient when compared to the current and 
projected coal mining activities in the State;
    (i) A description of the actual capital and operating budget, 
including source of funds, used or proposed to be used to administer the 
State program for the prior and current fiscal years, and the projected 
annual budget for each of the next two fiscal years, assuming 
supplemental funding pursuant to an approved State program and grants 
under 30 CFR part 735; and a description of the existing and proposed 
physical resources for use in the program.
[44 FR 15324, Mar. 13, 1979, as amended at 47 FR 26364, June 17, 1982; 
48 FR 2272, Jan. 18, 1983; 52 FR 4261, Feb. 10, 1987]



PART 732--PROCEDURES AND CRITERIA FOR APPROVAL OR DISAPPROVAL OF STATE PROGRAM SUBMISSIONS--Table of Contents




Sec.
732.1  Scope.
732.10  Information collection.
732.11  Review by the Director.
732.13  Decision by the Secretary.
732.14  Resubmission of State programs.
732.15  Criteria for approval or disapproval of State programs.
732.16  Terms and conditions for State programs.
732.17  State program amendments.

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



Sec. 732.1  Scope.

    This part sets forth criteria and procedures for decisions to 
approve or disapprove submissions of State programs and program 
amendments, including requirements for public participation in the 
process of approval or disapproval.
[44 FR 15326, Mar. 13, 1979]



Sec. 732.10  Information collection.

    The information collection requirements contained in 30 CFR 
732.16(a) and 732.17(b) have been approved by the Office of Management 
and Budget under 44 U.S.C. 3507 and assigned clearance number 1029-0024. 
The information is needed to afford a State the opportunity to modify or 
amend its State program and will be used by OSM to determine whether the 
amendment meets the provisions of the Act.
[47 FR 26365, June 17, 1982]



Sec. 732.11  Review by the Director.

    (a) Immediately upon receipt of a proposed State program, the 
Director shall publish in the Federal Register and in a newspaper of 
general circulation in the State a notice meeting the following 
requirements:
    (1) The notice shall include the date of the submission of the 
program and a summary of the program's contents. It shall also indicate 
that the full text of the program submission is available for review 
during regular business hours at the OSM State Office and at the central 
office and each field office of the State agency responsible for the 
submission.
    (2) The notice shall afford interested persons an opportunity to 
submit written comments. The comment period shall end on a date 
following the public hearing scheduled to be held under paragraph (b) of 
this section and that date shall be specified in the notice.
    (3) The notice shall identify the time and location within the State 
at which the Office will hold the public hearing under paragraph (b) of 
this section.
    (b) A public hearing shall be held by the Director no sooner than 40 
days following the publication of the notice required by paragraph (a) 
of this section. The hearing shall be informal and follow legislative 
procedures.
    (1) The format and the rules of procedure for each hearing shall be 
determined by the Director and published in the Federal Register notice 
required by paragraph (a).
    (2) When the program is submitted, State laws and regulations must 
be submitted in their final form or in the form in which they are 
expected to become final. Should revisions to any of the laws or 
regulations be necessary during the public comment period or before the 
Secretary's decision, OSM will give notice and provide an opportunity 
for review and comment. State

[[Page 131]]

laws and regulations must be enacted by the date of program approval.
    (c) Copies of written comments shall be available for public 
inspection and copying at the OSM State Office and the offices of the 
State agency responsible for submitting the program.
    (d) The Director shall consider all relevant information, including 
information obtained from public hearings and comments, and shall 
recommend to the Secretary that the program be approved or disapproved, 
in whole or in part. The recommended decision shall specify the reasons 
for the recommendation.
[47 FR 26365, June 17, 1982]



Sec. 732.13  Decision by the Secretary.

    (a) After consideration of the information accompanying the 
Director's recommendation and the Director's recommendation and 
findings, the Secretary shall issue to the State in writing, either a 
decision approving or an initial decision disapproving the State 
program, in whole or in part.
    (b) A program shall not be approved until the Secretary has--
    (1) Solicited and publicly disclosed the views of the Administrator 
of the Environmental Protection Agency, the Secretary of Agriculture, 
and the heads of other Federal agencies concerned with or having special 
expertise relevant to the program as proposed; and
    (2) Obtained written concurrence of the Administrator of the 
Environmental Protection Agency with respect to those aspects of a State 
program which relate to air or water quality standards promulgated under 
the authority of the Federal Water Pollution Control Act, as amended (33 
U.S.C. 1251 et seq.), or the Clean Air Act, as amended (42 U.S.C. 7401 
et seq.).
    (c) The Secretary's decision shall include the findings upon which 
it is based and shall be mailed to the State.
    (d) The Secretary shall issue his decision within 6 months of the 
Director's receipt of a program submission.
    (e) All decisions approving or disapproving a program, in whole or 
in part, shall be published in the Federal Register, indicating, in the 
event of disapproval, that the State has 60 days to submit a revised 
program for consideration.
    (f) If the Secretary disapproves a program, in whole or in part, the 
State shall have 60 days from the date of publication of the Federal 
Register notice to submit a revised program to the Director for 
reconsideration. The procedures of Sec. 732.11 will then apply to the 
revised State program, except that the time allowed between publication 
of notice and the public hearing for public review and comment may be 
shortened to not less than 15 days.
    (g) The Secretary shall either approve or disapprove the revised 
program within 60 days from the date of submission of the revised 
program and publish that decision and reasons for the decision in the 
Federal Register. A decision disapproving the revised program 
constitutes the final decision by the Department disapproving that 
program in its entirety.
    (h) If a revised State program is not submitted by a State within 60 
days of an initial disapproval under paragraph (a) of this section, the 
Secretary shall disapprove the initial program submission in its 
entirety. This decision shall constitute the final decision by the 
Secretary. This decision and the basis for it shall be published in the 
Federal Register.
    (i) A decision by the Secretary approving a program submission 
establishes a State program for the State which submitted it and 
constitutes the final decision by the Department. The State program 
becomes effective on the date of publication of the decision in the 
Federal Register unless otherwise specified by the Secretary. The 
Secretary shall not give his approval unless the program submission can 
be approved in whole, except as provided in paragraph (j) of this 
section.
    (j) The Secretary may conditionally approve a State program where 
the program is found to have minor deficiencies, provided:
    (1) The deficiencies are of such a size and nature so as to render 
no part of a proposed State program incomplete;
    (2) The State has initiated and is actively proceeding with steps to 
correct the deficiencies;
    (3) The State agrees in writing to correct such deficiencies within 
a time established by the Secretary and stated in the conditional 
approval; and

[[Page 132]]

    (4) If the deficiencies have not been corrected by the date set 
forth in the Secretary's decision under paragraph (j)(3) of this 
section, the Director shall notify the Secretary that the deficiencies 
have not been corrected and shall within 30 days--
    (i) Withdraw approval of the State program in whole or in part, and 
specify the extent to which approval of the State program is being 
withdrawn;
    (ii) Substitute direct Federal enforcement of those portions of the 
permanent regulatory program that the State has failed to implement;
    (iii) Initiate procedures in accordance with parts 733 and 736 of 
this chapter to withdraw State program approval and implement a Federal 
program for the State, including specifying necessary remedial actions 
to correct continued deficiencies; or
    (iv) Take any combination of actions under paragraphs (j)(4) and (i) 
through (iii) of this section.
[44 FR 15326, Mar. 13, 1979, as amended at 47 FR 26365 and 26367, June 
17, 1982]



Sec. 732.14  Resubmission of State programs.

    If, by a final decision, the program is disapproved, the State may 
submit another proposed State program to the Director at any time. 
Resubmitted State programs must meet the requirements of Sec. 731.14 and 
will be acted upon pursuant to Secs. 732.11-732.16.
[47 FR 26366, June 17, 1982]



Sec. 732.15  Criteria for approval or disapproval of State programs.

    The Secretary shall not approve a State program unless, on the basis 
of information contained in the program submission, comments, testimony 
and written presentations at the public hearings, and other relevant 
information, the Secretary finds that--
    (a) The program provides for the State to carry out the provisions 
and meet the purposes of the Act and this Chapter within the State and 
that the State's laws and regulations are in accordance with the 
provisions of the Act and consistent with the requirements of the 
Chapter.
    (b) The State regulatory authority has the authority under State 
laws and regulations pertaining to coal exploration and surface coal 
mining and reclamation operations and the State program includes 
provisions to --
    (1) Implement, administer and enforce all applicable requirements 
consistent with subchapter K of this chapter;
    (2) Implement, administer and enforce a permit system consistent 
with the regulations of subchapter G of this chapter and prohibit 
surface coal mining and reclamation operations without a permit issued 
by the regulatory authority;
    (3) Regulate coal exploration consistent with 30 CFR parts 772 and 
815 and prohibit coal exploration that does not comply with 30 CFR parts 
772 and 815;
    (4) Require that persons extracting coal incidental to government 
financed construction maintain information on site consistent with 30 
CFR 707;
    (5) Enter, inspect and monitor all coal exploration and surface coal 
mining and reclamation operations on non-Indian and non-Federal land 
within the State consistent with the requirements of section 517 of the 
Act and subchapter L of this chapter;
    (6) Implement, administer and enforce a system of performance bonds 
and liability insurance, or other equivalent guarantees, consistent with 
the requirements of subchapter J of this chapter;
    (7) Provide for civil and criminal sanctions for violations of the 
State law, regulations and conditions of permits and exploration 
approvals including civil and criminal penalties in accordance with 
section 518 of the Act and consistent with 30 CFR 845, including the 
same or similar procedural requirements;
    (8) Issue, modify, terminate and enforce notices of violation, 
cessation orders and show cause orders in accordance with section 521 of 
the Act and consistent with the requirements of subchapter L of this 
chapter including the same or similar procedural requirements;
    (9) Designate areas as unsuitable for surface coal mining consistent 
with subchapter F of this chapter;
    (10) Provide for public participation in the development, revision 
and enforcement of State regulations and the

[[Page 133]]

State program, consistent with public participation requirements of the 
Act and this chapter;
    (11) Monitor, review and enforce the prohibition against indirect or 
direct financial interests in coal mining operations, by employees of 
the State regulatory authority, consistent with 30 CFR 705;
    (12) Require the training, examination and certification of persons 
engaged in or responsible for blasting and the use of explosives 
consistent with regulations issued by the Secretary, except that no 
State program is required to implement this provision until six months 
after Federal regulations for this provision have been promulgated;
    (13) Provide for small operator assistance.
    (14) Provide for administrative review of State program actions, in 
accordance with section 525 of the Act and subchapter L of this chapter;
    (15) Provide for judicial review of State program actions in 
accordance with State law, as provided in section 526(e) of the Act, 
except that judicial review of State enforcement actions shall be in 
accordance with section 526 of the Act. Judicial review in accordance 
with State law shall not be construed to limit the operation of the 
rights established in section 520 of the Act, except as provided in that 
section.
    (16) Cooperate and coordinate with and provide documents and other 
information to the Office under the provisions of this chapter.
    (c) The State laws and regulations and the State program do not 
contain provisions which would interfere with or preclude implementation 
of those in the Act and this chapter.
    (d) The State regulatory authority and other agencies having a role 
in the State program have sufficient legal, technical and administrative 
personnel and sufficient funding to implement, administer and enforce 
the provisions of the program, the requirements of paragraph (b) of this 
section, and other applicable State and Federal laws.
[44 FR 15326, Mar. 13, 1979, as amended at 46 FR 53384, Oct. 28, 1981; 
47 FR 26366, June 17, 1982; 48 FR 2272, Jan. 18, 1983; 48 FR 44779, 
Sept. 30, 1983]



Sec. 732.16  Terms and conditions for State programs.

    Terms and conditions for the implementation, administration and 
operation of a State program may be established by the Director as 
necessary, including, but not limited to--
    (a) Establishing a system for regularly reporting to the Office 
information collected by the State regulatory authority in the conduct 
of the State program; and
    (b) Providing the Office with access to books and records of the 
regulatory authority upon request.
[44 FR 15326, Mar. 13, 1979]



Sec. 732.17  State program amendments.

    (a) This section applies to any alteration of an approved State 
program whether accomplished on the initiative of the State regulatory 
authority or the Director. Such alterations are referred to in this 
section as ``amendments''.
    (b) The State regulatory authority shall promptly notify the 
Director, in writing, of any significant events or proposed changes 
which affect the implementation, administration or enforcement of the 
approved State program. At a minimum, notification shall be required 
for--
    (1) Changes in the provisions, scope or objectives of the State 
program;
    (2) Changes in the authority of the regulatory authority to 
implement, administer or enforce the approved program;
    (3) Changes in the State law and regulations from those contained in 
the approved State program;
    (4) Significant changes in staffing and resources of the regulatory 
authority and divisions or departments of other agencies with duties in 
the approved program;
    (5) Changes in agreements between the regulatory authority and other 
agencies which have duties in the approved program;
    (6) Significant changes in funding or budgeting relative to the 
approved program; and
    (7) Significant changes in the number or size of coal exploration or 
surface coal mining and reclamation operations in the State.

[[Page 134]]

    (c) Within 30 days of receipt of notification, in writing, of events 
or proposed changes that may require a State program amendment, or 
whenever the Director becomes aware of conditions described in paragraph 
(e) of this section, the Director shall determine whether a State 
program amendment is required and notify the State regulatory authority 
of the decision.
    (d) The Director shall promptly notify the State regulatory 
authority of all changes in the Act and the Secretary's regulations 
which will require an amendment to the State program.
    (e) State program amendments may be required when--
    (1) As a result of changes in the Act or regulations of this 
chapter, the approved State program no longer meets the requirements of 
the Act or this chapter; or
    (2) Conditions or events change the implementation, administration 
or enforcement of the State program; or
    (3) Conditions or events indicate that the approved State program no 
longer meets the requirements of the Act or this chapter.
    (f)(1) If the Director determines that a State program amendment is 
required, the State regulatory authority shall, within 60 days after 
notification of that decision, submit to the Director either a proposed 
written amendment or a description of an amendment to be proposed that 
meets the requirements of the Act and this chapter, and a timetable for 
enactment which is consistent with established administrative or 
legislative procedures in the State.
    (2) If the State regulatory authority does not submit the proposed 
amendment or description and the timetable for enactment within 60 days 
from the receipt of the notice, or does not subsequently comply with the 
submitted timetable, or if the amendment is not approved under this 
Section, the Director shall begin proceedings under 30 CFR part 733 to 
either enforce that part of the State program affected or withdraw 
approval, in whole or in part, of the State program and implement a 
Federal program.
    (g) Whenever changes to laws or regulations that make up the 
approved State program are proposed by the State, the State shall 
immediately submit the proposed changes to the Director as an amendment. 
No such change to laws or regulations shall take effect for purposes of 
a State program until approved as an amendment.
    (h) The following procedures, time schedules and criteria for 
approval and disapproval shall apply to State program amendments.
    (1) Within ten days after receipt of a State program amendment from 
a State regulatory authority, the Director will publish a notice of 
receipt of the amendment in the Federal Register.
    (2) The Federal Register notice announcing the receipt of the 
amendment will indicate that the amendment(s) is being reviewed by the 
Director and will include the following:
    (i) The text or a summary of the amendment(s) proposed by the 
regulatory authority:
    (ii) Addresses where copies of the proposed amendment(s) may be 
obtained if the text is not included in the Federal Register notice and 
that each requestor may receive, free of charge, one single copy of 
proposed amendment(s) from the Director.
    (iii) Date(s) of public comment period(s) and addresses where public 
comments should be directed;
    (iv) Dates and locations of public hearing(s) and/or meeting(s) if 
public hearing(s) and/or meeting(s) are to be held; and
    (v) A schedule for review and action on the amendment(s).
    (3) A minimum public comment period of 30 days will be provided for 
each proposed State program amendment, except a 15 day public comment 
period may be provided where an amendment concerns changes in State law, 
regulations or the procedures contained in the approved program that are 
analogous to changes in SMCRA and/or implementing regulations: Provided, 
That the notice of receipt published in the Federal Register includes 
the full text of the proposed amendment: And provided, That all 
applicable provisions of 43 CFR part 14 are complied with.
    (4) All State program amendments which may have an effect on 
historic properties shall be provided to the State Historic Preservation 
Officer and

[[Page 135]]

to the Advisory Council on Historic Preservation for comment.
    (5) Public hearings may be provided at the discretion of the 
Director and shall be held no sooner than five days before the close of 
the public comment period. The comment period shall end on a date 
following any public hearing scheduled to be held.

Public hearing plans will be announced in the notice of receipt of the 
amendment published in the Federal Register. In determining whether to 
hold a public hearing, the Director will consider the subject of the 
amendment, its complexity and public hearing and meetings conducted by 
the State regulatory authority prior to submission of the amendment for 
OSM approval. When State regulatory authority public hearings or 
meetings are accepted in lieu of an OSM hearing, the State regulatory 
authority shall provide to the Director a complete record of any 
hearings or meetings including transcripts, written presentations, 
exhibits and copies of all comments. Hearings shall be informal and 
follow legislative procedures. The format and the rules of procedure for 
each hearing shall be determined by the Director and published in the 
notice required by paragraph (h)(1) of this section.
    (6) Upon the close of the public comment period, the transcript, 
written presentations, exhibits and copies of all comments shall be 
transmitted to the Director.
    (7) The Director shall consider all relevant information, including 
any information obtained from public hearings and comments, and shall 
approve or disapprove the amendment request within 30 days after the 
close of the public comment period established in accordance with 
Sec. 732.17(h)(3).
    (8) If the Director disapproves the amendment request, the State 
regulatory authority will have 30 days after publication of the 
Director's decision to resubmit a revised amendment request for 
consideration by the Director.
    (9) The Director will approve or disapprove amendment resubmissions 
within 30 days after receipt. There shall be a public comment period of 
not less than 15 days from the date of publication of the notice of 
receipt of the revised amendment. If the scope of the amendment has been 
expanded beyond that of the initial amendment request the Director may 
approve/disapprove portions of the initial amendment request and subject 
the remainder to review and approval procedures outlined in this 
paragraph or treat the entire amendment request as a new request and 
initiate the review procedures of this section.
    (10) The applicable criteria for approval or disapproval of State 
programs set forth in Sec. 732.15 shall be utilized by the Director in 
approving or disapproving State program amendments.
    (11) State program amendments shall not be approved until the 
Director has--
    (i) Solicited and publicly disclosed the views of the Administrator 
of the Environmental Protection Agency, the Secretary of Agriculture, 
and the heads of other Federal agencies concerned with or having special 
expertise relevant to the program amendment(s) as proposed; and
    (ii) Obtained written concurrence of the Administrator of the 
Environmental Protection Agency with respect to those aspects of a State 
program amendment(s) which relate to air or water quality standards 
promulgated under the authority of the Clean Water Act, as amended (33 
U.S.C. 1251 et seq.), and the Clean Air Act, as amended (42 U.S.C. 7401 
et seq.).
    (12) All decisions approving or disapproving program amendments 
shall be published in the Federal Register and shall be effective upon 
publication unless the notice specifies a different effective date. The 
decision approving or disapproving program amendments will be published 
in the Federal Register within 10 days after the date of the Director's 
decision.
    (13) The Director shall complete actions on amendment requests in 
accordance with the schedule developed under paragraph (h)(2)(v); 
However, final action on all amendment requests must be completed within 
six months after receipt of the proposed amendments from the State.
[44 FR 15326, Mar. 13, 1979, as amended at 46 FR 7909, Jan. 23, 1981; 47 
FR 26366 and 26367, June 17, 1982; 52 FR 4261, Feb. 10, 1987]

[[Page 136]]



PART 733--MAINTENANCE OF STATE PROGRAMS AND PROCEDURES FOR SUBSTITUTING FEDERAL ENFORCEMENT OF STATE PROGRAMS AND WITHDRAWING APPROVAL OF STATE PROGRAMS--Table of Contents




Sec.
733.1  Scope.
733.10  Information collection.
733.11  General requirements for maintaining State programs.
733.12  Procedures for substituting Federal enforcement of State 
          programs or withdrawing approval of State programs.
733.13  Factors to be considered in deciding whether to substitute 
          Federal enforcement for State programs or to withdraw approval 
          of State programs.

    Authority: Secs. 501(b), 503, 504, 517 and 521, Pub. L. 95-87 (30 
U.S.C. 1251(b), 1253, 1254, 1267 and 1271).

    Source: 44 FR 15328, Mar. 13, 1979, unless otherwise noted.



Sec. 733.1  Scope.

    This part establishes requirements for the maintenance of State 
programs and procedures for substituting Federal enforcement of State 
programs and withdrawing approval of State programs.



Sec. 733.10  Information collection.

    The information collection requirement contained in 30 CFR 
733.12(a)(2) has been approved by the Office of Management and Budget 
under 44 U.S.C. 3507 and assigned clearance number 1029-0025. The 
information required is needed by OSM to verify the allegations in a 
citizen request to evaluate a State program and to determine whether an 
evaluation should be undertaken.
[47 FR 26366, June 17, 1982]



Sec. 733.11  General requirements for maintaining State programs.

    States with an approved State program shall implement, administer, 
enforce and maintain it in accordance with the Act, this chapter and the 
provisions of the approved State program.



Sec. 733.12  Procedures for substituting Federal enforcement of State programs or withdrawing approval of State programs.

    (a) Evaluation. (1) The Director shall evaluate the administration 
of each state program at least annually.
    (2) Any interested person may request the Director to evaluate a 
State program. The request shall set forth a concise statement of the 
facts which the person believes establishes the need for evaluation. The 
Director shall verify the allegations and determine within 60 days 
whether or not the evaluation shall be made and mail a written decision 
to the requestor.
    (b) If the Director has reason to believe that a State is not 
effectively implementing, administering, maintaining or enforcing any 
part of its approved State program, the Director shall promptly notify 
the State regulatory authority in writing. The Director's notice shall--
    (1) Provide sufficient information to allow the State regulatory 
authority to determine what portions of the program the Director 
believes are not being effectively implemented, administered, 
maintained, or enforced;
    (2) State the reasons for such belief; and
    (3) Specify the time period for the State regulatory authority to 
accomplish any necessary remedial actions.
    (c) The Director shall provide the State regulatory authority an 
opportunity for an informal conference if the State requests an informal 
conference within 15 days after the expiration of the time period 
specified in paragraph (b)(3) of this section. The informal conference 
may pertain to the facts or the time period for accomplishing remedial 
actions as specified by the Director's notification.
    (d) If an informal conference is not held under paragraph (c) of 
this section, or if, following such a conference, the Director still has 
reason to believe that the State is failing to adequately implement, 
administer, maintain or enforce a part or all of a State program, the 
Director shall give notice to the State and to the public, specifying 
the basis for that belief and shall hold a public hearing in the State 
within 30

[[Page 137]]

days of the expiration of the time period specified in paragraph (b)(3) 
of this section or as modified at the informal conference held under 
paragraph (c) of this section.
    (e) The State will continue to enforce its approved program unless 
upon completion of the hearing under paragraph (d) of this section and 
based upon the review of all available information, including the 
hearing transcript, written presentations and written comments, the 
Director finds that the State has failed to implement, administer, 
maintain or enforce effectively all or part of its approved State 
program. If the Director finds further that the State has not 
demonstrated its capability and intent to administer the State program, 
the Director shall either--
    (1) Substitute for the State regulatory authority direct Federal 
enforcement of all or part of the State program in accordance with 
paragraph (f) of this section; or
    (2) Recommend to the Secretary that he or she withdraw approval of 
the State program, in whole or in part, in accordance with paragraph (g) 
of this section. The recommendation shall be accompanied by all relevant 
information and shall include the reasons for the recommendation.
    (f) Substituted Federal enforcement. (1) The Director shall give 
public notice of a finding under paragraph (e) of this section and 
specify the extent to which the Director is instituting direct Federal 
enforcement of a State program.
    (2) During the period beginning with the public notice and ending 
when the State satisfies the Director that it will enforce the State 
program effectively, the Director shall enforce those portions of the 
State program and any additional regulations that the Office has adopted 
as necessary to enable the Director to perform his or her duties. To the 
extent the Director has assumed direct Federal enforcement of the State 
program, the Director shall--
    (i) Enforce any permit condition required under the Act;
    (ii) Issue any new or revised permit pursuant to any additional 
regulation that the Director may promulgate at the time of assumed 
enforcement; and
    (iii) Conduct inspections and issue notices, orders and assessments 
of penalties as may be necessary for compliance with those permit 
conditions, the Act and the State program in accordance with subchapter 
L.
    (3) In the case of a State permittee who has met his or her 
obligations under an existing State permit and who did not willfully 
secure the issuance of that permit through fraud or collusion, the 
Director shall give the permittee a reasonable time to conform ongoing 
surface mining and reclamation operations to the requirements of the 
Act, before suspending or revoking the State permit.
    (g) Withdrawing approval of State program. (1) Upon recommending 
withdrawal of approval of a State program to the Secretary, the Director 
shall institute direct Federal enforcement in accordance with the 
requirements of paragraph (f) of this section.
    (2) Upon receipt of the Director's recommendation and accompanying 
information under paragraph (e)(2) of this section the Secretary shall 
either--
    (i) Withdraw approval of the State program in whole or in part if 
the Secretary finds that failure by the State to administer or enforce 
part or all of its State program cannot effectively be remedied by 
substitution of direct Federal enforcement for all or part of the State 
program, or
    (ii) Instruct the Director to continue direct Federal enforcement in 
accordance with paragraph (f) of this section.
    (3) The Secretary shall give public notice of a finding under 
paragraph (g)(2)(i) of this section, and specify the extent to which 
approval of a State program is being withdrawn. Not later than the 
issuance of the notice, the Director shall propose promulgation of, and 
thereafter promulgate and implement a Federal program for the affected 
State, in accordance with 30 CFR part 736.
[44 FR 15328, Mar. 13, 1979, as amended at 47 FR 26366, June 17, 1982]



Sec. 733.13  Factors to be considered in deciding whether to substitute Federal enforcement for State programs or to withdraw approval of State programs.

    The record of the State in fulfilling the conditions of the original 
approval or adjusting to new circumstances, in

[[Page 138]]

accordance with requirements of the Act and this chapter, the hearings 
transcripts, written presentations and comments shall be considered in 
evaluating the maintenance, administration, or enforcement of a State 
program for purposes of determining whether to substitute direct Federal 
enforcement of the State program or to withdraw approval of part or all 
of the program.
[44 FR 15328, Mar. 13, 1979, as amended at 47 FR 26366, June 17, 1982]



PART 735--GRANTS FOR PROGRAM DEVELOPMENT AND ADMINISTRATION AND ENFORCEMENT--Table of Contents




Sec.
735.1  Scope.
735.2  Objectives.
735.3  Authority.
735.4  Responsibility.
735.5  Definitions.
735.10  Information collection.
735.11  Eligibility for program development grants.
735.12  Eligibility for administration and enforcement grants.
735.13  Submission of estimated annual budgets and allocation of funds.
735.14  Coverage of grants.
735.15  Amount of grants.
735.16  Special provisions for States with cooperative agreements.
735.17  Grant periods.
735.18  Grant application procedures.
735.19  Grant agreement.
735.20  Grant amendments.
735.21  Grant reduction and termination.
735.22  Audit.
735.23  Administrative procedures.
735.24  Allowable costs.
735.25  Financial management.
735.26  Reports.
735.27  Records.
735.28  Disclosure of information.

    Authority: Secs. 201, 501, and 502, Pub. L. 95-87, 91 Stat. 445 (30 
U.S.C. 1201).

    Source: 42 FR 62706, Dec. 13, 1977, unless otherwise noted. 
Redesignated at 44 FR 15312, Mar. 13, 1979.



Sec. 735.1  Scope.

    This part sets forth policies and procedures for grants to States 
to--
    (a) Develop State programs for the regulation and control of surface 
coal mining and reclamation operations;
    (b) Administer and enforce State programs for the regulation and 
control of surface coal mining and reclamation operations; and
    (c) Administer cooperative agreements for State regulation of 
surface coal mining and reclamation operations on Federal lands.
    (d) Fund the Small Operator Assistance Program established under 
Section 507(c) of the Surface Mining Control and Reclamation Act of 1977 
(30 U.S.C. 1201) and described in part 795 of this chapter.
[42 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979 
and amended at 47 FR 38491, Aug. 31, 1982]



Sec. 735.2  Objectives.

    The objectives of assistance under this part are--
    (a) To assist the States in meeting the costs of administering 
reclamation and enforcement programs consistent with the Act;
    (b) To encourage the States to build strong reclamation and 
enforcement programs; and
    (c) To encourage the States to assume jurisdiction over the 
regulation of surface coal mining and reclamation operations.



Sec. 735.3  Authority.

    Section 705 of the Surface Mining Control and Reclamation Act of 
1977 (30 U.S.C. 1201) authorizes the Secretary to make grants to States 
for developing, administering, and enforcing State regulatory programs.



Sec. 735.4  Responsibility.

    (a) The Director shall administer the State grant program for the 
development, administration, and enforcement of State programs under 
this part.
    (b) The Director or his authorized designee shall receive, review 
and approve grant applications under this part.
[42 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979, 
and amended at 47 FR 38491, Aug. 31, 1982]



Sec. 735.5  Definitions.

    As used in this part, agency means the State agency designated by 
the Governor to receive and administer grants under this part.

[[Page 139]]



Sec. 735.10  Information collection.

    (a) The information collection and retention requirements in 30 CFR 
735.13 (a) and (b), 735.16(e), 735.18, 735.26 and 735.27 were approved 
by the Office of Management and Budget (OMB) under 44 U.S.C. 3507 and 
assigned clearance numbers for Secs. 735.13 (a) and (b); SF 424, 1029-
0016; OSM 50-A, 1029-0079; OSM 50-B, 1029-0078; OSM-47, 1029-0064; OSM-
48, 1029-0070; OSM-51, 1029-0072; OSM-51A, 1029-0074; OSM-51B, 1029-
0075; OSM-51C, 1029-0069; for Sections 735.16(e) and 735.18; SF 269, 
1029-0017; OSM-51, 1029-0072; SF 271, 1029-0073; OSM-51A, 1029-0074; 
OSM-51B, 1029-0075; OSM-51C, 1029-0069; OSM-60, 1029-0076; OSM-62, 1029-
0077; and OSM-63, 1029-0068; for Section 735.26; and Section 735.27 
which was included in the above clearance numbers.
    (b) The information required by 30 CFR part 735 will be used by 
OSM's Headquarters and State offices in administering, evaluating and 
auditing its State reimbursement grants for program development and 
administration and enforcement to insure that the requirements of OMB 
Circular A-102 and the Surface Mining Control and Reclamation Act are 
met. The information required by 30 CFR part 735 is mandatory.
[47 FR 38491, Aug. 31, 1982]



Sec. 735.11  Eligibility for program development grants.

    (a) Designation of State agency. In order to receive a program 
development grant the Governor of a State shall designate in writing to 
the Director one agency to submit the grant applications, and to receive 
and administer the grants.
    (b) Periods covered by program development grants. (1) An agency may 
apply for a program development grant for any period for which it does 
not have an approved State program. This is limited to periods during--
    (i) The initial development of a State program;
    (ii) The revision of a State program which has been disapproved by 
the Secretary; and
    (iii) The revision of a State program from which the Secretary has 
withdrawn his approval.
    (2) The Director shall limit grants for (b)(1) (ii) and (iii) of 
this paragraph to the costs of making revisions necessary to secure 
approval of the State programs.
    (3) The Director shall not approve grants for costs incurred prior 
to August 3, 1977.

(Secs. 201, 501, 503, 705, Pub. L. 95-87, 91 Stat. 450, 467, 470, 520, 
(30 U.S.C. 1211, 1251, 1253, 1295))

[42 FR 62706, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1977. Redesignated at 
44 FR 15312, Mar. 13, 1979, and amended at 45 FR 2804, Jan 14, 1980]



Sec. 735.12  Eligibility for administration and enforcement grants.

    (a) Approved program required. In order to receive a grant to 
administer and enforce a State program, the State must have an approved 
State regulatory program.
    (b) Designation of a State agency. In order to receive a grant to 
administer and enforce a State program, the Governor must designate a 
single agency to receive and administer administration and enforcement 
grants, including cooperative agreement grants described in Sec. 735.16 
of this part.
    (c) Nondiscrimination. The agency shall monitor the compliance 
activity of its subrecipients with respect to the nondiscrimination 
provisions in Sec. 735.21(a)(4) of this part.



Sec. 735.13  Submission of estimated annual budgets and allocation of funds.

    (a) Budget summaries for Federal budget. For each fiscal year, the 
agency shall submit to the Director or his authorized designee 18 months 
prior to the Federal fiscal year for which the grant will be requested, 
a projection of its program budget (personnel and fringe benefits, 
travel, equipment and supplies, contractual, indirect charges, and 
other), including the costs of administering State-Federal cooperative 
agreements pursuant to Sec. 211.75 of this title, and any aircraft which 
the agency proposes to acquire. The Director will use these budget 
summaries in preparing the Federal budget estimates which he is required 
to submit.
    (b) Updated budget summary. For each fiscal year, the agency shall 
submit to the Director or his authorized

[[Page 140]]

designee a current program budget (personnel and fringe benefits, 
travel, equipment and supplies, contractual, indirect charges, and 
other) three months prior to the beginning of the Federal fiscal year 
for which a grant will be requested.
    (c) Allocation of funds. (1) The Director shall allocate to the 
agencies the full amount requested and approved in the States' revised 
or actual budgets provided that the amount available in the Federal 
budget is sufficient.
    (2) If the funds available for grants are insufficient to cover the 
total grant needs, including cooperative agreement grants, the Director 
shall allocate the funds available according to the proportion of each 
requested and approved agency's budget to the total of all agencies' 
requested and approved budgets.
    (3) Allocation of a specific amount of funds to an agency does not 
assure that grants for that amount will be approved. Each agency must 
apply for and secure approval of grants in accordance with the 
requirements of this part.
    (4) The Director shall reallocate any funds which are not requested 
by agencies as of June 1 of that year. Such funds shall be allocated 
primarily to those agencies which have received less than the allowable 
percentage of their eligible costs.
    (5) Agencies which are allocated such additional funds may submit 
new or revised grant applications for the additional amounts on or 
before August 15, of that year.
[42 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979, 
and amended at 47 FR 38491, Aug. 31, 1982]



Sec. 735.14  Coverage of grants.

    (a) Program development grants. An agency may use grant money under 
this part to cover the costs of developing--
    (1) New or revised State laws, regulations, and procedures;
    (2) Revised or expanded inspection systems;
    (3) Training programs for inspectors and other personnel;
    (4) New or revised organizational structures;
    (5) Information and communications systems, including data 
processing systems;
    (6) A planning process including a data base and information system 
to receive and act upon petitions to designate lands unsuitable for 
mining;
    (7) An application for the initial administration and enforcement 
grant to the extent not covered by indirect costs or other cost items;
    (8) Other components necessary to obtain an approved State program, 
as mutually agreed upon by the Director or his authorized designee and 
the agency receiving a grant.
    (b) Administration and enforcement grants. An agency may use grant 
money under this part to cover the costs of--
    (1) Administering an approved State regulatory program;
    (2) Providing supporting and administrative services required by the 
State regulatory program;
    (3) Providing equipment required for the regulatory program and its 
support, either through use charges or direct purchase. Equipment 
charges and purchases will be allowed in accordance with Federal 
Management Circular 74-4, ``Cost principles applicable to grants and 
contracts with State and local governments,'' (34 CFR part 255) and 
Office of Management and Budget Circular No. A-102, ``Uniform 
administrative requirements for grants-in-aid to State and local 
governments'' (42 FR 45828).



Sec. 735.15  Amount of grants.

    (a) Amount of program development grants. (1) For the first year of 
a program development grant the Director or his authorized designee 
shall approve grants for not more than 80 percent of the total of agreed 
upon costs pursuant to Sec. 735.14(a).
    (2) For the second year of a program development grant the Director 
or his authorized designee shall approve grants for not more than 60 
percent of the total agreed upon costs pursuant to Sec. 735.14(a).
    (3) For the third year and each following year of a program 
development grant the Director or his authorized designee shall approve 
grants for not more than 50 percent of the total

[[Page 141]]

agreed upon costs pursuant to Sec. 735.14(a).
    (b) Amount of administration and enforcement grants. (1) If no 
program development grant has been awarded, the Director or his 
authorized designee may approve the first administration and enforcement 
grant for not more than 80 percent of the agreed upon costs for 
administration and enforcement of the program.
    (2) If a program development grant has been awarded for only 1 year, 
the Director or his authorized designee may approve an administration 
and enforcement grant for 60 percent of the agreed upon costs for 
administration and enforcement of the program.
    (3) If a program development grant has been awarded for more than 1 
year but less than 2 years, the Director or his authorized designee may 
approve the first administration and enforcement grant for 60 percent 
for that proportion remaining in the second year and for 50 percent for 
the proportion allocated to the third year.
    (4) For the third and following years, the Director or his 
authorized designee may approve administration and enforcement grants 
for 50 percent of the agreed upon costs for administration and 
enforcement of the program.

(Secs. 201, 501, 503, 705, Pub. L. 95-87, 91 Stat. 450, 467, 470, 520 
(30 U.S.C. 1211, 1251, 1253, 1295))

[42 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979, 
and amended at 45 FR 2804, Jan. 14, 1980]



Sec. 735.16  Special provisions for States with cooperative agreements.

    (a) Eligibility. The Director may approve additional grants to 
States which have cooperative agreements pursuant to Sec. 211.75 of this 
title for State regulation of surface coal mining and reclamation 
operations on Federal lands. This includes--
    (1) States which had cooperative agreements on August 3, 1977, which 
have been modified to comply with the initial regulatory program; and
    (2) States which enter into cooperative agreements following 
approval of the State's regulatory program.
    (b) Coverage of grants. An agency may use cooperative agreement 
grants to carry out the functions assigned to the State under the 
agreement.
    (c) Amounts of grants. The Director or his authorized designee may 
approve grants for the approximate amount which he determines the 
Federal Government would have expended for regulation of coal mining on 
the Federal lands being regulated by the State, except that no grant may 
exceed the actual costs to the State.
    (d) Grant periods. The Director or his authorized designee shall 
normally approve a grant for a period of one year or less. Consecutive 
grants shall be awarded to fund approved programs.
    (e) Application procedures. (1) States with cooperative agreements 
in effect on August 3, 1977, may apply for cooperative agreement grants 
using the procedures set forth in Sec. 735.18 (a), (b) and (d).
    (2) States with cooperative agreements established in conjunction 
with approved State regulatory programs may apply for cooperative 
agreement grants by including a supplement to an annual administration 
and enforcement grant application submitted according to Sec. 735.18. 
The State shall include in the supplemental section:
    (i) A separate budget summary for the costs of the cooperative 
agreement in the format specified by OSM; and
    (ii) A separate narrative, in the format specified by OSM, 
describing the specific activities required by the cooperative agreement 
for the period for which the grant is requested.
    (f) Other requirements. The procedures and requirements set forth in 
Secs. 735.17 through 735.26 are applicable to cooperative agreement 
grants.
[42 FR 62706, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1977. Redesignated at 
44 FR 15312, Mar. 13, 1979, and amended at 47 FR 38491, Aug. 31, 1982]



Sec. 735.17  Grant periods.

    The Director or his authorized designee shall normally approve a 
grant for a period of one year or less. Consecutive grants shall be 
awarded to fund approved programs.
[47 FR 38491, Aug. 31, 1982]

[[Page 142]]



Sec. 735.18  Grant application procedures.

    (a) The agency shall submit its application (three copies) to the 
Director or his authorized designee at least sixty days prior to the 
beginning of the intended grant period, or as soon thereafter as 
possible.
    (b) The agency shall use the application forms and procedures 
specified by OSM in accordance with Office of Management and Budget 
Circular No. A-102. No pre-application is required. Each application 
must include the following:
    (1) Part I, Application Form Coversheet, SF 424.
    (2) Part II, Project Approval Information.
    (i) For non-construction grants use Form OSM-50A, Project Approval 
Information--Section A.
    (ii) For construction grants use Form OSM-50A, Project Approval 
Information--Section A, and Form OSM-50B, Project Approval Information--
Section B.
    (3) Part III, Budget Information.
    (i) For non-construction grants use Form OSM-47, Budget Information 
Report, with a narrative explanation of computations.
    (ii) For construction grants use Form OSM-48, Budget Information--
Construction, with a narrative explanation of computations.
    (4) Part IV, Program Narrative Statement, Form OSM-51, providing the 
narrative for the goals to be achieved for both construction and non-
construction grants.
    (i) Form OSM-51 is supplemented by completion of Column 5A of Forms 
OSM-51A and OSM-51B which reports the quantitative Program Management 
information of the Administration and Enforcement grants.
    (ii) Form OSM-51 is supplemented by completion of Column 5A of Form 
OSM-51C which reports the quantitative Program Management information of 
the Small Operator Assistance Program Administration and Operational 
grant.
    (5) Part V, The standard assurances for non-construction activities 
or construction activities as specified in Office of Management and 
Budget Circular No. A-102, Attachment M.
    (c) For program development grant applications, agencies shall 
include:
    (1) An analysis and evaluation of the current State laws and changes 
required therein to conform to the requirements of the Surface Mining 
Control and Reclamation Act of 1977, unless previously submitted under 
part 725;
    (2) A description of the changes expected to be requiredin State 
regulations, organization, staffing, training and other policies and 
operations in order to develop a State program which can be approved; 
and
    (3) A program to develop the legislation, regulations, procedures, 
organization, staffing, training materials, and other program elements 
necessary to obtain program approval.
    (d) For administration and enforcement grants and cooperative 
agreement grants, agencies shall include:
    (1) A description of the specific operations in the approved program 
which will be implemented during the period for which the grant is 
requested.
    (2) A description and justification of any major equipment 
(equipment with a unit acquisition cost of $500 or more and having a 
life of more than two years) which the agency proposes to acquire with 
the grant.
    (e) The Director or his authorized designee shall notify the agency 
within thirty days after the receipt of a complete application, or as 
soon thereafter as possible, whether it is or is not approved. If the 
application is not approved, the Director or his authorized designee 
shall set forth in writing the reasons for disapproval and may propose 
modifications if appropriate. The agency may resubmit the application. 
The Director or his authorized designee shall process the revised 
application as an original application.
[47 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979, 
and amended at 47 FR 38492, Aug. 31, 1982]



Sec. 735.19  Grant agreement.

    (a) If the Director or his authorized designee approves an agency's 
grant application, the Director or his authorized designee shall prepare 
a grant agreement which includes--
    (1) The approved scope of the program to be covered by the grant;

[[Page 143]]

    (2) The approved budget, including the Federal share;
    (3) Commencement and completion dates for the segment of the program 
covered by the grant and for major phases of the program to be completed 
during the grant period; and
    (4) Permissible transfers of funds to other State agencies.
    (b) The Director or his authorized designee may permit an agency to 
assign functions and funds to other State agencies. The Director or his 
authorized designee shall require the grantee agency to retain 
responsibility for overall administration of the grant, including use of 
funds, accomplishment of functions and reporting.
    (c) Pre-agreement costs for program development grants shall be 
allowed only as specified in the grant agreement.
    (d) The Director or his authorized designee shall transmit four 
copies of the grant agreement by certified mail, return receipt 
requested, to the agency for signature. The agency shall execute the 
grant agreement and return all copies of it within 3 calendar weeks 
after receipt, or within an extension of such time that may be granted 
by the Director or his authorized designee.
    (e) The Director or his authorized designee shall sign the grant 
agreement upon its return from the agency and return one copy to the 
agency. The grant is effective and constitutes an obligation of Federal 
funds in the amount and for the purposes stated in the grant agreement 
at the time the Director or his authorized designee signs the agreement.
    (f) Neither the approval of a program nor the award of any grant 
will commit or obligate the United States to award any continuation 
grant or enter into any grant amendment, including grant increases to 
cover cost overruns.



