[Title 30 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2017 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 30
Mineral Resources
________________________
Part 700 to End
Revised as of July 1, 2017
Containing a codification of documents of general
applicability and future effect
As of July 1, 2017
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 30:
Chapter VII--Office of Surface Mining Reclamation
and Enforcement, Department of the Interior 3
Chapter XII--Office of Natural Resources Revenue,
Department of the Interior 791
Finding Aids:
Table of CFR Titles and Chapters........................ 1031
Alphabetical List of Agencies Appearing in the CFR...... 1051
List of CFR Sections Affected........................... 1061
[[Page iv]]
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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.
----------------------------
[[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
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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
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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
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(b) The matter incorporated is in fact available to the extent
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[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register.
July 1, 2017.
[[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--199,
parts 200--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, 2017.
For this volume, Gabrielle E. Burns was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 30--MINERAL RESOURCES
(This book contains part 700 to End)
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Part
chapter vii--Office of Surface Mining Reclamation and
Enforcement, Department of the Interior................... 700
chapter xii--Office of Natural Resources Revenue, Department
of the Interior........................................... 1201
[[Page 3]]
CHAPTER VII--OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT,
DEPARTMENT OF THE INTERIOR
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Editorial Note: Nomenclature changes to chapter VII appear at 69 FR
18803, Apr. 9, 2004.
SUBCHAPTER A--GENERAL
Part Page
700 General..................................... 9
701 Permanent regulatory program................ 17
702 Exemption for coal extraction incidental to
the extraction of other minerals........ 35
705 Restriction on financial interests of State
employees............................... 41
706 Restriction on financial interests of
Federal employees....................... 48
707 Exemption for coal extraction incident to
government-financed highway or other
construction............................ 54
SUBCHAPTER B--INITIAL PROGRAM REGULATIONS
710 Initial regulatory program.................. 56
715 General performance standards............... 62
716 Special performance standards............... 92
717 Underground mining general performance
standards............................... 100
721 Federal inspections......................... 111
722 Enforcement procedures...................... 113
723 Civil penalties............................. 118
724 Individual civil penalties.................. 123
725 Reimbursements to States.................... 125
SUBCHAPTER C--PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-
INDIAN LANDS
730 General requirements........................ 132
731 Submission of State programs................ 133
732 Procedures and criteria for approval or
disapproval of State program submissions 135
[[Page 4]]
733 Maintenance of State programs and procedures
for substituting Federal enforcement of
State programs and withdrawing approval
of State programs....................... 141
735 Grants for program development and
administration and enforcement.......... 143
736 Federal program for a State................. 151
SUBCHAPTER D--FEDERAL LANDS PROGRAM
740 General requirements for surface coal mining
and reclamation operations on Federal
lands................................... 156
745 State-Federal cooperative agreements........ 164
746 Review and approval of mining plans......... 167
SUBCHAPTER E--INDIAN LANDS PROGRAM
750 Requirements for surface coal mining and
reclamation operations on Indian lands.. 169
755 Tribal-Federal intergovernmental agreements. 174
756 Indian tribe abandoned mine land reclamation
programs................................ 174
SUBCHAPTER F--AREAS UNSUITABLE FOR MINING
761 Areas designated by Act of Congress......... 179
762 Criteria for designating areas as unsuitable
for surface coal mining operations...... 189
764 State processes for designating areas
unsuitable for surface coal mining
operations.............................. 191
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............................ 196
SUBCHAPTER G--SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND
COAL EXPLORATION SYSTEMS UNDER REGULATORY PROGRAMS
772 Requirements for coal exploration........... 200
773 Requirements for permits and permit
processing.............................. 204
774 Revision; renewal; transfer, assignment, or
sale of permit rights; post-permit
issuance requirements................... 218
775 Administrative and judicial review of
decisions............................... 223
777 General content requirements for permit
applications............................ 225
778 Permit applications--minimum requirements
for legal, financial, compliance, and
related information..................... 226
[[Page 5]]
779 Surface mining permit applications--minimum
requirements for information on
environmental resources and conditions.. 231
780 Surface mining permit applications--minimum
requirements for operation and
reclamation plans....................... 235
783 Underground mining permit applications--
minimum requirements for information on
environmental resources and conditions.. 274
784 Underground mining permit applications--
minimum requirements for operation and
reclamation plans....................... 279
785 Requirements for permits for special
categories of mining.................... 320
SUBCHAPTER H--SMALL OPERATOR ASSISTANCE
795 Permanent regulatory program--small operator
assistance program...................... 334
SUBCHAPTER I [RESERVED]
SUBCHAPTER J--PERFORMANCE BOND, FINANCIAL ASSURANCE, AND INSURANCE
REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS
800 Performance bond, financial assurance, and
insurance requirements for surface coal
mining and reclamation operations....... 338
SUBCHAPTER K--PERMANENT PROGRAM PERFORMANCE STANDARDS
810 Permanent program performance standards--
general provisions...................... 357
815 Permanent program performance standards--
coal exploration........................ 358
816 Permanent program performance standards--
surface mining activities............... 359
817 Permanent program performance standards--
underground mining activities........... 404
819 Special permanent program performance
standards--auger mining................. 451
820 Special permanent program performance
standards--anthracite mines in
Pennsylvania............................ 453
822 Special permanent program performance
standards--operations in alluvial valley
floors.................................. 453
823 Special permanent program performance
standards--operations on prime farmland. 454
824 Special permanent program performance
standards--mountaintop removal mining
operations.............................. 456
[[Page 6]]
825 Special permanent program performance
standards--special bituminous coal mines
in Wyoming.............................. 457
827 Permanent program performance standards--
coal preparation plants not located
within the permit area of a mine........ 458
828 Special permanent program performance
standards--in situ processing........... 458
SUBCHAPTER L--PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES
840 State regulatory authority: Inspection and
enforcement............................. 460
842 Federal inspections and monitoring.......... 464
843 Federal enforcement......................... 469
845 Civil penalties............................. 477
846 Individual civil penalties.................. 482
847 Alternative enforcement..................... 484
SUBCHAPTER M--TRAINING, EXAMINATION, AND CERTIFICATION OF BLASTERS
850 Permanent regulatory program requirements--
standards for certification of blasters. 486
SUBCHAPTERS N-O [RESERVED]
SUBCHAPTER P--PROTECTION OF EMPLOYEES
865 Protection of employees..................... 489
SUBCHAPTER R--ABANDONED MINE LAND RECLAMATION
870 Abandoned mine reclamation fund--fee
collection and coal production reporting 492
872 Moneys available to eligible States and
Indian tribes........................... 503
873 Future reclamation set-aside program........ 510
874 General reclamation requirements............ 510
875 Certification and noncoal reclamation....... 515
876 Acid mine drainage treatment and abatement
program................................. 519
877 Rights of entry............................. 520
879 Acquisition, management, and disposition of
lands and water......................... 521
880 Mine fire control........................