Sec. 735.20  Grant amendments.

    (a) A grant amendment is a written alteration in the grant amount, 
grant terms or conditions, budget or period, or other administrative, 
technical, or financial agreement whether accomplished on the initiative 
of the agency or the Director or his authorized designee, or by mutual 
action of the agency and the Director or his authorized designee.
    (b) The agency shall promptly notify the Director or his authorized 
designee in writing of events or proposed changes which may require a 
grant amendment, such as--
    (1) Rebudgeting;
    (2) Changes which may affect the approved scope or objective of a 
program; or
    (3) Changes which may increase or substantially decrease the total 
cost of a program.
    (c) The Director or his authorized designee shall approve or 
disapprove each proposed amendment within thirty days of receipt, or as 
soon thereafter as possible, and shall notify the agency in writing of 
the approval or disapproval of the amendment.
    (d) The date the Director or his authorized designee signs the grant 
amendment establishes the effective date of the action. If no time 
period is specified in the grant amendment, then the amendment applies 
to the entire grant period.
[42 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979, 
and amended at 47 FR 38492, Aug. 31, 1982]



Sec. 735.21  Grant reduction and termination.

    (a) Conditions for reduction or termination. (1) If an agency 
violates the terms of a grant agreement, the Director or his authorized 
designee may reduce or terminate the grant.
    (2) If an agency fails to implement, enforce or maintain an approved 
program, or cooperative agreement, the Director or his authorized 
designee shall terminate the administration and enforcement grant or 
cooperative agreement grant.
    (3) If an agency fails to implement, enforce or maintain only a part 
of the program, the Director or his authorized designee shall reduce the 
grant to the amount of the program being operated by the agency.
    (4) If an agency is not in compliance with the following 
nondiscrimination provisions, the Director or his authorized designee 
shall terminate the grant--
    (i) Title VI of the Civil Rights Act of 1964 (78 Stat. 252). 
Nondiscrimination in

[[Page 144]]

Federally Assisted Programs, which provides that no person in the United 
States shall on the grounds of race, color or national origin be 
excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under any program or activity receiving 
Federal financial assistance, and the implementing regulations at 43 CFR 
part 17.
    (ii) Executive Order 11246, as amended by Executive Order 11375, 
Equal Employment Opportunity, requiring that employees or applicants for 
employment not be discriminated against because of race, creed, color, 
sex, or national origin, and the implementing regulations at 41 CFR part 
60.
    (iii) Section 504 of the Rehabilitation Act of 1973, as amended by 
Executive Order 11914, Nondiscrimination With Respect to the Handicapped 
in Federally Assisted Programs.
    (5) If an agency fails to enforce the financial interest provisions 
of part 706 of this chapter the Director shall terminate the grant.
    (6) If an agency fails to submit reports required by this part or 
part 705 of this chapter the Director shall reduce or terminate the 
grant.
    (b) Grant reduction and termination procedures. (1) The Director or 
his authorized designee shall give at least 10 days written notice to 
the agency by certified mail, return receipt requested, of intent to 
reduce or terminate a grant. The Director or his authorized designee 
shall include in the notice the reasons for the proposed action and the 
proposed effective date of the action.
    (2) The Director or his authorized designee shall afford the agency 
opportunity for consultation and remedial action prior to reducing or 
terminating a grant.
    (3) The Director or his authorized designee shall notify the agency 
of the termination or reduction of the grant in writing by certified 
mail, return receipt requested.
    (4) Upon termination the agency shall refund or credit to the United 
States that portion of the grant money paid or owed to the agency and 
allocated to the terminated portion of the grant. However any portion of 
the grant that is required to meet commitments made prior to the 
effective date of termination shall be retained by the agency.
    (5) The agency shall reduce the amount of outstanding commitments 
insofar as possible and report to the Director or his authorized 
designee the uncommitted balance of funds awarded under the grant.
    (6) Upon notification of intent to terminate the agency shall not 
make any new commitments without the approval of the Director or his 
authorized designee.
    (7) The Director or his authorized designee may allow termination 
costs as determined by applicable Federal cost principles listed in 
Federal Management Circular 74-4.
    (c) Appeals. (1) An agency may appeal the Director or his authorized 
designee's decision to reduce or terminate a grant to the Director 
within 30 days of the Director or his authorized designee's decision.
    (2) An agency shall include in an appeal--
    (i) The decision being appealed, and
    (ii) The facts which the agency believes justify a reversal or 
modification of the decision.
    (3) The Director shall act upon appeals within 30 days of their 
receipt, or as soon thereafter as possible.
[58 FR 41938, Aug. 5, 1993]



Sec. 735.22  Audit.

    The agency shall arrange for an independent audit no less frequently 
than once every two years, pursuant to the requirements of Office of 
Management and Budget Circular No. A-102, Attachment P. The audits will 
be performed in accordance with the ``Standards for Audit of 
Governmental Organizations, Programs, Activities, and Functions'' and 
the ``Guidelines for Financial and Compliance Audits of Federally 
Assisted Programs'' published by the Comptroller General of the United 
States and guidance provided by the cognizant Federal audit agency.
[47 FR 38492, Aug. 31, 1982]



Sec. 735.23  Administrative procedures.

    The agency shall follow administrative procedures governing 
accounting,

[[Page 145]]

payment, property and related requirements contained in Office of 
Management and Budget Circular No. A-102.



Sec. 735.24  Allowable costs.

    The Director or his authorized designee shall determine costs which 
may be reimbursed according to Office of Management and Budget Circular 
No. A-87.
[47 FR 38492, Aug. 31, 1982]



Sec. 735.25  Financial management.

    (a) The agency shall account for grant funds in accordance with the 
requirements of Office of Management and Budget Circular No. A-102. 
Agencies shall use generally accepted accounting principles and 
practices, consistently applied. Accounting for grant funds must be 
accurate and current.
    (b) The agency shall adequately safeguard all funds, property, and 
other assets and shall assure that they are used solely for authorized 
purposes.
    (c) The agency shall provide a comparison of actual amounts spent 
with budgeted amounts for each grant.
    (d) When advances are made by a letter-of-credit method, the agency 
shall make drawdowns from the U.S. Treasury through its commerical bank 
as closely as possible to the time of making the disbursements.
    (e) The agency shall support accounting records by source 
documentation.
    (f) The agency shall design a systematic method to assure timely and 
appropriate resolution of audit findings and recommendations.



Sec. 735.26  Reports.

    (a) The agency shall, for each grant made under this part, submit 
semiannually to the Director or his authorized designee a Financial 
Status Report, Form 269 for non-construction grant activities in 
accordance with Office of Management and Budget Circular No. A-102, 
Attachment H and OSM requirements. This report shall be accompanied by a 
Performance Report, Form OSM-51 comparing actual accomplishments to the 
goals established for the period, prepared according to Attachment I of 
OMB Circular No. A-102 and OSM requirements. The agency shall also 
submit semiannually a separate Outlay Report and Request for 
Reimbursement for Construction Programs, Form 271, and accompanying 
narrative performance report comparing actual accomplishments with 
planned goals on grant funded construction activities.
    (b) The Director or his authorized designee shall require through 
the grant agreement that semiannual reports describe the relationship of 
financial information to performance and productivity data, including 
unit cost information. This quantitative information will be reported on 
Forms OSM-51A and OSM-51B or OSM-51C, Quantitative Program Management 
Information, as applicable.
    (c) The Director or his authorized designee shall require that when 
a grant is closed out in accordance with Attachment L to Office of 
Management and Budget Circular No. A-102, the following actions are 
taken:
    (1) The grantee shall account for any property acquired with grant 
funds or received from the Government in accordance with the provisions 
of Attachment N to Office of Management and Budget Circular No. A-102. 
This may be accomplished by the submission of the Report of Government 
Property, Form OSM-60.
    (2) The grantee shall submit a final financial report and thus 
release OSM from obligations under each grant or cooperative agreement 
that is being closed out.
[47 FR 38492, Aug. 31, 1982]



Sec. 735.27  Records.

    (a) The agency shall maintain complete records in accordance with 
Office of Management and Budget Circular No. A-102. This includes books, 
documents, maps, and other evidence and accounting procedures and 
practices, sufficient to reflect properly--
    (1) The amount, receipt, and disposition by the agency of all 
assistance received for the program.
    (2) The total costs of the program, including all direct and 
indirect costs of whatever nature incurred for the performance of the 
program for which the grant has been awarded.
    (b) Subgrantees and contractors, including contractors for 
professional

[[Page 146]]

services, shall maintain books, documents, papers, maps, and records 
which are pertinent to specific grant award.
    (c) The agency's records and the records of its subgrantees and 
contractors, including professional services contracts, shall be subject 
at all reasonable times to inspection, reproduction, copying, and audit 
by the Office, the Department of the Interior, the Comptroller General 
of the United States, the Department of Labor or any authorized 
representative.
    (d) For completed or terminated grants the agency, subgrantees, and 
contractors shall preserve and make their records available to the 
Office, the Department of the Interior, the Comptroller General of the 
United States, Department of Labor, or any authorized representative 
pursuant to OMB Circular No. A-102.



Sec. 735.28  Disclosure of information.

    All grant applications received by the Director or his authorized 
designee constitute agency records. As such, their release may be 
requested by any member of the public under the Freedom of Information 
Act, 5 U.S.C. 552, and shall be disclosed unless exempt from disclosure 
under 5 U.S.C. 552(b).



PART 736--FEDERAL PROGRAM FOR A STATE--Table of Contents




Sec.
736.1  Scope.
736.11  General procedural requirements.
736.12  Notice, comment and hearing procedures.
736.13  [Reserved]
736.14  Director's decision.
736.15  Implementation, enforcement, and maintenance of a Federal 
          program.
736.16  Federal program termination procedures.
736.17  Consolidation of procedures.
736.21  General requirements of a Federal program.
736.22  Contents of a Federal program.
736.23  Federal program effect on State law or regulations.
736.24  Federal program effect on State funding.
736.25  Permit fees.

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

    Source: 44 FR 15329, Mar. 13, 1979, unless otherwise noted.



Sec. 736.1  Scope.

    This part establishes standards and procedures for the promulgation, 
implementation, maintenance, administration, revision and termination of 
a Federal program for a State for coal exploration and surface coal 
mining and reclamation operations on non-Federal and non-Indian lands 
within that State.



Sec. 736.11  General procedural requirements.

    (a) Promulgation. (1) The Director shall promulgate and, subject to 
the provisions of this part, implement a Federal program for a State if 
the Director reasonably expects coal exploration or surface coal mining 
and reclamation operations to exist on non-Federal and non-Indian lands 
within the State at any time before June 1985, and the State fails to--
    (i) Submit a State program for regulation of coal exploration and 
surface coal mining and reclamation operations on non-Federal and non-
Indian lands within that State to the Director as provided in 30 CFR 
731.12; or
    (ii) Resubmit an acceptable State program within 60 days of a notice 
of disapproval of a State program pursuant to Sec. 732.13(f). The 
Director shall not promulgate a Federal program before the expiration of 
the initial period allowed for submission of a State program, as 
provided in Sec. 731.12.
    (2) The Director shall promulgate a complete Federal program for a 
State upon the withdrawal of approval of an entire State program under 
Sec. 733.12.
    (3) The Director shall promulgate a partial Federal program for a 
State upon the withdrawal of approval of part of a State program under 
30 CFR part 733.
    (b) Revision. The Director may revise a Federal program for a State, 
if necessary to further the purposes of the Act and the regulations 
adopted under the Act.
    (c) Termination. The Director shall terminate appropriate portions 
of a Federal program for a State, upon approval of a State program under 
30 CFR parts 731 and 732 that replaces a

[[Page 147]]

complete or partial Federal program for that State.
[44 FR 15329, Mar. 13, 1979, as amended at 47 FR 26367, June 17, 1982]



Sec. 736.12  Notice, comment and hearing procedures.

    Prior to the promulgation or revision of a Federal program for a 
State, OSMRE shall:
    (a) Federal Register notice. Publish in the Federal Register a 
notice which:
    (1) Includes the basis, purpose and substance of the proposed 
Federal program or revision;
    (2) Offers any person an opportunity to submit written comments on 
the proposed Federal program or revision for a period to end no less 
than 30 days after the date of the notice;
    (3) Offers to hold a public hearing on the proposed Federal program 
or revision in the affected State during the comment period if requested 
by any person;
    (4) Gives the address of an appropriate place where any person, 
during normal business hours, may inspect and copy a copy of the 
administrative record for the proposed Federal program or revision;
    (5) For an indirect revision of a Federal program, states that the 
affected provision of the permanent program is cross-referenced by the 
Federal program, and thus that the proposed permanent program revision 
also would revise the Federal program;
    (b) Newspaper notice. For the initial promulgation of a Federal 
program for a State, publish in a newspaper of general circulation in 
the coal mining area of the affected State a notice concerning the 
proposed rulemaking which includes the information required by paragraph 
(a) of this section, except that for the substance of the proposed 
Federal program or revision OSMRE may substitute a brief description; 
and
    (c) Federal agency comment. As appropriate, solicit comments from 
the Administrator of the Environmental Protection Agency, the Secretary 
of Agriculture, and the heads of other Federal agencies concerned with 
or having special expertise relevant to the proposed Federal program or 
revision.
[52 FR 39407, Oct. 21, 1987]



Sec. 736.13  [Reserved]



Sec. 736.14  Director's decision.

    (a) After considering all relevant information received under 
Sec. 736.12 of this part, the Director shall decide whether to 
promulgate or revise a Federal program for the State.
    (b) The Director shall publish the decision in the Federal Register, 
including a statement of the basis and purpose for the decision, the 
regulations of the Federal program for the State or revision thereof, 
and the effective date of the program or revision.
[44 FR 15329, Mar. 13, 1979, as amended at 52 FR 39408, Oct. 21, 1987]



Sec. 736.15  Implementation, enforcement, and maintenance of a Federal program.

    (a) The Director shall implement, administer, enforce, and maintain 
a Federal program or any revision thereto not later than 30 days after a 
Federal program is promulgated or revised.
    (b)(1) Except as provided in pargraph (b)(2) of this section, the 
Director shall implement the procedures and criteria of a Federal 
program for a State for designating lands unsuitable for all or certain 
types of surface coal mining one year after a Federal program is made 
effective for a State.
    (2) When a complete or partial Federal program is promulgated 
because of a State's failure to implement, maintain, or enforce 
adequately all or a part of its State program, all applicable portions 
of the Federal program for the State under this part shall be effective 
immediately upon implementation of the Federal program.
[48 FR 41348, Sept. 14, 1983]



Sec. 736.16  Federal program termination procedures.

    Termination of a Federal program shall be accomplished at the same 
time and through the procedures for approval of a State program under 30 
CFR part 732. No Federal program shall be considered terminated until a 
State program has been approved by the Secretary in accordance with 30 
CFR part 732.

[[Page 148]]



Sec. 736.17  Consolidation of procedures.

    The Director may consolidate public notices, hearings, opportunity 
for public comment and decisions on the promulgation, revision or 
termination of a Federal program for a State under this part, with 
public notices, opportunity for public comment and hearings on the 
approval, disapproval or withdrawal of a State program under 30 CFR 
parts 732 through 733.



Sec. 736.21  General requirements of a Federal program.

    (a) Any complete Federal program promulgated or revised by the 
Director shall include the contents identified in 30 CFR 736.22.
    (b) Any partial Federal program shall include all of the contents 
identified in 30 CFR 736.22 to the extent that those aspects of coal 
exploration and surface coal mining and reclamation operations within 
the State are to be regulated by the Director under the partial program 
and are not to be regulated under the remainder of the State program 
that continues in effect.



Sec. 736.22  Contents of a Federal program.

    (a) In promulgating or revising any Federal program for a State, the 
Director shall--
    (1) Consider the nature of that State's soils, topography, climate, 
and biological, chemical, geological, hydrological, agronomic, and other 
relevant physical conditions;
    (2) Include any provisions that are necessary to implement the 
requirements of the Endangered Species Act of 1973, as amended (16 
U.S.C. 531 et seq.), the Fish and Wildlife Coordination Act, as amended 
(16 U.S.C. 661-666c), the National Historic and Preservation Act of 1966 
(16 U.S.C. 470), the Archaeological and Historic Preservation Act of 
1974 (16 U.S.C. 469a), and other relevant Federal laws imposing duties 
upon the Secretary; and
    (3) Include, if required pursuant to 30 CFR 736.23, any performance 
standards for the regulation of coal exploration and surface coal mining 
and reclamation operations more stringent than those otherwise provided 
for by this chapter and the Act.
    (b)(1) Any Federal program for a State, including appropriate 
portions of a partial Federal program which is promulgated or revised by 
the Director, shall provide for Federal regulation of coal exploration 
and surface coal mining and reclamation operations on non-Federal and 
non-Indian lands within the State in accordance with the requirements of 
the Act and this Chapter, including, at a minimum, the following 
provisions: Parts 700, 701, 707, 761, 762, 764, 842, 843, 845, 
subchapters G, J, K, and M.
    (2) An exception to these requirements may be made where there is 
exploration but no mining in the State. In such a case, the Federal 
program which is promulgated must regulate coal exploration, but not 
mining, and shall include, at a minimum, the applicable sections of the 
following provisions: Parts 700, 701, 761, 762, 764, 772, 773, 775, 815, 
842, 843 and 845.
    (c) For the purpose of avoiding duplication, the Federal program 
shall include a process for coordinating the review and issuance of 
permits for surface coal mining and reclamation operations under the 
Federal program with any other Federal, State, or local planning or 
permit process applicable to the operations in the jurisdiction 
involved, including, but not limited to--
    (1) The Clean Air Act, as amended (42 U.S.C. 7401 et seq.); Clean 
Water Act, as amended (30 U.S.C. 1251 et seq.); Resource Conservation 
and Recovery Act (42 U.S.C. 3251 et seq.); and
    (2) Plans approved by the Administrator of the U.S. Environmental 
Protection Agency under sections 208 or 303(c) of the Clean Water Act, 
as amended (33 U.S.C. 1288, 1313(c)).
[44 FR 15329, Mar. 13, 1979, as amended at 47 FR 26367, June 17, 1982; 
48 FR 44779, Sept. 30, 1983]



Sec. 736.23  Federal program effect on State law or regulations.

    (a) Whenever a Federal program is promulgated or revised for a 
State, any statutes or regulations of the State regulating coal 
exploration or surface coal mining and reclamation operations subject to 
the Act shall be preempted and superseded by the Federal program insofar 
as they are inconsistent with the requirements of the Act

[[Page 149]]

and the Federal program. In promulgating or revising a Federal program 
for a State, the Director shall set forth in the Federal Register any 
State statute or regulation which is preempted and superseded by the 
Federal program.
    (b) The provision of any State statute or regulation which provides 
for more stringent land use and environmental control and regulation of 
coal exploration or surface coal mining and reclamation operations than 
do the provisions of the Act or any regulation issued under the Act 
shall not be preempted and superseded by the Director and shall be 
incorporated into the Federal program for the State.
[44 FR 15329, Mar. 13, 1979, as amended at 47 FR 26367, June 17, 1982]



Sec. 736.24  Federal program effect on State funding.

    (a) After the withdrawal of a State program and the promulgation and 
implementation of a complete Federal program for a State and extending 
until approval of a new State program, the Director shall not--
    (1) Approve, fund or continue to fund a State abandoned mine 
reclamation program, under section 405(c) of the Act and 30 CFR 884.14, 
884.15, 884.16 and 886.18; or,
    (2) Make any grants to assist the State in administering and 
enforcing State programs under the Act and 30 CFR 735.11 and 735.12.
    (b) After the withdrawal of a State program in part and the 
promulgation and implementation of a partial Federal program for a State 
and extending until the approval of a complete State program the 
Director shall not--
    (1) Approve, fund or continue to fund a State abandoned mine 
reclamation program, under section 405(c) of the Act and 30 CFR 884.14, 
884.15, 884.16 and 886.18, unless the Director finds, in writing, that 
discontinuation of funding would not be consistent with achieving the 
purposes of the Act, and
    (2) Make any grants to assist the State in administering and 
enforcing State programs under the Act and 30 CFR 735.12, unless the 
Director finds in writing that discontinuation of funding would not be 
consistent with achieving the purposes of the Act.



Sec. 736.25  Permit fees.

    (a) Applicability. An applicant for a new permit to conduct surface 
coal mining operations under a Federal program shall submit to OSM fees 
in the amounts set out in paragraph (d) of this section. For 
applications submitted prior to the effective date of this rule, fees 
shall apply only for stages of OSM review begun on or after the 
effective date. The applicant shall either submit all applicable fees 
with the permit application, or by stage of review as follows:
    (1) Administrative completeness review. An applicant who pays by 
stage of review shall submit the administrative completeness review fee 
with the permit application.
    (2) Technical review. Following receipt from OSM of a notice of 
administrative completeness, an applicant who pays by stage of review 
shall submit the technical review basic fee, plus the per-acre fee for 
each acre of disturbed area or fraction thereof to be included in the 
permit area.
    (3) Permit issuance. Following receipt from OSM of a notice of 
technical adequacy, an applicant who pays by stage of review shall 
submit the decision document fee.
    (b) Refund of fees. (1) Upon receipt of a written request from an 
applicant, OSM will refund any permit fees paid under this section for a 
permit application when OSM denies the permit:
    (i) On the basis of information concerning endangered or threatened 
species or their critical habitats or information. concerning cultural 
or historical resources, where such information was not available prior 
to submission of the permit application;
    (ii) Because subsequent to submittal of a permit application, the 
lands contained in the permit application are declared unsuitable for 
mining under subchapter F of this chapter; or
    (iii) Because subsequent to submittal of a permit application, the 
applicant is denied valid existing rights to mine under part 761 of this 
chapter where such rights are required for surface coal mining 
operations on the lands contained in the permit application.

[[Page 150]]

    (2) An applicant may file a written request for withdrawal of a 
permit application and a refund of fees in accordance with paragraph 
(b)(3) of this section.
    (3) OSM will, upon receipt of written request for withdrawal of a 
permit application, cease processing of that application. If requested, 
OSM will refund fees paid by the applicant for the withdrawn application 
as follows:
    (i) Any fees for a stage of OSM review not yet begun will be 
refunded;
    (ii) Where technical review has begun, partial refund will be made 
of any technical review fee amounts remaining after deduction of actual 
OSM costs incurred for that technical review. Costs to process the 
withdrawal may also be deducted.
    (4) No interest will be paid on refunded fees.
    (c) Form of payment. All fees due under this section shall be 
submitted to OSM by the applicant in the form of a certified check, bank 
draft or money order, payable to Office of Surface Mining.
    (d) Fee schedule for a new permit.

Administrative completeness review.......  $250.00                      
Technical review:                                                       
  Basic fee..............................  1350.00                      
Fee per acre of disturbed area in permit                                
 area:                                                                  
  First 1,000 acres......................  13.50/acre                   
  Second 1,000 acres.....................  6.00/acre                    
  Third 1,000 acres......................  4.00/acre                    
  Additional acres.......................  3.00/acre                    
Decision Document........................  2000.00                      
                                                                        

[55 FR 29548, July 19, 1990]

[[Page 151]]



                   SUBCHAPTER D--FEDERAL LANDS PROGRAM





PART 740--GENERAL REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS ON FEDERAL LANDS--Table of Contents




Sec.
740.1  Scope and purpose.
740.4  Responsibilities.
740.5  Definitions.
740.10  Information collection.
740.11  Applicability.
740.13  Permits.
740.15  Bonds on Federal lands.
740.17  Inspection, enforcement and civil penalties.
740.19  Performance standards.

    Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.

    Source: 48 FR 6935, Feb. 16, 1983, unless otherwise noted.

    Editorial Note: Nomenclature changes affecting part 740 appear at 55 
FR 9401, Mar. 13, 1990.



Sec. 740.1  Scope and purpose.

    This part provides for the regulation of surface coal mining and 
reclamation operations on Federal lands.



Sec. 740.4  Responsibilities.

    (a) The Secretary is responsible for:
    (1) Approval, disapproval or conditional approval of mining plans 
with respect to lands containing leased Federal coal and of 
modifications thereto, in accordance with the Mineral Leasing Act of 
1920, as amended, 30 U.S.C. 181 et seq.;
    (2) Execution, modification or termination of State-Federal 
cooperative agreements in accordance with part 745 of this chapter; and
    (3) Designation of areas of Federal lands as unsuitable for all or 
certain types of surface coal mining and reclamation operations, or 
termination of such designations, in accordance with part 769 of this 
chapter.
    (4) Determination of valid existing rights for surface coal mining 
and reclamation operations on Federal lands within the boundaries of any 
areas specified under section 522(e) (1) or (2) of the Act.
    (5) Determination that there are no significant recreational, 
timber, economic, or other values which may be incompatible with surface 
coal mining and reclamation operations on any Federal lands within the 
boundaries of any national forest under section 522(e)(2) of the Act.
    (b) OSM is responsible for:
    (1) Providing a decision document recommending to the Secretary 
approval, disapproval or conditional approval of mining plans and of 
modifications thereto;
    (2) Approval of experimental practices on Federal lands;
    (3) Inspection, enforcement and civil penalties with respect to 
surface coal mining and reclamation operations on Federal lands except 
as provided in paragraph (c)(5) of this section;
    (4) Processing citizen requests for Federal inspections on Federal 
lands in accordance with parts 842, 843 and 845 of this chapter; and
    (5) Overseeing the State regulatory authority's administration and 
enforcement of the State program on Federal lands pursuant to the terms 
of any cooperative agreement.
    (c) The following responsibilities of OSM may be delegated to a 
State regulatory authority under a cooperative agreement:
    (1) Review and approval, conditional approval of disapproval or 
permit applications for surface coal mining and reclamation operations 
on Federal lands, revisions or renewals thereof, and applications for 
the transfer, sale or assignment of such permits;
    (2) Consultation with and obtaining the consent, as necessary, of 
the Federal land management agency with respect to post-mining land use 
and to any special requirements necessary to protect non-coal resources 
of the areas affected by surface coal mining and reclamation operations;
    (3) Consultation with and obtaining the consent, as necessary, of 
the Bureau of Land Management with respect to requirements relating to 
the development, production and recovery of mineral resources on lands 
affected by surface coal mining and reclamation operations involving 
leased Federal coal pursuant to 43 CFR Group 3400;

[[Page 152]]

    (4) Approval and release of performance bonds, liability insurance 
and, as applicable, Federal lessee protection bonds required for surface 
coal mining and reclamation operations on Federal lands. Approval and 
release of Federal lessee protection bonds requires the concurrence of 
the Federal land management agency;
    (5) Responsibilities of the regulatory authority with respect to 
inspection, enforcement and civil penalty activities for (i) exploration 
operations not subject to 43 CFR Group 3400, and (ii) surface coal 
mining and reclamation operations on Federal lands;
    (6) Review and approval of exploration operations not subject to the 
requirements of 43 CFR Group 3400; and
    (7) Preparation of documentation to comply with the requirements of 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.), except, 
OSM continues to be responsible for:
    (i) Determining the scope, content and format and ensuring the 
objectivity of NEPA compliance documents;
    (ii) Making the determination of whether or not the preparation of 
an environmental impact statement is required.
    (iii) Notifying and soliciting views of other State and Federal 
agencies, as appropriate, on the environmental effects of the proposed 
action;
    (iv) Publishing and distributing draft and final NEPA compliance 
documents;
    (v) Making policy responses to comments on draft NEPA compliance 
documents;
    (vi) Independently evaluating NEPA compliance documents; and
    (vii) Adopting NEPA compliance documents and determining Federal 
actions to be taken on alternatives presented in such documents.
    (d) The Bureau of Land Management is responsible for:
    (1) Receiving and approving exploration plans pursuant to 43 CFR 
Group 3400;
    (2) Inspection, enforcement and civil penalties with respect to the 
terms and conditions of coal exploration licenses issued pursuant to 43 
CFR Group 3400;
    (3) Inspection, enforcement and civil penalties with respect to the 
terms and conditions of exploration operations subject to 43 CFR Group 
3400;
    (4) Reviewing the resource recovery and protection plan and 
modifications thereto, as required by 43 CFR Group 3400 and recommending 
to the Secretary approval, disapproval or conditional approval of the 
resource recovery and protection plan;
    (5) Inspection, enforcement and civil penalties with respect to the 
recovery and protection of the coal resource as required by 43 CFR Group 
3400;
    (6) Protecting mineral resources not included in the coal lease;
    (7) Issuance of exploration licenses for Federal coal subject to the 
requirements of 43 CFR Group 3400;
    (8) Issuance of leases and licenses to mine Federal coal subject to 
the requirements of 43 CFR Group 3400; and
    (9) Issuance, readjustment, modification, termination, cancellation, 
and approval of transfers of Federal coal leases pursuant to the Mineral 
Leasing Act and the Mineral Leasing Act for Acquired Lands of 1947, as 
amended, 30 U.S.C. 351 et seq.
    (e) The Federal land management agency is responsible for:
    (1) Determining post-mining land uses;
    (2) Protection of non-mineral resources;
    (3) Requiring such conditions as may be appropriate to regulate 
surface coal mining and reclamation operations under other provisions of 
law applicable to such lands under its jurisdiction; and
    (4) Where land containing leased Federal coal is under the surface 
jurisdiction of a Federal agency other than the Department, concur in 
the terms of the mining plan approval.
[48 FR 6935, Feb. 16, 1983, as amended at 48 FR 44779, Sept. 30, 1983; 
55 FR 9401, Mar. 13, 1990]



Sec. 740.5  Definitions.

    (a) As used in this subchapter, the term:
    Authorized officer means any person authorized to take official 
action on behalf of a Federal agency that has administrative 
jurisdiction over Federal lands.
    Coal lease means a Federal coal lease or license issued by the 
Bureau of Land Management pursuant to the Mineral Leasing Act and the 
Federal Acquired

[[Page 153]]

Lands Leasing Act of 1947 (30 U.S.C. 351 et seq.).
    Cooperative agreement means a cooperative agreement entered into in 
accordance with section 523(c) of the Act and part 745 of this chapter.
    Federal land management agency means a Federal agency having 
administrative jurisdiction over the surface of Federal lands that are 
subject to these regulations.
    Federal lease bond means the bond or equivalent security required by 
43 CFR part 3400 to assure compliance with the terms and conditions of a 
Federal coal lease.
    Federal lessee protection bond means a bond payable to the United 
States or the State, whichever is applicable, for use and benefit of a 
permittee or lessee of the surface lands to secure payment of any 
damages to crops or tangible improvements on Federal lands, pursuant to 
section 715 of the Act.
    Lease terms, conditions and stipulations means all of the standard 
provisions of a Federal coal lease, including provisions relating to 
lease duration, fees, rentals, royalties, lease bond, production and 
recordkeeping requirements, and lessee rights of assignment, extension, 
renewal, termination and expiration, and site-specific requirements 
included in Federal coal leases in addition to other terms and 
conditions which relate to protection of the environment and of human, 
natural and mineral resources.
    Leased Federal coal means coal leased by the United States pursuant 
to 43 CFR part 3400, except mineral interests in coal on Indian lands.
    Mineral Leasing Act or MLA means the Mineral Leasing Act of 1920, as 
amended, 30 U.S.C. 181, et seq.
    Mining plan means the plan for mining leased Federal coal required 
by the Mineral Leasing Act.
    Permit application package means a proposal to conduct surface coal 
mining and reclamation operations on Federal lands, including an 
application for a permit, permit revision or permit renewal, all the 
information required by the Act, this subchapter, the applicable State 
program, any applicable cooperative agreement and all other applicable 
laws and regulations including, with respect to leased Federal coal, the 
Mineral Leasing Act and its implementing regulations.
    Regulatory authority means the State regulatory authority pursuant 
to a cooperative agreement approved under part 745 of this chapter or, 
in the absence of a cooperative agreement, OSM.
    TVA-owned lands means land owned by the United States and entrusted 
to or managed by the Tennessee Valley Authority.
    (b) The following terms shall have meanings as set forth in 43 CFR 
parts 3400: Exploration; exploration plan; maximum economic recovery; 
method of operation; mine; and resource recovery and protection plan.
[48 FR 6935, Feb. 16, 1983, as amended at 48 FR 44779, Sept. 30, 1983]



Sec. 740.10  Information collection.

    The information collection requirements contained in this part have 
been approved by OSM of Management and Budget under 44 U.S.C. 3507 and 
assigned clearance numbers 1029-0026 and 1029-0027. The information is 
being collected to determine compliance with sections 506, 507, 509, 
510, 515 and 523 of the Act (30 U.S.C. 1256, 1257, 1259, 1260, 1265 and 
1273) and this part. The obligation to respond to the information 
collection requirements of this part is mandatory.



Sec. 740.11  Applicability.

    (a) Upon approval or promulgation of a regulatory program for a 
State, that program and this subchapter shall apply to:
    (1) Coal exploration operations on Federal lands not subject to 43 
CFR parts 3400, and
    (2) Surface coal mining and reclamation operations taking place on 
any Federal lands as defined in Sec. 700.5 of this chapter, and lands 
(except Indian lands) over leased or unleased Federal minerals.
    (b) Where OSM is the regulatory authority, references in the State 
program to the State or an agency or official of the State (with respect 
to functions of the State acting as regulatory authority) shall be 
construed as referring to OSM.

[[Page 154]]

    (c) Where the Secretary and a State have entered into a cooperative 
agreement, the cooperative agreement shall delineate the 
responsibilities of the Secretary and the State with respect to the 
administration of the regulatory program and this subchapter.
    (d) Nothing in this subchapter shall affect in any way the authority 
of the Secretary or any Federal land management agency to include in any 
lease, license, permit, contract, or other instrument such conditions as 
may be appropriate to regulate surface coal mining and reclamation 
operations under provisions of law other than the Act on land under 
their jurisdiction.
    (e) This subchapter shall not apply to surface coal mining and 
reclamation operations within a State prior to approval or promulgation 
of a regulatory program for the State.
    (f) Where coal exploration or surface coal mining and reclamation 
operations within a State are on Federal lands and where no State or 
Federal program has been approved for the State, this subchapter shall 
apply in that State upon the effective date of these regulations.
[48 FR 6935, Feb. 16, 1983; 48 FR 13985, Apr. 1, 1983, as amended at 48 
FR 44779, Sept. 30, 1983; 55 FR 9402, Mar. 13, 1990]



Sec. 740.13  Permits.

    (a) General requirements. (1) No person shall conduct surface coal 
mining operations on lands subject to this part unless that person has 
first obtained a permit issued pursuant to the regulatory program and 
this part.
    (2) Every person conducting surface coal mining and reclamation 
operations on lands subject to this part shall comply with the terms and 
conditions of the permit and the lease or license, the Act, this 
subchapter, the regulatory program and all other applicable State and 
Federal laws and regulations.
    (3) Surface coal mining operations authorized under the initial 
regulatory program or 43 CFR parts 3400, as applicable, may be conducted 
beyond the eight-month period prescribed in the applicable regulatory 
program if all of the following conditions are present:
    (i) A timely and administratively complete application for a permit 
to conduct those operations under this part has been made to the 
regulatory authority in accordance with the provisions of this part and 
the applicable regulatory program;
    (ii) The regulatory authority has not yet rendered a final decision 
with respect to the permit application; and
    (iii) Those operations are conducted in compliance with all terms 
and conditions of the initial regulatory program approval or permit, the 
requirements of the Act. 30 CFR chapter VII, subchapter B or 43 CFR 
parts 3400, as applicable, applicable State laws and regulations, and 
the requirements of the applicable lease or license.
    (b) Permit application package. (1) Each application for a permit, 
or permit revision or renewal thereof to conduct surface coal mining and 
reclamation operations on lands subject to this part shall be 
accompanied by a fee made payable to the regulatory authority. The 
amount of the fee shall be determined in accordance with the permit fee 
criteria of the applicable regulatory program.
    (2) Unless specified otherwise by the regulatory authority, seven 
copies of the complete permit application package shall be filed with 
the regulatory authority.
    (3) Each permit application package shall include:
    (i) The information required for a permit application or for an 
application for revision or renewal of a permit under the applicable 
regulatory program;
    (ii) The resource recovery and protection plan required by 43 CFR 
parts 3400 for operations on lands containing leased Federal coal; and
    (iii) Where OSM is the regulatory authority or where the proposed 
operations are on lands containing leased Federal coal, the following 
supplemental information to ensure compliance with Federal laws and 
regulations other than the Act:
    (A) A description of the affected area of the proposed surface coal 
mining and reclamation operation with respect to: (1) Increases in 
employment, population and revenues to public and private entities, and 
(2) the ability of public and private entities to provide goods and 
services necessary to support

[[Page 155]]

surface coal mining and reclamation operations.
    (B) An evaluation of impacts to the scenic and aesthetic resources, 
including noise on the surrounding area, due to the proposed surface 
coal mining and reclamation operation.
    (C) A statement, including maps and ownership data as appropriate, 
of any cultural or historical sits listed on the National Register of 
Historic Places within the affected area of the proposed surface coal 
mining and reclamation operation.
    (D) A statement of the classes of properties of potential 
significance within the disturbed area, and a plan for the 
identification and treatment, in accordance with 36 CFR part 800, of 
properties significant and listed or eligible for listing on the 
National Register of Historic Places within the disturbed area of the 
proposed surface coal mining and reclamation operation.
    (E) A description of the probable changes in air quality resulting 
from the mining operation and any necessary measures to comply with 
prevention of significant deterioration limitations, State 
Implementation Plans, or other Federal or State laws for air quality 
protection.
    (F) A description of the location, acreage and condition of 
important habitats of selected indicator species located within the 
affected area of the proposed surface coal mining and reclamation 
operation.
    (G) A description of active and inactive nests and prey areas of any 
Bald or Golden eagles located within the affected area of the proposed 
surface coal mining and reclamation operations.
    (H) A description of all threatened and endangered species and their 
critical habitats located within the affected area of the proposed 
surface coal mining and reclamation operations.
    (4) Where the surface of the Federal lands is subject to a lease or 
permit issued by the Federal government to a person other than the 
applicant, the permit application package shall contain information 
sufficient to demonstrate compliance with the requirements of 
Sec. 740.15(c)(1). This requirement shall not apply to TVA-owned lands.
    (c) Permit review and processing. Applications for permits, permit 
revisions or renewals thereof to conduct surface coal mining and 
reclamation operations on lands subject to this part shall be reviewed 
and processed in accordance with the requirements of the applicable 
regulatory program, subject to the following additional requirements:
    (1) Permit terms and conditions. Permits shall include, as 
applicable, terms and conditions required by the lease issued pursuant 
to the Mineral Leasing Act and by other applicable Federal laws and 
regulations.
    (2) Criteria for permit approval or denial. The regulatory authority 
shall not approve an application for a permit, or permit revision or 
renewal thereof for surface coal mining and reclamation operations on 
lands subject to this part unless the application is in accordance with 
the requirements of the applicable regulatory program and this part or a 
cooperative agreement, as applicable.
    (3) Public participation in permit review process. Where public 
hearings were held and determinations made under section 2(a)(3) (A), 
(B) and (C) of the Mineral Leasing Act (30 U.S.C. 201(a)(3) (A), (B) and 
(C)), such hearings may be made a part of the record of each public 
hearing on a permit application held pursuant to the requirements of the 
applicable regulatory program and this part. Matters covered at such 
hearings and determinations made at such hearings need not be 
readdressed.
    (4) Permit review processing for operations on lands administered by 
a Federal land management agency. Upon receipt of a permit application 
package or a proposed revision or renewal of an approved permit that 
involves surface coal mining and reclamation operations on lands 
administered by an agency of the Federal Government, the regulatory 
authority shall transmit a copy of the complete permit application 
package, or proposed revision or renewal thereof, to the Federal land 
management agency, with a request for review and comment.
    (5) Consultation with other Federal agencies. Prior to approving or 
disapproving a permit, permit revision or

[[Page 156]]

renewal thereof, the regulatory authority shall consider the comments of 
the Federal land management agency and include these comments in the 
record of permit decisions.
    (6) Permit processing schedule. The regulatory authority shall 
process the permit application package within the time schedule 
established by the applicable regulatory program, except that the 
schedule may be extended if necessary to ensure compliance with Federal 
laws and regulations other than the Act.
    (7) Determination of operator compliance with the Act. Where OSM is 
the regulatory authority, it shall afford the applicant or operator an 
opportunity for an adjudicatory hearing as provided in 43 CFR part 4 
prior to a final determination on whether the applicant, or the operator 
specified in the application, controls or has controlled mining 
operations with a demonstrated pattern of willful violations of the Act 
of such nature and duration and with such resulting irreparable damage 
to the environment as to indicate an intent not to comply with the 
provisions of the Act.
    (8) Administrative review of decisions on permit applications. Where 
OSM is the regulatory authority, the final decision on a permit 
application is subject to an appeal to the Department's Office of 
Hearings and Appeals as provided in part 775 of this chapter. Where the 
State is the regulatory authority under a cooperative agreement, the 
final decision on a permit application is subject to administrative 
review as provided under the approved State program.
    (9) Bonds and insurance required for issuance of permits. After the 
approval of an application for a new or revised permit or for renewal of 
an existing permit, but prior to issuance of such permit, the applicant/
permittee shall file with the regulatory authority: (i) A performance 
bond which meets the requirements of the applicable regulatory program; 
(ii) proof of liability insurance in accordance with the applicable 
regulatory program; and (iii) where required, evidence of the execution 
of a Federal lessee protection bond. Bonds required to be filed with OSM 
shall be in a form required by OSM and made payable to the United 
States.
    (d) Review of permit revisions. (1) Where the State is the 
regulatory authority for surface coal mining and reclamation operations 
on lands subject to this subchapter, it shall inform OSM of each request 
for a permit revision with respect to operations on lands containing 
leased Federal coal.
    (2) OSM shall review each permit revision in consultation with the 
Bureau of Land Management and the appropriate Federal land management 
agency to determine whether the permit revision constitutes a mining 
plan modification requiring the Secretary's approval under Sec. 746.18 
of this chapter.
    (3) The regulatory authority shall consult with the Federal land 
management agency to determine whether any permit revision will 
adversely affect Federal resources other than coal and whether the 
revision is consistent with that agency's land use plans for other 
Federal laws, regulations and executive orders for which it is 
responsible.
    (e) Transfer, assignment or sale of rights. (1) The regulatory 
authority, before approving or disapproving an application for transfer, 
assignment or sale of rights granted under a permit issued pursuant to 
this subchapter, shall consult with the appropriate Federal land 
management agency and the Bureau of Land Management, as applicable.
    (2) Approval of a transfer, assignment or sale of rights granted 
under a permit issued pursuant to this subchapter shall not be construed 
to constitute a transfer or assignment of leasehold interests. Leasehold 
interests may be transferred or assigned only in accordance with 43 CFR 
part 3453.
    (f) Suspension or revocation of permits. (1) A permit to conduct 
surface coal mining and reclamation operations on Federal lands may be 
suspended or revoked by the regulatory authority in accordance with part 
843 of this chapter and the applicable regulatory program.
    (2) If a permit to conduct surface coal mining and reclamation 
operations on lands containing leased Federal coal is suspended or 
revoked, the regulatory authority shall notify the Bureau of Land 
Management so that the Bureau

[[Page 157]]

of Land Management can determine whether action should be taken to 
cancel the Federal lease. This section does not release the Federal 
lessee from the diligent development or continued operation requirements 
of 43 CFR parts 3400.
[48 FR 6935, Feb. 16, 1983, as amended at 48 FR 44779, Sept. 30, 1983; 
54 FR 13822, Apr. 5, 1989]



Sec. 740.15  Bonds on Federal lands.

    (a) Federal lease bonds. (1) Each holder of a Federal coal lease 
that is covered by a Federal lease bond required under 43 CFR part 3474 
may apply to the authorized officer for release of liability for that 
portion of the Federal lease bond that covers reclamation requirements.
    (2) The authorized officer may release the liability for that 
portion of the Federal lease bond that covers reclamation requirements 
if:
    (i) The lessee has secured a suitable performance bond covering the 
permit area under this part;
    (ii) There are no pending actions or unresolved claims against 
existing bonds; and
    (iii) The authorized officer has received concurrence from OSM and 
the Bureau of Land Management.
    (b) Performance bonds. Where the State is the regulatory authority 
under a cooperative agreement, the performance bonds required for 
operations on Federal lands shall be made payable to the United States 
and the State. Where OSM is the regulatory authority, such bonds shall 
be payable only to the United States.
    (c) Federal lessee protection bonds. (1) Where leased Federal coal 
is to be mined and the surface of the land is subject to a lease or 
permit issued by the United States for purposes other than surface coal 
mining, the applicant for a mining permit, if unable to obtain the 
written consent of the permittee or lessee of the surface to enter and 
commence surface coal mining operations, shall submit to the regulatory 
authority with his application evidence of execution of a bond or 
undertaking which meets the requirements of this section. The Federal 
lessee protection bond is in addition to the performance bond required 
by a regulatory program. This section does not apply to permits or 
licenses for the use of the surface that do not convey to the permittee 
or licensee the right of transfer, sale or consent to other uses.
    (2) The bond shall be payable to the United States and, as 
applicable, the State for the use and benefit of the permittee or lessee 
of the surface lands involved.
    (3) The bond shall secure payment to the surface estate for any 
damage which the surface coal mining and reclamation operation causes to 
the crops or tangible improvements of the permittee or lessee of the 
surface lands.
    (4) The amount of the bond shall be determined either by the 
applicant and the Federal lessee or permittee or as determined in an 
action brought against the person conducting surface coal mining and 
reclamation operations or upon the bond in a court of competent 
jurisdiction.
    (d) Release of bonds. (1) A Federal lease bond may be released upon 
satisfactory compliance with all applicable requirements of 43 CFR Group 
3400 and after the release is concurred in by the Bureau of Land 
Management.
    (2) A Federal lessee protection bond shall be released upon the 
written consent of the permittee or lessee.
    (3) Where surface coal mining and reclamation operations are subject 
to an approved mining plan, a performance bond shall be released by the 
State after the release is concurred in by OSM.
[48 FR 6935, Feb. 16, 1983; 48 FR 13985, Apr. 1, 1983, as amended at 48 
FR 44779, Sept. 30, 1983; 55 FR 9402, Mar. 13, 1990]



Sec. 740.17  Inspection, enforcement and civil penalties.

    (a) General requirements. (1) Where OSM is the regulatory authority, 
parts 840, 842, 843 and 845 of this chapter shall govern its inspection, 
enforcement and civil penalty activities with respect to surface coal 
mining and reclamation operations on Federal lands.
    (2) Where the State is the regulatory authority under a cooperative 
agreement, the State program shall govern inspection, enforcement and 
civil penalty activities by the regulatory authority with respect to 
surface coal mining and reclamation operations on

[[Page 158]]

Federal lands, while the requirements of part 842, 843 and 845 of this 
chapter shall govern OSM inspection, enforcement and civil penalty 
activities conducted in oversight of the State program.
    (3) The requirements of this section shall not apply to coal 
exploration on Federal lands subject to the requirements of 43 CFR parts 
3400.
    (b) Right of entry. (1) Persons engaging in coal exploration or 
surface coal mining and reclamation operations on Federal lands shall 
provide access for any authorized officer of OSM, the regulatory 
authority, and, as applicable, the Bureau of Land Management or the 
appropriate Federal land management agency to inspect the operations, 
without advance notice or a search warrant and upon presentation of 
appropriate credentials, to determine whether the operations are in 
compliance with all applicable laws, regulations, notices and orders, 
and terms and conditions of the permit.
    (2) Any authorized representative of the regulatory authority and, 
as applicable, the Bureau of Land Management may, at reasonable times 
and without delay, have access to and copy any records and inspect any 
monitoring equipment or method of operation required under the Act, this 
subchapter and the permit, lease, license or mining plan in accordance 
with paragraph (a) of this section.
    (3) No search warrant shall be required with respect to any activity 
under paragraph (a) or (b) of this section, except entry into a building 
without consent of the person in control of the building.
    (c) Inspections. Inspections shall, to the extent practical, be 
conducted jointly if more than one government agency is involved. The 
regulatory authority shall coordinate inspections by Federal agencies 
and may request the participation of representatives from other Federal 
agencies when necessary to ensure compliance with this subchapter and 
other applicable Federal laws, regulations and orders.
[48 FR 6935, Feb. 16, 1983, as amended at 48 FR 44779, Sept. 30, 1983]



Sec. 740.19  Performance standards.

    (a) Operations and reclamation. (1) Surface coal mining and 
reclamation operations on lands subject to this part shall be conducted 
in accordance with the performance standards of the applicable 
regulatory program.
    (2) Surface coal mining and reclamation operations on lands 
containing leased Federal coal shall be conducted in accordance with the 
requirements of the terms, conditions and stipulations of the lease 
issued under the Mineral Leasing Act and its implementing regulations in 
43 CFR parts 3400, as applicable, and the mining plan.
    (b) Completion of operations and abandonment. (1) Upon completion of 
operations, bonds shall be released in accordance with Sec. 740.15(d) of 
this chapter.
    (2) Where there is a Federal lease bond:
    (i) Not less than 30 days prior to permanent cessation or 
abandonment of surface coal mining and reclamation operations, the 
person conducting those operations shall submit to OSM, in duplicate, a 
notice of intention to cease or abandon those operations, with a 
statement of the number of acres affected by the operations, the extent 
and kind of reclamation accomplished and the structures and other 
facilities that are to be removed from or remain on the permit area.
    (ii) Upon receipt of this notice, the Bureau of Land Management and 
the appropriate Federal land management agency shall promptly make joint 
inspections to determine whether all operations have been completed in 
accordance with the requirements of 43 CFR parts 3400, the lease or 
licenses and the mining plan. Where all of these requirements have been 
complied with, the liability under the lease bond of the person 
conducting surface coal mining and reclamation operations shall be 
terminated.
    (3) Where OSM is the regulatory authority, public hearings held with 
respect to final abandonment and releases of the performance bonds shall 
be in accordance with 5 U.S.C. 554 and 43 CFR part 4.
[48 FR 6935, Feb. 16, 1983, as amended at 48 FR 44779, Sept. 30, 1983]

[[Page 159]]



PART 745--STATE-FEDERAL COOPERATIVE AGREEMENTS--Table of Contents




Sec.
745.1  Scope.
745.10  Information collection.
745.11  Application and agreement.
745.12  Terms.
745.13  Authority reserved by the Secretary.
745.14  Amendments.
745.15  Termination.
745.16  Reinstatement.

    Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.

    Source: 48 FR 6939, Feb. 16, 1983, unless otherwise noted.



Sec. 745.1  Scope.

    This part sets forth requirements for the development, approval and 
administration of cooperative agreements under section 523(c) of the 
Act.



Sec. 745.10  Information collection.

    The information collection requirements contained in this part have 
been approved by OSM of Management and Budget under 44 U.S.C. 3507 and 
assigned clearance number 1029-0028. The information is being collected 
pursuant to section 523(c) of the Act (30 U.S.C. 1273(c)) and will be 
used to support a State's request for a State-Federal cooperative 
agreement or an amendment, termination or reinstatement thereto. The 
obligation to respond to the information collection requirements of this 
part is mandatory.



Sec. 745.11  Application and agreement.

    (a) The Governor of any State may request that the Secretary enter 
into a cooperative agreement with the State, provided the State has an 
approved State regulatory program or has submitted a regulatory program 
for approval under part 731 of this chapter, and has or may have within 
the State surface coal mining and reclamation operations on Federal 
lands.
    (b) A request for a cooperative agreement shall be submitted in 
writing and, except to the extent previously submitted in the State 
program, shall include the following information:
    (1) Information sufficient for OSM to make findings in accordance 
with paragraph (f) of this section;
    (2) A proposed agreement consistent with the requirements of this 
part; and
    (3) A certification by the Attorney General or the chief legal 
officer of the State regulatory authority that no State statutory, 
regulatory or legal constraint exists which would preclude the State 
regulatory authority from fully carrying out the proposed cooperative 
agreement.
    (c) OSM shall publish a notice of the request and the full text of 
the terms of the proposed cooperative agreement as submitted or as 
subsequently modified by OSM and the State in the Federal Register as a 
proposed rule. A notice of the request and a summary of the terms of the 
proposed agreement shall also be published in a newspaper(s) of general 
circulation throughout the State. Both notices shall include:
    (1) The location at which a copy of the request submitted by the 
State may be obtained; and
    (2) A date, not less than 30 days after publication of the notices, 
before which members of the public may submit written comments on the 
request and the person to whom comments should be addressed.
    (d) A public hearing shall be held within the comment period in a 
suitable location in the State requesting the cooperative agreement. 
This hearing may be combined with public hearings required under part 
732 of this chapter for the Secretary's consideration of approval of a 
State program submission, if appropriate. The date, time and place of 
the public hearing(s) on the request will be published in the Federal 
Register not less than 15 days prior to the date of the hearing.
    (e) Before the expiration of the comment period, OSM shall consult 
with the Bureau of Land Management, Fish and Wildlife Service, and 
Federal land management agencies, as appropriate, with respect to the 
proposed cooperative agreement.
    (f) OSM shall recommend to the Secretary that a cooperative 
agreement be entered into with a State, if OSM finds that:
    (1) The State has an approved State regulatory program;
    (2) The State regulatory authority has sufficient budget, equipment 
and

[[Page 160]]

personnel to enforce fully its regulatory program on lands subject to 
this part in the State; and
    (3) The State has the legal authority to enter into the cooperative 
agreement.
    (g) The Secretary shall publish in the Federal Register his or her 
decision with respect to a request by a State to enter into a 
cooperative agreement and the reasons therefor and the full text of the 
cooperative agreement.



Sec. 745.12  Terms.

    Each cooperative agreement shall include:
    (a) Terms obligating the State regulatory authority to inspect all 
surface coal mining and reclamation operations on Federal lands in 
accordance with the State regulatory program and to enforce the State 
program on Federal lands;
    (b) A description of the powers and authority reserved by the 
Secretary, including, but not limited to, those specified under 
Sec. 745.13;
    (c) Provisions for the administration and enforcement by OSM and the 
State of this subchapter so as to minimize overlap and duplication;
    (d) Provisions for regular reports by the State regulatory authority 
to OSM on the results of the State's implementation and administration 
of the cooperative agreement.
    (e) Terms requiring the State regulatory authority to maintain 
sufficient personnel and facilities to comply with the terms of the 
cooperative agreement, and to notify OSM of any substantial change in 
State statutes, regulations, funding, staff, or other changes which 
would affect the State's ability to carry out the terms of the 
cooperative agreement;
    (f) Terms for coordination among the State regulatory authority, the 
Federal land management agency, the Bureau of Land Management and OSM;
    (g) Terms obligating the State regulatory authority to--
    (1) Make available to OSM information on any action taken regarding 
any permit application for surface coal mining and reclamation 
operations on Federal lands; and
    (2) Where lands containing leased Federal coal are involved, provide 
OSM, in the form specified by OSM in consultation with the State, with 
written findings indicating that each permit application is in 
compliance with the terms of the regulatory program and a technical 
analysis of each permit application to assist OSM in meeting its 
responsibilities under other applicable Federal laws and regulations.



Sec. 745.13  Authority reserved by the Secretary.

    The Secretary shall not delegate to any State, nor shall any 
cooperative agreement under this part be construed to delegate to any 
State, authority to--
    (a) Designate Federal lands as unsuitable for surface coal mining 
under subchapter F of this chapter or terminate such designations;
    (b) Comply with the National Environmental Policy Act of 1969, as 
amended, 42 U.S.C. 4321 et seq., and Federal laws and regulations other 
than SMCRA;
    (c) Develop land use management plans for Federal lands where the 
surface estate is federally-owned;
    (d) Regulate non-coal mining activities on Federal lands;
    (e) Determine when, where, and how to lease Federal coal and how 
much to lease;
    (f) Develop terms for Federal coal leases, including any special 
terms relating to mining and reclamation procedures;
    (g) Evaluate Federal coal resources;
    (h) Establish royalties, rents, and bonuses charged in connection 
with Federal coal leases;
    (i) Approve mining plans or modifications thereto;
    (j) Enforce Federal lease terms, including diligent development and 
maximum economic recovery requirements;
    (k) Approve or determine post-mining land uses for Federal lands 
where the surface estate is federally-owned;
    (l) Release Federal lease bonds;
    (m) Evaluate the State's administration and enforcement of the 
approved State program and implementation of the cooperative agreement 
on Federal lands;

[[Page 161]]

    (n) Comply with the inspection, enforcement and civil penalties 
requirements of parts 842 and 843 of this chapter except as provided 
under Sec. 740.4(c)(5) of this chapter;
    (o) Determine valid existing rights for surface coal mining and 
reclamation operations on Federal lands within the boundaries of any 
areas specified under section 522(e) (1) or (2) of the Act; or
    (p) Determine that there are no significant recreational, timber, 
economic, or other values which may be incompatible with surface coal 
mining and reclamation operations on any Federal lands within the 
boundaries of any national forest under section 522(e)(2) of the Act.



Sec. 745.14  Amendments.

    A cooperative agreement which has been approved pursuant to 
Sec. 745.11 may be amended by mutual agreement of the Secretary and the 
Governor of a State. Amendments shall be adopted by Federal rulemaking, 
in accordance with Sec. 745.11.



Sec. 745.15  Termination.

    (a) A cooperative agreement may be terminated by the State upon 
written notice to the Secretary, specifying the date upon which the 
cooperative agreement shall be terminated. The date of termination shall 
not be less than 90 days from the date of the notice.
    (b) A cooperative agreement may be terminated by the Secretary after 
giving notice to the State regulatory authority and affording the State 
regulatory authority and the public an opportunity for a public hearing 
and comment period, in accordance with the cooperative agreement, if the 
Secretary finds that:
    (1) The State regulatory authority has substantially failed to 
comply with the requirements of this subchapter, the State program, or 
the cooperative agreement, or
    (2) The State regulatory authority has failed to comply with any 
undertaking by the State in the cooperative agreement upon which 
approval of the State program, cooperative agreement, or grant by OSM 
for administration or enforcement of the State program or cooperative 
agreement was based.
    (c) A cooperative agreement shall terminate--
    (1) When no longer authorized by Federal law or the applicable State 
laws and regulations; or
    (2) Upon termination or withdrawal of the Secretary's approval of 
the applicable State program.



Sec. 745.16  Reinstatement.

    (a) A State may apply for reinstatement of the cooperative agreement 
by providing written evidence to OSM that the State has remedied all 
defects for which the agreement was terminated and is fully capable of 
carrying out the cooperative agreement. Any reinstatement shall be by 
Federal rulemaking in accordance with Sec. 745.11.
    (b) OSM may recommend approval of the reinstatement to the Secretary 
if it finds that the State meets all the requirements for the initial 
approval of a cooperative agreement under this subchapter.
    (c) The Secretary may approve reinstatement of a cooperative 
agreement if the Secretary concurs in findings of OSM which recommended 
that approval.



PART 746--REVIEW AND APPROVAL OF MINING PLANS--Table of Contents




Sec.
746.1  Scope.
746.10  Information collection.
746.11  General requirements.
746.13  Decision document and recommendation on mining plan.
746.14  Approval, disapproval or conditional approval, of mining plan.
746.17  Term of approval.
746.18  Mining plan modification.

    Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.

    Source: 48 FR 6941, Feb. 16, 1983, unless otherwise noted.



Sec. 746.1  Scope.

    This part provides the process and requirements for the review and 
approval, disapproval or conditional approval of mining plans on lands 
containing leased Federal coal.



Sec. 746.10  Information collection.

    The information collection requirements contained in this section 
have

[[Page 162]]

been approved by OSM of Management and Budget under 44 U.S.C. 3507 and 
assigned clearance number 1029-0026. The information is being collected 
to determine compliance with section 523 of the Act (30 U.S.C. 1273) and 
this part. The obligation to respond to the information collection 
requirements of this part is mandatory.



Sec. 746.11  General requirements.

    (a) No person shall conduct surface coal mining and reclamation 
operations on lands containing leased Federal coal until the Secretary 
has approved the mining plan.
    (b) Surface coal mining and reclamation operations on lands 
containing leased Federal coal shall be conducted in accordance with a 
permit issued in accordance with this subchapter, any lease terms and 
conditions, and the approved mining plan.



Sec. 746.13  Decision document and recommendation on mining plan.

    OSM shall prepare and submit to the Secretary a decision document 
recommending approval, disapproval or conditional approval of the mining 
plan to the Secretary. The recommendation shall be based, at a minimum, 
upon:
    (a) The permit application package, including the resource recovery 
and protection plan;
    (b) Information prepared in compliance with the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.;
    (c) Documentation assuring compliance with the applicable 
requirements of other Federal laws, regulations and executive orders 
other than the Act;
    (d) Comments and recommendations or concurrence of other Federal 
agencies, as applicable, and the public;
    (e) The findings and recommendations of the Bureau of Land 
Management with respect to the resource recovery and protection plan and 
other requirements of the lease and the Mineral Leasing Act;
    (f) The findings and recommendations of the regulatory authority 
with respect to the permit application and the State program; and
    (g) The findings and recommendations of OSM with respect to the 
additional requirements of this subchapter.



Sec. 746.14  Approval, disapproval or conditional approval, of mining plan.

    The Secretary shall approve, disapprove or conditionally approve the 
mining plan in accordance with this part.



Sec. 746.17  Term of approval.

    (a) Each mining plan approval shall cover the operations for which a 
complete permit application package was submitted, unless otherwise 
indicated in the approval.
    (b) An approved mining plan shall remain in effect until modified, 
cancelled or withdrawn and shall be binding on any person conducting 
mining under the approved mining plan.



Sec. 746.18  Mining plan modification.

    (a) Mining plan modifications shall be approved by the Secretary.
    (b) The approval of mining plan modifications shall be in accordance 
with the procedures of this part for mining plan approval.
    (c) Surface coal mining and reclamation operations on lands 
containing leased Federal coal pursuant to a permit revision issued by 
the regulatory authority shall not commence until--
    (1) OSM determines that the permit revision does not constitute a 
mining plan modification under this section, or
    (2) If the permit revision constitutes a mining plan modification 
under this section, such modification has been approved by the 
Secretary.
    (d) Permit revisions constitute mining plan modifications if they 
meet any of the following criteria:
    (1) Any change in the mining plan which would affect the conditions 
of its approval pursuant to Federal law or regulation other than the 
Act;
    (2) Any change which would adversely affect the level of protection 
afforded any land, facility or place designated unsuitable for mining;
    (3) Any change in the location or amount of coal to be mined, except 
where such change is the result of:
    (i) A minor change in the amount of coal actually available for 
mining from the amount estimated; or
    (ii) An incidental boundary change;

[[Page 163]]

    (4) Any change which would extend coal mining and reclamation 
operations onto leased Federal coal lands for the first time;
    (5) Any change which requires the preparation of an environmental 
impact statement under the National Environmental Policy Act or 1969, 42 
U.S.C. 4321 et seq.;
    (6) Any change in the mining operations and reclamation plan that 
would result in a change in the postmining land use where the surface is 
federally-owned.

[[Page 164]]



                   SUBCHAPTER E--INDIAN LANDS PROGRAM





PART 750--REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS ON INDIAN LANDS--Table of Contents




Sec.
750.1  Scope.
750.5  Definitions.
750.6  Responsibilities.
750.10  Information collection.
750.11  Permits.
750.12  Permit applications.
750.13  Small operator assistance.
750.14  Lands designated unsuitable for mining by Act of Congress.
750.15  Coal exploration.
750.16  Performance standards.
750.17  Bonding.
750.18  Inspection and enforcement.
750.19  Certification of blasters.
750.20  [Reserved]
750.21  Coal extraction incidental to the extraction of other minerals.
750.25  Permit fees.

    Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq., as amended); and 
Pub. L. 100-34.

    Source: 49 FR 38477, Sept. 28, 1984, unless otherwise noted.



Sec. 750.1  Scope.

    This subchapter provides for the regulation of surface coal mining 
and reclamation operations on Indian lands and constitutes the Federal 
program for Indian lands.



Sec. 750.5  Definitions.

    For purposes of regulating surface coal mining operations on Indian 
lands, the following terms, when used in this subchapter or in parts 
referenced by this subchapter, have the following meanings:
    BIA means the Bureau of Indian Affairs of the U.S. Department of the 
Interior.
    BLM means the Bureau of Land Management of the U.S. Department of 
the Interior.
    Federal program means the Federal program for Indian lands.
    Indian mineral owner means (1) any individual Indian or Alaska 
native who owns land or mineral interests in land the title to which is 
held in trust by the United States or is subject to a restriction 
against alienation imposed by the United States, or (2) any Indian 
tribe, band, native, pueblo, community, rancheria, colony, or other 
group which owns land or mineral interest in land the title to which is 
held in trust by the United States or is subject to a restriction 
against alienation imposed by the United States. This definition does 
not include owners of lands patented to a village or regional 
corporation pursuant to the Alaska Native Claims Settlement Act, Pub. L. 
92-203.
    Local government agencies means, in addition to county, city or 
township governments, Indian tribal governments.
    Minerals agreement means any joint venture, operating, production 
sharing, service, managerial, lease or other agreements, or any 
amendment, supplement to or modification of such agreement, providing 
for the exploration for, or extraction, processing, or the development 
of coal, or providing for the sale or other disposition of the 
production or products of such coal resources.
    MMS means the Minerals Management Service of the U.S. Department of 
the Interior.
    Regulatory authority means the Office of Surface Mining.



Sec. 750.6  Responsibilities.

    (a) OSM shall: (1) Be the regulatory authority on Indian lands;
    (2) After consultation with the Bureau of Indian Affairs and, as 
applicable, with the Bureau of Land Management, conditionally approve, 
approve, or disapprove applications for permits, permit renewals, or 
permit revisions for surface coal mining operations on Indian lands, and 
applications for the transfer, sale or assignment of such permit rights 
on Indian lands;
    (3) Conduct inspection and enforcement activities with respect to 
surface coal mining and reclamation operations on Indian lands;
    (4) Consult with the BIA and the affected tribe with respect to 
special requirements relating to the protection

[[Page 165]]

of non-coal resources of the area affected by surface coal mining and 
reclamation operations, and assure operator compliance with such special 
requirements;
    (5) Consult with the Bureau of Land Management concerning 
requirements relating to the development, production and recovery of 
mineral resources on Indian lands;
    (6) Approve environmental protection performance bonds and liability 
insurance required for surface coal mining and reclamation operations on 
Indian lands but not the production royalty bond; and
    (7) Ensure compliance with the requirements of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., with respect 
to permitting actions for surface coal mining and reclamation operations 
on Indian lands.
    (b) The Bureau of Land Management is responsible for: (1) Receiving, 
reviewing, and conditionally approving, approving or disapproving coal 
exploration plans and mining plans, as provided in 25 CFR Chapter I or 
in specific Indian mineral agreements;
    (2) Administering, and conducting inspection and enforcement for, 
coal exploration operations on Indian lands;
    (3) Administering mining contract, lease or mineral agreement terms 
and conditions, as provided for in 25 CFR Chapter I or in specific 
Indian mineral agreements; and
    (4) Administering and conducting inspections and enforcement of 
terms and conditions of contracts, leases or mineral agreements for coal 
mining operations, including production verification and inspection of 
operations for that purpose.
    (c) The Minerals Management Service is responsible for collecting 
and accounting for royalties and other income from Indian mineral 
agreements except for annual rentals.
    (d) The Bureau of Indian Affairs is responsible for: (1) Consulting 
directly with and providing representation for Indian mineral owners and 
other Indian land owners in matters relating to surface coal mining and 
reclamation operations on Indian lands;
    (2) After consultation with the affected tribe, reviewing and making 
recommendations to OSM concerning permit applications, renewals, 
revisions or transfers of permits, permit rights or performance bonds; 
and
    (3) After consultation with the affected tribe, reviewing mining 
plans and making recommendations to the Bureau of Land Management 
pursuant to 25 CFR 216.7.



Sec. 750.10  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in 30 CFR part 750 do not 
require approval under the Paperwork Reduction Act.
[59 FR 43420, Aug. 23, 1994]



Sec. 750.11  Permits.

    (a) No person shall conduct surface coal mining operations on Indian 
lands after eight months following the effective date of this subchapter 
unless that person has first obtained a permit pursuant to this part.
    (b) Any person conducting surface coal mining and reclamation 
operations on lands subject to this part shall comply with the terms and 
conditions of the permit, the requirements of this subchapter, and the 
Act.
    (c) Surface coal mining operations authorized prior to the effective 
date of this subchapter may be conducted beyond the eight-month period 
specified in paragraph (a) of this section if the following conditions 
are present: (1) An application for a permit to conduct those operations 
under this part has been made within two months of the implementation of 
the Federal program for Indian lands;
    (2) OSM has not yet rendered an initial administrative decision 
approving or disapproving the permit application; and
    (3) Those operations are conducted in compliance with all terms and 
conditions of the lease or minerals agreement, the existing 
authorization to mine, the requirements of the Act, and the requirements 
of 25 CFR Chapter I.
    (d) Whenever surface coal mining and reclamation operations are 
proposed to include both Indian lands and non-Indian lands, OSM will use 
reasonable efforts to ensure that reviews of the permit applications 
will be conducted cooperatively and concurrently by OSM

[[Page 166]]

and the regulatory authority responsible for the non-Indian lands.
[49 FR 38477, Sept. 28, 1984, as amended at 54 FR 13822, Apr. 5, 1989]



Sec. 750.12  Permit applications.

    (a) Each application for a permit to conduct surface coal mining 
operations on lands subject to this part shall be accompanied by fees in 
accordance with Sec. 750.25 of this part.
    (b) Unless specified otherwise by the regulatory authority, each 
person submitting a permit application shall file no less than seven 
copies of the complete permit application package with OSM. OSM will 
ensure that the affected tribes, the Bureau of Indian Affairs, and when 
applicable, the Bureau of Land Management receive copies of the 
application.
    (c)(1) The following requirements of subchapter G of this chapter 
shall govern the processing of permit applications on Indian lands 
except as specified in paragraph (c)(2) or (c)(3) of this section.
    (i) Part 773;
    (ii) Part 774;
    (iii) Part 775;
    (iv) Part 777;
    (v) Part 778;
    (vi) Part 779;
    (vii) Part 780;
    (viii) Part 783;
    (ix) Part 784; and
    (x) Part 785;
    (2) The following provisions of subchapter G are not applicable to 
permitting on Indian lands:
    (i) Part 772;
    (ii) Sections 773.11, 773.15(c)(3), 777.17;
    (iii) Section 778.16 (a) and (b); and
    (iv) Sections 785.11, 785.12;
    (3) Special requirements. (i) Approval of a transfer, assignment, or 
sale of rights granted under a permit shall not be construed as approval 
of a transfer or assignment of a leasehold interest. Leasehold interests 
may be transferred or assigned only in accordance with 25 CFR parts 211 
and 212.
    (ii) The following additional requirements are applicable to permit 
revisions:
    (A) Applications for revisions pursuant to Sec. 774.13(b) of this 
chapter shall contain the same information on the proposed revised 
operation as if the revised operation had been proposed as part of the 
initial operation permitted under this part.
    (B) OSM shall determine if the application for revision is complete 
and if the proposed revision is significant. OSM shall consider the 
following factors as well as other relevant factors in determining the 
significance of a proposed revision: (1) Changes in production or 
recoverability of the coal resource; (2) the environmental effects; (3) 
the public interest in the operation, or likely interest in the proposed 
revision; and (4) possible adverse impacts from the proposed revision on 
fish or wildlife, endangered species, bald or golden eagles or cultural 
resources.
    (C) Significant revisions shall be processed as if they are new 
applications in accordance with parts 773 and 775 of this chapter. Other 
revisions shall be reviewed to determine if the findings which were made 
in issuing the original permit are still valid.
    (iii) Any section in this chapter which provides for consultation 
with, or notification to, State and local governments shall be 
interpreted as requiring in like manner consultation with, or 
notification to, tribal governments.
    (d) The permit application package shall also contain:
    (1) The mining plan required to be submitted by 25 CFR 216.7 or 43 
CFR part 3480, as applicable.
    (2) The following information to assure compliance with Federal laws 
other than the Act:
    (i) The description of the proposed surface coal mining and 
reclamation operation with respect to: (A) Increases in employment, 
population, and revenues to public and private entities; and (B) the 
ability of public and private entities to provide goods and services 
necessary to support surface coal mining and reclamation operations.
    (ii) An evaluation of impacts to the scenic and aesthetic resources, 
including noise on the surrounding area, due to the proposed surface 
coal mining and reclamation operation.
    (iii) A statement, including maps and ownership data as appropriate, 
of any cultural or historical site listed on the National Register of 
Historic Places within the permit and adjacent areas of

[[Page 167]]

the proposed surface coal mining and reclamation operation.
    (iv) A statement of the classes of properties of potential 
significance within the disturbed area, and a plan for the 
identification and treatment, in accordance with 36 CFR part 800, of 
properties significant and listed, or eligible for listing, on the 
National Register of Historic Places within the permit area of the 
proposed surface coal mining and reclamation operation.
    (v) A description of compliance with Federal laws aimed at 
protecting cultural resources on Indian lands.
    (vi) A description of the probable changes in air quality resulting 
from the surface coal mining operation and any necessary measures to 
comply with prevention of significant deterioration limitations, or 
other Federal laws for air quality protection.
    (vii) A description of the location, acreage and condition of 
important habitats of selected indicator species located within the 
permit and adjacent areas of the proposed surface coal mining and 
reclamation operation.
    (viii) A description of active and inactive nests and prey areas of 
any bald or golden eagles located within the permit and adjacent areas 
of the proposed surface coal mining and reclamation operations.
    (ix) A description and special studies, if required, of all 
threatened and endangered species and their critical habitats located 
within the permit and adjacent areas of the proposed surface coal mining 
and reclamation operations.
[49 FR 38477, Sept. 28, 1984, as amended at 54 FR 22188, May 22, 1989; 
55 FR 29548, July 19, 1990]



Sec. 750.13  Small operator assistance.

    Part 795 of this chapter is applicable on Indian lands.



Sec. 750.14  Lands designated unsuitable for mining by Act of Congress.

    Part 761 of this chapter is applicable on Indian lands.



Sec. 750.15  Coal exploration.

    Coal exploration operations on Indian lands shall be conducted in 
accordance with 25 CFR part 216 and 43 CFR part 3480, whichever is 
applicable.



Sec. 750.16  Performance standards.

    After OSM issues a permit under this part, a person conducting 
surface coal mining operations on Indian lands shall do so in accordance 
with parts 816, 817, 819, 822, 823, 824, 827, and 828 of this chapter. 
Prior to that time, the person conducting surface coal mining and 
reclamation operations shall adhere to the performance standards of 30 
CFR chapter VII, subchapter B.
[49 FR 38477, Sept. 28, 1984, as amended at 59 FR 43420, Aug. 23, 1994]



Sec. 750.17  Bonding.

    Subchapter J of this title is applicable on Indian lands.



Sec. 750.18  Inspection and enforcement.

    (a) Parts 842, 843, 845 and 846 of this chapter and the hearings and 
appeals procedures of 43 CFR part 4 are applicable on Indian lands.
    (b) OSM shall furnish copies of notices and orders to mineral owners 
or surface owners on whose land the surface coal mining operation takes 
place. OSM may furnish copies of notices and orders to any other person 
having an interest in the surface coal mining and reclamation operation 
or the permit area.
    (c) BLM shall furnish copies of notices and orders to mineral owners 
or surface owners on whose land coal exploration operations take place 
and pursuant to 25 CFR 216.7 and 43 CFR part 3480, where applicable, to 
any mineral owner or surface owner, or to any person having an interest 
in the coal mining operation.
    (d) Whenever an authorized representative of the Secretary decides 
to conduct an inspection of any coal mining operations or any premises 
in which any records to be maintained are located, the appropriate 
representative of the local governing Indian tribe shall be notified and 
be invited to accompany the Secretary's representative on such an 
inspection.
    (e) No provision in this chapter shall be interpreted as replacing 
or superseding any other remedies of the Indian mineral owners, as set 
forth in a contract or otherwise available at law.
    (f) Appropriate officials of the local governing Indian tribe shall 
be notified

[[Page 168]]

of any hearings or conferences conducted regarding civil penalties and 
shall be invited to attend.
[49 FR 38477, Sept. 28, 1984, as amended at 53 FR 3675, Feb. 8, 1988]



Sec. 750.19  Certification of blasters.

    A person seeking to conduct blasting operations on Indian lands 
shall comply with the requirements of Secs. 816.61(c) and 817.61(c) and 
part 955 of this chapter.
[51 FR 19461, May 29, 1986]



Sec. 750.20  [Reserved]



Sec. 750.21  Coal extraction incidental to the extraction of other minerals.

    Part 702 of this chapter is applicable on Indian lands.
[54 FR 52123, Dec. 20, 1989]



Sec. 750.25  Permit fees.

    (a) Applicability. An applicant for a new permit to conduct surface 
coal mining operations on lands subject to this part shall submit to OSM 
fees in the amounts set out in paragraph (d) of this section. For 
applications submitted prior to the effective date of this rule, fees 
shall apply only for stages of OSM review begun on or after the 
effective date. The applicant shall either submit all applicable fees 
with the permit application, or by stage of review as follows:
    (1) Administrative completeness review. An applicant who pays by 
stage of review shall submit the administrative completeness review fee 
with the permit application.
    (2) Technical review. Following receipt from OSM of a notice of 
administrative completeness, an applicant who pays by stage of review 
shall submit the technical review basic fee, plus the per-acre fee for 
each acre of disturbed area or fraction thereof to be included in the 
permit area.
    (3) Permit issuance. Following receipt from OSM of a notice of 
technical adequacy, an applicant who pays by stage of review shall 
submit the decision document fee.
    (b) Refund of fees. (1) Upon receipt of a written request from an 
applicant, OSM will refund any permit fees paid under this section for a 
permit application when OSM denies the permit:
    (i) On the basis of information concerning endangered or threatened 
species or their critical habitats or information concerning cultural or 
historical resources, where such information was not available prior to 
submission of the permit application;
    (ii) Because subsequent to submittal of a permit application, the 
lands contained in the permit application are declared unsuitable for 
mining under subchapter F of this chapter; or
    (iii) Because subsequent to submittal of a permit application, the 
applicant is denied valid existing rights to mine under part 761 of this 
chapter where such rights are required for surface coal mining 
operations on the lands contained in the permit application.
    (2) An applicant may file a written request for withdrawal of a 
permit application and a refund of fees in accordance with paragraph 
(b)(3) of this section.
    (3) OSM will, upon receipt of written request for withdrawal of a 
permit application, cease processing of that application. If requested, 
OSM will refund fees paid by the applicant for the withdrawn application 
as follows:
    (i) Any fees for a stage of OSM review not yet begun will be 
refunded;
    (ii) Where technical review has begun, partial refund will be made 
of any technical review fee amounts remaining after deduction of actual 
costs incurred for that technical review. Costs to process the 
withdrawal may also be deducted.
    (4) No interest will be paid on refunded fees.
    (c) Form of payment. All fees due under this section shall be 
submitted to OSM by the applicant in the form of a certified check, bank 
draft or money order, payable to Office of Surface Mining.
    (d) Fee schedule for a new permit.

Administrative completeness review.......  $250.00                      
Technical review:                                                       
  Basic fee..............................  1350.00                      
Fee per acre of disturbed area in permit                                
 area:                                                                  
  First 1,000 acres......................  13.50/acre                   
  Second 1,000 acres.....................  6.00/acre                    
  Third 1,000 acres......................  4.00/acre                    

[[Page 169]]

                                                                        
  Additional acres.......................  3.00/acre                    
                                                                        

[55 FR 29548, July 19, 1990]



PART 755--TRIBAL-FEDERAL INTERGOVERNMENTAL AGREEMENTS--Table of Contents




Sec.
755.1  Scope.
755.10  Information collection.
755.11  Application and agreement.
755.12  Terms.
755.13  Authority reserved by the Secretary.
755.14  Amendments.
755.15  Termination.

    Authority: Pub. L. 95-87 30 U.S.C. 1201-1328.

    Source: 49 FR 38480, Sept. 28, 1984, unless otherwise noted.



Sec. 755.1  Scope.

    This part sets forth requirements for the development, approval and 
administration of Tribal-Federal Intergovernmental Agreements.



Sec. 755.10  Information collection.

    The information collection requirements contained in this part do 
not require approval from the Office of Management and Budget under 44 
U.S.C. 3507 because there are expected to be less than 10 respondents 
annually.



Sec. 755.11  Application and agreement.

    (a) An Indian tribe may request that the Secretary enter into a 
Tribal-Federal intergovernmental agreement with the tribe.
    (b) A request for a Tribal-Federal intergovernmental agreement shall 
be submitted in writing and shall include proposed terms of the 
agreement consistent with the requirements of this part.



Sec. 755.12  Terms.

    The terms in each Tribal-Federal intergovernmental agreement may 
include:
    (a) Provisions to allow the tribe to work with and assist OSM in the 
review of permit applications, and to recommend appropriate action on 
permits, permit applications, inspection and enforcement, and bond 
release or forfeiture; and
    (b) Provisions to provide funding for tribal employees to attend and 
testify at hearings and to perform other functions under the agreement.



Sec. 755.13  Authority reserved by the Secretary.

    The Secretary shall not delegate to any Indian tribe, nor shall any 
Tribal-Federal Intergovernmental Agreement be construed to delegate to 
any tribe, the nondelegable authority exercised by or reserved to the 
Secretary on Indian lands.



Sec. 755.14  Amendments.

    An agreement that has been approved pursuant to this part may be 
amended by mutual agreement of the Secretary and the officers of the 
tribe.



Sec. 755.15  Termination.

    An agreement may be terminated by either party upon written notice 
to the other specifying the date upon which the agreement will be 
terminated. The date of termination shall be no less than 30 days from 
the date of the notice.



PART 756--INDIAN TRIBE ABANDONED MINE LAND RECLAMATION PROGRAMS--Table of Contents




Sec.
756.1  Scope.
756.13  Approval of the Navajo Nation's abandoned mine land plan.
756.14  Approval of amendments to the Navajo Nation's abandoned mine 
          land plan.
756.15  Required amendments to the Navajo Nation's abandoned mine land 
          plan.
756.16  Approval of the Hopi Tribe's abandoned mine land reclamation 
          plan.
756.17  Approval of the Hopi Tribe's abandoned mine land reclamation 
          plan amendments.
756.18  Required amendments to the Hopi Tribe's abandoned mine land 
          reclamation plan.
756.19  Approval of the Crow Tribe's abandoned mine land reclamation 
          plan.
756.20  Approval of amendments to the Crow Tribe's abandoned mine land 
          reclamation plan.
756.21  Required amendments to the Crow Tribe's abandoned mine land 
          reclamation plan.

    Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.

[[Page 170]]



Sec. 756.1  Scope.

    This part implements the provisions in Pub. L. 100-71 which 
authorize the Crow, Hopi, and Navajo Tribes to obtain the Secretary's 
approval of Abandoned Mine Land Reclamation programs without prior 
approval of surface mining regulatory programs as ordinarily required by 
section 405 of SMCRA.
[53 FR 17190, May 16, 1988]



Sec. 756.13  Approval of the Navajo Nation's abandoned mine land plan.

    The Navajo Nation's Abandoned Mine Land Plan as submitted in June 
1982, resubmitted in September 1983, and amended in February 1988, is 
approved effective May 16, 1988. Copies of the approved program are 
available at:
    (a) The Navajo Nation, Navajo Abandoned Mine Land Reclamation 
Department, Division of Natural Resources, Navajo Nation Inn--Office 
Complex, P.O. Box 1875, Window Rock, AZ 86515, Telephone: (520) 871-
7593.
    (b) Office of Surface Mining Reclamation and Enforcement, 
Albuquerque Field Office, 505 Marquette Ave., NW., Suite 1200, 
Albuquerque, NM 87102, Telephone: (505) 248-5070.
[60 FR 33724, June 29, 1995, as amended at 61 FR 6508, Feb. 21, 1996]



Sec. 756.14  Approval of amendments to the Navajo Nation's abandoned mine land plan.

    (a) Revisions to the following provisions of the Navajo Nation AMLR 
plan, as submitted to OSM on April 7 and 22, 1994, are approved 
effective September 27, 1994:

Navajo Nation Abandoned Mine Land Reclamation Code of 1987: Introduction

Section 101--Findings
Section 102--Purposes
Section 201--Duties of Navajo Abandoned Mine Lands Reclamation 
          Department
Section 401--Navajo Abandoned Mine Reclamation Fund and Purposes
Section 402--Reclamation Fees
Section 403--Objectives of Fund
Section 404--Eligible Lands and Water
Section 405--Reclamation Program
Section 407--Acquisition and Reclamation of Lands Within the Navajo 
          Nation Adversely Affected by Past Mining Practices
Section 408--Liens
Section 409--Filling Voids and Sealing Tunnels
Section 410--Deletion of Emergency Powers
Section 411--Certification of Completion of Coal Reclamation
Section 412--Navajo Abandoned Mine Reclamation Fund Report
Section 413--Miscellaneous Powers, and
Section 414--Interagency Cooperation

                           Navajo Nation Rules

II(D) (1) and (2)--Reclamation Priorities
II(L) (1) and (2)--General Reclamation Requirements
II(M) (1) and (2)--Certification of Completion of Coal Reclamation
II(N) (1)--Eligible Lands and Water Subsequent to Certification
II(O) (1)--Exclusion of Noncoal Reclamation Sites
II(P) (1), (2), and (3)--Utilities and Other Facilities, and
III(E) (1)--Future Reclamation Set-Aside Program

    (b) The Director concurs with the Navajo Nation's May 4, 1994, 
certification of completion of coal reclamation effective September 27, 
1994.
    (c) Revisions to sections 404 (a), (b), and (c) of the Navajo Nation 
Abandoned Mine Land Reclamation (AMLR) Code of 1987, pertaining to 
eligible lands and water, as submitted to OSM on January 12, 1995, and 
as subsequently revised on February 23 1995, are approved effective 
April 25, 1995.
    (d) Revisions to, additions of, or deletions of the following rules, 
as submitted to OSM on September 3, 1996, are approved effective April 
15, 1997.

Section II, E, 1, Project selection,
Sections II, L, 1(e) and (g), Eligible coal lands and water,
Section II, L, 1(h), Limited liability,
Section II, L, 1(i), Contractor responsibility,
Section II, L, 1(j), Reports,
Sections II, L, 2(b)(3) and (4), Eligible noncoal lands and water prior 
          to certification,
Section II, L, 2(c), Limited liability,
Section II, L, 2(d), Contractor responsibility,
Section II, L, 2(e), Reports,
Sections II, M, 1(b) and (d), 2, and 2(a) and (b), Certification of 
          completion of coal sites,
Sections II, N, 1 and 1(c), Eligible lands and water subsequent to 
          certification,
Sections II, P, 1(a) through (c), 2(a) through (f), and (3), Utilities 
          and other facilities, and

[[Page 171]]

Section III, E, 1 and 1(a), Future reclamation set-aside program.
[59 FR 49185, Sept. 27, 1994, as amended at 60 FR 20195, Apr. 25, 1995; 
62 FR 18272, Apr. 15, 1997]



Sec. 756.15  Required amendments to the Navajo Nation's abandoned mine land plan.

    Pursuant to 30 CFR 884.15, the Navajo Nation is required to submit 
to OSM by the date specified either a proposed amendment or a reasonable 
timetable, which is consistent with the Navajo Nation's established 
administrative and legislative procedures, for submitting an amendment 
to the Navajo Nation plan.
[61 FR 6508, Feb. 21, 1996]



Sec. 756.16  Approval of the Hopi Tribe's abandoned mine land reclamation plan.

    The Hopi Tribe's Abandoned Mine Land Reclamation Plan as submitted 
in July 1983, and amended in March and May 1988, is approved. Copies of 
the approved Plan are available at the following locations:
    (a) The Hopi Tribe, Hopi Abandoned Mine Land Program, Department of 
Natural Resources, Honahni Building, P.O. Box 123, Kykotsmovi, AZ 86039, 
Telephone: (520) 734-2441.
    (b) Office of Surface Mining Reclamation and Enforcement, 
Albuquerque Field Office, 505 Marquette Ave., NW., Suite 1200, 
Albuquerque, NM 87102, Telephone: (505) 248-5070.
[61 FR 6508, Feb. 21, 1996]



Sec. 756.17  Approval of the Hopi Tribe's abandoned mine land reclamation plan amendments.

    The following amendments to the Hopi Tribe's abandoned mine land 
reclamation plan are approved.
    (a) The Hopi Tribe certification of completion of coal reclamation, 
as submitted on February 2, 1994, is approved effective June 9, 1994.
    (b) With the exceptions of Part I, concerning the purpose of the 
Hopi tribe plan; section I, A(3) concerning facilities related to water 
supplies; section I, A(4), concerning public facilities projects; 
section II, B(1)(d)(ii), concerning the protection of property; and 
section 884.13(f)(2), concerning a description of aesthetic, cultural 
and recreational conditions of the Hopi Reservation, revisions to and 
additions of the following plan provisions, as submitted to OSM on 
November 2, 1995, are approved effective April 23, 1996.

Table of Contents--Title of Part II and List of Appendices;
List of Addenda and Errata--Title for this part;
List of Figures--Title of Figure 4 and deletion of Figure 5;
Preface to Amended Reclamation Plan--Introductory paragraph, program 
goals and objectives, and eligible projects;
Chairman's Letter of Designation and Hopi Tribe Resolution--Designation 
of Tribal agency authorized to administer approved plan;
Opinion of Legal Counsel--Authority of designated agency to conduct the 
AMLR program in accordance with the requirements of Title IV of SMCRA;
Section I, A(1)--Protection of the health, safety, and general welfare 
of members of the Hopi Tribe;
Section I, A(2)--Restoration of land and water resources;
Section I, B--Designation of administrative authority;
Section I, C--Reclamation priorities;
Sections I, C (4) and (5)--Deletion of existing C(4) and recodification 
of C(5) and (6) as C(4) and (5);
Section I, C--Deletion of allocation of funds provisions;
Section II, A--[Lack of] Limited liability provision for coal;
Section II, A(1)--Abatement of any new coal problems that arise after 
the effective date of the certification of completion of coal 
reclamation;
Sections II, A(1) (a) through (f)--Eligible coal lands and water;
Section II, (A)(1)(g)--Contractor responsibility;
Section II, A(1)(h)--Reports;
Sections II, B(1) (a) and (b)--Eligible lands and water subsequent to 
certification;
Sections II, B(1)(c), (d) (i) and (iii), (e), and (g)--Reclamation 
priorities for noncoal program;
Section II, B(1)(f)--Need for activities or construction of specific 
public facilities related to the coal or mineral industry on Tribal 
lands impacted by coal or mineral development;
Section II, G--Reports;
Sections II, C through F--Exclusion of certain noncoal reclamation 
sites, noncoal land acquisition authority, limited liability, and 
contractor responsibility;
Section II, H and [deletion of] ranking and selection of noncoal 
reclamation projects

[[Page 172]]

and Table I, Comprehensive/Problem Evaluation Matrix--Description of 
needs, proposed construction and activities;
Part III--Coordination of Tribal AML programs with other programs;
Section IV, A(1)--Acquisition of lands by the Hopi Tribe;
Section IV, A(2)(a)(i)--Appraisals;
Section IV, A(2)(b)--Lands eligible for acquisition;
Sections IV, A(2) (c), (d), (e), B(2), and C--Land acquisition, 
management, and disposal;
Section IV, B(1)--Management of acquired lands;
Part V and Figures 1 and 2--Reclamation on private land;
Section VI, A, B, and C--Rights of entry;
Deletion of section VI, C--Entry for emergency reclamation;
Part VII--Hopi Department of Natural Resources (DNR) policy on public 
participation;
Part VIII and Figure 4--Organization of the Hopi Tribe;
Part IX--Personnel staffing policies;
Part X--Purchasing and procurement;
Part XI--Management accounting;
[Deletion of] sections 884.13(e) (1), (2), and (3)--Purpose of Hopi 
Tribe plan and criteria for ranking and identifying projects;
Part XII--Economic conditions of the Hopi Reservation;
Part XIII--Flora and fauna;
Appendices 1 through 12--Addition of cover pages;
Appendix 1--Constitution and By-Laws of the Hopi Tribe, as amended;
Appendix 7--Title of the appendix;
Memorandum from the Assistant General Counsel/Legislation Counsel to DNR 
dated May 18, 1995--Elimination of Title IV from the draft Hopi Code 
Mining Ordinance;
Hopi Tribal Council Resolution H-134-89, adopted August 29, 1989; and
Memorandum from the Hopi Tribe Office of Financial Management to DNR 
dated September 7, 1995--Purchasing procedures.

    (c) Revisions to, additions of, or deletions of the following plan 
provisions, as submitted to OSM on September 23, 1996, are approved 
effective March 31, 1997:

Preface to Amended Reclamation Plan--Introductory paragraph and Eligible 
Projects;
Section I, A--Purpose of Hopi plan;
Section II, A(1)--Certification of Completion of Coal Sites;
Section II, A(1)(a)--Eligible Coal Lands and Water;
Section II, A, (1)(g)--Contractor Responsibility (for coal reclamation);
Section II, (A)(1)(i)--Limited Liability (for coal reclamation);
Sections II, (B)(1)(d) and (d)(ii)--Noncoal Reclamation After 
Certification;
Sections II, (B)(1)(h), (i), and (j)--Limited Liability, Contractor 
Responsibility, and Reports (for noncoal reclamation);
Deletion of sections II, E, F, and G--Limited Liability, Contractor 
Responsibility, and Reports (for noncoal reclamation);
Section II, E--Description of Needs, Proposed Construction and 
Activities;
Sections IV, (A)(1) and (B)(1)--Acquisition and Management of Acquired 
Lands;
Sections VI, A(1) (a) through (c) and B(1)--Consent to Entry and Public 
Notice;
Section VII, B(8)--Public Participation;
Section VIII--Organization of the Hopi Tribe;
Section XII--Description of Aesthetic, Cultural and Recreational 
Conditions of the Hopi Reservation; and
Section XIV--Flora and Fauna.
[61 FR 17839, Apr. 23, 1996, as amended at 62 FR 15115, Mar. 31, 1997]



Sec. 756.18  Required amendments to the Hopi Tribe's abandoned mine land reclamation plan.

    Pursuant to 30 CFR 884.15, the Hopi Tribe is required to submit to 
OSM by the date specified either a proposed amendment or a reasonable 
timetable, which is consistent with the Hopi Tribe's established 
administrative and legislative procedures, for submitting an amendment 
to the Hopi Tribe plan.
    (a)-(b) [Reserved]
[61 FR 6508, Feb. 21, 1996, as amended at 61 FR 17840, Apr. 23, 1996; 62 
FR 15115, Mar. 31, 1997]



Sec. 756.19  Approval of the Crow Tribe's abandoned mine land reclamation plan.

    The Crow Tribe's Abandoned Mine Land Reclamation Plan as submitted 
in 1982, and resubmitted in September, 1988 is approved. Copies of the 
approved Plan are available at the following locations:
    (a) Crow Tribal Council, Crow Office of Reclamation, P.O. Box 159, 
Crow Agency, MT 59022.
    (b) Office of Surface Mining Reclamation and Enforcement, Casper 
Field Office, Room 2128, 100 East B Street, Casper, WY 82601-1918, 
Telephone: (307) 261-6555.
[61 FR 6508, Feb. 21, 1996]

[[Page 173]]



Sec. 756.20  Approval of amendments to the Crow Tribe's abandoned mine land reclamation plan.

    Revisions to the following provisions of the Crow Tribe's Abandoned 
Mine Land Reclamation Plan, as submitted to OSM on the date specified, 
are approved.
[61 FR 6509, Feb. 21, 1996]



Sec. 756.21  Required amendments to the Crow Tribe's abandoned mine land reclamation plan.

    Pursuant to 30 CFR 884.15, the Crow Tribe is required to submit to 
OSM by the date specified either a proposed amendment or a reasonable 
timetable, which is consistent with the Crow Tribe's established 
administrative and legislative procedures, for submitting an amendment 
to the Crow Tribe plan.
[61 FR 6509, Feb. 21, 1996]

[[Page 174]]



                SUBCHAPTER F--AREAS UNSUITABLE FOR MINING





PART 761--AREAS DESIGNATED BY ACT OF CONGRESS--Table of Contents




Sec.
761.1  Scope.
761.3  Authority.
761.5  Definitions.
761.11  Areas where mining is prohibited or limited.
761.12  Procedures.

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

    Source: 48 FR 41348, Sept. 14, 1983, unless otherwise noted.



Sec. 761.1  Scope.

    This part establishes the procedures and standards to be followed in 
determining whether a proposed surface coal mining and reclamation 
operation can be authorized in light of the prohibitions and limitations 
in section 522(e) of the Act for those types of operations on certain 
Federal, public and private lands.



Sec. 761.3  Authority.

    The State regulatory authority or the Secretary is authorized by 
section 522(e) of the Act (30 U.S.C. 1272(e)) to prohibit or limit 
surface coal mining operations on or near certain private, Federal, and 
other public lands, subject to valid existing rights and except for 
those operations which existed on August 3, 1977.



Sec. 761.5  Definitions.

    For the purposes of this part--
    Cemetery means any area of land where human bodies are interred.
    Community or institutional building means any structure, other than 
a public building or an occupied dwelling, which is used primarily for 
meetings, gatherings or functions of local civic organizations or other 
community groups; functions as an educational, cultural, historic, 
religious, scientific, correctional, mental-health or physical health 
care facility; or is used for public services, including, but not 
limited to, water supply, power generation or sewage treatment.
    Occupied dwelling means any building that is currently being used on 
a regular or temporary basis for human habitation.
    Public building means any structure that is owned or leased, and 
principally used by a governmental agency for public business or 
meetings.
    Public park means an area or portion of an area dedicated or 
designated by any Federal, State, or local agency primarily for public 
recreational use, whether or not such use is limited to certain times or 
days, including any land leased, reserved, or held open to the public 
because of that use.
    Public road means a road (a) which has been designated as a public 
road pursuant to the laws of the jurisdiction in which it is located; 
(b) which is maintained with public funds in a manner similar to other 
public roads of the same classification within the jurisdiction; (c) for 
which there is substantial (more than incidental) public use; and (d) 
which meets road construction standards for other public roads of the 
same classification in the local jurisdiction.
    Publicly-owned park means a public park that is owned by a Federal, 
State or local governmental entity.
    Significant forest cover means an existing plant community 
consisting predominantly of trees and other woody vegetation. The 
Secretary of Agriculture shall decide on a case-by-case basis whether 
the forest cover is significant within those national forests west of 
the 100th meridian.
    Significant recreational, timber, economic, or other values 
incompatible with surface coal mining operations means those values to 
be evaluated for their significance which could be damaged by, and are 
not capable of existing together with, surface coal mining operations 
because of the undesirable effects mining would have on those values, 
either on the area included in the permit application or on other 
affected areas. Those values to be evaluated for their importance 
include:
    (a) Recreation, including hiking, boating, camping, skiing or other 
related outdoor activities;
    (b) Timber manager and silviculture;

[[Page 175]]

    (c) Agriculture, aquaculture or production of other natural, 
processed or manufactured products which enter commerce;
    (d) Scenic, historic, archeologic, esthetic, fish, wildlife, plants 
or cultural interests.
    Surface coal mining operations which exist on the date of enactment 
means all surface coal mining operations which were being conducted on 
August 3, 1977.
    Surface operations and impacts incident to an underground coal mine 
means all activities involved in or related to underground coal mining 
which are either conducted on the surface of the land, produce changes 
in the land surface or disturb the surface, air or water resources of 
the area, including all activities listed in section 701(28) of the Act 
and the definition of surface coal mining operations appearing in 
Sec. 700.5 of this chapter.
    Valid existing rights means:
    (a) Except for haul roads, that a person possesses valid existing 
rights for an area protected under section 522(e) of the Act on August 
3, 1977, if the application of any of the prohibitions contained in that 
section to the property interest that existed on that date would effect 
a taking of the person's property which would entitle the person to just 
compensation under the Fifth and Fourteenth Amendments to the United 
States Constitution;
    (b) For haul roads,
    (1) A recorded right of way, recorded easement or a permit for a 
coal haul road recorded as of August 3, 1977, or
    (2) Any other road in existence as of August 3, 1977;
    (c) A person possesses valid existing rights if the person proposing 
to conduct surface coal mining operations can demonstrate that the coal 
is both needed for, and immediately adjacent to, an ongoing surface coal 
mining operation which existed on August 3, 1977. A determination that 
coal is ``needed for'' will be based upon a finding that the extension 
of mining is essential to make the surface coal mining operation as a 
whole economically viable;
    (d) Where an area comes under the protection of section 522(e) of 
the Act after August 3, 1977, valid existing rights shall be found if--
    (1) On the date the protection comes into existence, a validly 
authorized surface coal mining operation exists on that area; or
    (2) The prohibition caused by section 522(e) of the Act, if applied 
to the property interest that exists on the date the protection comes 
into existence, would effect a taking of the person's property which 
would entitle the person to just compensation under the Fifth and 
Fourteenth Amendments to the United States Constitution.
    (e) Interpretation of the terms of the document relied upon to 
establish the rights to which the standard of paragraphs (a) and (d) of 
this section applies shall be based either upon applicable State 
statutory or case law concerning interpretation of documents conveying 
mineral rights or, where no applicable State law exists, upon the usage 
and custom at the time and place it came into existence.
[48 FR 41348, Sept. 14, 1983, as amended at 52 FR 4261, Feb. 10, 1987; 
56 FR 65634, Dec. 17, 1991]

    Effective Date Note: At 51 FR 41960, Nov. 20, 1986 in Sec. 761.5:

    1. The definition of Significant recreational, timber, economic, or 
other values incompatible with surface coal mining operations was 
suspended insofar as the listed values are evaluated for compatibility 
solely in terms of reclaimability; and
    2. Paragraphs (a) and (c) of the definition of Valid existing rights 
were suspended, and subparagraph (d)(2) was suspended insofar as it 
incorporates the takings test of paragraph (a).



Sec. 761.11  Areas where mining is prohibited or limited.

    Subject to valid existing rights, no surface coal mining operations 
shall be conducted after August, 3, 1977, unless those operations 
existed on the date of enactment:
    (a) On any lands within the boundaries 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 study rivers designated under section 5(a) of the Wild 
and Scenic Rivers Act (16 U.S.C. 1276(a)) or study rivers or study river 
corridors as established in any guidelines pursuant

[[Page 176]]

to that Act, and National Recreation Areas designated by Act of 
Congress.
    (b) On any Federal lands within the boundaries of any national 
forest; Provided, however, That surface coal mining operations may be 
permitted on such lands, if the Secretary finds that there are no 
significant recreational, timber, economic, or other values which may be 
incompatible with surface coal mining operations; and
    (1) Surface operations and impacts are incident to an underground 
coal mine; or
    (2) The Secretary of Agriculture determines, with respect to lands 
which do not have significant forest cover within those national forests 
west of the 100th meridian, that surface coal mining operations comply 
with the Multiple-Use Sustained Yield Act of 1960 (16 U.S.C. 528-531), 
the Federal Coal Leasing Amendments Act of 1975 (Pub. L. 94-377, 30 
U.S.C. 201 et seq.), the National Forest Mangement Act of 1976 (90 Stat. 
2949), and the provisions of the Act. No surface coal mining operation 
may be permitted within the boundaries of the Custer National Forest;
    (c) On any lands where mining will adversely affect any publicly 
owned park or any places included in the National Register of Historic 
Places, unless jointly approved by the regulatory authority and the 
Federal, State, or local agency with jurisdiction over the park or 
place;
    (d) Within 100 feet, measured horizontally, of the outside right-of-
way line of any public road, except--
    (1) Where mine access roads or haulage roads join such right-of-way 
line; or
    (2) Where the regulatory authority or the appropriate public road 
authority, pursuant to being designated as the responsible agency by the 
regulatory authority, allows the public road to be relocated, closed, or 
the area affected to be within 100 feet of such road, after--
    (i) Public notice and opportunity for a public hearing in accordance 
with Sec. 761.12(d); and
    (ii) Making a written finding that the interests of the affected 
public and landowners will be protected;
    (e) Within 300 feet, measured horizontally, of any occupied 
dwelling, except when--
    (1) The owner thereof has provided a written waiver consenting to 
surface coal mining operations closer than 300 feet; or
    (2) The part of the mining operation which is within 300 feet of the 
dwelling is a haul road or access road which connects with an existing 
public road on the side of the public road opposite the dwelling;
    (f) Within 300 feet measured horizontally of any public building, 
school, church, community or institutional building or public park; or
    (g) Within 100 feet, measured horizontally, of a cemetery; 
cemeteries may be relocated if authorized by applicable State law or 
regulations.
    (h) There will be no surface coal mining, permitting, licensing or 
exploration of Federal lands in the National Park System, National 
Wildlife Refuge System, National System of Trails, National Wilderness 
Preservation System, Wild and Scenic Rivers System, or National 
Recreation Areas, unless called for by Acts of Congress.
[48 FR 41348, Sept. 14, 1983, as amended at 51 FR 25819, July 16, 1986; 
51 FR 26385, July 23, 1986; 52 FR 4261, Feb. 10, 1987]

    Effective Date Note: At 51 FR 41961, Nov. 20, 1986, paragraph (h) of 
Sec. 761.11 was suspended.



Sec. 761.12  Procedures.

    (a) Upon receipt of a complete application for a surface coal mining 
and reclamation operation permit, the regulatory authority shall review 
the application to determine whether surface coal mining operations are 
limited or prohibited under Sec. 761.11 on the lands which would be 
disturbed by the proposed operations.
    (b)(1) Where the proposed operation would be located on any lands 
listed in Sec. 761.11 (a), (f), or (g), the regulatory authority shall 
reject the application if the applicant has no valid existing rights for 
the area, or if the operation did not exist on August 3, 1977.
    (2) If the regulatory authority is unable to determine whether the 
proposed operation is located within the boundaries of any of the lands 
in Sec. 761.11(a) or closer than the limits provided in Sec. 761.11 (f) 
and (g), the regulatory authority shall transmit a copy of the

[[Page 177]]

relevant portions of the permit application to the appropriate Federal, 
State, or local government agency for a determination or clarification 
of the relevant boundaries or distances, with a notice to the 
appropriate agency that it has 30 days from receipt of the request in 
which to respond. The National Park Service or the U.S. Fish and 
Wildlife Service shall be notified of any request for a determination of 
valid existing rights pertaining to areas within the boundaries of areas 
under their jurisdiction and shall have 30 days from receipt of the 
notification in which to respond. The regulatory authority, upon request 
by the appropriate agency, shall grant an extension to the 30-day period 
of an additional 30 days. If no response is received within 30-day 
period or within the extended period granted, the regulatory authority 
may make the necessary determination based on the information it has 
available.
    (c) Where the proposed operation would include Federal lands within 
the boundaries of any national forest, and the applicant seeks a 
determination that mining is permissible under Sec. 761.11(b), the 
applicant shall submit a permit application to the Director for 
processing under subchapter D of this chapter. Before acting on the 
permit application, the Director shall ensure that the Secretary's 
determination has been received and the findings required by section 
522(e)(2) of the Act have been made.
    (d) Where the mining operation is proposed to be conducted within 
100 feet, measured horizontally, of the outside right-of-way line of any 
public road (except as provided in Sec. 761.11(d)(2)) or where the 
applicant proposes to relocate or close any public road, the regulatory 
authority or public road authority designated by the regulatory 
authority shall--
    (1) Require the applicant to obtain necessary approvals of the 
authority with jurisdiction over the public road;
    (2) Provide an opportunity for a public hearing in the locality of 
the proposed mining operation for the purpose of determining whether the 
interests of the public and affected landowners will be protected;
    (3) If a public hearing is requested, provide appropriate advance 
notice of the public hearing, to be published in a newspaper of general 
circulation in the affected locale at least 2 weeks prior to the 
hearing; and
    (4) Make a written finding based upon information received at the 
public hearing within 30 days after completion of the hearing, or after 
any public comment period ends if no hearing is held, as to whether the 
interests of the public and affected landowners will be protected from 
the proposed mining operation. No mining shall be allowed within 100 
feet of the outside right-of-way line of a road, nor may a road be 
relocated or closed, unless the regulatory authority or public road 
authority determines that the interests of the public and affected 
landowners will be protected.
    (e)(1) Where the proposed surface coal mining operations would be 
conducted within 300 feet, measured horizontally, of any occupied 
dwelling, the permit applicant shall submit with the application a 
written waiver by lease, deed, or other conveyance from the owner of the 
dwelling, clarifying that the owner and signator had the legal right to 
deny mining and knowingly waived that right. The waiver shall act as 
consent to such operations within a closer distance of the dwelling as 
specified.
    (2) Where the applicant for a permit after August 3, 1977, had 
obtained a valid waiver prior to August 3, 1977, from the owner of an 
occupied dwelling to mine within 300 feet of such dwelling, a new waiver 
shall not be required.
    (3)(i) Where the applicant for a permit after August 3, 1977, had 
obtained a valid waiver from the owner of an occupied dwelling, that 
waiver shall remain effective against subsequent purchasers who had 
actual or constructive knowledge of the existing waiver at the time of 
purchase.
    (ii) A subsequent purchaser shall be deemed to have constructive 
knowledge if the waiver has been properly filed in public property 
records pursuant to State laws or if the mining has proceeded to within 
the 300-foot limit prior to the date of purchase.
    (f)(1) Where the regulatory authority determines that the proposed 
surface coal mining operation will adversely

[[Page 178]]

affect any publicly owned park or any place included in the National 
Register of Historic Places, the regulatory authority shall transmit to 
the Federal, State, or local agency with jurisdiction over the park or 
place a copy of applicable parts of the permit application, together 
with a request for that agency's approval or disapproval of the 
operation, and a notice to that agency that it has 30 days from receipt 
of the request within which to respond and that failure to interpose a 
timely objection will constitute approval. The regulatory authority, 
upon request by the appropriate agency, may grant an extension to the 
30-day period of an additional 30 days. Failure to interpose an 
objection within 30 days or the extended period granted shall constitute 
an approval of the proposed permit.
    (2) A permit for the operation shall not be issued unless jointly 
approved by all affected agencies.
    (g) If the regulatory authority determines that the proposed surface 
coal mining operation is not prohibited under section 522(e) of the Act 
and this part, it may nevertheless, pursuant to appropriate petitions, 
designate such lands as unsuitable for all or certain types of surface 
coal mining operations pursuant to part 762, 764 or 769 of this chapter.
    (h) A determination by the regulatory authority that a person holds 
or does not hold valid existing rights or that surface coal mining 
operations did or did not exist on the date of enactment shall be 
subject to administrative and judicial review under Secs. 775.11 and 
775.13 of this chapter.
[48 FR 41348, Sept. 14, 1983, as amended at 52 FR 4261, Feb. 10, 1987]



PART 762--CRITERIA FOR DESIGNATING AREAS AS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS--Table of Contents




Sec.
762.1  Scope.
762.4  Responsibility.
762.5  Definitions.
762.11  Criteria for designating lands as unsuitable.
762.12  Additional criteria.
762.13  Land exempt from designation as unsuitable for surface coal 
          mining operations.
762.14  Exploration on land designated as unsuitable for surface coal 
          mining operations.

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

    Source: 48 FR 41350, Sept. 14, 1983, unless otherwise noted.



Sec. 762.1  Scope.

    This part establishes the minimum criteria to be used in determining 
whether lands should be designated as unsuitable for all or certain 
types of surface coal mining operations.



Sec. 762.4  Responsibility.

    The regulatory authority or OSM shall use the criteria in this part 
for the evaluation of each petition for the designation of areas as 
unsuitable for surface coal mining operations.



Sec. 762.5  Definitions.

    For purposes of this part:
    Fragile lands means areas containing natural, ecologic, scientific, 
or esthetic resources that could be significantly damaged by surface 
coal mining operations. Examples of fragile lands include valuable 
habitats for fish or wildlife, critical habitats for endangered or 
threatened species of animals or plants, uncommon geologic formations, 
paleontological sites, National Natural Landmarks, areas where mining 
may result in flooding, environmental corridors containing a 
concentration of ecologic and esthetic features, and areas of 
recreational value due to high environmental quality.
    Historic lands means areas containing historic, cultural, or 
scientific resources. Examples of historic lands include archeological 
sites, properties listed on or eligible for listing on a State or 
National Register of Historic Places, National Historic Landmarks, 
properties having religious or cultural significance to Native Americans 
or religious groups, and properties for which historic designation is 
pending.
    Natural hazard lands means geographic areas in which natural 
conditions exist which pose or, as a result of surface coal mining 
operations, may pose a threat to the health, safety or

[[Page 179]]

welfare of people, property or the environment, including areas subject 
to landslides, cave-ins, large or encroaching sand dunes, severe wind or 
soil erosion, frequent flooding, avalanches and areas of unstable 
geology.
    Renewable resource lands means geographic areas which contribute 
significantly to the long-range productivity of water supply or of food 
or fiber products, such lands to include aquifers and aquifer recharge 
areas.
    Substantial legal and financial commitments in a surface coal mining 
operation means significant investments that have been made on the basis 
of a long-term coal contract in power plants, railroads, coal-handling, 
preparation, extraction or storage facilities, and other capital-
intensive activities. Costs of acquiring the coal in place, or the right 
to mine it alone without other significant investments, as described 
above, are not sufficient to constitute substantial legal and financial 
commitments.
[48 FR 41350, Sept. 14, 1983, as amended at 52 FR 18795, May 19, 1987; 
53 FR 26584, July 13, 1988]



Sec. 762.11  Criteria for designating lands as unsuitable.

    (a) Upon petition an area shall be designated as unsuitable for all 
or certain types of surface coal mining operations, if the regulatory 
authority determines that reclamation is not technologically and 
economically feasible under the Act, this chapter or an approved State 
program.
    (b) Upon petition an area may be (but is not required to be) 
designated as unsuitable for certain types of surface coal mining 
operations, if the operations will--
    (1) Be incompatible with existing State or local land use plans or 
programs;
    (2) Affect fragile or historic lands in which the operations could 
result in significant damage to important historic, cultural, 
scientific, or esthetic values or natural systems;
    (3) Affect renewable resource lands in which the operations could 
result in a substantial loss or reduction of long-range productivity of 
water supply or of food or fiber products; or
    (4) Affect natural hazard lands in which the operations could 
substantially endanger life and property, such lands to include areas 
subject to frequent flooding and areas of unstable geology.



Sec. 762.12  Additional criteria.

    (a) A State regulatory authority may establish additional or more 
stringent criteria for determining whether lands within the State should 
be designated as unsuitable for coal mining operations. Such criteria 
shall be approved pursuant to subchapter C of this chapter.
    (b) The Secretary may establish additional criteria for determining 
whether Federal lands should be designated as unsuitable for surface 
mining operations.
    (c) Additional criteria will be determined to be more stringent on 
the basis of whether they provide for greater protection of the public 
health, safety and welfare or the environment, such that areas beyond 
those specified in the criteria of this part would be designated as 
unsuitable for surface coal mining operations.



Sec. 762.13  Land exempt from designation as unsuitable for surface coal mining operations.

    The requirements of this part do not apply to--
    (a) Lands on which surface coal mining operations were being 
conducted on the date of enactment of the Act;
    (b) Lands covered by a permit issued under the Act; or
    (c) Lands where substantial legal and financial commitments in 
surface coal mining operations were in existence prior to January 4, 
1977.



Sec. 762.14  Exploration on land designated as unsuitable for surface coal mining operations.

    Designation of any area as unsuitable for all or certain types of 
surface coal mining operations pursuant to section 522 of the Act and 
regulations of this subchapter does not prohibit coal exploration 
operations in the area, if conducted in accordance with the Act, this 
chapter, any approved State or Federal program, and other applicable 
requirements. Exploration operations on any

[[Page 180]]

lands designated unsuitable for surface coal mining operations must be 
approved by the regulatory authority under part 772 of this chapter, to 
ensure that exploration does not interfere with any value for which the 
area has been designated unsuitable for surface coal mining.



PART 764--STATE PROCESSES FOR DESIGNATING AREAS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS--Table of Contents




Sec.
764.1  Scope.
764.10  Information collection.
764.11  General process requirements.
764.13  Petitions.
764.15  Initial processing, recordkeeping, and notification 
          requirements.
764.17  Hearing requirements.
764.19  Decision.
764.21  Data base and inventory system requirements.
764.23  Public information.
764.25  Regulatory authority responsibility for implementation.

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

    Source: 48 FR 41351, Sept. 14, 1983, unless otherwise noted.



Sec. 764.1  Scope.

    This part establishes minimum procedures and standards to be 
included in each approved State program for designating non-Federal and 
non-Indian lands in a State as unsuitable for all or certain types of 
surface coal mining operations and for terminating designations.



Sec. 764.10  Information collection.

    The information collection requirements contained in Secs. 764.21 
and 764.25(b) have been approved by the Office of Management and Budget 
under 44 U.S.C. 3507 and assigned clearance number 1029-0030. The 
information required in Sec. 764.21 is necessary to allow the regulatory 
authority to develop a data base and inventory system to evaluate 
whether reclamation is feasible in areas covered by petitions. The 
information required in Sec. 764.25(b) is necessary to allow the 
regulatory authority to determine, when a permit application is filed, 
whether it includes any areas designated as unsuitable for surface coal 
mining.



Sec. 764.11  General process requirements.

    Each State shall establish a process enabling objective decisions to 
be made on which, if any, land areas of the State are unsuitable for all 
or certain types of surface coal mining operations. These decisions 
shall be based on competent, scientifically sound data and other 
relevant information. This process shall include the requirements listed 
in this part.



Sec. 764.13  Petitions.

    (a) Right to petition. Any person having an interest which is or may 
be adversely affected has the right to petition the regulatory authority 
to have an area designated as unsuitable for surface coal mining 
operations, or to have an existing designation terminated. For the 
purpose of this Action, a person having an interest which is or may be 
adversely affected must demonstrate how he or she meets an ``injury in 
fact'' test by describing the injury to his or her specific affected 
interests and demonstrate how he or she is among the injured.
    (b) Designation. The regulatory authority shall determine what 
information must be provided by the petitioner to have an area 
designated as unsuitable for surface coal mining operations.
    (1) At a minimum, a complete petition for designation shall 
include--
    (i) The petitioner's name, address, telephone number, and notarized 
signature;
    (ii) Identification of the petitioned areas, including its location 
and size, and a U.S. Geological Survey topographic map outlining the 
perimeter of the petitioned area;
    (iii) An identification of the petitioner's interest which is or may 
be adversely affected by surface coal mining operations, including a 
statement demonstrating how the petitioner satisfies the requirements of 
paragraph (a) of this section;
    (iv) A description of how mining of the area has affected of may 
adversely affect people, land, air, water, or other resources, including 
the petitioner's interests; and

[[Page 181]]

    (v) Allegations of fact and supporting evidence, covering all lands 
in the petition area, which tend to establish that the area is 
unsuitable for all or certain types of surface coal mining operations, 
pursuant to specific criteria of sections 522(a) (2) and (3) of the Act, 
assuming that contemporary mining practices required under applicable 
regulatory programs would be followed if the area were to be mined. Each 
of the allegations of fact should be specific as to the mining 
operation, if known, and the portion(s) of the petitioned area and 
petitioner's interests to which the allegation applies and be supported 
by evidence that tends to establish the validity of the allegations for 
the mining operation or portion of the petitioned areas.
    (2) The regulatory authority may request that the petitioner provide 
other supplementary information which is readily available.
    (c) Termination. The regulatory authority shall determine what 
information must be provided by the petitioner to terminate designations 
of lands as unsuitable for surface coal mining operations.
    (1) At a minimum, a complete petition for termination shall 
include--
    (i) The petitioner's name, address, telephone number, and notarized 
signature;
    (ii) Identification of the petitioned area, including its location 
and size and a U.S. Geological Survey topographic map outlining the 
perimeter of the petitioned area to which the termination petition 
applies;
    (iii) An identification of the petitioner's interest which is or may 
be adversely affected by the designation that the area is unsuitable for 
surface coal mining operations including a statement demonstrating how 
the petitioner satisfies the requirements of paragraph (a) of this 
section;
    (iv) Allegations of facts covering all lands for which the 
termination is proposed. Each of the allegations of fact shall be 
specific as to the mining operation, if any, and to portions of the 
petitioned area and petitioner's interests to which the allegation 
applies. The allegations shall be supported by evidence, not contained 
in the record of the designation proceeding, that tends to establish the 
validity of the allegations for the mining operation or portion of the 
petitioned area, assuming that contemporary mining practices required 
under applicable regulatory programs would be followed were the area to 
be mined. For areas previously and unsuccessfully proposed for 
termination, significant new allegations of facts and supporting 
evidence must be presented in the petition. Allegations and supporting 
evidence should also be specific to the basis for which the designation 
was made and tend to establish that the designation should be terminated 
on the following bases:
    (A) Nature or abundance of the protected resource or condition or 
other basis of the designation if the designation was based on criteria 
found in Sec. 762.11(b) of this chapter;
    (B) Reclamation now being technologically and economically feasible 
if the designation was based on the criteria found in Sec. 762.11(a) of 
this chapter; or
    (C) Resources or conditions not being affected by surface coal 
mining operations, or in the case of land use plans, not being 
incompatible with surface coal mining operations during and after 
mining, if the designation was based on the criteria found in 
Sec. 762.11(b) of this chapter;
    (2) The State regulatory authority may request that the petitioner 
provide other supplementary information which is readily available.



Sec. 764.15  Initial processing, recordkeeping, and notification requirements.

    (a)(1) Within 30 days of receipt of a petition, the regulatory 
authority shall notify the petitioner by certified mail whether the 
petition is complete under Sec. 764.13 (b) or (c). Complete, for a 
designation or termination petition, means that the information required 
under Sec. 764.13 (b) or (c) has been provided.
    (2) The regulatory authority shall determine whether any identified 
coal resources exist in the area covered by the petition, without 
requiring any showing from the petitioner. If the regulatory authority 
finds there are not any identified coal resources in that area, it shall 
return the petition to the

[[Page 182]]

petitioner with a statement of the findings.
    (3) If the regulatory authority determines that the petition is 
incomplete, frivolous, or that the petitioner does not meet the 
requirements of Sec. 764.13(a), it shall return the petition to the 
petitioner with a written statement of the reasons for the determination 
and the categories of information needed to make the petition complete. 
A frivolous petition is one in which the allegations of harm lack 
serious merit.
    (4) When considering a petition for an area which was previously and 
unsuccessfully proposed for designation, the regulatory authority shall 
determine if the new petition presents significant new allegations of 
facts with evidence which tends to establish the allegations. If the 
petition does not contain such material, the regulatory authority may 
choose not to consider the petition and may return the petition to the 
petitioner, with a statement of its findings and a reference to the 
record of the previous designation proceedings where the facts were 
considered.
    (5) The regulatory authority shall notify the person who submits a 
petition of any application for a permit received which includes any 
area covered by the petition.
    (6) The regulatory authority may determine not to process any 
petition received insofar as it pertains to lands for which an 
administratively complete permit application has been filed and the 
first newspaper notice has been published. Based on such a 
determination, the regulatory authority may issue a decision on a 
complete and accurate permit application and shall inform the petitioner 
why the regulatory authority cannot consider the part of the petition 
pertaining to the proposed permit area.
    (b)(1) Promptly after a petition is received, the regulatory 
authority shall notify the general public of the receipt of the petition 
by a newspaper advertisement placed in the locale of the area covered by 
the petition, in the newspaper providing broadest circulation in the 
region of the petitioned area and in any official State register of 
public notices. The regulatory authority shall make copies of the 
petition available to the public and shall provide copies of the 
petition to other interested governmental agencies, intervenors, persons 
with an ownership interest of record in the property, and other persons 
known to the regulatory authority to have an interest in the property. 
Proper notice to persons with an ownership interest of record in the 
property shall comply with the requirements of applicable State law.
    (2) Promptly after the determination that a petition is complete, 
the regulatory authority shall request submissions from the general 
public of relevant information by a newspaper advertisement placed once 
a week for two consecutive weeks in the locale of the area covered by 
the petition, in the newspaper providing broadest circulation in the 
region of the petitioned area, and in any offical State register of 
public notices.
    (c) Until three days before the regulatory authority holds a hearing 
under Sec. 764.17, any person may intervene in the proceeding by filing 
allegations of facts describing how the designation determination 
directly affects the intervenor, supporting evidence, a short statement 
identifying the petition to which the allegations pertain, and the 
intervenor's name, address and telephone number.
    (d) Beginning from the date a petition is filed, the regulatory 
authority shall compile and maintain a record consisting of all 
documents relating to the petition filed with or prepared by the 
regulatory authority. The regulatory authority shall make the record 
available to the public for inspection free of charge and for copying at 
reasonable cost during all normal hours at the main office of the 
regulatory authority. The regulatory authority shall also maintain 
information at or near the area in which the petitioned land is located 
and make this information available to the public for inspection free of 
charge and for copying at reasonable cost during all normal business 
hours. At a minimum, this information shall include a copy of the 
petition.
[48 FR 41351, Sept. 14, 1983, as amended at 52 FR 49323, 49324, Dec. 30, 
1987]

[[Page 183]]



Sec. 764.17  Hearing requirements.

    (a) Within 10 months after receipt of a complete petition, the 
regulatory authority shall hold a public hearing in the locality of the 
area covered by the petition. If all petitioners and intervenors agree, 
the hearing need not be held. The regulatory authority may subpoena 
witnesses as necessary. The hearing may be conducted with cross-
examination of expert witnesses only. A record of the hearing shall be 
made and preserved according to State law. No person shall bear the 
burden of proof or persuasion. All relevant parts of the data base and 
inventory system and all public comments received during the public 
comment period shall be included in the record and considered by the 
regulatory authority in its decision on the petition.
    (b)(1) The regulatory authority shall give notice of the date, time, 
and location of the hearing to:
    (i) Local, State, and Federal agencies which may have an interest in 
the decision on the petition;
    (ii) The petitioner and the intervenors; and
    (iii) Any person known by the regulatory authority to have a 
property interest in the petitioned area. Proper notice to persons with 
an ownership interest of record shall comply with the requirements of 
applicable State law.
    (2) Notice of the hearing shall be sent by certified mail to 
petitioners and intervenors, and by regular mail to government agencies 
and property owners involved in the proceeding, and postmarked not less 
than 30 days before the scheduled date of the hearing.
    (c) The regulatory authority shall notify the general public of the 
date, time, and location of the hearing by placing a newspaper 
advertisement once a week for 2 consecutive weeks in the locale of the 
area covered by the petition and once during the week prior to the 
public hearing. The consecutive weekly advertisement must begin between 
4 and 5 weeks before the scheduled date of the public hearing.
    (d) The regulatory authority may consolidate in a single hearing the 
hearings required for each of several petitions which relate to areas in 
the same locale.
    (e) Prior to designating any land areas as unsuitable for surface 
coal mining operations, the regulatory authority shall prepare a 
detailed statement, using existing and available information on the 
potential coal resources of the area, the demand for coal resources, and 
the impact of such designation on the environment, the economy, and the 
supply of coal.
    (f) In the event that all petitioners and intervenors stipulate 
agreement prior to the hearing, the petition may be withdrawn from 
consideration.



Sec. 764.19  Decision.

    (a) In reaching its decision, the regulatory authority shall use--
    (1) The information contained in the data base and inventory system;
    (2) Information provided by other governmental agencies;
    (3) The detailed statement when it is prepared under Sec. 764.17(e); 
and
    (4) Any other relevant information submitted during the comment 
period.
    (b) A final written decision shall be issued by the regulatory 
authority, including a statemtent of reasons, within 60 days of 
completion of the public hearing, or, if no public hearing is held, then 
within 12 months after receipt of the complete petition. The regulatory 
authority shall simultaneously send the decision by certified mail to 
the petitioner and intervenors and by regular mail to all other persons 
involved in the proceeding.
    (c) The decision of the State regulatory authority with respect to a 
petition, or the failure of the regulatory authority to act within the 
time limits set forth in this section, shall be subject to judicial 
review by a court of competent jurisdiction in accordance with State law 
under section 526(e) of the Act and Sec. 775.13 of this chapter. All 
relevant portions of the data base, inventory system, and public 
comments received during the public comment period set by the regulatory 
authority shall be considered and included in the record of the 
administrative proceeding.



Sec. 764.21  Data base and inventory system requirements.

    (a) The regulatory authority shall develop a data base and inventory 
system

[[Page 184]]

which will permit evaluation of whether reclamation is feasible in areas 
covered by petitions.
    (b) The regulatory authority shall include in the system information 
relevant to the criteria in Sec. 762.11 of this chapter, including, but 
not limited to, information received from the United States Fish and 
Wildlife Service, the State Historic Preservation Officer, and the 
agency administering section 127 of the Clean Air Act, as amended (42 
U.S.C. 7470 et seq.).
    (c) The regulatory authority shall add to the data base and 
inventory system information--
    (1) On potential coal resources of the State, demand for those 
resources, the environment, the economy and the supply of coal, 
sufficient to enable the regulatory authority to prepare the statements 
required by Sec. 764.17(e); and
    (2) That becomes available from petitions, publications, 
experiments, permit application, mining and reclamation operations, and 
other sources.



Sec. 764.23  Public information.

    The regulatory authority shall:
    (a) Make the information in the data base and inventory system 
developed under Sec. 764.21 available to the public for inspection free 
of charge and for copying at reasonsable cost, except that specific 
information relating to location of properties proposed to be nominated 
to, or listed in, the National Register of Historic Places need not be 
disclosed if the regulatory authority determines that the disclosure of 
such information would create a risk of destruction or harm to such 
properties;
    (b) Provide information to the public on the petition procedures 
necessary to have an area designated as unsuitable for all or certain 
types of surface coal mining operations or to have designations 
terminated and describe how the inventory and data base system can be 
used.



Sec. 764.25  Regulatory authority responsibility for implementation.

    (a) The regulatory authority shall not issue permits which are 
inconsistent with designations made pursuant to part 761, 762, or 764 of 
this chapter.
    (b) The regulatory authority shall maintain a map or other unified 
and cumulative record of areas designated unsuitable for all or certain 
types of surface coal mining operations.
    (c) The regulatory authority shall make available to any person any 
information within its control regarding designations, including mineral 
or elemental content which is potentially toxic in the environment but 
excepting proprietary information on the chemical and physical 
properties of the coal.



  PART 769--PETITION PROCESS FOR DESIGNATION OF FEDERAL LANDS AS UNSUITABLE FOR ALL OR CERTAIN TYPES OF SURFACE COAL MINING OPERATIONS AND FOR TERMINATION OF 
PREVIOUS DESIGNATIONS--Table of Contents




Sec.
769.1  Scope.
769.10  Information collection
769.11  Who may submit a petition.
769.12  Where to submit petitions.
769.13  Contents of petitions.
769.14  Initial processing, recordkeeping, and notification 
          requirements.
769.15  Intervention.
769.16  Public information.
769.17  Hearing requirements.
769.18  Decisions on petitions.
769.19  Regulatory policy.

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

    Source: 48 FR 41354, Sept. 14, 1983, unless otherwise noted.



Sec. 769.1  Scope.

    This part establishes minimum procedures and standards for 
designating Federal lands as unsuitable for all or certain types of 
surface coal mining operations and for terminating designations pursuant 
to petition.



Sec. 769.10  Information collection.

    The information collection requirements in this part do not require 
approval of the Office of Management and Budget under 44 U.S.C. 3507 
because there are fewer than 10 respondents annually.



Sec. 769.11  Who may submit a petition.

    Any person having an interest which is or may be adversely affected 
by surface coal mining operations to be conducted on Federal lands may 
petition

[[Page 185]]

the Secretary to have an area designated as unsuitable for all or 
certain types of surface coal mining operations, or to have an existing 
designation terminated. This right does not apply to areas set aside 
from surface coal mining operations under laws other than the Act. For 
the purpose of this section, a person having an interest which is or may 
be adversely affected must demonstrate how he or she meets an ``injury 
in fact'' test by describing the injury to his or her specific affected 
interests and demonstrate how he or she is among the injured.



Sec. 769.12  Where to submit petitions.

    Each petition to have an area of Federal lands designated as 
unsuitable or to terminate an existing designation shall be submitted to 
the Director of the OSM Field Office responsible for that area where the 
Federal lands are located.



Sec. 769.13  Contents of petitions.

    (a) Designation. The only information that a petitioner need provide 
to designate lands is that required under Sec. 764.13(b) of this 
chapter.
    (b) Termination. The only information that a petitioner need provide 
to terminate a designation is that required by Sec. 764.13(c) of this 
chapter.



Sec. 769.14  Initial processing, recordkeeping, and notification requirements.

    (a)(1) Within 30 days of receipt of a petition, OSMRE shall 
determine whether the petition is complete and not frivolous. OSMRE may 
request other supplementary information that is readily available to be 
provided by the petitioner. Any request for such supplementary 
information from the petitioner shall not affect OSMRE's determination 
that the petition is complete for further processing.
    (2) Complete, (i) for a designation petition, means that (A) all 
information required under Sec. 764.13(b) of this chapter has been 
provided and (B) the information submitted by the petitioner contains 
significant new allegations of fact and supporting evidence not 
considered in any previous unsuccessful petition of Federal lands review 
conducted under Section 522(b) of the Act, that tends to establish that 
the lands are unsuitable for surface coal mining operations; and (ii) 
for a termination petition, means that all information required under 
Sec. 764.13(c) has been provided.
    (3) Frivolous, for a designation or termination petition, means 
that:
    (i) The allegations of harm lack serious merit; or
    (ii) Available information shows that no ``mineable'' coals 
resources exist in the petitioned area or that the petitioned area is 
not or could not be subject to related surface coal mining operations 
and surface impacts incident to an underground coal mine or an adjoining 
surface mine (mineable coal is coal with development potential as mapped 
or reported by the Bureau of Land Management under 43 CFR 3420.1-
4(e)(1); and privately owned coal under land owned by the United 
States).
    (b) When the Director finds that the petition is incomplete or 
frivolous, he or she shall reject the petition with a written statement 
of reasons and advise the petitioner, via certified mail, that the 
petition may be reconsidered upon resubmittal with deficiencies cured.
    (c) When the Director finds that the petition is complete and not 
frivolous, he or she shall initiate the petition review and so advise 
the petitioner via certified mail.
    (d)(1) Within 2 weeks after accepting the petition for further 
processing, OSM shall send a copy of the petition to the authorized 
officer of the land management agency for the officer's recommendation 
on the petition.
    (2) The authorized officer of the appropriate Federal land 
management agency shall furnish a recommendation on the petition to OSM 
within 30 days of its receipt, if the area covered by the petition has 
been included in a completed Federal lands review or within 9 months, if 
the area has not been included in a Federal lands review.
    (e) Promptly after accepting a petition for further processing, OSM 
shall circulate copies of the petition to, and request submissions of 
relevant information from, other interested governmental agencies, the 
petitioner, intervenors, and any person, known to OSM

[[Page 186]]

to have an ownership interest in the property.
    (f) Where lands administered by the Department of the Interior and 
other Federal land management agencies are contiguous or intermingled or 
where the Department's resource management could affect resources on the 
other's land, the Director of OSM shall refer a copy of the petition to 
the other Federal land management agency and shall consider the agency's 
recommendations about designating those lands unsuitable for all or 
certain types of surface coal mining or terminating such designations.
    (g) OSM may determine not to process any petition received insofar 
as it pertains to lands for which an administratively complete permit 
application has been filed and the first newspaper notice has been 
published. Based on such a determination, OSM may issue a decision on a 
complete and accurate permit application and shall inform the petitioner 
why OSM cannot consider the part of the petition pertaining to the 
proposed permit area.
[48 FR 41354, Sept. 14, 1983, as amended at 52 FR 49324, Dec. 30, 1987]



Sec. 769.15  Intervention.

    Up to 3 days before the OSM holds a hearing on a petition under 
Sec. 769.17, any person may intervene in the proceeding by filing a 
statement describing how the designation directly affects the 
intervenor, allegations of facts and supporting evidence, a short 
statement identifying the petition to which the allegations pertain, and 
the intervenor's name, address and telephone number.



Sec.  769.16  Public information.

    (a) Promptly after determining that a petition is complete, the 
Director shall notify the general public of the receipt of the petition 
and request submissions of the relevant information by a newspaper 
advertisement placed once a week for two consecutive weeks in the 
newspaper providing broadest circulation in the region of the petitioned 
area, and in the Federal Register. The advertisement and Federal 
Register notice shall include a description of the boundaries of the 
petitioned area, the allegations of fact, and information regarding 
where the petition is available for public review.
    (b)(1) Beginning immediately after a petition is filed, OSM shall 
compile and maintain a record consisting of all documents relating to 
the petition filed with or prepared by OSM with the exception of that 
information excluded under Sec. 769.16(b)(2). OSM shall make the record 
available to the public for inspection free of charge and for copying at 
a reasonable cost during all normal business hours at its Washington, 
D.C. office. OSM shall also maintain information in or near the area in 
which the petitioned land is located; this information shall be 
available for public inspection, free of charge, and for copying at 
reasonable cost during all normal business hours. At a minimum, this 
information shall include a copy of the petition.
    (2) OSM need not make available to any person or entity the specific 
location of property proposed to be nominated to be listed or listed in 
the National Register of Historic Places if it is determined that 
disclosure of that information would create a risk of destruction or 
harm to such properties. Withheld information must be disclosed when a 
designation of unsuitability would rest primarily on an allegation based 
on that information.



Sec. 769.17  Hearing requirements.

    (a) Within 10 months after receipt of a complete petition, OSM shall 
hold a public hearing in the locality of the area covered by the 
petition. If all petitioners and intervenors agree, the hearing need not 
be held. OSM may subpoena witnesses as necessary. The hearing may be 
conducted with cross-examination of expert witnesses only. A record of 
the hearing shall be made and preserved. No person shall bear the burden 
of proof or persuasion. All relevant parts of the data base and 
inventory system and all public comments received during the public 
comment period shall be included in the record and considered by OSM in 
deciding the petition.
    (b)(1) OSM shall give notice of the date, time, and location of the 
hearing to:

[[Page 187]]

    (i) Local, State, and Federal agencies which may have an interest in 
the decision on the petition;
    (ii) The petitioner and the intervenors; and
    (iii) Any person known by OSM to have a property interest in the 
petitioned area.
    (2) Notice of the hearing shall be sent by certified mail to the 
petitioner and intervenors, and by regular mail to other persons 
involved in the proceeding, and postmarked not less than 30 days before 
the scheduled date of the hearing.
    (3) OSM shall notify the general public of the date, time, and 
location of the hearing by placing a newspaper advertisement once a week 
for 2 consecutive weeks prior to the scheduled date of the public 
hearing in the locale of the area covered by the petition and once 
during the week prior to the scheduled date of the public hearing. The 
consecutive weekly advertisements must begin between 4 and 5 weeks prior 
to the scheduled date of the public hearing.
    (c) OSM may consolidate into a single hearing the hearings required 
for each of several petitions which relate to areas in the same locale.
    (d) If any petitions relates to an area of Federal lands which is 
the subject of a pending surface coal mining and reclamation operations 
permit application, OSM may, with consent of all petitioners and 
intervenors, coordinate the hearing on the petition required under 
paragraph (a) of this section with any hearing on the permit application 
or informal conference held in accordance with section 513(b) of the Act 
and Sec. 740.13 of this chapter on the permit application. Nothing in 
this paragraph shall relieve an applicant for a permit from the burden 
of establishing that his or her application is in compliance with the 
requirements of the Federal lands program.
    (e) Prior to designating any lands as unsuitable for surface coal 
mining operations, OSM shall issue a detailed statement on the abundance 
of coal resources of the area, the demand for coal resources, and the 
impact of such designation on the environment, the economy, and the 
supply of coal.



Sec. 769.18  Decisions on petitions.

    (a) In reaching his or her decision, the Director shall use the 
information and consider the recommendation provided by the Federal land 
management agency, information provided by other governmental agencies, 
the detailed statement, when it is prepared under Sec. 769.17(e), and 
any other relevant information submitted during the comment period.
    (b) A final written decision shall be issued by the Director, 
including a statement of reasons, within 60 days of completion of the 
public hearing, or if no public hearing is held, within 12 months after 
receipt of the complete petition. The Director shall simultaneously send 
the decision by certified mail to the petitioner and the intervenors and 
by regular mail to all other persons involved in the proceeding.
    (c) If the Director concurs with the recommendation of the surface 
managing agency, the Director's decision becomes final. If the Director 
does not concur with the recommendation, he or she shall notify the 
Director of the surface managing agency within 30 days after the public 
hearing, if any. The decision at the same time will be referred to the 
Secretary through respective agency heads for resolution and issuance of 
a final decision within 60 days after the hearing, if any.
    (d) A final decision of the Director or the Secretary is subject to 
judicial review in accordance with Sec. 775.13 of this chapter and 
section 526 (a)(2) and (b) of the Act.



Sec. 769.19  Regulatory policy.

    Once an area of Federal lands is designated as unsuitable for all or 
certain types of surface coal mining operations, any permit or lease 
shall be conditioned in a manner so as to limit or prohibit surface coal 
mining operations on the designated areas in accordance with the 
designation.

[[Page 188]]



SUBCHAPTER G--SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION SYSTEMS UNDER REGULATORY PROGRAMS





PART 772--REQUIREMENTS FOR COAL EXPLORATION--Table of Contents




Sec.
772.1  Scope and purpose.
772.10  Information collection.
772.11  Notice requirements for exploration removing 250 tons of coal or 
          less.
772.12  Permit requirements for exploration removing more than 250 tons 
          of coal, or occurring on lands designated as unsuitable for 
          surface coal mining operations.
772.13  Coal exploration compliance duties.
772.14  Commercial use or sale.
772.15  Public availability of information.

    Authority: 30 U.S.C. 1201 et seq., as amended; 16 U.S.C. 470 et 
seq.; and Pub. L. 100-34.

    Source: 48 FR 40634, Sept. 8, 1983, unless otherwise noted.



Sec. 772.1  Scope and purpose.

    This part establishes the requirements and procedures applicable to 
coal exploration operations on all lands except for Federal lands 
subject to the requirements of 43 CFR parts 3480-3487.
[48 FR 40634, Sept. 8, 1983, as amended at 48 FR 44779, Sept. 30, 1983]



Sec. 772.10  Information collection.

    The information collection requirements contained in part 772 have 
been approved by the Office of Management and Budget under 44 U.S.C. 
3507 and assigned clearance number 1029--0033. The information is to be 
collected to meet the requirements of section 512(a) of the Act, which 
requires that coal exploration operations that substantially disturb the 
natural land surface be conducted in accordance with exploration rules. 
This information will be used to give the regulatory authority a 
sufficient baseline upon which to assess the impact of the proposed 
exploration operation during the permanent regulatory program. The 
obligation to respond is mandatory.



Sec. 772.11  Notice requirements for exploration removing 250 tons of coal or less.

    (a) Any person who intends to conduct coal exploration operations 
outside a permit area during which 250 tons or less of coal will be 
removed, shall, before conducting the exploration, file with the 
regulatory authority a written notice of intention to explore. 
Exploration which will take place on lands designated as unsuitable for 
surface coal mining operations under subchapter F of this chapter, shall 
be subject to the permitting requirements under Sec. 772.12. Exploration 
conducted under a notice of intent shall be subject to the requirements 
prescribed under Sec. 772.13.
    (b) The notice shall include--
    (1) The name, address, and telephone number of the person seeking to 
explore;
    (2) The name, address, and telephone number of the person's 
representative who will be present at, and responsible for, conducting 
the exploration activities;
    (3) A narrative describing the proposed exploration area or a map at 
a scale of 1:24,000, or greater, showing the proposed area of 
exploration and the general location of drill holes and trenches, 
existing and proposed roads, occupied dwellings, topographic features, 
bodies of surface water, and pipelines;
    (4) A statement of the period of intended exploration; and
    (5) A description of the method of exploration to be used and the 
practices that will be followed to protect the environment and to 
reclaim the area from adverse impacts of the exploration activities in 
accordance with the applicable requirements of part 815 of this chapter.
[48 FR 40634, Sept. 8, 1983, as amended at 53 FR 52949, Dec. 29, 1988]

[[Page 189]]



Sec. 772.12  Permit requirements for exploration removing more than 250 tons of coal, or occurring on lands designated as unsuitable for surface coal mining 
          operations.

    (a) Exploration permit. Any person who intends to conduct coal 
exploration outside a permit area during which more than 250 tons of 
coal will be removed or which will take place on lands designated as 
unsuitable for surface mining under subchapter F of this chapter, shall, 
before conducting the exploration, submit an application and obtain 
written approval from the regulatory authority in an exploration permit. 
Such exploration shall be subject to the requirements prescribed under 
Secs. 772.13 and 772.14.
    (b) Application information. Each application for an exploration 
permit shall contain, at a minimum, the following information:
    (1) The name, address, and telephone number of the applicant.
    (2) The name, address and telephone number of the applicant's 
representative who will be present at, and responsible for, conducting 
the exploration activities.
    (3) A narrative describing the proposed exploration area.
    (4) A narrative description of the methods and equipment to be used 
to conduct the exploration and reclamation.
    (5) An estimated timetable for conducting and completing each phase 
of the exploration and reclamation.
    (6) The estimated amount of coal to be removed and a description of 
the methods to be used to determine the amount.
    (7) A statement of why extraction of more than 250 tons of coal is 
necessary for exploration.
    (8) A description of--
    (i) Cultural or historical resources listed on the National Register 
of Historic Places;
    (ii) Cultural or historical resources known to be eligible for 
listing on the National Register of Historic Places; and
    (iii) Known archeological resources located within the proposed 
exploration area.
    (iv) Any other information which the regulatory authority may 
require regarding known or unknown historic or archeological resources.
    (9) A description of any endangered or threatened species listed 
pursuant to the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) 
identified within the proposed exploration area.
    (10) A description of the measures to be used to comply with the 
applicable requirements of part 815 of this chapter.
    (11) The name and address of the owner of record of the surface land 
and of the subsurface mineral estate of the area to be explored.
    (12) A map or maps at a scale of 1:24,000, or larger, showing the 
areas of land to be disturbed by the proposed exploration and 
reclamation. The map shall specifically show existing roads, occupied 
dwellings, topographic and drainage features, bodies of surface water, 
and pipelines; proposed locations of trenches, roads, and other access 
routes and structures to be constructed; the location of proposed land 
excavations; the location of exploration holes or other drill holes or 
underground openings; the location of excavated earth or waste-material 
disposal areas; and the location of critical habitats of any endangered 
or threatened species listed pursuant to the Endangered Species Act of 
1973 (16 U.S.C. 1531 et seq.).
    (13) If the surface is owned by a person other than the applicant, a 
description of the basis upon which the applicant claims the right to 
enter that land for the purpose of conducting exploration and 
reclamation.
    (c) Public notice and opportunity to comment. Public notice of the 
application and opportunity to comment shall be provided as follows:
    (1) Within such time as the regulatory authority may designate, the 
applicant shall provide public notice of the filing of an 
administratively complete application with the regulatory authority in a 
newspaper of general circulation in the county of the proposed 
exploration area.
    (2) The public notice shall state the name and address of the person 
seeking approval, the filing date of the application, the address of the 
regulatory authority where written comments on the application may be 
submitted, the

[[Page 190]]

closing date of the comment period, and a description of the area of 
exploration.
    (3) Any person having an interest which is or may be adversely 
affected shall have the right to file written comments on the 
application within reasonable time limits.
    (d) Decisions on applications for exploration. (1) The regulatory 
authority shall act upon an administratively complete application for a 
coal exploration permit and any written comments within a reasonable 
period of time. The approval of a coal exploration permit may be based 
only on a complete and accurate application.
    (2) The regulatory authority shall approve a complete and accurate 
application for a coal exploration permit filed in accordance with this 
part if it finds, in writing, that the applicant has demonstrated that 
the exploration and reclamation described in the application will--
    (i) Be conducted in accordance with this part, part 815 of this 
chapter, and the applicable provisions of the regulatory program;
    (ii) Not jeopardize the continued existence of an endangered or 
threatened species listed pursuant to section 4 of the Endangered 
Species Act of 1973 (16 U.S.C. 1533) or result in the destruction or 
adverse modification of critical habitat of those species; and
    (iii) Not adversely affect any cultural or historical resources 
listed on the National Register of Historic Places, pursuant to the 
National Historic Preservation Act, as amended (16 U.S.C. Sec. 470 et 
seq., 1976, Supp. V), unless the proposed exploration has been approved 
by both the regulatory authority and the agency with jurisdiction over 
such matters.
    (3) Terms of approval issued by the regulatory authority shall 
contain conditions necessary to ensure that the exploration and 
reclamation will be conducted in compliance with this part, part 815 of 
this chapter, and the regulatory program.
    (e) Notice and hearing. (1) The regulatory authority shall notify 
the applicant, the appropriate local government officials, and other 
commenters on the application, in writing, of its decision on the 
application. If the application is disapproved, the notice to the 
applicant shall include a statement of the reason for disapproval. 
Public notice of the decision on each application shall be posted by the 
regulatory authority at a public office in the vicinity of the proposed 
exploration operations.
    (2) Any person having an interest which is or may be adversely 
affected by a decision of the regulatory authority pursuant to paragraph 
(e)(1) of this section shall have the opportunity for administrative and 
judicial review as set forth in part 775 of this chapter.
[48 FR 40634, Sept. 8, 1983, as amended at 52 FR 4262, Feb. 10, 1987; 53 
FR 52949, Dec. 29, 1988]



Sec. 772.13  Coal exploration compliance duties.

    (a) All coal exploration and reclamation activities that 
substantially disturb the natural land surface shall be conducted in 
accordance with the coal exploration requirements of this part, part 815 
of this chapter, the regulatory program, and any exploration permit term 
or condition imposed by the regulatory authority.
    (b) Any person who conducts any coal exploration in violation of the 
provisions of this part, part 815 of this chapter, the regulatory 
program, or any exploration permit term or condition imposed by the 
regulatory authority shall be subject to the provisions of section 518 
of the Act, subchapter L of this chapter, and the applicable inspection 
and enforcement provisions of the regulatory program.



Sec. 772.14  Commercial use or sale.

    (a) Except as provided under Secs. 772.14(b) and 700.11(a)(5), any 
person who intends to commercially use or sell coal extracted during 
coal exploration operations under an exploration permit, shall first 
obtain a permit to conduct surface coal mining operations for those 
operations from the regulatory authority under parts 773 through 785 of 
this chapter.
    (b) With the prior written approval of the regulatory authority, no 
permit to conduct surface coal mining operations is required for the 
sale or commercial use of coal extracted during exploration operations 
if such sale or commercial use is for coal testing purposes

[[Page 191]]

only. The person conducting the exploration shall file an application 
for such approval with the regulatory authority. The application shall 
demonstrate that the coal testing is necessary for the development of a 
surface coal mining and reclamation operation for which a surface coal 
mining operations permit application is to be submitted in the near 
future, and that the proposed commercial use or sale of coal extracted 
during exploration operations is solely for the purpose of testing the 
coal. The application shall contain the following:
    (1) The name of the testing firm and the locations at which the coal 
will be tested.
    (2) If the coal will be sold directly to, or commercially used 
directly by, the intended end user, a statement from the intended end 
user, or if the coal is sold indirectly to the intended end user through 
an agent or broker, a statement from the agent or broker. The statement 
shall include:
    (i) The specific reason for the test, including why the coal may be 
so different from the intended user's other coal supplies as to require 
testing;
    (ii) The amount of coal necessary for the test and why a lesser 
amount is not sufficient; and
    (iii) A description of the specific tests that will be conducted.
    (3) Evidence that sufficient reserves of coal are available to the 
person conducting exploration or its principals for future commercial 
use or sale to the intended end user, or agent or broker of such user 
identified above, to demonstrate that the amount of coal to be removed 
is not the total reserve, but is a sampling of a larger reserve.
    (4) An explanation as to why other means of exploration, such as 
core drilling, are not adequate to determine the quality of the coal 
and/or the feasibility of developing a surface coal mining operation.
[53 FR 52949, Dec. 29, 1988]



Sec. 772.15  Public availability of information.

    (a) Except as provided in paragraph (b) of this section, all 
information submitted to the regulatory authority under this part shall 
be made available for public inspection and copying at the local offices 
of the regulatory authority closest to the exploration area.
    (b) The regulatory authority shall keep information confidential if 
the person submitting it requests in writing, at the time of submission, 
that it be kept confidential and the information concerns trade secrets 
or is privileged commercial or financial information relating to the 
competitive rights of the persons intending to conduct coal exploration.
    (c) Information requested to be held as confidential under paragraph 
(b) of this section shall not be made publicly available until after 
notice and opportunity to be heard is afforded persons both seeking and 
opposing disclosure of the information.



PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING--Table of Contents




Sec.
773.1  Scope and purpose.
773.5  Definitions.
773.10  Information collection.
773.11  Requirements to obtain permits.
773.12  Regulatory coordination with requirements under other laws.
773.13  Public participation in permit processing.
773.15  Review of permit applications.
773.17  Permit conditions.
773.19  Permit issuance and right of renewal.
773.20  Improvidently issued permits: General procedures.
773.21  Improvidently issued permits: Rescission procedures.
773.22  Verification of ownership or control application information.
773.23  Review of ownership or control and violation information.
773.24  Procedures for challenging ownership or control links shown in 
          AVS.
773.25  Standards for challenging ownership or control links and the 
          status of violations.

    Authority: 30 U.S.C. 1201 et seq., as amended; 16 U.S.C. 1531 et 
seq.; 16 U.S.C. 661 et seq.; 16 U.S.C. 703 et seq.; 16 U.S.C. 668a; 16 
U.S.C. 469 et seq.; 16 U.S.C. 470aa et seq.; and Pub. L. 100-34.

    Source: 48 FR 44391, Sept. 28, 1983, unless otherwise noted.



Sec. 773.1  Scope and purpose.

    This part provides minimum requirements for permits and permit 
processing and covers obtaining and reviewing permits; coordinating with 
other laws; public participation; permit decision

[[Page 192]]

and notification; permit conditions; and permit term and right of 
renewal.



Sec. 773.5  Definitions.

    For purposes of this subchapter:
    Applicant/Violator System or AVS means the computer system 
maintained by OSM to identify ownership or control links involving 
permit applicants, permittees, and persons cited in violation notices.
    Federal violation notice means a violation notice issued by OSM or 
by another agency or instrumentality of the United States.
    Owned or controlled and owns or controls mean any one or a 
combination of the relationships specified in paragraphs (a) and (b) of 
this definition:
    (a)(1) Being a permittee of a surface coal mining operation;
    (2) Based on instrument of ownership or voting securities, owning of 
record in excess of 50 percent of an entity; or
    (3) Having any other relationship which gives one person authority 
directly or indirectly to determine the manner in which an applicant, an 
operator, or other entity conducts surface coal mining operations.
    (b) The following relationships are presumed to constitute ownership 
or control unless a person can demonstrate that the person subject to 
the presumption does not in fact have the authority directly or 
indirectly to determine the manner in which the relevant surface coal 
mining operation is conducted:
    (1) Being an officer or director of an entity;
    (2) Being the operator of a surface coal mining operation;
    (3) Having the ability to commit the financial or real property 
assets or working resources of an entity;
    (4) Being a general partner in a partnership;
    (5) Based on the instruments of ownership or the voting securities 
of a corporate entity, owning of record 10 through 50 percent of the 
entity; or
    (6) Owning or controlling coal to be mined by another person under a 
lease, sublease or other contract and having the right to receive such 
coal after mining or having authority to determine the manner in which 
that person or another person conducts a surface coal mining operation.
    Ownership or control link means any relationship included in the 
definition of Owned or controlled or Owns or controls in this section or 
in the violations review provisions of Sec. 773.15(b) of this part. It 
includes any relationship presumed to constitute ownership or control 
under the definition of Owned or controlled or Owns or controls in this 
section, unless such presumption has been successfully rebutted under 
the provisions of Secs. 773.24 and 773.25 of this part or under the 
provisions of part 775 of this chapter and Sec. 773.25.
    State violation notice means a violation notice issued by a State 
regulatory authority or by another agency or instrumentality of State 
government.
    Violation notice means any written notification from a governmental 
entity, whether by letter, memorandum, judicial or administrative 
pleading, or other written communication, of a violation of the Act; any 
Federal rule or regulation promulgated pursuant thereto; a State 
program; or any Federal or State law, rule, or regulation pertaining to 
air or water environmental protection in connection with a surface coal 
mining operation. It includes, but is not limited to, a notice of 
violation; an imminent harm cessation order; a failure-to-abate 
cessation order; a final order, bill, or demand letter pertaining to a 
delinquent civil penalty; a bill or demand letter pertaining to 
delinquent abandoned mine reclamation fees; and a notice of bond 
forfeiture, where one or more violations upon which the forfeiture was 
based have not been corrected.
[53 FR 38890, Oct. 3, 1988 as amended at 53 FR 44145, Nov. 1, 1988; 53 
FR 44694, Nov. 4, 1988; 59 FR 54352, Oct. 28, 1994; 62 FR 19458, Apr. 
21, 1997]



Sec. 773.10  Information collection.

    (a) The collections of information contained in 30 CFR part 773 have 
been approved by the Office of Management and Budget under 44 U.S.C. 
3501 et seq. and assigned clearance number 1029-0041. The information 
will be used by the regulatory authorities in processing applications. 
Response is required

[[Page 193]]

to obtain a benefit in accordance with 30 U.S.C. 1201 et seq.
    (b) Public reporting burden for this collection of information is 
estimated to average four and one-half 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 to OSM Information Collection Clearance Officer, Room 640 NC, 
1951 Constitution Ave., Washington, DC 20240; and the Office of 
Management and Budget, Paperwork Reduction Project (1029-0041), 
Washington, DC 20503.
[59 FR 54352, Oct. 28, 1994]



Sec. 773.11  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--

[[Page 194]]

    (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.
[48 FR 44391, Sept. 28, 1983, as amended at 53 FR 11607, Apr. 7, 1988; 
54 FR 13823, Apr. 5, 1989]



Sec. 773.12  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 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.
[52 FR 4262, Feb. 10, 1987]



Sec. 773.13  Public participation in permit processing.

    (a) Filing and public notice. (1) Upon submission of an 
administratively complete application, an applicant for a permit, 
significant revision of a permit under Sec. 774.13, or renewal of a 
permit under Sec. 774.15, shall place an advertisement in a local 
newspaper of general circulation in the locality of the proposed surface 
coal mining and reclamation operation at least once a week for four 
consecutive weeks. A copy of the advertisement as it will appear in the 
newspaper shall be submitted to the regulatory authority. The 
advertisement shall contain, at a minimum, the following:
    (i) The name and business address of the applicant.
    (ii) A map or description which clearly shows or describes the 
precise location and boundaries of the proposed permit area and is 
sufficient to enable local residents to readily identify the proposed 
permit area. It may include towns, bodies of water, local landmarks, and 
any other information which would identify the location. If a map is 
used, it shall indicate the north direction.
    (iii) The location where a copy of the application is available for 
public inspection.
    (iv) The name and address of the regulatory authority where written 
comments, objections, or requests for informal conferences on the 
application may be submitted under paragraphs (b) and (c) of this 
section.
    (v) If an applicant seeks a permit to mine within 100 feet of the 
outside right-of-way of a public road or to relocate or close a public 
road, except where public notice and hearing have previously been 
provided for this particular part of the road in accordance

[[Page 195]]

with Sec. 761.12(d) of this chapter; a concise statement describing the 
public road, the particular part to be relocated or closed, and the 
approximate timing and duration of the relocation or closing.
    (vi) If the application includes a request for an experimental 
practice under Sec. 785.13, a statement indicating that an experimental 
practice is requested and identifying the regulatory provisions for 
which a variance is requested.
    (2) The applicant shall make an application for a permit, 
significant revision under Sec. 774.13, or renewal of a permit under 
Sec. 774.15 available for the public to inspect and copy by filing a 
full copy of the application with the recorder at the courthouse of the 
county where the mining is proposed to occur, or an accessible public 
office approved by the regulatory authority. This copy of the 
application need not include confidential information exempt from 
disclosure under paragraph (d) of this section. The application required 
by this paragraph shall be filed by the first date of newspaper 
advertisement of the application. The applicant shall file any changes 
to the application with the public office at the same time the change is 
submitted to the regulatory authority.
    (3) Upon receipt of an administratively complete application for a 
permit, a significant revision to a permit under Sec. 774.13, or a 
renewal of a permit under Sec. 774.15, the regulatory authority shall 
issue written notification indicating the applicant's intention to mine 
the described tract of land, the application number or other identifier, 
the location where the copy of the application may be inspected, and the 
location where comments on the application may be submitted. The 
notification shall be sent to--
    (i) Local governmental agencies with jurisdiction over or an 
interest in the area of the proposed surface coal mining and reclamation 
operation, including but not limited to planning agencies, sewage and 
water treatment authorities, water companies; and
    (ii) All Federal or State governmental agencies with authority to 
issue permits and licenses applicable to the proposed surface coal 
mining and reclamation operation and which are part of the permit 
coordinating process developed in accordance with section 503(a)(6) or 
section 504(h) of the Act, or Sec. 773.12; or those agencies with an 
interest in the proposed operation, including the U.S. Department of 
Agriculture Soil Conservation Service district office, the local U.S. 
Army Corps of Engineers district engineer, the National Park Service, 
State and Federal fish and wildlife agencies, and the historic 
preservation officer.
    (b) Comments and objections on permit applications. (1) Within a 
reasonable time established by the regulatory authority, written 
comments or objections on an application for a permit, significant 
revision to a permit under Sec. 774.13, or renewal of a permit under 
Sec. 774.15 may be submitted to the regulatory authority by public 
entities notified under paragraph (a)(3) of this section with respect to 
the effects of the proposed mining operations on the environment within 
their areas of responsibility.
    (2) Written objections to an application for a permit, significant 
revision to a permit under Sec. 774.13, or renewal of a permit under 
Sec. 774.15 may be submitted to the regulatory authority by any person 
having an interest which is or may be adversely affected by the decision 
on the application, or by an officer or head of any Federal, State, or 
local government agency or authority, within 30 days after the last 
publication of the newspaper notice required by paragraph (a) of this 
section.
    (3) The regulatory authority shall upon receipt of such written 
comments or objections--
    (i) Transmit a copy of the comments or objections to the applicants; 
and
    (ii) File a copy for public inspection at the same public office 
where the application is filed.
    (c) Informal conferences. (1) Any person having an interest which is 
or may be adversely affected by the decision on the application, or an 
officer or a head of a Federal, State, or local government agency, may 
request in writing that the regulatory authority hold an informal 
conference on the application for a permit, significant revision to a 
permit under Sec. 774.13, or renewal of

[[Page 196]]

a permit under Sec. 774.15. The request shall--
    (i) Briefly summarize the issues to be raised by the requestor at 
the conference;
    (ii) State whether the requestor desires to have the conference 
conducted in the locality of the proposed operation; and
    (iii) Be filed with the regulatory authority no later than 30 days 
after the last publication of the newspaper advertisement required under 
paragraph (a) of this section.
    (2) Except as provided in paragraph (c)(3) of this section, if an 
informal conference is requested in accordance with paragraph (c)(1) of 
this section, the regulatory authority shall hold an informal conference 
within a reasonable time following the receipt of the request. The 
informal conference shall be conducted as follows:
    (i) If requested under paragraph (c)(1)(ii) of this section, it 
shall be held in the locality of the proposed surface coal mining and 
reclamation operation.
    (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 conference held in accordances with this section may be 
used by the regulatory authority as the public hearing required under 
Sec. 761.12(d) 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

[[Page 197]]

file pursuant to State law and that the applicant has requested in 
writing to be held confidential;
    (iii) Information on the nature and location of archeological 
resources on public land and Indian land as required under the 
Archeological Resources Protection Act of 1979 (Pub. L. 96-95, 93 Stat. 
721, 16 U.S.C. 470).



Sec. 773.15  Review of permit applications.

    (a) General. (1) The regulatory authority shall review the 
application for a permit, revision, or renewal; written comments and 
objections submitted; and records of any informal conference or hearing 
held on the application and issue a written decision, within a 
reasonable time set by the regulatory authority, either granting, 
requiring modification of, or denying the application. If an informal 
conference is held under Sec. 773.13(c), the decision shall be made 
within 60 days of the close of the conference, unless a later time is 
necessary to provide an opportunity for a hearing under paragraph (b)(2) 
of this section.
    (2) 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.
    (b) Review of violations. (1) Based on a review of all reasonably 
available information concerning violation notices involving either the 
applicant or any person owned or controlled by the applicant, including 
information obtained pursuant to Secs. 773.22, 773.23, 778.13, and 
778.14 of this chapter, the regulatory authority may not issue the 
permit if any surface coal mining and reclamation operation owned or 
controlled by the applicant is currently in violation of the Act, any 
Federal rule or regulation promulgated pursuant thereto, a State 
program, or any Federal or State law, rule, or regulation pertaining to 
air or water environmental protection. In the absence of a failure-to-
abate cessation order, the regulatory authority may presume that a 
notice of violation issued pursuant to Sec. 843.12 of this chapter or 
under a Federal or State program is being corrected to the satisfaction 
of the agency with jurisdiction over the violation where the abatement 
period for the notice of violation has not yet expired and where, as 
part of the violation information provided pursuant to Sec. 778.14 of 
this chapter, the applicant has provided certification that the 
violation is in the process of being so corrected. This presumption does 
not apply where evidence to the contrary is set forth in the permit 
application, or where the notice of violation is issued for nonpayment 
of abandoned mine land reclamation fees or civil penalties. If a current 
violation exists, the regulatory authority must require the applicant or 
any person owned or controlled by the applicant, before the issuance of 
the permit, to either:
    (i) Submit to the regulatory proof that the current violation has 
been or is in the process of being corrected to the satisfaction of the 
agency that has jurisdiction over the violation; or
    (ii) Establish for the regulatory authority that the applicant, or 
any person owned or controlled by the applicant, has filed and is 
presently pursuing, in good faith, a direct administrative or judicial 
appeal to contest the validity of the current violation. If the initial 
judicial review authority under Sec. 775.13 of this chapter affirms the 
violation, then the applicant must, within 30 days of the judicial 
action, submit the proof required under paragraph (b)(1)(i) of this 
section.
    (2) Any permit that is issued on the basis of a presumption 
supported by certification under Sec. 778.14 of this chapter that a 
violation is in the process of being corrected, on the basis of proof 
submitted under paragraph (b)(1)(i) of this section that a violation is 
in the process of being corrected, or pending the outcome of an appeal 
described in paragraph (b)(1)(ii) of this section, must be issued 
conditionally.
    (3) If the regulatory authority makes a finding that the applicant, 
or the operator specified in the application, controls or has controlled 
surface coal mining and reclamation operations with a demonstrated 
pattern of willful violations of the Act of such nature and duration, 
and with resulting irreparable damage to the environment as to indicate 
an intent not to comply with the Act, no permit may be issued. Before 
such a finding becomes final,

[[Page 198]]

the applicant or operator must be afforded an opportunity for an 
adjudicatory hearing on the determination as provided for in Sec. 775.11 
of this chapter.
    (4)(i) Subsequent to October 24, 1992, the prohibitions of paragraph 
(b) of this section regarding the issuance of a new permit do not apply 
to any violation that:
    (A) Occurs after that date;
    (B) Is unabated; and
    (C) Results from an unanticipated event or condition that arises 
from a surface coal mining and reclamation operation on lands that are 
eligible for remining under a permit:
    (1) Issued before September 30, 1994, or any renewals thereof; and
    (2) Held by the person making application for the new permit.
    (ii) For permits issued under Sec. 785.25 of this chapter, an event 
or condition will be presumed to be unanticipated for the purposes of 
this paragraph if it:
    (A) Arose after permit issuance;
    (B) Was related to prior mining; and
    (C) Was not identified in the permit.
    (c) 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:
    (1) The application is complete and accurate and the applicant has 
complied with all requirements of the Act and the regulatory program.
    (2) 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.
    (3) The proposed permit area is--
    (i) 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
    (ii) Not within an area designated as unsuitable for mining pursuant 
to parts 762, 764, and 769 of this chapter or subject to the 
prohibitions or limitations of Secs. 761.11 and 761.12 of this chapter.
    (4) For mining operations where the private mineral estate to be 
mined has been severed from the private surface estate, the applicant 
has submitted to the regulatory authority the documentation required 
under Sec. 778.15(b) of this chapter.
    (5) 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.
    (6) The applicant has demonstrated that any existing structure will 
comply with Sec. 701.11(d), and the applicable performance standards of 
subchapter B or K of this chapter.
    (7) The applicant has paid all reclamation fees from previous and 
existing operations as required by subchapter R of this chapter.
    (8) The applicant has satisfied the applicable requirements of part 
785 of this chapter.
    (9) The applicant has, if applicable, satisfied the requirements for 
approval of a long-term, intensive agricultural postmining land use, in 
accordance with the requirements of Sec. 816.111(d) or Sec. 817.111(d).
    (10) 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.).
    (11) 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

[[Page 199]]

the regulatory authority has determined that no additional protection 
measures are necessary.
    (12) For a proposed remining operation where the applicant intends 
to reclaim in accordance with the requirements of Sec. 816.106 or 
Sec. 817.106 of this chapter, the site of the operation is a previously 
mined area as defined in Sec. 701.5 of this chapter.
    (13) For permits to be issued under Sec. 785.25 of this chapter, the 
permit application must contain:
    (i) Lands eligible for remining;
    (ii) An identification of the potential environmental and safety 
problems related to prior mining activity which could reasonably be 
anticipated to occur at the site; and
    (iii) Mitigation plans to sufficiently address these potential 
environmental and safety problems so that reclamation as required by the 
applicable requirements of the regulatory program can be accomplished.
    (d) 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.
    (e) Final compliance review. After an application is approved, but 
before the permit is issued, the regulatory authority must reconsider 
its decision to approve the application, based on the compliance review 
required by paragraph (b)(1) of this section in light of any new 
information submitted under Secs. 778.13(k) and 778.14(d) of this 
chapter.
[48 FR 44391, Sept. 28, 1983, as amended at 52 FR 4262, Feb. 10, 1987; 
52 FR 17529, May 8, 1987; 53 FR 38890, Oct. 3, 1988; 54 FR 8991, Mar. 2, 
1989; 59 FR 54353, Oct. 28, 1994; 60 FR 58491, Nov. 27, 1995; 62 FR 
19458, Apr. 21, 1997]



Sec. 773.17  Permit conditions.

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

[[Page 200]]

    (h) Within 30 days after a cessation order is issued under 
Sec. 843.11 of this chapter, or the State program equivalent, for 
operations conducted under the permit, except where a stay of the 
cessation order is granted and remains in effect, the permittee must 
either submit to the regulatory authority the following information, 
current to the date the cessation order was issued, or notify the 
regulatory authority in writing that there has been no change since the 
immediately preceding submittal of such information:
    (1) Any new information needed to correct or update the information 
previously submitted to the regulatory authority by the permittee under 
Sec. 778.13(c) of this chapter; or
    (2) If not previously submitted, the information required from a 
permit application by Sec. 778.13(c) of this chapter.
[48 FR 44391, Sept. 28, 1983, as amended at 49 FR 27499, July 5, 1984; 
54 FR 8991, Mar. 2, 1989; 62 FR 19459, Apr. 21, 1997]



Sec. 773.19  Permit issuance and right of renewal.

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



Sec. 773.20  Improvidently issued permits: General procedures.

    (a) Permit review. A regulatory authority which has reason to 
believe that it improvidently issued a surface coal mining and 
reclamaiton permit must review the circumstances under which the permit 
was issued, using the criteria in paragraph (b) of this section. When 
the regulatory authority finds that the permit was improvidently issued, 
it must comply with paragraph (c) of this section.
    (b) Review criteria. (1) A regulatory authority must find that a 
surface coal

[[Page 201]]

mining and reclamation permit was improvidently issued if:
    (i) Under the violations review criteria of the regulatory program 
at the time the permit was issued:
    (A) The regulatory authority should not have issued the permit 
because of an unabated violation or a delinquent penalty or fee; or
    (B) The permit was issued on the presumption that a notice of 
violation was in the process of being corrected to the satisfaction of 
the agency with jurisdiction over the violation, but a cessation order 
subsequently was issued; and
    (ii) The violation, penalty, or fee:
    (A) Remains unabated or delinquent; and
    (B) Is not the subject of a good faith appeal, or of an abatement 
plan or payment schedule that is being met to the satisfaction of the 
responsible agency; and
    (iii) The permittee or any person owned or controlled by the 
permittee continues to be responsible for the violation, penalty, or 
fee.
    (2) The provisions Sec. 773.25 of this part apply whenever a 
regulatory authority makes one of the following determinations:
    (i) Whether a violation, penalty, or fee existed at the time that it 
was cited, remains unabated or delinquent, has been corrected, is in the 
process of being corrected, or is the subject of a good faith appeal, 
and
    (ii) Whether the permittee or any person owned or controlled by the 
permittee continues to be responsible for the violation, penalty, or 
fee.
    (c) Remedial measures. (1) A regulatory authority which, under 
paragraph (b) of this section, finds that, because of an unabated 
violation or a delinquent penalty or fee, a permit was improvidently 
issued must use one or more of the following remedial measures:
    (i) Implement, with the cooperation of the responsible agency, the 
permittee, and persons owned or controlled by the permittee, a plan for 
abatement of the violation or a schedule for payment of the penalty or 
fee;
    (ii) Impose on the permit a condition requiring abatement of the 
violation or payment of the penalty or fee within a reasonable time;
    (iii) Suspend the permit until the violation is abated or the 
penalty or fee is paid; or
    (iv) Rescind the permit.
    (2) If the regulatory authority decides to suspend the permit, it 
must afford at least 30 days written notice to the permittee. If the 
regulatory authority decides to rescind the permit, it must issued a 
notice in accordance with Sec. 773.21 of this part. In either case, the 
permittee must be given the opportunity to request administrative review 
of the notice under 43 CFR 4.1370 through 4.1370 through 4.1377, where 
OSM is the regulatory authority, or under the State program equivalent, 
where a State is the regulatory authority. The regulatory authority's 
decision will remain in effect during the pendency of the appeal, unless 
temporary relief is granted in accordance with 43 CFR 4.1376 or the 
State program equivalent.
[62 FR 19459, Apr. 21, 1997]



Sec. 773.21  Improvidently issued permits: Rescission procedures.

    A regulatory authority which, under Sec. 773.20(c)(1)(iv) of this 
part, elects to rescind an improvidently issued permit must serve on the 
permittee a notice of proposed suspension and rescission which includes 
the reasons for the finding of the regulatory authority under 
Sec. 773.20(b) of this part and states that:
    (a) Automatic suspension and rescission. After a specified period of 
time not to exceed 90 days, the permit automatically will become 
suspended, and not to exceed 90 days thereafter rescinded, unless within 
those periods the permittee submits proof, and the regulatory authority 
finds, consistent with the provisions of Sec. 773.25 of this part, that:
    (1) The finding of the regulatory authority under Sec. 773.20(b) of 
this part was erroneous;
    (2) The violation has been abated, or the penalty or fee paid, to 
the satisfaction of the responsible agency;
    (3) The violation, penalty, or fee is the subject of a good faith 
appeal, or of an abatement plan or payment schedule that is being met to 
the satisfaction of the responsible agency; or

[[Page 202]]

    (4) The permittee and all persons owned or controlled by the 
permittee are no longer responsible for the violation, penalty, or fee.
    (b) Cessation of operations. After permit suspension or rescission, 
the permittee must cease all surface coal mining and reclamation 
operations under the permit, except for violation abatement and for 
reclamation and other environmental protection measures as required by 
the regulatory authority.
[62 FR 19459, Apr. 21, 1997]



Sec. 773.22  Verification of ownership or control application information.

    (a) In accordance with Sec. 773.15(c)(1) of this part, prior to the 
issuance of a permit, the regulatory authority shall review the 
information in the application provided pursuant to Sec. 778.13 of this 
chapter to determine that such information, including the identification 
of the operator and all owners and controllers of the operator, is 
complete and accurate. In making such determination, the regulatory 
authority shall compare the information provided in the application with 
information from other reasonably available sources, including--
    (1) Manual data sources within the State in which the regulatory 
authority exercises jurisdiction, including: (i) The regulatory 
authority's inspection and enforcement records and (ii) State 
corporation commission or tax records, to the extent they contain 
information concerning ownership or control links; and
    (2) Automated data sources, including: (i) The regulatory 
authority's own computer systems and (ii) the Applicant/Violator System.
    (b) If it appears from the information provided in the application 
pursuant to Sec. 778.13(c) through (d) of this chapter that none of the 
persons identified in the application has had any previous mining 
experience, the regulatory authority shall inquire of the applicant and 
investigate whether any person other than those identified in the 
application will own or control the operation (as either an operator or 
other owner or controller).
    (c) If, as a result of the review conducted under paragraphs (a) and 
(b) of this section, the regulatory authority identifies any potential 
omission, inaccuracy, or inconsistency in the ownership or control 
information provided in the application, it shall, prior to making a 
final determination with regard to the application, contact the 
applicant and require that the matter be resolved through submission of 
(1) An amendment to the application or (2) a satisfactory explanation 
which includes credible information sufficient to demonstrate that no 
actual omission, inaccuracy, or inconsistency exists. The regulatory 
authority shall also take action in accordance with the provisions of 
Sec. 843.23 of this chapter (or the State program equivalent), where 
appropriate.
    (d) Upon completion of the review conducted under this section, the 
regulatory authority shall promptly enter into or update all ownership 
or control information on AVS.
[59 FR 54353, Oct. 28, 1994]



Sec. 773.23  Review of ownership or control and violation information.

    (a) Following the verification of ownership or control information 
pursuant to Sec. 773.22 of this part, the regulatory authority shall 
review all reasonably available information concerning violation notices 
and ownership or control links involving the applicant to determine 
whether the application can be approved under Sec. 773.15(b) of this 
part. Such information shall include--
    (1) With respect to ownership or control links involving the 
applicant, all information obtained under Secs. 773.22 and 778.13 of 
this chapter; and
    (2) With respect to violation notices, all information obtained 
under Sec. 778.14 of this chapter, information obtained from OSM, 
including information shown in the AVS, and information from the 
regulatory authority's own records concerning violation notices.
    (b) If the review conducted under paragraph (a) of this section 
discloses any ownership or control link between the applicant and any 
person cited in a violation notice--
    (1) The regulatory authority shall so notify the applicant and shall 
refer the applicant to the agency with jurisdiction over such violation 
notice; and
    (2) The regulatory authority shall not approve the application 
unless and

[[Page 203]]

until it determines, in accordance with the provisions of Secs. 773.24 
and 773.25 of this part (or the State program equivalent), (i) That all 
ownership or control links between the applicant and any person cited in 
a violation notice are erroneous or have been rebutted, or (ii) that the 
violation has been corrected, is in the process of being corrected, or 
is the subject of a good faith appeal, within the meaning of 
Sec. 773.15(b)(1) of this part (or the State program equivalent).
    (c) Following the regulatory authority's decision on the application 
(including unconditional issuance, conditional issuance, or denial of 
the permit) or following the applicant's withdrawal of the application, 
the regulatory authority shall promptly enter all relevant information 
related to such decision or withdrawal into AVS.
[59 FR 54354, Oct. 28, 1994; 59 FR 61656, Dec. 1, 1994]



Sec. 773.24  Procedures for challenging ownership or control links shown in AVS.

    (a)(1) Any applicant or other person shown in AVS in an ownership or 
control link to any person may challenge such link in accordance with 
the provisions of paragraphs (b) through (d) of this section and 
Sec. 773.25 of this part, unless such applicant or other person is bound 
by a prior administrative or judicial determination concerning the link.
    (2) Any applicant or other person shown in AVS in an ownership or 
control link to any person cited in a Federal violation notice may 
challenge the status of the violation covered by such notice in 
accordance with the provisions of paragraphs (b) through (d) of this 
section and Sec. 773.25 of this part, unless such applicant or other 
person is bound by a prior administrative or judicial determination 
concerning the status of the violation.
    (3) Any applicant or other person shown in AVS in an ownership or 
control link to any person cited in a State violation notice may 
challenge the status of the violation covered by such notice in 
accordance with the State program equivalents to paragraphs (b) through 
(d) of this section and Sec. 773.25 of this part for the State that 
issued the violation notice, unless such applicant or other person is 
bound by a prior administrative or judicial determination concerning the 
status of the violation.
    (b) Any applicant or other person who wishes to challenge an 
ownership or control link shown in AVS or the status of a Federal 
violation, and who is eligible to do so under the provisions of 
paragraphs (a)(1) or (a)(2) of this section, shall submit a written 
explanation of the basis for the challenge, along with any relevant 
evidentiary materials and supporting documents, to OSM, addressed to the 
Chief of the AVS Office, Office of Surface Mining Reclamation and 
Enforcement, U.S. Department of the Interior, Washington, D.C. 20240.
    (c) OSM shall review any information submitted under paragraph (b) 
of this section and shall make a written decision whether or not the 
ownership or control link has been shown to be erroneous or has been 
rebutted and/or whether the violation covered by the notice remains 
outstanding, has been corrected, is in the process of being corrected, 
or is the subject of a good faith appeal within the meaning of 
Sec. 773.15(b)(1) of this part.
    (d)(1) If, as a result of the decision reached under paragraph (c) 
of this section, OSM determines that the ownership or control link has 
been shown to be erroneous or has been rebutted and/or that the 
violation covered by the notice has been corrected, is in the process of 
being corrected, or is the subject of a good faith appeal, OSM shall so 
notify the applicant or other person and, if an application is pending, 
the regulatory authority, and shall correct the information in AVS.
    (2) If, as a result of the decision reached under paragraph (c) of 
this section, OSM determines that the ownership or control link has not 
been shown to be erroneous and has not been rebutted and that the 
violation covered by the notice remains outstanding, OSM shall so notify 
the applicant or other person and, if an application is pending, the 
regulatory authority, and shall update the information in AVS, if 
necessary.
    (i) OSM shall serve a copy of the decision on the applicant or other 
person

[[Page 204]]

by certified mail, or by any means consistent with the rules governing 
service of a summons and complaint under Rule 4 of the Federal Rules of 
Civil Procedure. Service shall be complete upon tender of the notice or 
of the mail and shall not be deemed incomplete because of a refusal to 
accept.
    (ii) The applicant or other person may appeal OSM's decision to the 
Department of the Interior's Office of Hearings and Appeals within 30 
days of service of the decision in accordance with 43 CFR 4.1380 through 
4.1387. OSM's decision shall remain in effect during the pendency of the 
appeal, unless temporary relief is granted in accordance with 43 CFR 
4.1386.
[59 FR 54354, Oct. 28, 1994]



Sec. 773.25  Standards for challenging ownership or control links and the status of violations.

    (a) The provisions of this section shall apply whenever a person has 
and exercises a right, under the provisions of Secs. 773.20, 773.21, 
773.23, or 773.24 of this part or under the provisions of part 775 of 
this chapter, to challenge (1) an ownership or control link to any 
person and/or (2) the status of any violation covered by a notice.
    (b) Agencies responsible. (1) Except as provided in paragraph (b)(3) 
of this section--
    (i) The regulatory authority before which an application is pending 
shall have responsibility for making decisions with respect to ownership 
or control relationships of the application.
    (ii) The regulatory authority that issued a permit shall have 
responsibility for making decisions with respect to the ownership or 
control relationships of the permit.
    (iii) The State regulatory authority for the State that issued a 
State violation notice shall have responsibility for making decisions 
with respect to the ownership or control relationships of the violation.
    (iv) The regulatory agency that issued a violation notice, whether 
State or Federal, shall have responsibility for making decisions 
concerning the status of the violation covered by such notice, i.e., 
whether the violation remains outstanding, has been corrected, is in the 
process of being corrected, or is the subject of a good faith appeal, 
within the meaning of Sec. 773.15(b)(1) of this part.
    (2) OSM shall have responsibility for making decisions with respect 
to the ownership or control relationships of a Federal violation notice.
    (3)(i) With respect to information shown on AVS, the 
responsibilities referred to in paragraph (b)(1) of this section shall 
be subject to the plenary authority of OSM to review any State 
regulatory authority decision regarding an ownership or control link.
    (ii) With respect to ownership or control information which has not 
been entered into AVS by a State and with respect to information shown 
on AVS relating to the status of a violation, State regulatory 
authorities' determinations are subject to OSM's program authority 
oversight under parts 733, 842, and 843 of this chapter.
    (c) Evidentiary standards. (1) In any formal or informal review of 
an ownership or control link or of the status of a violation covered by 
a violation notice, the responsible agency shall make a prima facie 
determination or showing that such link exists, existed during the 
relevant period, and/or that the violation covered by such notice 
remains outstanding. Once such a prima facie determination or showing 
has been made, the person challenging such link or the status of the 
violation shall have the burden of proving by a preponderance of the 
evidence, with respect to any relevant time period--
    (i) That the facts relied upon by the responsible agency to 
establish: (A) Ownership or control under the definition of Owned or 
controlled or Owns or controls in Sec. 773.5 of this part or (B) a 
presumption of ownership or control under the definition of Owned or 
controlled or Owns or controls in Sec. 773.5 of this part, do not or did 
not exist;
    (ii) That a person subject to a presumption of ownership or control 
under the definition of Owned or controlled or Owns or controls in 
Sec. 773.5 of this part, does not or did not in fact have the authority 
directly or indirectly to determine the manner in which surface coal 
mining operations are or were conducted, or
    (iii) That the violation covered by the violation notice did not 
exist, has

[[Page 205]]

been corrected, is in the process of being corrected, or is the subject 
of a good faith appeal within the meaning of Sec. 773.15(b)(1) of this 
part; provided that the existence of the violation at the time it was 
cited may not be challenged under the provisions Sec. 773.24 of this 
part: (A) By a permittee, unless such challenge is made by the permittee 
within the context of Secs. 773.20 through 773.21 of this part; (B) by 
any person who had a prior opportunity to challenge the violation notice 
and who failed to do so in a timely manner; or (C) by any person who is 
bound by a prior administrative or judicial determination concerning the 
existence of the violation.
    (2) In meeting the burden of proof set forth in paragraph (c)(1) of 
this section, the person challenging the ownership or control link or 
the status of the violation shall present probative, reliable, and 
substantial evidence and any supporting explanatory materials, which may 
include--
    (i) Before the responsible agency--
    (A) Affidavits setting forth specific facts concerning the scope of 
responsibility of the various owners or controllers of an applicant, 
permittee, or any person cited in a violation notice; the duties 
actually performed by such owners or controllers; the beginning and 
ending dates of such owners' or controllers' affiliation with the 
applicant, permittee, or person cited in a violation notice; and the 
nature and details of any transaction creating or severing an ownership 
or control link; or specific facts concerning the status of the 
violation;
    (B) If certified, copies of corporate minutes, stock ledgers, 
contracts, purchase and sale agreements, leases, correspondence, or 
other relevant company records;
    (C) If certified, copies of documents filed with or issued by any 
State, Municipal, or Federal governmental agency.
    (D) An opinion of counsel, when supported by (1) Evidentiary 
materials; (2) a statement by counsel that he or she is qualified to 
render the opinion; and (3) a statement that counsel has personally and 
diligently investigated the facts of the matter or, where counsel has 
not so investigated the facts, a statement that such opinion is based 
upon information which has been supplied to counsel and which is assumed 
to be true.
    (ii) Before any administrative or judicial tribunal reviewing the 
decision of the responsible agency, any evidence admissible under the 
rules of such tribunal.
    (d) Following any determination by a State regulatory authority or 
other State agency, or any decision by an administrative or judicial 
tribunal reviewing such determination, the State regulatory authority 
shall review the information in AVS to determine if it is consistent 
with the determination or decision. If it is not, the State regulatory 
authority shall promptly inform OSM and request that the AVS information 
be revised to reflect the determination or decision.
[59 FR 54355, Oct. 28, 1994; 59 FR 61656, Dec. 1, 1994]



PART 774--REVISION; RENEWAL; AND TRANSFER, ASSIGNMENT, OR SALE OF PERMIT RIGHTS--Table of Contents




Sec.
774.1  Scope and purpose.
774.10  Information collection.
774.11  Regulatory authority review of permits.
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., as amended; and Pub. L. 100-34.

    Source: 48 FR 44395, Sept. 28, 1983, unless otherwise noted.



Sec. 774.1  Scope and purpose.

    This part provides requirements for revision; renewal; and transfer, 
assignment, or sale of permit rights.



Sec. 774.10  Information collection.

    The collections of information contained in Secs. 774.11, 774.13, 
774.15 and 774.17 have been approved by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1029-
0088. The information will be used to determine if the applicant meets 
the requirement for revision, renewal, transfer, sale, or assignment of 
permit rights. Response is

[[Page 206]]

mandatory in accordance with sections 102, 511, 506, and 507 of the Act.
[54 FR 13823, Apr. 5, 1989]



Sec. 774.11  Regulatory authority review of permits.

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



Sec. 774.13  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 Secs. 773.13, 773.19(b) (1) and (3), and 
778.21, shall apply. Such requirements and procedures shall apply at a 
minimum to all significant permit revisions.
    (c) Criteria for approval. No application for a permit revision 
shall be approved unless the application demonstrates and the regulatory 
authority finds that reclamation as required by the Act and the 
regulatory program can be accomplished, applicable requirements under 
Sec. 773.15(c) which are pertinent to the revision are met, and the 
application for a revision complies with all requirements of the Act and 
the regulatory program.
    (d) Request to change permit boundary. Any extensions to the area 
covered by the permit, except incidental boundary revisions, shall be 
made by application for a new permit.



Sec. 774.15  Permit renewals.

    (a) General. A valid permit, issued pursuant to an approved 
regulatory program, shall carry with it the right of successive renewal, 
within the approved boundaries of the existing permit, upon expiration 
of the term of the permit.
    (b) Application requirements and procedures. (1) An application for 
renewal of a permit shall be filed with the regulatory authority at 
least 120 days before expiration of the existing permit term.

[[Page 207]]

    (2) An application for renewal of a permit shall be in the form 
required by the regulatory authority and shall include at a minimum--
    (i) The name and address of the permittee, the term of the renewal 
requested, and the permit number or other identifier;
    (ii) Evidence that a liability insurance policy or adequate self-
insurance under Sec. 800.60 of this chapter will be provided by the 
applicant for the proposed period of renewal;
    (iii) Evidence that the performance bond in effect for the operation 
will continue in full force and effect for any renewal requested, as 
well as any additional bond required by the regulatory authorities 
pursuant to subchapter J of this chapter;
    (iv) A copy of the proposed newspaper notice and proof of 
publication of same, as required by Sec. 778.21 of this chapter; and
    (v) Additional revised or updated information required by the 
regulatory authority.
    (3) Applications for renewal shall be subject to the requirements of 
public notification and public participation contained in Secs. 773.13 
and 773.19(b) of this chapter.
    (4) If an application for renewal includes any proposed revisions to 
the permit, such revisions shall be identified and subject to the 
requirements of Sec. 774.13.
    (c) Approval process--(1) Criteria for approval. The regulatory 
authority shall approve a complete and accurate application for permit 
renewal, unless it finds, in writing that--
    (i) The terms and conditions of the existing permit are not being 
satisfactorily met;
    (ii) The present surface coal mining and reclamation operations are 
not in compliance with the environmental protection standards of the Act 
and the regulatory program;
    (iii) The requested renewal substantially jeopardizes the operator's 
continuing ability to comply with the Act and the regulatory program on 
existing permit areas;
    (iv) The operator has not provided evidence of having liability 
insurance or self-insurance as required in Sec. 800.60 of this chapter;
    (v) The operator has not provided evidence that any performance bond 
required to be in effect for the operation will continue in full force 
and effect for the proposed period of renewal, as well as any additional 
bond the regulatory authority might require pursuant to subchapter J of 
this chapter; or
    (vi) Additional revised or updated information required by the 
regulatory authority has not been provided by the applicant.
    (2) Burden of proof. In the determination of whether to approve or 
deny a renewal of a permit, the burden of proof shall be on the 
opponents of renewal.
    (3) Alluvial valley floor variance. If the surface coal mining and 
reclamation operation authorized by the original permit was not subject 
to the standards contained in sections 510(b)(5) (A) and (B) of the Act 
and Sec. 785.19 of this chapter, because the permittee complied with the 
exceptions in the proviso to section 510(b)(5) of the Act, the portion 
of the application for renewal of the permit that addresses new land 
areas previously identified in the reclamation plan for the original 
permit shall not be subject to the standards contained in sections 
510(b)(5) (A) and (B) of the Act and Sec. 785.19 of this chapter.
    (d) Renewal term. Any permit renewal shall be for a term not to 
exceed the period of the original permit established under Sec. 773.19.
    (e) Notice of decision. The regulatory authority shall send copies 
of its decision to the applicant, to each person who filed comments or 
objections on the renewal, to each party to any informal conference held 
on the permit renewal, and to OSM if OSM is not the regulatory 
authority.
    (f) Administrative and judicial review. Any person having an 
interest which is or may be adversely affected by the decision of the 
regulatory authority shall have the right to administrative and judicial 
review set forth in part 775 of this chapter.



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

    (a) General. No transfer, assignment, or sale of rights granted by a 
permit

[[Page 208]]

shall be made without the prior written approval of the regulatory 
authority.
    (b) Application requirements. An applicant for approval of the 
transfer, assignment, or sale of permit rights shall--
    (1) Provide the regulatory authority with an application for 
approval of the proposed transfer, assignment, or sale including--
    (i) The name and address of the existing permittee and permit number 
or other identifier;
    (ii) A brief description of the proposed action requiring approval; 
and
    (iii) The legal, financial, compliance, and related information 
required by part 778 of this chapter for the applicant for approval of 
the transfer, assignment, or sale of permit rights.
    (2) Advertise the filing of the application in a newspaper of 
general circulation in the locality of the operations involved, 
indicating the name and address of the applicant, the permittee, the 
permit number or other identifier, the geographic location of the 
permit, and the address to which written comments may be sent;
    (3) Obtain appropriate performance bond coverage in an amount 
sufficient to cover the proposed operations, as required under 
subchapter J of this chapter.
    (c) Public participation. Any person having an interest which is or 
may be adversely affected by a decision on the transfer, assignment, or 
sale of permit rights, including an official of any Federal, State, or 
local government agency, may submit written comments on the application 
to the regulatory authority within a time specified by the regulatory 
authority.
    (d) Criteria for approval. The regulatory authority may allow a 
permittee to transfer, assign, or sell permit rights to a successor, if 
it finds in writing that the successor--
    (1) Is eligible to receive a permit in accordance with Sec. 773.15 
(b) and (c) 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.



PART 775--ADMINISTRATIVE AND JUDICIAL REVIEW OF DECISIONS--Table of Contents




Sec.
775.1  Scope and purpose.
775.11  Administrative review.
775.13  Judicial review.

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

    Source: 48 FR 44397, Sept. 28, 1983, unless otherwise noted.



Sec. 775.1  Scope and purpose.

    This part provides requirements for administrative and judicial 
review of decisions on permits.



Sec. 775.11  Administrative review.

    (a) General. Within 30 days after an applicant or permittee is 
notified of the decision of the regulatory authority concerning an 
application for approval of exploration required under part 772 of this 
chapter, a permit for surface coal mining and reclamation operations, a 
permit revision, a permit renewal, or a transfer, assignment, or sale of 
permit rights, the applicant, permittee, or any person with an interest 
which is or may be adversely affected may request a hearing on the 
reasons for the decision, in accordance with this section.

[[Page 209]]

    (b) Administrative hearings under State programs. (1) The regulatory 
authority shall start the administrative hearing within 30 days of such 
request. The hearing shall be on the record and adjudicatory in nature. 
No person who presided at an informal conference under Sec. 773.13(c) 
shall either preside at the hearing or participate in the decision 
following the hearing or administrative appeal.
    (2) The regulatory authority may, under such conditions as it 
prescribes, grant such temporary relief as it deems appropriate, pending 
final determination of the proceeding, if--
    (i) All parties to the proceeding have been notified and given an 
opportunity to be heard on a request for temporary relief;
    (ii) The person requesting that relief shows that there is a 
substantial likelihood that he or she will prevail on the merits of the 
final determination of the proceeding;
    (iii) The relief sought will not adversely affect the public health 
or safety, or cause significant, imminent environmental harm to land, 
air, or water resources; and
    (iv) The relief sought is not the issuance of a permit where a 
permit has been denied, in whole or in part, by the regulatory authority 
except that continuation under an existing permit may be allowed where 
the operation has a valid permit issued under section 510 of the Act.
    (3) The hearing shall be conducted under the following conditions:
    (i) The hearing authority may administer oaths and affirmations, 
subpoena witnesses and written or printed materials, compel attendance 
of witnesses or production of those materials, compel discovery, and 
take evidence, including, but not limited to, site inspections of the 
land to be affected and other surface coal mining and reclamation 
operations carried on by the applicant in the general vicinity of the 
proposed operations.
    (ii) A verbatim record of each public hearing required by this 
section shall be made, and a transcript made available on the motion of 
any party or by order of the hearing authority.
    (iii) Ex parte contacts between representatives of the parties 
appearing before the hearing authority and the hearing authority shall 
be prohibited.
    (4) Within 30 days after the close of the record, the hearing 
authority shall issue and furnish the applicant and each person who 
participated in the hearing with the written findings of fact, 
conclusions of law, and order of the hearing authority with respect to 
the appeal of the decision.
    (5) The burden of proof at such hearings shall be on the party 
seeking to reverse the decision of the regulatory authority.
    (c) Administrative hearings under Federal programs and Federal lands 
programs. All hearings, under a Federal program for a State or a Federal 
lands program except as may be modified by a cooperative agreement 
pursuant to part 745 of this chapter, on an application for approval of 
exploration, a permit for surface coal mining and reclamation 
operations, permit revision, a permit renewal, or a transfer, 
assignment, or sale of permit rights shall be of record and governed by 
5 U.S.C. 554 and 43 CFR part 4.



Sec. 775.13  Judicial review.

    (a) General. Any applicant or any person with an interest which is 
or may be adversely affected and who has participated in the 
administrative hearings as an objector may appeal as provided in 
paragraph (b) or (c) of this section if--
    (1) The applicant or person is aggrieved by the decision of the 
hearing authority in the administrative hearing conducted pursuant to 
Sec. 775.11 of this chapter; or
    (2) Either the regulatory authority or the hearing authority for 
administrative review under Sec. 775.11 of this chapter fails to act 
within applicable time limits specified in the Act, this chapter, or the 
regulatory program.
    (b) Judicial review under State programs. The action of the hearing 
authority identified in paragraph (a) of this section shall be subject 
to judicial review by a court of competent jurisdiction, as provided for 
in the State program, but the availability of such review shall not be 
construed to limit the operation of the rights established in section 
520 of the Act.
    (c) Judicial review under Federal programs and Federal lands 
programs. The

[[Page 210]]

action of the hearing authority identified in paragraph (a) of this 
section is subject to judicial review by the U.S. District Court for the 
district where the coal exploration or surface coal mining and 
reclamation operation is or would be located, except for judicial review 
of State regulatory authority actions in a State court of competent 
jurisdiction as may be provided for in a cooperative agreement, in the 
time and manner provided for in section 526 (a)(2), (b) and (e) of the 
Act. The availability of such review shall not be construed to limit the 
operation of the rights established in section 520 of the Act.



PART 777--GENERAL CONTENT REQUIREMENTS FOR PERMIT APPLICATIONS--Table of Contents




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.

    Source: 48 FR 44398, Sept. 28, 1983, unless otherwise noted.



Sec. 777.1  Scope.

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



Sec. 777.10  Information collection.

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



Sec. 777.11  Format and contents.

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



Sec. 777.13  Reporting of technical data.

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



Sec. 777.14  Maps and plans: General requirements.

    (a) Maps submitted with applications shall be presented in a 
consolidated format, to the extent possible, and shall include all the 
types of information that are set forth on topographic maps of the U.S. 
Geological Survey of the 1:24,000 scale series. Maps of the permit area 
shall be at a scale of 1:6,000 or larger. Maps of the adjacent area 
shall clearly show the lands and waters within those areas and be in a 
scale determined by the regulatory authority, but in no event smaller 
than 1:24,000.
    (b) All maps and plans submitted with the application shall 
distinguish among each of the phases during which surface coal mining 
operations were or will be conducted at any place within the life of 
operations. At a minimum, distinctions shall be clearly shown

[[Page 211]]

among those portions of the life of operations in which surface coal 
mining operations occurred--
    (1) Prior to August 3, 1977;
    (2) After August 3, 1977, and prior to either--
    (i) May 3, 1978; or
    (ii) In the case of an applicant or operator which obtained a small 
operator's exemption in accordance with Sec. 710.12 of this chapter, 
January 1, 1979;
    (3) After May 3, 1978 (or January 1, 1979, for persons who received 
a small operator's exemption) and prior to the approval of the 
applicable regulatory program;
    (4) After the estimated date of issuance of a permit by the 
regulatory authority under the approved regulatory program.



Sec. 777.15  Completeness.

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



Sec. 777.17  Permit fees.

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



PART 778--PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE, AND RELATED INFORMATION--Table of Contents




Sec.
778.1  Scope and purpose.
778.10  Information collection.
778.13  Identification of interests.
778.14  Violation information.
778.15  Right-of-entry information.
778.16  Status of unsuitability claims.
778.17  Permit term.
778.18  Insurance.
778.21  Proof of publication
778.22  Facilities or structures used in common.

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

    Source: 48 FR 44399, Sept. 28, 1983, unless otherwise noted.



Sec. 778.1  Scope and purpose.

    This part establishes the minimum requirements for the permit 
applications for surface coal mining and reclamation operations under a 
State or Federal program. This part covers minimum legal, financial, and 
compliance requirements and general information that must be contained 
in permit applications. This part applies to any person who submits an 
application to a regulatory authority for a permit to conduct surface 
coal mining and reclamation operations.



Sec. 778.10  Information collection.

    (a) In accordance with 44 U.S.C. 3501 et seq., the Office of 
Management and Budget (OMB) has approved the information collection 
requirements of this part. Section 507(b) of SMCRA provides that persons 
applying for a permit to conduct surface coal mining operations must 
submit to the regulatory authority certain information regarding the 
applicant and affiliated entities, their compliance status and history, 
property ownership and other property rights, right of entry, liability 
insurance, the status of unsuitability claims, and proof of publication 
of a newspaper notice. The regulatory authority uses this information to 
insure that all legal, financial and compliance requirements are 
satisfied prior to issuance of a permit. Persons seeking 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. The OMB clearance number for this 
part is 1029-0034.
    (b) OSM estimates that the public reporting and recordkeeping burden 
for

[[Page 212]]

this part averages 48 hours per response, including time spent 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 these information collection and recordkeeping requirements, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer, 1951 Constitution Avenue, NW., Washington, DC 20240; and the 
Office of Management and Budget, Office of Information and Regulatory 
Affairs, Attention: Interior Desk Officer, 725 17th Street, NW., 
Washington, DC 20503. Please refer to OMB Control Number 1029-0034 in 
any correspondence.
[62 FR 19459, Apr. 21, 1997]



Sec. 778.13  Identification of interests.

    An application must contain the following information, except that 
the submission of a social security number is voluntary:
    (a) A statement as to whether the applicant is a corporation, 
partnership, single proprietorship, association, or other business 
entity.
    (b) The name, address, telephone number, and, as applicable, social 
security number and employer identification number of the:
    (1) Applicant;
    (2) Applicant's resident agent; and
    (3) Person who will pay the abandoned mine land reclamation fee.
    (c) For each person who owns or controls the applicant under the 
definition of Owned or controlled and owns or controls in Sec. 773.5 of 
this chapter, as applicable:
    (1) The person's name, address, social security number, and employer 
identification number;
    (2) The person's ownership or control relationship to the applicant, 
including percentage of ownership and location in the organizational 
structure; and
    (3) The title of the person's position, the date that the person 
assumed the position, and, when submitted under Sec. 773.17(h) of this 
chapter, the date of departure from the position.
    (d) For the applicant and each partner or principal shareholder of 
the applicant, each name and identifying number, including employer 
identification number, Federal or State permit number, and MSHA number 
with date of issuance, under which the person owns or controls, or 
previously owned or controlled, a surface coal mining and reclamation 
operation in the United States within the 5 years preceding the date of 
the application.
    (e) The application number or other identifier of, and the 
regulatory authority for, any other pending surface coal mining 
operation permit application filed by the applicant in any State in the 
United States.
    (f) For any surface coal mining operation owned or controlled by the 
applicant under the definition of Owned or controlled and owns or 
controls in Sec. 773.5 of this chapter, the operation's:
    (1) Name, address, identifying numbers, including employer 
identification number, Federal or State permit number and MSHA number, 
the date of issuance of the MSHA number, and the regulatory authority; 
and
    (2) Ownership or control relationship to the applicant, including 
percentage of ownership and location in organizational structure.
    (g) The name and address of each legal or equitable owner of record 
of the surface and mineral property to be mined, each holder of record 
of any leasehold interest in the property to be mined, and any purchaser 
of record under a real estate contract for the property to be mined.
    (h) The name and address of each owner of record of all property 
(surface and subsurface) contiguous to any part of the proposed permit 
area.
    (i) The Mine Safety and Health Administration (MSHA) numbers for all 
mine-associated structures that require MSHA approval.
    (j) A statement of all lands, interest in lands, options, or pending 
bids on interests held or made by the applicant for lands contiguous to 
the area described in the permit application. If requested by the 
applicant, any information required by this paragraph which is not on 
public file pursuant to State law must be held in confidence by the

[[Page 213]]

regulatory authority, as provided under Sec. 773.13(d)(3)(ii) of this 
chapter.
    (k) After an applicant is notified that his or her application is 
approved, but before the permit is issued, the applicant must, as 
applicable, update, correct or indicate that no change has occurred in 
the information previously submitted under paragraphs (a) through (f) of 
this section.
    (l) The applicant must submit the information required by this 
section and by Sec. 778.14 of this part in any format that OSM 
prescribes.
[62 FR 19460, Apr. 21, 1997]



Sec. 778.14  Violation information

    Each application must contain the following information:
    (a) A statement of whether the applicant or any subsidiary, 
affiliate, or persons controlled by or under common control with the 
applicant has:
    (1) Had a Federal or State coal mining permit suspended or revoked 
in the 5 years preceding the date of submission of the application; or
    (2) Forfeited a performance bond or similar security deposited in 
lieu of bond.
    (b) A brief explanation of the facts involved in any such 
suspension, revocation, or forfeiture referred to in paragraphs (a)(1) 
and (a)(2) of this section has occurred, including:
    (1) Identification number and date of issuance of the permit, and 
the date and amount of bond or similar security;
    (2) Identification of the authority that suspended or revoked the 
permit or forfeited the bond and the stated reasons for the action;
    (3) The current status of the permit, bond, or similar security 
involved;
    (4) The date, location, and type of any administrative or judicial 
proceedings initiated concerning the suspension, revocation, or 
forfeiture; and
    (5) The current status of the proceedings.
    (c) A list of all violation notices received by the applicant during 
the three-year period preceding the application date, and a list of all 
outstanding violation notices received prior to the date of the 
application by any surface coal mining operation that is deemed or 
presumed to be owned or controlled by the applicant under the definition 
of Owned or controlled and owns or controls in Sec. 773.5 of this 
chapter. For each notice of violation issued pursuant to Sec. 843.12 of 
this chapter or under a Federal or State program for which the abatement 
period has not expired, the applicant must certify that such notice of 
violation is in the process of being corrected to the satisfaction of 
the agency with jurisdiction over the violation. For each violation 
notice reported, the list must include the following information, as 
applicable:
    (1) Any identifying numbers for the operation, including the Federal 
or State permit number and MSHA number, the dates of issuance of the 
violation notice and MSHA number, the name of the person to whom the 
violation notice was issued, and the name of the issuing regulatory 
authority, department or agency;
    (2) A brief description of the violation alleged in the notice;
    (3) The date, location, and type of any administrative or judicial 
proceedings initiated concerning the violation, including, but not 
limited to, proceedings initiated by any person identified in paragraph 
(c) of this section to obtain administrative or judicial review of the 
violation;
    (4) The current status of the proceedings and of the violation 
notice; and
    (5) The actions, if any, taken by any person identified in paragraph 
(c) of this section to abate the violation.
    (d) After an applicant is notified that his or her application is 
approved, but before the permit is issued, the applicant must, as 
applicable, update, correct or indicate that no change has occurred in 
the information previously submitted under this section.
[62 FR 19460, Apr. 21, 1997]



Sec. 778.15  Right-of-entry information.

    (a) An application shall contain a description of the documents upon 
which the applicant bases his legal right to enter and begin surface 
coal mining and reclamation operations in the permit area and shall 
state whether that right is the subject of pending litigation. The 
description shall identify the documents by type and date of execution, 
identify the specific lands to

[[Page 214]]

which the document pertains, and explain the legal rights claimed by the 
applicant.
    (b) Where the private mineral estate to be mined has been severed 
from the private surface estate, an applicant shall also submit--
    (1) A copy of the written consent of the surface owner for the 
extraction of coal by surface mining methods;
    (2) A copy of the conveyance that expressly grants or reserves the 
right to extract coal by surface mining methods; or
    (3) If the conveyance does not expressly grant the right to extract 
the coal by surface mining methods, documentation that under applicable 
State law, the applicant has the legal authority to extract the coal by 
those methods.
    (c) Nothing in this section shall be construed to provide the 
regulatory authority with the authority to adjudicate property rights 
disputes.



Sec. 778.16  Status of unsuitability claims.

    (a) An application shall contain available information as to whether 
the proposed permit area is within an area designated as unsuitable for 
surface coal mining and reclamation operations or is within an area 
under study for designation in an administrative proceeding under parts 
762, 764, and 769 of this chapter.
    (b) An application in which the applicant claims the exemption 
described in Sec. 762.13(c) of this chapter shall contain information 
supporting the assertion that the applicant made substantial legal and 
financial commitments before January 4, 1977, concerning the proposed 
surface coal mining and reclamation operations.
    (c) An application in which the applicant proposes to conduct 
surface coal mining activities within 300 feet of an occupied dwelling 
or within 100 feet of a public road shall contain the necessary 
information and meet the requirements of Sec. 761.12 of this chapter.



Sec. 778.17  Permit term.

    (a) Each application shall state the anticipated or actual starting 
and termination date of each phase of the surface coal mining and 
reclamation operation and the anticipated number of acres of land to be 
affected during each phase of mining over the life of the mine.
    (b) If the applicant requires an initial permit term in excess of 5 
years in order to obtain necessary financing for equipment and the 
opening of the operation, the application shall--
    (1) Be complete and accurate covering the specified longer term; and
    (2) Show that the proposed longer term is reasonably needed to allow 
the applicant to obtain financing for equipment and for the opening of 
the operation with the need confirmed, in writing, by the applicant's 
proposed source of financing.



Sec. 778.18  Insurance.

    An application shall contain either a certificate of liability 
insurance or evidence of self-insurance in compliance with Sec. 800.60 
of this chapter.



Sec. 778.21  Proof of publication.

    A copy of the newspaper advertisements of the application for a 
permit, significant revision of a permit, or renewal of a permit, or 
proof of publication of the advertisements which is acceptable to the 
regulatory authority shall be filed with the regulatory authority and 
shall be made a part of the application not later than 4 weeks after the 
last date of publication as required by Sec. 773.13(a)(1) of this 
chapter.



Sec. 778.22  Facilities or structures used in common.

    The plans of a facility or structure that is to be shared by two or 
more separately permitted mining operations may be included in one 
permit application and referenced in the other applications. In 
accordance with part 800 of this chapter, each permittee shall bond the 
facility or structure unless the permittees sharing it agree to another 
arrangement for assuming their respective responsibilities. If such 
agreement is reached, then the application shall include a copy of the 
agreement between or among the parties setting forth the respective 
bonding responsibilities of each party for the facility

[[Page 215]]

or structure. The agreement shall demonstrate to the satisfaction of the 
regulatory authority that all responsibilities under this chapter for 
the facility or structure will be met.



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




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.

    Source: 44 FR 15354, Mar. 13, 1979, unless otherwise noted.



Sec. 779.1  Scope.

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



Sec. 779.2  Objectives.

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



Sec. 779.4  Responsibilities.

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



Sec. 779.10  Information collection.

    The information collection requirements contained in 30 CFR 779.11, 
779.12, 779.13, 779.14, 779.15, 779.16, 779.17, 779.18, 779.19, 779.21, 
779.22, 779.24, 779.25 and 779.27 have been approved by the Office of 
Management and Budget under 44 U.S.C. 3507 and assigned clearance number 
1029-0035. The information is being collected to meet the requirements 
of sections 507 and 508 of Pub. L. 95-87, which require the applicant to 
present an adequate description of the existing pre-mining environmental 
resources within and around the proposed mine plan area. This 
information will be used by the regulatory authority to determine 
whether the applicant can comply with the performance standards of the 
regulations for surface coal mining and whether reclamation of these 
areas is feasible. The obligation to respond is mandatory.
[47 FR 33686, Aug. 4, 1982, as amended at 52 FR 47359, Dec. 11, 1987]



Sec. 779.11  General requirements.

    Each permit application shall include a description of the existing, 
premining environmental resources within the proposed permit area and 
adjacent areas that may be affected or impacted by the proposed surface 
mining activities.
[44 FR 15354, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 779.12  General environmental resources information.

    Each application shall describe and identify--
    (a) The lands subject to surface coal mining operations over the 
estimated life of those operations and the size, sequence, and timing of 
the subareas for which it is anticipated that individual permits for 
mining will be sought; and
    (b)(1) The nature of cultural, historic and archeological resources 
listed or eligible for listing on the National Register of Historic 
Places and known archeological sites within the proposed permit and 
adjacent areas. The description shall be based on all available 
information, including, but not limited to, information from the State 
Historic

[[Page 216]]

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.
[44 FR 15354, Mar. 13, 1979, as amended at 48 FR 14822, Apr. 5, 1983; 52 
FR 4262, Feb. 10, 1987]



Sec. 779.18  Climatological information.

    (a) When requested by the regulatory authority, the application 
shall contain a statement of the climatological factors that are 
representative of the proposed permit area, including:
    (1) The average seasonal precipitation;
    (2) The average direction and velocity of prevailing winds; and
    (3) Seasonal temperature ranges.
    (b) The regulatory authority may request such additional data as 
deemed necessary to ensure compliance with the requirements of this 
subchapter.
[44 FR 15354, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 779.19  Vegetation information.

    (a) The permit application shall, if required by the regulatory 
authority, contain a map that delineates existing vegetative types and a 
description of the plant communities within the proposed permit area and 
within any proposed reference area. This description shall include 
information adequate to predict the potential for reestablishing 
vegetation.
    (b) When a map or aerial photograph is required, sufficient adjacent 
areas shall be included to allow evaluation of vegetation as important 
habitat for fish and wildlife for those species of fish and wildlife 
identified under 30 CFR 780.16.
[44 FR 15354, Mar. 13, 1979, as amended at 52 FR 47359, Dec. 11, 1987]



Sec. 779.20  [Reserved]



Sec. 779.21  Soil resources information.

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



Sec. 779.24  Maps: General requirements.

    The permit application shall include maps showing--
    (a) All boundaries of lands and names of present owners of record of 
those lands, both surface and subsurface, included in or contiguous to 
the permit area;
    (b) The boundaries of land within the proposed permit area upon 
which the applicant has the legal right to enter and begin surface 
mining activities;
    (c) The boundaries of all areas proposed to be affected over the 
estimated total life of the proposed surface mining activities, with a 
description of size, sequence, and timing of the mining of sub-areas for 
which it is anticipated that additional permits will be sought;
    (d) The location of all buildings on and within 1,000 feet of the 
proposed permit area, with identification of the current use of the 
buildings;
    (e) The location of surface and sub-surface man-made features 
within, passing through, or passing over the proposed permit area, 
including, but not limited to major electric transmission lines, 
pipelines, and agricultural drainage tile fields;
    (f) The location and boundaries of any proposed reference areas for 
determining the success of revegetation;
    (g) The locations of water supply intakes for current users of 
surface water flowing into, out of, and within a hydrologic area defined 
by the regulatory authority, and those surface waters

[[Page 217]]

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.
[44 FR 15354, Mar. 13, 1979; 44 FR 49685, Aug. 24, 1979, as amended at 
45 FR 51550, Aug. 4, 1980; 48 FR 14822, Apr. 5, 1983; 52 FR 4262, Feb. 
10, 1987]



Sec. 779.25  Cross sections, maps, and plans.

    (a) The application shall include cross sections, maps, and plans 
showing--
    (1) Elevations and locations of test borings and core samplings;
    (2) Elevations and locations of monitoring stations used to gather 
data for water quality and quantity, fish and wildlife, and air quality, 
if required, in preparation of the application;
    (3) Nature, depth, and thickness of the coal seams to be mined, any 
coal or rider seams above the seam to be mined, each stratum of the 
overburden, and the stratum immediately below the lowest coal seam to be 
mined;
    (4) All coal crop lines and the strike and dip of the coal to be 
mined within the proposed permit area;
    (5) Location and extent of known workings of active, inactive, or 
abandoned underground mines, including mine openings to the surface 
within the proposed permit and adjacent areas;
    (6) Location and extent of sub-surface water, if encountered, within 
the proposed permit or adjacent areas;
    (7) Location of surface water bodies such as streams, lakes, ponds, 
springs, constructed or natural drains, and irrigation ditches within 
the proposed permit and adjacent areas;
    (8) Location and extent of existing or previously surface-mined 
areas within the proposed permit area;
    (9) Location and dimensions of existing areas of spoil, waste, and 
non-coal waste disposal, dams, embankments, other impoundments, and 
water treatment and air pollution control facilities within the proposed 
permit area;
    (10) Location, and depth if available, of gas and oil wells within 
the proposed permit area and water wells in the permit area and adjacent 
area;
    (b) Cross sections, maps and plans included in a permit application 
as required by this section shall be prepared by, or under the direction 
of, and certified by a qualified, registered, professional engineer, a 
professional geologist, or in any State which authorizes land surveyors 
to prepare and certify such cross sections, maps and plans, a qualified, 
registered, professional, land surveyor, with assistance from experts in 
related fields such as landscape architecture, and shall be updated as 
required by the regulatory authority.
[44 FR 15354, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980; 50 
FR 16198, Apr. 24, 1985; 59 FR 27937, May 27, 1994]



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




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.

[[Page 218]]

780.25  Reclamation plan: Siltation structures, impoundments, banks, 
          dams, and embankments.
780.27  Reclamation plan: Surface mining near underground mining.
780.29  Diversions.
780.31  Protection of public 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: Pub. L. 95-87, 30 U.S.C. 1201 et seq., as amended; sec. 
115 of Pub. L. 98-146, 30 U.S.C. 1257; 16 U.S.C. 470 et seq.; and Pub. 
L. 100-34.

    Source: 44 FR 15357, Mar. 13, 1979, unless otherwise noted.



Sec. 780.1  Scope.

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



Sec. 780.2  Objectives.

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



Sec. 780.4  Responsibilities.

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



Sec. 780.10  Information collection.

    (a) The collections of information contained in Part 780 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0036. The information will be 
used by the regulatory authority to determine whether the applicant can 
comply with the applicable performance and environmental standards in 
Public Law 95-87. Response is required to obtain a benefit.
    (b) Public Reporting burden for this information is estimated to 
average 28 hours per response, including the time 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 640 NC, Washington, DC 20240; and the Office of 
Management and Budget, Paperwork Reduction Project 1029-0036, 
Washington, DC 20503.
[59 FR 53028, Oct. 20, 1994]



Sec. 780.11  Operation plan: General requirements.

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

[[Page 219]]

    (5) Mine facilities; and
    (6) Water and air pollution control facilities.
[44 FR 15357, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 780.12  Operation plan: Existing structures.

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



Sec. 780.13  Operation plan: Blasting.

    (a) Blasting plan. Each application shall contain a blasting plan 
for the proposed permit area, explaining how the applicant will comply 
with the requirements of Secs. 816.61 through 816.68 of this chapter. 
This plan shall include, at a minimum, information setting forth the 
limitations the operator will meet with regard to ground vibration and 
airblast, the bases for those limitations, and the methods to be applied 
in controlling the adverse effects of blasting operations.
    (b) Monitoring system. Each application shall contain a description 
of any system to be used to monitor compliance with the standards of 
Sec. 816.67 including the type, capability, and sensitivity of any 
blast-monitoring equipment and proposed procedures and locations of 
monitoring.
    (c) Blasting near underground mines. Blasting operations within 500 
feet of active underground mines require approval of the State and 
Federal regulatory authorities concerned with the health and safety of 
underground miners.
[48 FR 9806, Mar. 8, 1983]



Sec. 780.14  Operation plan: Maps and plans.

    Each application shall contain maps and plans as follows:
    (a) The maps and plans shall show the lands proposed to be affected 
throughout the operation and any change in a facility or feature to be 
caused by the proposed operations, if the facility or feature was shown 
under 30 CFR 779.24 through 779.25.
    (b) The following shall be shown for the proposed permit area:
    (1) Buildings, utility corridors and facilities to be used;
    (2) The area of land to be affected within the proposed permit area, 
according to the sequence of mining and reclamation;
    (3) Each area of land for which a performance bond or other 
equivalent guarantee will be posted under subchapter J of this chapter;
    (4) Each coal storage, cleaning and loading area;
    (5) Each topsoil, spoil, coal waste, and non-coal waste storage 
area;

[[Page 220]]

    (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 Secs. 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.
[44 FR 15357, Mar. 13, 1979; 44 FR 49685, Aug. 24, 1979, as amended at 
45 FR 51550, Aug. 4, 1980; 48 FR 14822, Apr. 5, 1983; 50 FR 16199, Apr. 
24, 1985; 56 FR 65635, Dec. 17, 1991]



Sec. 780.15  Air pollution control plan.

    (a) For all surface mining activities with projected production 
rates exceeding 1,000,000 tons of coal per year and located west of the 
100th meridian west longitude, the application shall contain an air 
pollution control plan which includes the following:
    (1) An air quality monitoring program to provide sufficient data to 
evaluate the effectiveness of the fugitive dust control practices 
proposed under paragraph (a)(2) of this section to comply with Federal 
and State air quality standards; and
    (2) A plan for fugitive dust control practices as required under 30 
CFR 816.95.
    (b) For all other surface mining activities the application shall 
contain an air pollution control plan which includes the following:
    (1) An air quality monitoring program, if required by the regulatory 
authority, to provide sufficient data to evaluate the effectiveness of 
the fugitive dust control practices under paragraph (b)(2) of this 
section to comply with applicable Federal and State air quality 
standards; and
    (2) A plan for fugitive dust control practices, as required under 30 
CFR 816.95.



Sec. 780.16  Fish and wildlife information.

    (a) Resource information. Each application shall include fish and 
wildlife resource information for the permit area and adjacent area.
    (1) The scope and level of detail for such information shall be 
determined by the regulatory authority in consultation with State and 
Federal agencies with responsibilities for fish and wildlife and shall 
be sufficient to design the protection and enhancement plan required 
under paragraph (b) of this section.
    (2) Site-specific resource information necessary to address the 
respective species or habitats shall be required when the permit area or 
adjacent area is likely to include:
    (i) Listed or proposed endangered or threatened species of plants or 
animals or their critical habitats listed by the Secretary under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), or 
those species or habitats protected by similar State statutes;
    (ii) Habitats of unusually high value for fish and wildlife such as 
important streams, wetlands, riparian areas, cliffs supporting raptors, 
areas offering special shelter or protection, migration routes, or 
reproduction and wintering areas; or
    (iii) Other species or habitats identified through agency 
consultation as requiring special protection under State or Federal law.
    (b) Protection and enhancement plan. Each application shall include 
a description of how, to the extent possible using the best technology 
currently available, the operator will minimize disturbances and adverse 
impacts on

[[Page 221]]

fish and wildlife and related environmental values, including compliance 
with the Endangered Species Act, during the surface coal mining and 
reclamation operations and how enhancement of these resources will be 
achieved where practicable. This description shall--
    (1) Be consistent with the requirements of Sec. 816.97 of this 
chapter;
    (2) Apply, at a minimum, to species and habitats identified under 
paragraph (a) of this section; and
    (3) Include--
    (i) Protective measures that will be used during the active mining 
phase of operation. Such measures may include the establishment of 
buffer zones, the selective location and special design of haul roads 
and powerlines, and the monitoring of surface water quality and 
quantity; and
    (ii) Enhancement measures that will be used during the reclamation 
and postmining phase of operation to develop aquatic and terrestrial 
habitat. Such measures may include restoration of streams and other 
wetlands, retention of ponds and impoundments, establishment of 
vegetation for wildlife food and cover, and the replacement of perches 
and nest boxes. Where the plan does not include enhancement measures, a 
statement shall be given explaining why enhancement is not practicable.
    (c) Fish and Wildlife Service review. Upon request, the regulatory 
authority shall provide the resource information required under 
paragraph (a) of this section and the protection and enhancement plan 
required under paragraph (b) of this section to the U.S. Department of 
the Interior, Fish and Wildlife Service Regional or Field Office for 
their review. This information shall be provided within 10 days of 
receipt of the request from the Service.
[52 FR 47359, Dec. 11, 1987]



Sec. 780.18  Reclamation plan: General requirements.

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

[[Page 222]]

and reclamation procedures related to revegetation.
    (6) A description of the measures to be used to maximize the use and 
conservation of the coal resource as required in 30 CFR 816.59;
    (7) A description of measures to be employed to ensure that all 
debris, acid-forming and toxic-forming materials, and materials 
constituting a fire hazard are disposed of in accordance with 30 CFR 
816.89 and 816.102 and a description of the contingency plans which have 
been developed to preclude sustained combustion of such materials;
    (8) A description, including appropriate cross sections and maps, of 
the measures to be used to seal or 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.
[44 FR 15357, Mar. 13, 1979, as amended at 48 FR 22100, May 16, 1983; 48 
FR 44779, Sept. 30, 1983]



Sec. 780.21  Hydrologic information.

    (a) Sampling and analysis methodology. All water-quality analyses 
performed to meet the requirements of this section shall be conducted 
according to the methodology in the 15th edition of ``Standard Methods 
for the Examination of Water and Wastewater,'' which is incorporated by 
reference, or the methodology in 40 CFR parts 136 and 434. Water quality 
sampling performed to meet the requirements of this section shall be 
conducted according to either methodology listed above when feasible. 
``Standard Methods for the Examination of Water and Wastewater,'' is a 
joint publication of the American Public Health Association, the 
American Water Works Association, and the Water Pollution Control 
Federation and is available from the American Public Health Association, 
1015 15th Street, NW., Washington, DC 20036. This document is also 
available for inspection at the Office of the Federal Register 
Information Center, 800 North Capitol Street, NW., suite 700, 
Washington, DC; 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.; and at the OSM 
Western Technical Service Center, U.S. Department of the Interior, 
Brooks Tower, 1020 15th Street, Denver, Colo. This incorporation by 
reference was approved by the Director of the Federal Register on 
October 26, 1983. This document is incorporated as it exists on the date 
of the approval, and a notice of any change in it will be published in 
the Federal Register.
    (b) Baseline information. The application shall include the 
following baseline hydrologic information, and any additional 
information required by the regulatory authority.
    (1) Ground-water information. The location and ownership for the 
permit and adjacent areas of existing wells, springs, and other ground-
water resources, seasonal quality and quantity of ground water, and 
usage. Water quality descriptions shall include, at a minimum, total 
dissolved solids or specific conductance corrected to 25 deg.C, pH, 
total iron, and total manganese. Ground-water quantity descriptions 
shall include, at a minimum, approximate rates of discharge or usage and 
depth to the water in the coal seam, and each water-bearing stratum 
above and potentially impacted stratum below the coal seam.
    (2) Surface-water information. The name, location, ownership, and 
description of all surface-water bodies such as streams, lakes, and 
impoundments, the location of any discharge into any surface-water body 
in the proposed permit and adjacent areas, and information on surface-
water quality and quantity sufficient to demonstrate seasonal variation 
and water usage. Water quality descriptions shall include, at a minimum, 
baseline information on total suspended solids, total dissolved solids 
or specific conductance corrected to 25

[[Page 223]]

 deg.C, pH, total iron, and total manganese. Baseline acidity and 
alkalinity information shall be provided if there is a potential for 
acid drainage from the proposed mining operation. Water quantity 
descriptions shall include, at a minimum, baseline information on 
seasonal flow rates.
    (3) Supplemental information. If the determination of the probable 
hydrologic consequences (PHC) required by paragraph (f) of this section 
indicates that adverse impacts on or off the proposed permit area may 
occur to the hydrologic balance, or that acid-forming or toxic-forming 
material is present that may result in the contamination of ground-water 
or surface-water supplies, then information supplemental to that 
required under paragraphs (b) (1) and (2) of this section shall be 
provided to evaluate such probable hydrologic consequences and to plan 
remedial and reclamation activities. Such supplemental information may 
be based upon drilling, aquifer tests, hydrogeologic analysis of the 
water-bearing strata, flood flows, or analysis of other water quality or 
quantity characteristics.
    (c) Baseline cumulative impact area information. (1) Hydrologic and 
geologic information for the cumulative impact area necessary to assess 
the probable cumulative hydrologic impacts of the proposed operation and 
all anticipated mining on surface- and ground-water systems as required 
by paragraph (g) of this section shall be provided to the regulatory 
authority if available from appropriate Federal or State agencies.
    (2) If the information is not available from such agencies, then the 
applicant may gather and submit this information to the regulatory 
authority as part of the permit application.
    (3) The permit shall not be approved until the necessary hydrologic 
and geologic information is available to the regulatory authority.
    (d) Modeling. The use of modeling techniques, interpolation or 
statistical techniques may be included as part of the permit 
application, but actual surface- and ground-water information may be 
required by the regulatory authority for each site even when such 
techniques are used.
    (e) Alternative water source information. If the PHC determination 
required by paragraph (f) of this section indicates that the proposed 
mining operation may proximately result in contamination, diminution, or 
interruption of an underground or surface source of water within the 
proposed permit or adjacent areas which is used for domestic, 
agricultural, industrial or other legitimate purpose, then the 
application shall contain information on water availability and 
alternative water sources, including the suitability of alternative 
water sources for existing permining uses and approved postmining land 
uses.
    (f) Probable hydrologic consequences determination. (1) The 
application shall contain a determination of the probable hydrologic 
consequences (PHC) of the proposed operation upon the quality and 
quantity of surface and ground water under seasonal flow conditions for 
the proposed permit and adjacent areas.
    (2) The PHC determination shall be based on baseline hydrologic, 
geologic and other information collected for the permit application and 
may include data statistically representative of the site.
    (3) The PHC determination shall include findings on:
    (i) Whether adverse impacts may occur to the hydrologic balance;
    (ii) Whether acid-forming or toxic-forming materials are present 
that could result in the contamination of surface or ground water 
supplies;
    (iii) Whether the proposed operation may proximately result in 
contamination, diminution or interruption of an underground or surface 
source of water within the proposed permit or adjacent areas which is 
used for domestic, agricultural, industrial or other legitimate purpose; 
and
    (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.

[[Page 224]]

    (4) An application for a permit revision shall be reviewed by the 
regulatory authority to determine whether a new or updated PHC 
determination shall be required.
    (g) Cumulative hydrologic impact assessment. (1) The regulatory 
authority shall provide an assessment of the probable cumulative 
hydrologic impacts (CHIA) of the proposed operation and all anticipated 
mining upon surface- and ground-water systems in the cumulative impact 
area. The CHIA shall be sufficient to determine, for purposes of permit 
approval, whether the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. The 
regulatory authority may allow the applicant to submit data and analyses 
relevant to the CHIA with the permit application.
    (2) An application for a permit revision shall be reviewed by the 
regulatory authority to determine whether a new or updated CHIA shall be 
required.
    (h) Hydrologic reclamation plan. The application shall include a 
plan, with maps and descriptions, indicating how the relevant 
requirements of part 816, including Secs. 816.41 to 816.43, will be met. 
The plan shall be specific to the local hydrologic conditions. It shall 
contain the steps to be taken during mining and reclamation through bond 
release to minimize disturbances to the hydrologic balance within the 
permit and adjacent areas; to prevent material damage outside the permit 
area; to meet applicable Federal and State water quality laws and 
regulations; and to protect the rights of present water users. The plan 
shall include the measures to be taken to: Avoid acid or toxic drainage; 
prevent, to the extent possible using the best technology currently 
available, additional contributions of suspended solids to streamflow; 
provide water-treatment facilities when needed; control drainage; 
restore approximate premining recharge capacity and protect or replace 
rights of present water users. The plan shall specifically address and 
potential adverse hydrologic consequences identified in the PHC 
determination prepared under paragraph (f) of this section and shall 
include preventive and remedial measures.
    (i) Ground-water monitoring plan. (1) The application shall include 
a ground-water monitoring plan based upon the PHC determination required 
under paragraph (f) of this section and the analysis of all baseline 
hydrologic, geologic and other information in the permit application. 
The plan shall provide for the monitoring of parameters that relate to 
the suitability of the ground water for current and approved postmining 
land uses and to the objectives for protection of the hydrologic balance 
set forth in paragraph (h) of this section. It shall identify the 
quantity and quality parameters to be monitored, sampling frequency, and 
site locations. It shall describe how the data may be used to determine 
the impacts of the operation upon the hydrologic balance. At a minimum, 
total dissolved solids or specific conductance corrected to 25  deg.C, 
pH, total iron, total manganese, and water levels shall be monitored and 
data submitted to the regulatory authority at least every 3 months for 
each monitoring location. The regulatory authority may require 
additional monitoring.
    (2) If an applicant can demonstrate by the use of the PHC 
determination and other available information that a particular water-
bearing stratum in the proposed permit and adjacent areas is not one 
which serves as an aquifer which significantly ensures the hydrologic 
balance within the cumulative impact area, then monitoring of that 
stratum may be waived by the regulatory authority.
    (j) Surface-water monitoring plan. (1) The application shall include 
a surface-water monitoring plan based upon the PHC determination 
required under paragraph (f) of this section and the analysis of all 
baseline hydrologic, geologic, and other information in the permit 
application. The plan shall provide for the monitoring of parameters 
that relate to the suitability of the surface water for current and 
approved postmined land uses and to the objectives for protection of the 
hydrologic balance as set forth in paragraph (h) of this section as well 
as the effluent limitations found at 40 CFR part 434.

[[Page 225]]

    (2) The plan shall identify the surface-water quantity and quality 
parameters to be monitored, sampling frequency and site locations. It 
shall describe how the data may be used to determine the impacts of the 
operation upon the hydrologic balance.
    (i) At all monitoring locations in the surface-water bodies such as 
streams, lakes, and impoundments, that are potentially impacted or into 
which water will be discharged and at upstream monitoring locations the 
total dissolved solids or specific conductance corrected to 25  deg.C, 
total suspended solids, pH, total iron, total manganese, and flow shall 
be monitored.
    (ii) For point-source discharges, monitoring shall be conducted in 
accordance with 40 CFR parts 122, 123 and 434 and as required by the 
National Pollutant Discharge Elimination System permitting authority.
    (3) The monitoring reports shall be submitted to the regulatory 
authority every 3 months. The regulatory authority may require 
additional monitoring.
[48 FR 43985, Sept. 26, 1983, as amended at 53 FR 36400, Sept. 19, 1988]



Sec. 780.22  Geologic information.

    (a) General. Each application shall include geologic information in 
sufficient detail to assist in determining--
    (1) The probable hydrologic consequences of the operation upon the 
quality and quantity of surface and ground water in the permit and 
adjacent areas, including the extent to which surface- and ground-water 
monitoring is necessary;
    (2) All potentially acid- or toxic-forming strata down to and 
including the stratum immediately below the lowest coal seam to be 
mined; and
    (3) Whether reclamation as required by this chapter can be 
accomplished and whether the proposed operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area.
    (b) Geologic information shall include, at a minimum the following:
    (1) A description of the geology of the proposed permit and adjacent 
areas down to and including the deeper of either the stratum immediately 
below the lowest coal seam to be mined or any aquifer below the lowest 
coal seam to be mined which may be adversely impacted by mining. The 
description shall include the areal and structural geology of the permit 
and adjacent areas, and other parameters which influence the required 
reclamation and the occurrence, availability, movement, quantity, and 
quality of potentially impacted surface and ground waters. It shall be 
based on--
    (i) The cross sections, maps and plans required by Sec. 779.25 of 
this chapter;
    (ii) The information obtained under paragraphs (b)(2) and (c) of 
this section; and
    (iii) Geologic literature and practices.
    (2) Analyses of samples collected from test borings; drill cores; or 
fresh, unweathered, uncontaminated samples from rock outcrops from the 
permit area, down to and including the deeper of either the stratum 
immediately below the lowest coal seam to be mined or any aquifer below 
the lowest seam to be mined which may be adversely impacted by mining. 
The analyses shall result in the following:
    (i) Logs showing the lithologic characteristics including physical 
properties and thickness of each stratum and location of ground water 
where occurring;
    (ii) Chemical analyses identifying those strata that may contain 
acid- or toxic-forming or alkalinity-producing materials and to 
determine their content except that the regulatory authority may find 
that the analysis for alkalinity-producing materials is unnecessary; and
    (iii) Chemical analyses of the coal seam for acid- or toxic-forming 
materials, including the total sulfur and pyritic sulfur, except that 
the regulatory authority may find that the analysis of pyritic sulfur 
content is unnecessary.
    (c) If determined to be necessary to protect the hydrologic balance 
or to meet the performance standards of this chapter, the regulatory 
authority may require the collection, analysis, and description of 
geologic information in addition to that required by paragraph (b) of 
this section.
    (d) An applicant may request the regulatory authority to waive in 
whole or in part the requirements of paragraph (b)(2) of this section. 
The waiver may

[[Page 226]]

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.
[48 FR 43987, Sept. 26, 1983]



Sec. 780.23  Reclamation plan: Land use information.

    (a) The plan shall contain a statement of the condition, capability, 
and productivity of the land within the proposed permit area, including:
    (1) A map and supporting narrative of the uses of the land existing 
at the time of the filing of the application. If the premining use of 
the land was changed within 5 years before the anticipated date of 
beginning the proposed operations, the historic use of the land shall 
also be described. In the case of previously mined land, the use of the 
land prior to any mining shall also be described to the extent such 
information is available.
    (2) A narrative of land capability and productivity, which analyzes 
the land-use description under paragraph (a) of this section in 
conjunction with other environmental resources information. The 
narrative shall provide analyses of:
    (i) The capability of the land before any mining to support a 
variety of uses, giving consideration to soil and foundation 
characteristics, topography, vegetative cover, and the hydrology of the 
proposed permit area; and
    (ii) The productivity of the proposed permit area before mining, 
expressed as average yield of food, fiber, forage, or wood products from 
such lands obtained under high levels of management. The productivity 
shall be determined by yield data or estimates for similar sites based 
on current data from the U.S. Department of Agriculture, State 
agricultural universities, or appropriate State natural resource or 
agricultural agencies.
    (b) Each plan shall contain a detailed description of the proposed 
use, following reclamation, of the land within the proposed permit area, 
including a discussion of the utility and capacity of the reclaimed land 
to support a variety of alternative uses, and the relationship of the 
proposed use of existing land use policies and plans. This description 
shall explain:
    (1) How the proposed post mining land use is to be achieved and the 
necessary support activities which may be needed to achieve the proposed 
land use; and
    (2) Where a land use different from the premining land use is 
proposed, all materials needed for approval of the alternative use under 
30 CFR 816.133.
    (3) The consideration which has been given to making all of the 
proposed surface mining activities consistent with surface owner plans 
and applicable State and local land use plans and programs.
    (c) The description shall be accompanied by a copy of the comments 
concerning the proposed use by the legal or equitable owner of record of 
the surface of the proposed permit area and the State and local 
government agencies which would have to initiate, implement, approve, or 
authorize the proposed use of the land following reclamation.
[59 FR 27937, May 27, 1994]



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

    (a) General. Each application shall include a general plan and a 
detailed design plan for each proposed siltation structure, water 
impoundment, and coal processing waste bank, dam, or embankment within 
the proposed permit area.
    (1) Each general plan shall--
    (i) Be prepared by, or under the direction of, and certified by a 
qualified, registered, professional engineer, a professional geologist, 
or in any State which authorizes land surveyors to prepare and certify 
such plans, a qualified, registered, professional, land surveyor, with 
assistance from experts in related fields such as landscape 
architecture;
    (ii) Contain a description, map, and cross section of the structure 
and its location;
    (iii) Contain preliminary hydrologic and geologic information 
required to assess the hydrologic impact of the structure;
    (iv) Contain a survey describing the potential effect on the 
structure from

[[Page 227]]

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. 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, Room 660, 800 North Capitol Street, Washington, DC or at the 
Office of the Federal Register, 800 North Capitol Street, NW., suite 
700, Washington, DC. Each detailed design plan for a structure that 
meets or exceeds the size or other criteria of MSHA, Sec. 77.216(a) of 
this chapter shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (ii) Include any geotechnical investigation, design, and 
construction requirements for the structure;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
    (3) Each detailed design plan for structures not included in 
paragraph (a)(2) of this section shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified, registered, professional engineer, or in any State which 
authorizes land surveyors to prepare and certify such plans, a 
qualified, registered, professional, land surveyor, except that all coal 
processing waste dams and embankments covered by Secs. 816.81-816.84 of 
this chapter shall be certified by a qualified, registered, professional 
engineer;
    (ii) Include any design and construction requirements for the 
structure, including any required geotechnical information;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
    (b) Siltation structures. Siltation structures shall be designed in 
compliance with the requirements of Sec. 816.46 of this chapter.
    (c) Permanent and temporary impoundments. (1) Permanent and 
temporary impoundments shall be designed to comply with the requirements 
of Sec. 816.49 of this chapter.
    (2) Each plan for an impoundment meeting the size or other criteria 
of the Mine Safety and Health Administration shall comply with the 
requirements of Secs. 77.216-1 and 77.216-2 of this title. The plan 
required to be submitted to the District Manager of MSHA under 
Sec. 77.216 of this title shall be submitted to the regulatory authority 
as part of the permit application in accordance with paragraph (a) of 
this section.
    (3) For impoundments not included in paragraph (a)(2) of this 
section, the regulatory authority may establish through the State 
program approval process, engineering design standards that ensure 
stability comparable to a 1.3 minimum static safety factor in lieu of 
engineering tests to establish compliance with the minimum static

[[Page 228]]

safety factor of 1.3 specified in Sec. 816.49(a)(4)(ii) of this chapter.
    (d) Coal processing waste banks. Coal processing waste banks shall 
be designed to comply with the requirements of 30 CFR 816.81--816.84.
    (e) Coal processing waste dams and embankments. Coal processing 
waste dams and embankments shall be designed to comply with the 
requirements of 30 CFR 816.81--816.84. Each plan shall comply with the 
requirements of the Mine Safety and Health Administration, 30 CFR 
77.216-1 and 77.216-2, and shall contain the results of a geotechnical 
investigation of the proposed dam or embankment foundation area, to 
determine the structural competence of the foundation which will support 
the proposed dam or embankment structure and the impounded material. The 
geotechnical investigation shall be planned and supervised by an 
engineer or engineering geologist, according to the following:
    (1) The number, location, and depth of borings and test pits shall 
be determined using current prudent engineering practice for the size of 
the dam or embankment, quantity of material to be impounded, and 
subsurface conditions.
    (2) The character of the overburden and bedrock, the proposed 
abutment sites, and any adverse geotechnical conditions which may affect 
the particular dam, embankment, or reservoir site shall be considered.
    (3) All springs, seepage, and ground water flow observed or 
anticipated during wet periods in the area of the proposed dam or 
embankment shall be identified on each plan.
    (4) Consideration shall be given to the possibility of mudflows, 
rock-debris falls, or other landslides into the dam, embankment, or 
impounded material.
    (f) If the structure meets the Class B or C criteria for dams in TR-
60 or meets the size or other criteria of Sec. 77.216(a) of this 
chapter, each plan under paragraphs (b), (c), and (e) of this section 
shall include a stability analysis of the structure. The stability 
analysis shall include, but not be limited to, strength parameters, pore 
pressures, and long-term seepage conditions. The plan shall also contain 
a description of each engineering design assumption and calculation with 
a discussion of each alternative considered in selecting the specific 
design parameters and construction methods.
[44 FR 15357, Mar. 13, 1979, as amended at 48 FR 44780, Sept. 30, 1983; 
50 FR 16199, Apr. 24, 1985; 53 FR 43605, Oct. 27, 1988; 59 FR 53028, 
Oct. 20, 1994]



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

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



Sec. 780.29  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.
[44 FR 15357, Mar. 13, 1979, as amended at 48 FR 43987, Sept. 26, 1983]



Sec. 780.31  Protection of public 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 valid existing rights exist or joint agency approval is to be 
obtained under Sec. 761.12(f) 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.
[52 FR 4262, Feb. 10, 1987]

[[Page 229]]



Sec. 780.33  Relocation or use of public roads.

    Each application shall describe, with appropriate maps and cross-
sections, the measures to be used to ensure that the interests of the 
public and landowners affected are protected if, under 30 CFR 761.12(d), 
the applicant seeks to have the regulatory authority approve--
    (a) Conducting the proposed surface mining activities within 100 
feet of the right-of-way line of any public road, except where mine 
access or haul roads join that right-of-way; or
    (b) Relocating a public road.



Sec. 780.35  Disposal of excess spoil.

    (a) Each application shall contain descriptions, including 
appropriate maps and cross section drawings, of the proposed disposal 
site and design of the spoil disposal structures according to 30 CFR 
816.71--816.74. These plans shall describe the geotechnical 
investigation, design, construction, operation, maintenance, and 
removal, if appropriate, of the site and structures.
    (b) Except for the disposal of excess spoil on pre existing benches, 
each application shall contain the results of a geotechnical 
investigation of the 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 chimmey 
cores or underlain by a rock drainage blanket; and
    (5) A stability analysis including, but not limited to, strength 
parameters, pore pressures and long-term seepage conditions. These data 
shall be accompanied by a description of all engineering design 
assumptions and calculations and the alternatives considered in 
selecting the specific design specifications and methods.
    (c) If, under 30 CFR 816.71(d), rock-toe buttresses or key-way cuts 
are required, the application shall include the following:
    (1) The number, location, and depth of borings or test pits which 
shall be determined with respect to the size of the spoil disposal 
structure and subsurface conditions; and
    (2) Engineering specifications utilized to design the rock-toe 
buttress or key-way cuts which shall be determined in accordance with 
paragraph (b)(5) of this section.
[44 FR 15357, Mar. 13, 1979, as amended at 48 FR 44780, Sept. 30, 1983; 
56 FR 65635, Dec. 17, 1991]



Sec. 780.37  Road systems.

    (a) Plans and drawings. Each applicant for a surface coal mining and 
reclamation permit shall submit plans and drawings for each road, as 
defined in Sec. 701.5 of this chapter, to be constructed, used, or 
maintained within the proposed permit area. The plans and drawings 
shall--
    (1) Include a map, appropriate cross sections, design drawings and 
specifications for road widths, gradients, surfacing materials, cuts, 
fill embankments, culverts, bridges, drainage ditches, low-water 
crossings, and drainage structures;
    (2) Contain the drawings and specifications of each proposed road 
that is located in the channel of an intermittent or perennial stream, 
as necessary for approval of the road by the regulatory authority in 
accordance with Sec. 816.150(d)(1) of this chapter;
    (3) Contain the drawings and specifications for each proposed ford 
of perennial or intermittent streams that is used as a temporary route, 
as necessary for approval of the ford by the regulatory authority in 
accordance with Sec. 816.151(c)(2) of this chapter;
    (4) Contain a description of measures to be taken to obtain approval 
of the regulatory authority for alteration or relocation of a natural 
stream channel under Sec. 816.151(d)(5) of this chapter;
    (5) Contain the drawings and specifications for each low-water 
crossing of perennial or intermittent stream channels so that the 
regulatory authority

[[Page 230]]

can maximize the protection of the stream in accordance with 
Sec. 816.151(d)(6) of this chapter; and
    (6) Describe the plans to remove and reclaim each road that would 
not be retained under an approved postmining land use, and the schedule 
for this removal and reclamation.
    (b) Primary road certification. The plans and drawings for each 
primary road shall be prepared by, or under the direction of, and 
certified by a qualified registered professional engineer, or in any 
State which authorizes land surveyors to certify the design of primary 
roads a qualified registered professional land surveyor, with experience 
in the design and construction of roads, as meeting the requirements of 
this chapter; current, prudent engineering practices; and any design 
criteria established by the regulatory authority.
    (c) Standard design plans. The regulatory authority may establish 
engineering design standards for primary roads through the State program 
approval process, in lieu of engineering tests, to establish compliance 
with the minimum static safety factor of 1.3 for all embankments 
specified in Sec. 816.151(b) of this chapter.
[53 FR 45211, Nov. 8, 1988]



Sec. 780.38  Support facilities.

    Each applicant for a surface coal mining and reclamation permit 
shall submit a description, plans, and drawings for each support 
facility to be constructed, used, or maintained within the proposed 
permit area. The plans and drawings shall include a map, appropriate 
cross sections, design drawings, and specifications sufficient to 
demonstrate compliance with Sec. 816.181 of this chapter for each 
facility.
[53 FR 45211, Nov. 8, 1988]



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




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.

    Source: 44 FR 15363, Mar. 13, 1979, unless otherwise noted.



Sec. 783.1  Scope.

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



Sec. 783.2  Objectives.

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



Sec. 783.4  Responsibilities.

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



Sec. 783.10  Information collection.

    The information collection requirements contained in 30 CFR 783.11, 
783.12, 783.13, 783.14, 783.15, 783.16, 783.17, 783.18, 783.19, 783.21, 
783.22, 783.23, 783.24 and 783.25 have been approved by the Office of 
Management and Budget under 44 U.S.C. 3507 and assigned clearance number 
1029-0038. The information is being collected to meet the requirements 
of sections 507 and 508 of Pub. L. 95-87, which require the permit 
applicant to present an adequate description of the existing pre-mining 
environmental resources within and around

[[Page 231]]

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.
[47 FR 33686, Aug. 4, 1982, as amended at 52 FR 47359, Dec. 11, 1987]



Sec. 783.11  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 
underground mining activities.
[44 FR 15363, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 783.12  General environmental resources information.

    Each application shall describe and identify--
    (a) The lands subject to surface coal mining operations over the 
estimated life of those operations and the size, sequence, and timing of 
the subareas for which it is anticipated that individual permits for 
mining will be sought; and
    (b) The nature of cultural historic and archeological resources 
listed or eligible for listing on the National Register of Historic 
Places and known archeological sites within the proposed permit and 
adjacent areas.
    (1) The description shall be based on all available information, 
including, but not limited to, information from the State Historic 
Preservation Officer and local archeological, historical, and cultural 
preservation groups.
    (2) The regulatory authority may require the applicant to identify 
and evaluate important historic and archeological resources that may be 
eligible for listing on the National Register of Historic Places, 
through the--
    (i) Collection of additional information,
    (ii) Conduct of field investigations, or
    (iii) Other appropriate analyses.
[44 FR 15363, Mar. 13, 1979, as amended at 48 FR 14822, Apr. 5, 1983; 52 
FR 4262, Feb. 10, 1987]



Sec. 783.18  Climatological information.

    (a) When requested by the regulatory authority, the application 
shall contain a statement of the climatological factors that are 
representative of the proposed permit area, including--
    (1) The average seasonal precipitation;
    (2) The average direction and velocity of prevailing winds; and
    (3) Seasonal temperature ranges.
    (b) The regulatory authority may request such additional data as 
deemed necessary to ensure compliance with the requirements of this 
subchapter.
[44 FR 15363, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 783.19  Vegetation information.

    (a) The permit application shall, if required by the regulatory 
authority, contain a map that delineates existing vegetative types and a 
description of the plant communities within the area affected by surface 
operations and facilities and within any proposed reference area. This 
description shall include information adequate to predict the potential 
for reestablishing vegetation.
    (b) When a map or aerial photograph is required, sufficient adjacent 
areas shall be included to allow evaluation of vegetation as important 
habitat for fish and wildlife for those species of fish and wildlife 
identified under 30 CFR 784.21.
[44 FR 15363, Mar. 13, 1979, as amended at 52 FR 47359, Dec. 11, 1987]



Sec. 783.20  [Reserved]



Sec. 783.21  Soil resources information.

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

[[Page 232]]

the analyses, trials and tests required under 30 CFR 817.22.



Sec. 783.24  Maps: General requirements.

    The permit application shall include maps showing:
    (a) All boundaries of lands and names of present owners of record of 
those lands, both surface and sub-surface, included in or contiguous to 
the permit area;
    (b) The boundaries of land within the proposed permit area upon 
which the applicant has the legal right to enter and begin underground 
mining activities;
    (c) The boundaries of all areas proposed to be affected over the 
estimated total life of the underground mining activities, with a 
description of size, sequence and timing of the mining of sub-areas for 
which it is anticipated that additional permits will be sought;
    (d) The location of all buildings in and within 1000 feet of the 
proposed permit area, with identification of the current use of the 
buildings;
    (e) The location of surface and sub-surface man-made features 
within, passing through, or passing over the proposed permit area, 
including, but not limited to, major electric transmission lines, 
pipelines, and agricultural drainage tile fields;
    (f) The location and boundaries of any proposed reference areas for 
determining the success of revegetation;
    (g) The locations of water supply intakes for current users of 
surface waters flowing into, out of, and within a hydrologic area 
defined by the regulatory authority, and those surface waters which will 
receive discharges from affected areas in the proposed permit area;
    (h) Each public road located in or within 100 feet of the proposed 
permit area;
    (i) The boundaries of any public park and locations of any cultural 
or historical resources listed or eligible for listing in the National 
Register of Historic Places and known archeological sites within the 
permit and adjacent areas.
    (j) Each cemetery that is located in or within 100 feet of the 
proposed permit area.
    (k) Any land within the proposed permit area which is within the 
boundaries of any units of the National System of Trails or the Wild and 
Scenic Rivers System, including study rivers designated under section 
5(a) of the Wild and Scenic Rivers Act; and
    (l) Other relevant information required by the regulatory authority.
[44 FR 15363, Mar. 13, 1979; 44 FR 49685, Aug. 24, 1979, as amended at 
45 FR 51550, Aug. 4, 1980; 48 FR 14822, Apr. 5, 1983; 52 FR 4263, Feb. 
10, 1987]



Sec. 783.25  Cross sections, maps, and plans.

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

[[Page 233]]

    (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;
    (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.
[44 FR 15363, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980; 50 
FR 16199, Apr. 24, 1985; 59 FR 27937, May 27, 1994]



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




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 public 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  Operator 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: 16 U.S.C. 470 et seq., 30 U.S.C. 1201 et seq., as 
amended.

    Source: 44 FR 15366, Mar. 13, 1979, unless otherwise noted.



Sec. 784.1  Scope.

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



Sec. 784.2  Objectives.

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



Sec. 784.4  Responsibilities.

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



Sec. 784.10  Information collection.

    (a) The collections of information contained in Part 784 have been 
approved by Office of Management and Budget under 44 U.S.C. 3501 et seq. 
and assigned clearance number 1029-0039. The information will be used to 
meet the requirements of 30 U.S.C. 1211(b), 1251, 1257, 1258, 1266, and 
1309a. The obligation to respond is required to obtain a benefit.
    (b) Public reporting burden for this information is estimated to 
average 513

[[Page 234]]

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.
[60 FR 16748, Mar. 31, 1995]



Sec. 784.11  Operation plan: General requirements.

    Each application shall contain a description of the mining 
operations proposed to be conducted during the life of the mine within 
the proposed permit area, including, at a minimum, the following:
    (a) A narrative description of the type and method of coal mining 
procedures and proposed engineering techniques, anticipated annual and 
total production of coal, by tonnage, and the major equipment to be used 
for all aspects of those operations; and
    (b) A narrative explaining the construction, modification, use, 
maintenance, and removal of the following facilities (unless retention 
of such facility is necessary for postmining land use as specified in 
Sec. 817.133):
    (1) Dams, embankments, and other impoundments;
    (2) Overburden and topsoil handling and storage areas and 
structures;
    (3) Coal removal, handling, storage, cleaning, and transportation 
areas and structures;
    (4) Spoil, coal processing waste, mine development waste, and non-
coal waste removal, handling, storage, transportation, and disposal 
areas and structures;
    (5) Mine facilities; and
    (6) Water pollution control facilities.
[44 FR 15366, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 784.12  Operation plan: Existing structures.

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



Sec. 784.13  Reclamation plan: General requirements.

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

[[Page 235]]

    (1) A detailed timetable for the completion of each major step in 
the reclamation plan;
    (2) A detailed estimate of the cost of the reclamation of the 
proposed operations required to be covered by a performance bond under 
subchapter J of this chapter, with supporting calculations for the 
estimates;
    (3) A plan for backfilling, soil stabilization, compacting and 
grading, with contour maps or cross sections that show the anticipated 
final surface configuration of the proposed permit area, in accordance 
with 30 CFR 817.102 through 817.107;
    (4) A plan for removal, storage, and redistribution of topsoil, 
subsoil, and other material to meet the requirements of Sec. 817.22 of 
this chapter. A demonstration of the suitability of topsoil substitutes 
or supplements under Sec. 817.22(b) of this chapter shall be based upon 
analysis of the thickness of soil horizons, total depth, texture, 
percent coarse fragments, pH, and areal extent of the different kinds of 
soils. The regulatory authority may require other chemical and physical 
analyses, field-site trials, or greenhouse tests if determined to be 
necessary or desirable to demonstrate the suitability of the topsoil 
substitutes or supplements.
    (5) A plan for revegetation as required in 30 CFR 817.111 through 
817.116, including, but not limited to, descriptions of the--
    (i) Schedule of revegetation;
    (ii) Species and amounts per acre of seeds and seedlings to be used;
    (iii) Methods to be used in planting and seeding;
    (iv) Mulching techniques;
    (v) Irrigation, if appropriate, and pest and disease control 
measures, if any;
    (vi) Measures proposed to be used to determine the success of 
revegetation as required in 30 CFR 817.116; and,
    (vii) A soil testing plan for evaluation of the results of topsoil 
handling and reclamation procedures related to revegetation.
    (6) A description of the measures to be used to maximize the use and 
conservation of the coal resource as required in 30 CFR 817.59;
    (7) A description of measures to be employed to ensure that all 
debris, acid-forming and toxic-forming materials, and materials 
constituting a fire hazard are disposed of in accordance with 30 CFR 
817.89 and 817.102 and a description of the contingency plans which have 
been developed to preclude sustained combustion of such materials;
    (8) A description, including appropriate cross sections and maps, of 
the measures to be used to seal or manage mine openings, and to plug, 
case or manage exploration holes, other bore holes, wells and other 
openings within the proposed permit area, in accordance with 30 CFR 
817.13--817.15; and
    (9) A description of steps to be taken to comply with the 
requirements of the Clean Air Act (42 U.S.C. 7401 et seq.), the Clean 
Water Act (33 U.S.C. 1251 et seq.), and other applicable air and water 
quality laws and regulations and health and safety standards.
[44 FR 15366, Mar. 13, 1979; 44 FR 49686, Aug. 24, 1979, as amended at 
48 FR 22100, May 16, 1983; 48 FR 44780, Sept. 30, 1983]



Sec. 784.14  Hydrologic information.

    (a) Sampling and analysis. All water quality analyses performed to 
meet the requirements of this section shall be conducted according to 
the methodology in the 15th edition of ``Standard Methods for the 
Examination of Water and Wastewater,'' which is incorporated by 
reference, or the methodology in 40 CFR parts 136 and 434. Water quality 
sampling performed to meet the requirements of this section shall be 
conducted according to either methodology listed above when feasible. 
``Standard Methods for the Examination of Water and Wastewater,'' is a 
joint publication of the American Public Health Association, the 
American Water Works Association, and the Water Pollution Control 
Federation and is available from the American Public Health Association, 
1015 Fifteenth Street, NW., Washington, DC 20036. This document is also 
available for inspection at the Office of the Federal Register 
Information Center, 800 North Capitol Street, NW., suite 700, 
Washington, DC; 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

[[Page 236]]

Center, U.S. Department of the Interior, Building 10, Parkway Center, 
Pittsburgh, Pa.; and at the OSM Western Technical Service Center, U.S. 
Department of the Interior, Brooks Tower, 1020 15th Street, Denver, 
Colo. This incorporation by reference was approved by the Director of 
the Federal Register on October 26, 1983. This document is incorporated 
as it exists on the date of the approval, and a notice of any change in 
it will be published in the Federal Register.
    (b) Baseline information. The application shall include the 
following baseline hydrologic information, and any additional 
information required by the regulatory authority.
    (1) Ground-water information. The location and ownership for the 
permit and adjacent areas of existing wells, springs, and other ground-
water resources, seasonal quality and quantity of ground water, and 
usage. Water quality descriptions shall include, at a minimum, total 
dissolved solids or specific conductance corrected to 25  deg.C, pH, 
total iron, and total manganese. Ground-water quantity descriptions 
shall include, at a minimum, approximate rates of discharge or usage and 
depth to the water in the coal seam, and each water-bearing stratum 
above and potentially impacted stratum below the coal seam.
    (2) Surface-water information. The name, location, ownership and 
description of all surface-water bodies such as streams, lakes, and 
impoundments, the location of any discharge into any surface-water body 
in the proposed permit and adjacent areas, and information on surface-
water quality and quantity sufficient to demonstrate seasonal variation 
and water usage. Water quality descriptions shall include, at a minimum, 
baseline information on total suspended solids, total dissolved solids 
or specific conductance corrected to 25 deg.C, pH, total iron, and total 
manganese. Baseline acidity and alkalinity information shall be provided 
if there is a potential for acid drainage from the proposed mining 
operation. Water quantity descriptions shall include, at a minimum, 
baseline information on seasonal flow rates.
    (3) Supplemental information. If the determination of the probable 
hydrologic consequences (PHC) required by paragraph (e) of this section 
indicates that adverse impacts on or off the proposed permit area may 
occur to the hydrologic balance, or that acid-forming or toxic-forming 
material is present that may result in the contamination of ground-water 
or surface-water supplies, then information supplemental to that 
required under paragraphs (b) (1) and (2) of this section shall be 
provided to evaluate such probable hydrologic consequences and to plan 
remedial and reclamation activities. Such supplemental information may 
be based upon drilling, aquifer tests, hydrogeologic analysis of the 
water-bearing strata, flood flows, or analysis of other water quality or 
quantity characteristics.
    (c) Baseline cumulative impact area information. (1) Hydrologic and 
geologic information for the cumulative impact area necessary to assess 
the probable cumulative hydrologic impacts of the proposed operation and 
all anticipated mining on surface- and ground-water systems as required 
by paragraph (f) of this section shall be provided to the regulatory 
authority if available from appropriate Federal or State agencies.
    (2) If this information is not available from such agencies, then 
the applicant may gather and submit this information to the regulatory 
authority as part of the permit application.
    (3) The permit shall not be approved until the necessary hydrologic 
and geologic information is available to the regulatory authority.
    (d) Modeling. The use of modeling techniques, interpolation or 
statistical techniques may be included as part of the permit 
application, but actual surface- and ground-water information may be 
required by the regulatory authority for each site even when such 
techniques are used.
    (e) Probable hydrologic consequences determination. (1) The 
application shall contain a determination of the probable hydrologic 
consequences (PHC) of the proposed operation upon the quality and 
quantity of surface and ground water under seasonal flow conditions for 
the proposed permit and adjacent areas.
    (2) The PHC determination shall be based on baseline hydrologic, 
geologic, and other information collected for the

[[Page 237]]

permit application and may include data statistically representative of 
the site.
    (3) The PHC determination shall include findings on:
    (i) Whether adverse impacts may occur to the hydrologic balance;
    (ii) Whether acid-forming or toxic-forming materials are present 
that could result in the contamination of surface or ground water 
supplies;
    (iii) What impact the proposed operation will have on:
    (A) Sediment yield from the disturbed area; (B) acidity, total 
suspended and dissolved solids, and other important water quality 
parameters of local impact; (C) flooding or streamflow alteration; (D) 
ground water and surface water availability; and (E) other 
characteristics as required by the regulatory authority;
    (iv) Whether the underground mining activities conducted after 
October 24, 1992 may result in contamination, diminution or interruption 
of a well or spring in existence at the time the permit application is 
submitted and used for domestic, drinking, or residential purposes 
within the permit or adjacent areas.
    (4) An application for a permit revision shall be reviewed by the 
regulatory authority to determine whether a new or updated PHC shall be 
required.
    (f) Cumulative hydrologic impact assessment. (1) The regulatory 
authority shall provide an assessment of the probable cumulative 
hydrologic impacts (CHIA) of the proposed operation and all anticipated 
mining upon surface- and ground-water systems in the cumulative impact 
area. The CHIA shall be sufficient to determine, for purposes of permit 
approval, whether the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. The 
regulatory authority may allow the applicant to submit data and analyses 
relevant to the CHIA with the permit application.
    (2) An application for a permit revision shall be reviewed by the 
regulatory authority to determine whether a new or updated CHIA shall be 
required.
    (g) Hydrologic reclamation plan. The application shall include a 
plan, with maps and descriptions, indicating how the relevant 
requirements of part 817 of this chapter, including Secs. 817.41 to 
817.43, will be met. The plan shall be specific to the local hydrologic 
conditions. It shall contain the steps to be taken during mining and 
reclamation through bond release to minimize disturbance to the 
hydrologic balance within the permit and adjacent areas; to prevent 
material damage outside the permit area; and to meet applicable Federal 
and State water quality laws and regulations. The plan shall include the 
measures to be taken to: avoid acid or toxic drainage; prevent, to the 
extent possible using the best technology currently available, 
additional contributions of suspended solids to streamflow; provide 
water treatment facilities when needed; and control drainage. The plan 
shall specifically address any potential adverse hydrologic consequences 
identified in the PHC determination prepared under paragraph (e) of this 
section and shall include preventive and remedial measures.
    (h) Ground-water monitoring plan. (1) The application shall include 
a ground-water monitoring plan based upon the PHC determination required 
under paragraph (e) of this section and the analysis of all baseline 
hydrologic, geologic and other information in the permit application. 
The plan shall provide for the monitoring of parameters that relate to 
the suitability of the ground water for current and approved postmining 
land uses and to the objectives for protection of the hydrologic balance 
set forth in paragraph (g) of this section. It shall identify the 
quantity and quality parameters to be monitored, sampling frequency and 
site locations. It shall describe how the data may be used to determine 
the impacts of the operation upon the hydrologic balance. At a minimum, 
total dissolved solids or specific conductance corrected to 25  deg.C, 
pH, total iron, total manganese, and water levels shall be monitored and 
data submitted to the regulatory authority at least every 3 months for 
each monitoring location. The regulatory authority may require 
additional monitoring.

[[Page 238]]

    (2) If an applicant can demonstrate by the use of the PHC 
determination and other available information that a particular water-
bearing stratum in the proposed permit and adjacent areas is not one 
which serves as an aquifer which significantly ensures the hydrologic 
balance within the cumulative impact area, then monitoring of that 
stratum may be waived by the regulatory authority.
    (i) Surface-water monitoring plan. (1) The application shall include 
a surface-water monitoring plan based upon the PHC determination 
required under paragraph (e) of this section and the analysis of all 
baseline hydrologic, geologic and other information in the permit 
application. The plan shall provide for the monitoring of parameters 
that relate to the suitability of the surface water for current and 
approved postmining land uses and to the objectives for protection of 
the hydrologic balance as set forth in paragraph (g) of this section as 
well as the effluent limitations found at 40 CFR part 434.
    (2) The plan shall identify the surface-water quantity and quality 
parameters to be monitored, sampling frequency and site locations. It 
shall describe how the data may be used to determine the impacts of the 
operation upon the hydrologic balance.
    (i) At all monitoring locations in streams, lakes, and impoundments, 
that are potentially impacted or into which water will be discharged and 
at upstream monitoring locations, the total dissolved solids or specific 
conductance corrected at 25  deg.C, total suspended solids, pH, total 
iron, total manganese, and flow shall be monitored.
    (ii) For point-source discharges, monitoring shall be conducted in 
accordance with 40 CFR parts 122, 123 and 434 and as required by the 
National Pollutant Discharge Elimination System permitting authority.
    (3) The monitoring reports shall be submitted to the regulatory 
authority every 3 months. The regulatory authority may require 
additional monitoring.
[48 FR 43987, Sept. 26, 1983, as amended at 52 FR 45923, Dec. 2, 1987; 
53 FR 36401, Sept. 19, 1988; 60 FR 16748, Mar. 31, 1995]



Sec. 784.15  Reclamation plan: Land use information.

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

[[Page 239]]

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.
[59 FR 27937, May 27, 1994]



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

    (a) General. Each application shall include a general plan and a 
detailed design plan for each proposed siltation structure, water 
impoundment, and coal processing waste bank, dam, or embankment within 
the proposed permit area.
    (1) Each general plan shall--
    (i) Be prepared by, or under the direction of, and certified by a 
qualified, registered, professional engineer, a professional geologist, 
or in any State which authorizes land surveyors to prepare and certify 
such plans, a qualified, registered, professional, land surveyor with 
assistance from experts in related fields such as landscape 
architecture;
    (ii) Contain a description, map, and cross section of the structure 
and its location;
    (iii) Contain preliminary hydrologic and geologic information 
required to assess the hydrologic impact of the structure;
    (iv) Contain a survey describing the potential effect on the 
structure from subsidence of the subsurface strata resulting from past 
underground mining operations if underground mining has occurred; and
    (v) Contain a certification statement which includes a schedule 
setting forth the dates when any detailed design plans for structures 
that are not submitted with the general plan will be submitted to the 
regulatory authority. The regulatory authority shall have approved, in 
writing, the detailed design plan for a structure before construction of 
the structure begins.
    (2) Impoundments meeting the Class B or C criteria for dams in the 
U.S. Department of Agriculture, Soil Conservation Service Technical 
Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' 
Technical Release No. 60 (TR-60) shall comply with the requirements of 
this section for structures that meet or exceed the size or other 
criteria of the Mine Safety and Health Administration (MSHA). The 
technical release is hereby incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. 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, Room 660, 800 North Capitol Street, Washington, DC or at the 
Office of the Federal Register, 800 North Capitol Street, NW., suite 
700, Washington, DC. Each detailed design plan for a structure that 
meets or exceeds the size or other criteria of MSHA, Sec. 77.216(a) of 
this chapter shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (ii) Include any geotechnical investigation, design, and 
construction requirements for the structure;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
    (3) Each detailed design plan for structures not included in 
paragraph (a)(2) of this section shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified, registered, professional engineer, or in any State which 
authorizes land surveyors to prepare and certify such

[[Page 240]]

plans, a qualified, registered, professional, land surveyor, except that 
all coal processing waste dams and embankments covered by Secs. 817.81 
through 817.84 of this chapter shall be certified by a qualified, 
registered, professional engineer;
    (ii) Include any design and construction requirements for the 
structure, including any required geotechnical information;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
    (b) Siltation structures. Siltation structures shall be designed in 
compliance with the requirements of Sec. 817.46 of this chapter.
    (c) Permanent and temporary impoundments. (1) Permanent and 
temporary impoundments shall be designed to comply with the requirements 
of Sec. 817.49 of this chapter.
    (2) Each plan for an impoundment meeting the size of other criteria 
of the Mine Safety and Health Administration shall comply with the 
requirements of Secs. 77.216-1 and 77.216-2 of this title. The plan 
required to be submitted to the District Manager of MSHA under 
Sec. 77.216 of this title shall be submitted to the regulatory authority 
as part of the permit application in accordance with paragraph (a) of 
this section.
    (3) For impoundments not included in paragraph (a)(2) of this 
section the regulatory authority may establish through the State program 
approval process engineering design standards that ensure stability 
comparable to a 1.3 minimum static safety factor in lieu of engineering 
tests to establish compliance with the minimum static safety factor of 
1.3 specified in Sec. 817.49(a)(4)(ii) of this chapter.
    (d) Coal processing waste banks. Coal processing waste banks shall 
be designed to comply with the requirements of 30 CFR 817.81 through 
817.84.
    (e) Coal processing waste dams and embankments. Coal processing 
waste dams and embankments shall be designed to comply with the 
requirements of 30 CFR 817.81 through 817.84. Each plan shall comply 
with the requirements of the Mine Safety and Health Administration, 30 
CFR 77.216-1 and 77.216-2, and shall contain the results of a 
geotechnical investigation of the proposed dam or embankment foundation 
area, to determine the structural competence of the foundation which 
will support the proposed dam or embankment structure and the impounded 
material. The geotechnical investigation shall be planned and supervised 
by an engineer or engineering geologist, according to the following:
    (1) The number, location, and depth of borings and test pits shall 
be determined using current prudent engineering practice for the size of 
the dam or embankment, quantity of material to be impounded, and 
subsurface conditions.
    (2) The character of the overburden and bedrock, the proposed 
abutment sites, and any adverse geotechnical conditions which may affect 
the particular dam, embankment, or reservoir site shall be considered.
    (3) All springs, seepage, and ground water flow observed or 
anticipated during wet periods in the area of the proposed dam or 
embankment shall be identified on each plan.
    (4) Consideration shall be given to the possibility of mudflows, 
rock-debris falls, or other landslides into the dam, embankment, or 
impounded material.
    (f) If the structure meets the Class B or C criteria for dams in TR-
60 or meets the size or other criteria of Sec. 77.216(a) of this 
chapter, each plan under paragraphs (b), (c), and (e) of this section 
shall include a stability analysis of the structure. The stability 
analysis shall include, but not be limited to, strength parameters, pore 
pressures, and long-term seepage conditions. The plan shall also contain 
a description of each engineering design assumption and calculation with 
a discussion of each alternative considered in selecting the specific 
design parameters and construction methods.
[44 FR 15366, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980; 48 
FR 44780, Sept. 30, 1983; 50 FR 16199, Apr. 24, 1985; 53 FR 43605, Oct. 
27, 1988; 53 FR 48614, Dec. 1, 1988; 59 FR 52028, Oct. 20, 1994]

[[Page 241]]



Sec. 784.17  Protection of public 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 valid existing rights exist or joint agency approval is to be 
obtained under Sec. 761.12(f) of this chapter, to minimize 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.
[52 FR 4263, Feb. 10, 1987]



Sec. 784.18  Relocation or use of public roads.

    Each application shall describe, with appropriate maps and cross 
sections, the measures to be used to ensure that the interests of the 
public and landowners affected are protected if, under 30 CFR 761.12(d), 
the applicant seeks to have the regulatory authority approve--
    (a) Conducting the proposed underground mining activities within 100 
feet of the right-of-way line of any public road, except where mine 
access or haul roads join that right-of-way; or
    (b) Relocating a public road.



Sec. 784.19  Underground development waste.

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



Sec. 784.20  Subsidence control plan.

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

[[Page 242]]

property owner and regulatory authority.
    (b) Subsidence control plan. If the survey conducted under paragraph 
(a) of this section shows that no structures, or drinking, domestic, or 
residential water supplies, or renewable resource lands exist, or that 
no material damage or diminution in value or reasonably foreseeable use 
of such structures or lands, and no contamination, diminution, or 
interruption of such water supplies would occur as a result of mine 
subsidence, and if the regulatory authority agrees with this conclusion, 
no further information need be provided under this section. If the 
survey shows that structures, renewable resource lands, or water 
supplies exist and that subsidence could cause material damage or 
diminution in value or reasonably foreseeable use, or contamination, 
diminution, or interruption of protected water supplies, or if the 
regulatory authority determines that damage, diminution in value or 
foreseeable use, or contamination, diminution, or interruption could 
occur, the application must include a subsidence control plan that 
contains the following information:
    (1) A description of the method of coal removal, such as longwall 
mining, room-and-pillar removal or hydraulic mining, including the size, 
sequence and timing of the development of underground workings;
    (2) A map of the underground workings that describes the location 
and extent of the areas in which planned-subsidence mining methods will 
be used and that identifies all areas where the measures described in 
paragraphs (b)(4), (b)(5), and (b)(7) of this section will be taken to 
prevent or minimize subsidence and subsidence-related damage; and, when 
applicable, to correct subsidence-related material damage;
    (3) A description of the physical conditions, such as depth of 
cover, seam thickness and lithology of overlaying strata, that affect 
the likelihood or extent of subsidence and subsidence-related damage;
    (4) A description of the monitoring, if any, needed to determine the 
commencement and degree of subsidence so that, when appropriate, other 
measures can be taken to prevent, reduce or correct material damage in 
accordance with Sec. 817.121(c) of this chapter;
    (5) Except for those areas where planned subsidence is projected to 
be used, a detailed description of the subsidence control measures that 
will be taken to prevent or minimize subsidence and subsidence-related 
damage, such as, but not limited to:
    (i) Backstowing or backfilling of voids;
    (ii) Leaving support pillars of coal;
    (iii) Leaving areas in which no coal is removed, including a 
description of the overlying area to be protected by leaving coal in 
place; and
    (iv) Taking measures on the surface to prevent or minimize material 
damage or diminution in value of the surface;
    (6) A description of the anticipated effects of planned subsidence, 
if any;
    (7) For those areas where planned subsidence is projected to be 
used, a description of methods to be employed to minimize damage from 
planned subsidence to non-commercial buildings and occupied residential 
dwellings and structures related thereto; or the written consent of the 
owner of the structure or facility that minimization measures not be 
taken; or, unless the anticipated damage would constitute a threat to 
health or safety, a demonstration that the costs of minimizing damage 
exceed the anticipated costs of repair;
    (8) A description of the measures to be taken in accordance with 
Secs. 817.41(j) and 817.121(c) of this chapter to replace adversely 
affected protected water supplies or to mitigate or remedy any 
subsidence-related material damage to the land and protected structures; 
and
    (9) Other information specified by the regulatory authority as 
necessary to demonstrate that the operation will be conducted in 
accordance with Sec. 817.121 of this chapter.
[60 FR 16748, Mar. 31, 1995]



Sec. 784.21  Fish and wildlife information.

    (a) Resource information. Each application shall include fish and 
wildlife resource information for the permit area and adjacent area.
    (1) The scope and level of detail for such information shall be 
determined

[[Page 243]]

by the regulatory authority in consultation with State and Federal 
agencies with responsibilities for fish and wildlife and shall be 
sufficient to design the protection and enhancement plan required under 
paragraph (b) of this section.
    (2) Site-specific resource information necessary to address the 
respective species or habitats shall be required when the permit area or 
adjacent area is likely to include:
    (i) Listed or proposed endangered or threatened species of plants or 
animals or their critical habitats listed by the Secretary under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), or 
those species or habitats protected by similar State statutes;
    (ii) Habitats of unusually high value for fish and wildlife such as 
important streams, wetlands, riparian areas, cliffs supporting raptors, 
areas offering special shelter or protection, migration routes, or 
reproduction and wintering areas; or
    (iii) Other species or habitats identified through agency 
consultation as requiring special protection under State or Federal law.
    (b) Protection and enhancement plan. Each application shall include 
a description of how, to the extent possible using the best technology 
currently available, the operator will minimize disturbances and adverse 
impacts on fish and wildlife and related environmental values, including 
compliance with the Endangered Species Act, during the surface coal 
mining and reclamation operations and how enhancement of these resources 
will be achieved where practicable. This description shall--
    (1) Be consistent with the requirements of Sec. 817.97 of this 
chapter;
    (2) Apply, at a minimum, to species and habitats identified under 
paragraph (a) of this section; and
    (3) Include--
    (i) Protective measures that will be used during the active mining 
phase of operation. Such measures may include the establishment of 
buffer zones, the selective location and special design of haul roads 
and powerlines, and the monitoring of surface water quality and 
quantity; and
    (ii) Enchancement measures that will be used during the reclamation 
and postmining phase of operation to develop aquatic and terrestrial 
habitat. Such measures may include restoration of streams and other 
wetlands, retention of ponds and impoundments, establishment of 
vegetation for wildlife food and cover, and the placement of perches and 
nest boxes. Where the plan does not include enhancement measures, a 
statement shall be given explaining why enhancement is not practicable.
    (c) Fish and Wildlife Service review. Upon request, the regulatory 
authority shall provide the resource information required under 
paragraph (a) of this section and the protection and enhancement plan 
required under paragraph (b) of this section to the U.S. Department of 
the Interior, Fish and Wildlife Service Regional or Field Office for 
their review. This information shall be provided within 10 days of 
receipt of the request from the Service.
[52 FR 47359, Dec. 11, 1987]



Sec. 784.22  Geologic information.

    (a) General. Each application shall include geologic information in 
sufficient detail to assist in--
    (1) Determining the probable hydrologic consequences of the 
operation upon the quality and quantity of surface and ground water in 
the permit and adjacent areas, including the extent to which surface- 
and ground-water monitoring is necessary;
    (2) Determining all potentially acid- or toxic-forming strata down 
to and including the stratum immediately below the coal seam to be 
mined;
    (3) Determining whether reclamation as required by this chapter can 
be accomplished and whether the proposed operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area; and
    (4) Preparing the subsidence control plan under Sec. 784.20.
    (b) Geologic information shall include, at a minimum, the following:
    (1) A description of the geology of the proposed permit and adjacent 
areas down to and including the deeper of either the stratum immediately 
below the lowest coal seam to be mined or any aquifer below the lowest 
coal seam

[[Page 244]]

to be mined which may be adversely impacted by mining. This description 
shall include the areal and structural geology of the permit and 
adjacent areas, and other parameters which influence the required 
reclamation and it shall also show how the areal and structural geology 
may affect the occurrence, availability, movement, quantity and quality 
of potentially impacted surface and ground water. It shall be based on--
    (i) The cross sections, maps, and plans required by Sec. 783.25 of 
this chapter;
    (ii) The information obtained under paragraphs (b)(2), (b)(3), and 
(c) of this section; and
    (iii) Geologic literature and practices.
    (2) For any portion of a permit area in which the strata down to the 
coal seam to be mined will be removed or are already exposed, samples 
shall be collected and analyzed from test borings; drill cores; or 
fresh, unweathered, uncontaminated samples from rock outcrops down to 
and including the deeper of either the stratum immediately below the 
lowest coal seam to be mined or any aquifer below the lowest coal seam 
to be mined which may be adversely impacted by mining. The analyses 
shall result in the following:
    (i) Logs showing the lithologic characteristics including physical 
properties and thickness of each stratum and location of ground water 
where occurring;
    (ii) Chemical analyses identifying those strata that may contain 
acid- or toxic-forming, or alkalinity-producing materials and to 
determine their content except that the regulatory authority may find 
that the analysis for alkalinity-producing material is unnecessary; and
    (iii) Chemical analysis of the coal seam for acid- or toxic-forming 
materials, including the total sulfur and pyritic sulfur, except that 
the regulatory authority may find that the analysis of pyritic sulfur 
content is unnecessary.
    (3) For lands within the permit and adjacent areas where the strata 
above the coal seam to be mined will not be removed, samples shall be 
collected and analyzed from test borings or drill cores to provide the 
following data:
    (i) Logs of drill holes showing the lithologic characteristics, 
including physical properties and thickness of each stratum that may be 
impacted, and location of ground water where occurring;
    (ii) Chemical analyses for acid- or toxic-forming or alkalinity-
producing materials and their content in the strata immediately above 
and below the coal seam to be mined;
    (iii) Chemical analyses of the coal seam for acid- or toxic-forming 
materials, including the total sulfur and pyritic sulfur, except that 
the regulatory authority may find that the analysis of pyrite sulfur 
content is unnecessary; and
    (iv) For standard room and pillar mining operations, the thickness 
and engineering properties of clays or soft rock such as clay shale, if 
any, in the stratum immediately above and below each coal seam to be 
mined.
    (c) If determined to be necessary to protect the hydrologic balance, 
to minimize or prevent subsidence, or to meet the performance standards 
of this chapter, the regulatory authority may require the collection, 
analysis and description of geologic information in addition to that 
required by paragraph (b) of this section.
    (d) An applicant may request the regulatory authority to waive in 
whole or in part the requirements of paragraphs (b) (2) and (3) of this 
section. The waiver may be granted only if the regulatory authority 
finds in writing that the collection and analysis of such data is 
unnecessary because other information having equal value or effect is 
available to the regulatory authority in a satisfactory form.
[48 FR 43989, Sept. 26, 1983]



Sec. 784.23  Operation plan: Maps and plans.

    Each application shall contain maps and plans as follows:
    (a) The maps, plans and cross-sections shall show the underground 
mining activities to be conducted, the lands to be affected throughout 
the operation, and any change in a facility or feature to be caused by 
the proposed operations, if the facility or feature was shown under 30 
CFR 783.24 and 783.25.

[[Page 245]]

    (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 Secs. 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 cross sections, maps and 
plans, a qualified, registered, professional, land surveyor, with 
assistance from experts in related fields such as landscape 
architecture.
[44 FR 15366, Mar. 13, 1979; 44 FR 49686, Aug. 24, 1979, as amended at 
45 FR 51550, Aug. 4, 1980; 48 FR 14822, Apr. 5, 1983; 50 FR 16199, Apr. 
24, 1985; 56 FR 65635, Dec. 17, 1991]



Sec. 784.24  Road systems.

    (a) Plans and drawings. Each applicant for an underground coal 
mining and reclamation permit shall submit plans and drawings for each 
road, as defined in Sec. 701.5 of this chapter, to be constructed, used, 
or maintained within the proposed permit area. The plans and drawings 
shall--
    (1) Include a map, appropriate cross sections, design drawings, and 
specifications for road widths, gradients, surfacing materials, cuts, 
fill embankments, culverts, bridges, drainage ditches, low-water 
crossings, and drainage structures;
    (2) Contain the drawings and specifications of each proposed road 
that is located in the channel of an intermittent or perennial stream, 
as necessary for approval of the road by the regulatory authority in 
accordance with Sec. 817.150(d)(1) of this chapter;
    (3) Contain the drawings and specifications for each proposed ford 
of perennial or intermittent streams that is used as a temporary route, 
as necessary for approval of the ford by the regulatory authority in 
accordance with Sec. 817.151(c)(2) of this chapter;
    (4) Contain a description of measures to be taken to obtain approval 
of the regulatory authority for alteration or relocation of a natural 
stream channel under Sec. 817.151(d)(5) of this chapter;
    (5) Contain the drawings and specifications for each low-water 
crossing of perennial or intermittent stream channels so that the 
regualtory authority can maximize the protection of the stream in 
accordance with Sec. 817.151(d)(6) of this chapter; and
    (6) Describe the plans to remove and reclaim each road that would 
not be retained under an approved postmining land use, and the schedule 
for this removal and reclamation.
    (b) Primary road certification. The plans and drawings for each 
primary

[[Page 246]]

road shall be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer, or in any State which 
authorizes land surveyors to certify the design of primary roads a 
qualified registered professional land surveyor, experienced in the 
design and construction of roads, as meeting the requirements of this 
chapter; current, prudent engineering practices; and any design criteria 
established by the regulatory authority.
    (c) Standard design plans. The regulatory authority may establish 
engineering design standards for primary roads through the State program 
approval process, in lieu of engineering tests, to establish compliance 
with the minimum static safety factor of 1.3 for all embankments 
specified in Sec. 817.151(b) of this chapter.
[53 FR 45211, Nov. 8, 1988]



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

    (a) Each plan shall describe the design, operation and maintenance 
of any proposed coal processing waste disposal facility, including flow 
diagrams and any other necessary drawings and maps, for the approval of 
the regulatory authority and the Mine Safety and Health Administration 
under 30 CFR 817.81(f).
    (b) Each plan shall describe the source and quality of waste to be 
stowed, area to be backfilled, percent of the mine void to be filled, 
method of constructing underground retaining walls, influence of the 
backfilling operation on active underground mine operations, surface 
area to be supported by the backfill, and the anticipated occurrence of 
surface effects following backfilling.
    (c) The applicant shall describe the source of the hydraulic 
transport mediums, method of dewatering the placed backfill, retainment 
of water underground, treatment of water if released to surface streams, 
and the effect on the hydrologic regime.
    (d) The plan shall describe each permanent monitoring well to be 
located in the backfilled area, the stratum underlying the mined coal, 
and gradient from the backfilled area.
    (e) The requirements of paragraphs (a), (b), (c), and (d) of this 
section shall also apply to pneumatic backfilling operations, except 
where the operations are exempted by the regulatory authority from 
requirements specifying hydrologic monitoring.
[44 FR 15366, Mar. 13, 1979, as amended at 48 FR 44780, Sept. 30, 1983]



Sec. 784.26  Air pollution control plan.

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



Sec. 784.29  Diversions.

    Each application shall contain descriptions, including maps and 
cross sections, of stream channel diversions and other diversions to be 
constructed within the proposed permit area to achieve compliance with 
Sec. 817.43 of this chapter.
[44 FR 15366, Mar. 13, 1979. Redesignated and amended at 48 FR 43989, 
Sept. 26, 1983]



Sec. 784.30  Support facilities.

    Each applicant for an underground coal mining and reclamation permit 
shall submit a description, plans, and drawings for each support 
facility to be constructed, used, or maintained within the proposed 
permit area. The plans and drawings shall include a map, appropriate 
cross sections, design drawings, and specifications sufficient to 
demonstrate compliance with Sec. 817.181 of this chapter for each 
facility.
[53 FR 45211, Nov. 8, 1988]



Sec. 784.200  Interpretive rules related to General Performance Standards.

    The following interpretation of rules promulgated in part 784 of 
this chapter

[[Page 247]]

have been adopted by the Office of Surface Mining Reclamation and 
Enforcement.
    (a) Interpretation of Sec. 784.15: Reclamation plan: Postmining land 
uses. (1) The requirements of Sec. 784.15(a)(2), for approval of an 
alternative postmining land use, may be met by requesting approval 
through the permit revision procedures of Sec. 774.13 rather than 
requesting such approval in the original permit application. The 
original permit application, however, must demonstrate that the land 
will be returned to its premining land use capability as required by 
Sec. 817.133(a). An application for a permit revision of this type, (i) 
must be submitted in accordance with the filing deadlines of 
Sec. 774.13, (ii) shall constitute a significant alteration from the 
mining operations contemplated by the original permit, and (iii) shall 
be subject to the requirements of 30 CFR parts 773 and 775.
    (b) [Reserved]
[45 FR 64908, Oct. 1, 1980, as amended at 48 FR 44780, Sept. 30, 1983]



PART 785--REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING--Table of Contents




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.
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 amended; Pub. L. 100-34; and 
Pub. L. 102-486.

    Source: 44 FR 15370, Mar. 13, 1979, unless otherwise noted.



Sec. 785.1  Scope.

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



Sec. 785.2  Objective.

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



Sec. 785.10  Information collection.

    The collections of information contained in 30 CFR 785.13(e), (f), 
(g), and (h), 785.14, 785.15, 785.16, 785.17(b), 785.18(c), 785.19, 
785.20, 785.21 and 785.22 have been approved by the Office of Management 
and Budget under 44 U.S.C. 3507 and assigned clearance number 1029-0040. 
The information is being collected to meet the requirements of sections 
711 and 515 of Pub. L. 95-87, which require 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 activities. The 
obligation to respond is required to obtain a benefit in accordance with 
Pub. L. 95-87.
    Public reporting burden for this information is estimated to average 
29 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

[[Page 248]]

information. Send comments regarding the burden estimate or any other 
aspect of this collection of information, including suggestions for 
reducing the burden to: Information Collection Clearance Officer, Office 
of Surface Mining, 1951 Constitution Avenue, NW., rm. 640NC, Washington, 
DC 20240; and to the Office of Management and Budget, Paperwork 
Reduction Project 1029-0040, Washington, DC 20503.
[58 FR 3470, Jan. 8, 1993; 58 FR 8655, Feb. 16, 1993]



Sec. 785.11  Anthracite surface coal mining and reclamation operations.

    (a) This section applies to any person who conducts or intends to 
conduct anthracite surface coal mining and reclamation operations in 
Pennsylvania.
    (b) Each person who intends to conduct anthracite surface coal 
mining and reclamation operations in Pennsylvania shall apply for and 
obtain a permit in accordance with the requirements of this subchapter. 
The following standards apply to applications for and issuance of 
permits:
    (1) In lieu of the requirements of 30 CFR parts 816--817, the 
requirements of 30 CFR part 820 shall apply.
    (2) All other requirements of this chapter including the bonding and 
insurance requirements of 30 CFR 800.70, except the bond limits and the 
period of revegetation responsibility, to the extent they are required 
under sections 509 or 510 of the Act, shall apply.
    (c) If the Pennsylvania anthracite permanent regulatory program in 
effect on August 3, 1977, is amended with respect to environmental 
protection performance standards, the Secretary shall issue additional 
regulations necessary to meet the purposes of the Act.
[44 FR 15370, Mar. 13, 1979, as amended at 48 FR 44780, Sept. 30, 1983]



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

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



Sec. 785.13  Experimental practices mining.

    (a) Experimental practices provide a variance from environmental 
protection performance standards of the Act, of subchapter K of this 
chapter, and the regulatory program for experimental or research 
purposes, or to allow an alternative postmining land use, and may be 
undertaken if they are approved by the regulatory authority and the 
Director and if they are incorporated in a permit or permit revision 
issued in accordance with the requirements of subchapter G of this 
chapter.
    (b) An application for an experimental practice shall contain 
descriptions, maps, plans, and data which show--
    (1) The nature of the experimental practice, including a description 
of the performance standards for which variances are requested, the 
duration of the experimental practice, and any special monitoring which 
will be conducted;
    (2) How use of the experimental practice encourages advances in 
mining and reclamation technology or allows a postmining land use for 
industrial, commercial, residential, or public use (including recreation 
facilities) on an experimental basis;
    (3) That the experimental practice--
    (i) Is potentially more, or at least as, environmentally protective, 
during and

[[Page 249]]

after mining operations, as would otherwise be required by standards 
promulgated under subchapter K of this chapter; and
    (ii) Will not reduce the protection afforded public health and 
safety below that provided by the requirements of subchapter K of this 
chapter; and
    (4) That the applicant will conduct monitoring of the effects of the 
experimental practice. The monitoring program shall ensure the 
collection, analysis, and reporting of reliable data that are sufficient 
to enable the regulatory authority and the Director to--
    (i) Evaluate the effectiveness of the experimental practice; and
    (ii) Identify, at the earliest possible time, potential risk to the 
environment and public health and safety which may be caused by the 
experimental practice during and after mining.
    (c) Applications for experimental practices shall comply with the 
public notice requirements of Sec. 773.13 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 after mining operations, as would 
otherwise be required by standards promulgated under subchapter K of 
this chapter;
    (3) The mining operations approved for a particular land-use or 
other purpose are not larger or more numerous than necessary to 
determine the effectiveness and economic feasibility of the experimental 
practice; and
    (4) The experimental practice does not reduce the protection 
afforded public health and safety below that provided by standards 
promulgated under subchapter K of this chapter.
    (e) Experimental practices granting variances from the special 
environmental protection performance standards of sections 515 and 516 
of the Act applicable to prime farmlands shall be approved only after 
consultation with the U.S. Department of Agriculture, Soil Conservation 
Service.
    (f) Each person undertaking an experimental practice shall conduct 
the periodic monitoring, recording and reporting program set forth in 
the application, and shall satisfy such additional requirements as the 
regulatory authority or the Director may impose to ensure protection of 
the public health and safety and the environment.
    (g) Each experimental practice shall be reviewed by the regulatory 
authority at a frequeny set forth in the approved permit, but no less 
frequently than every 2\1/2\ years. After review, the regulatory 
authority may require such reasonable modifications of the experimental 
practice as are necessary to ensure that the activities fully protect 
the environment and the public health and safety. Copies of the decision 
of the regulatory authority shall be sent to the permittee and shall be 
subject to the provisions for administrative and judicial review of part 
775 of this chapter.
    (h) Revisions or modifications to an experimental practice shall be 
processed in accordance with the requirements of Sec. 774.13 of this 
chapter and approved by the regulatory authority. Any revisions which 
propose significant alterations in the experimental practice shall, at a 
minimum, be subject to notice, hearing, and public participation 
requirements of Sec. 773.13 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.
[48 FR 9484, Mar. 4, 1983]



Sec. 785.14  Mountaintop removal mining.

    (a) This section applies to any person who conducts or intends to 
conduct surface mining activities by mountaintop removal mining.
    (b) Mountaintop removal mining means surface mining activities, 
where the mining operation removes an entire coal seam or seams running 
through the upper fraction of a mountain, ridge, or hill, except as 
provided for in 30 CFR 824.11(a)(6), by removing

[[Page 250]]

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 Secs. 816.102, 
816.104, 816.105, and 816.107 of this chapter to restore the lands 
disturbed by such mining to their approximate original contour, if it 
first finds, in writing, on the basis of a complete application, that 
the following requirements are met:
    (1) The proposed postmining land use of the lands to be affected 
will be an industrial, commercial, agricultural, residential, or public 
facility (including recreational facilities) use and, if--
    (i) After consultation with the appropriate land-use planning 
agencies, if any, the proposed land use is deemed by the regulatory 
authority to constitute an equal or better economic or public use of the 
affected land compared with the pre-mining use;
    (ii) The applicant demonstrates compliance with the requirements for 
acceptable alternative postmining land uses of paragraphs (a) through 
(c) of Sec. 816.133 of this chapter;
    (iii) The applicant has presented specific plans for the proposed 
postmining land use and appropriate assurances that such use will be--
    (A) Compatible with adjacent land uses;
    (B) Obtainable according to data regarding expected need and market;
    (C) Assured of investment in necessary public facilities;
    (D) Supported by commitments from public agencies where appropriate;
    (E) Practicable with respect to private financial capability for 
completion of the proposed use;
    (F) Planned pursuant to a schedule attached to the reclamation plan 
so as to integrate the mining operation and reclamation with the 
postmining land use; and
    (G) Designed by a registered engineer in conformance with 
professional standards established to assure the stability, drainage, 
and configuation necessary for the intended use of the site.
    (iv) The proposed use would be consistent with adjacent land use and 
existing State and local land use plans and programs; and
    (v) The regulatory authority has provided, in writing, an 
opportunity of not more than 60 days to review and comment on such 
proposed use to the governing body of general purpose government in 
whose jurisdiction the land is located and any State or Federal agency 
which the regulatory authority, in its discretion, determines to have an 
interest in the proposed use.
    (2) The applicant demonstrates that in place of restoration of the 
land to be affected to the approximate original contour under 
Secs. 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

[[Page 251]]

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.
[44 FR 15370, Mar. 13, 1979, as amended at 48 FR 39904, Sept. 1, 1983; 
52 FR 39183, Oct. 20, 1987]



Sec. 785.15  Steep slope mining.

    (a) This section applies to any persons who conducts or intends to 
conduct steep slope surface coal mining and reclamation operations, 
except--
    (1) Where an operator proposes to conduct surface coal mining and 
reclamation operations on flat or gently rolling terrain, leaving a 
plain or predominantly flat area, but on which an occasional steep slope 
is encountered as the mining operation proceeds;
    (2) Where a person obtains a permit under the provisions of 
Sec. 785.14; or
    (3) To the extent that a person obtains a permit incorporating a 
variance under Sec. 785.16.
    (b) Any application for a permit for surface coal mining and 
reclamation operations covered by this section shall contain sufficient 
information to establish that the operations will be conducted in 
accordance with the requirements of Sec. 816.107 or Sec. 817.107 of this 
chapter.
    (c) No permit shall be issued for any operations covered by this 
section, unless the regulatory authority finds, in writing, that in 
addition to meeting all other requirements of this subchapter, the 
operation will be conducted in accordance with the requirements of 
Sec. 816.107 or Sec. 817.107 of this chapter.
[44 FR 15370, Mar. 13, 1979, as amended at 51 FR 9006, Mar. 17, 1986]



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

    (a) The regulatory authority may issue a permit for non-mountaintop 
removal, steep slope, surface coal mining and reclamation operations 
which includes a variance from the requirements to restore the disturbed 
areas to their approximate original contour that are contained in 
Secs. 816.102, 816.104, 816.105, and 816.107, or Secs. 817.102 and 
817.107 of this chapter. The permit may contain such a variance only if 
the regulatory authority finds, in writing, that the applicant has 
demonstrated, on the basis of a complete application, that the following 
requirments are met:
    (1) After reclamation, the lands to be affected by the variance 
within the permit area will be suitable for an industrial, commercial, 
residential, or public postmining land use (including recreational 
facilities).
    (2) The requirements of Sec. 816.133 or Sec. 817.133 of this chapter 
will be met.
    (3) The watershed of lands within the proposed permit and adjacent 
areas will be improved by the operations when compared with the 
condition of the watershed before mining or with its condition if the 
approximate original contour were to be restored. The watershed will be 
deemed improved only if--
    (i) The amount of total suspended solids or other pollutants 
discharged to ground or surface water from the permit area will be 
reduced, so as to improve the public or private uses or the ecology of 
such water, or flood hazards within the watershed containing the permit 
area will be reduced by reduction of the peak flow discharge from 
precipitation events or thaws;
    (ii) The total volume of flow from the proposed permit area, during 
every season of the year, will not vary in a way that adversely affects 
the ecology of any surface water or any existing or planned use of 
surface or ground water; and
    (iii) The appropriate State environmental agency approves the plan.
    (4) The owner of the surface of the lands within the permit area has 
knowingly requested, in writing, as part of the application, that a 
variance be granted. The request shall be made separately from any 
surface owner consent given for the operations under Sec. 778.15 of this 
chapter and shall show an understanding that the variance could not be 
granted without the surface owner's request.
    (b) If a variance is granted under this section----
    (1) The requirements of Sec. 816.133(d) or Sec. 817.133(d) of this 
chapter shall be included as a specific condition of the permit; and

[[Page 252]]

    (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.
[48 FR 39904, Sept. 1, 1983, as amended at 48 FR 44780, Sept. 30, 1983; 
56 FR 65635, Dec. 17, 1991]



Sec. 785.17  Prime farmland.

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

[[Page 253]]

    (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, and at the Federal Register library, 800 North Capitol 
Street, NW., suite 700, Washington, DC Incorporation by reference 
provisions were approved by the Director of the Federal Register on June 
29, 1981.
    (ii) The soil survey shall include a description of soil mapping 
units and a representative soil profile as determined by the U.S. Soil 
Conservation Service, including, but not limited to, soil-horizon 
depths, pH, and the range of soil densities for each prime farmland soil 
unit within the permit area. Other representative soil-profile 
descriptions from the locality, prepared according to the standards of 
the National Cooperative Soil Survey, may be used if their use is 
approved by the State Conservationist, U.S. Soil Conservation Service. 
The regulatory authority may request the operator to

[[Page 254]]

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--
    (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.
[44 FR 15370, Mar. 13, 1979, as amended at 46 FR 47722, Sept. 29, 1981; 
48 FR 21462, May 12, 1983; 53 FR 40839, Oct. 18, 1988]

[[Page 255]]



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

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

[[Page 256]]

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.
[48 FR 24651, June 1, 1983]



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

    (a) Alluvial valley floor determination. (1) Permit applicants who 
propose to conduct surface coal mining and reclamation operations within 
a valley holding a stream or in a location where the permit area or 
adjacent area includes any stream, in the arid and semiarid regions of 
the United States, as an initial step in the permit process, may request 
the regulatory authority to make an alluvial valley floor determination 
with respect to that v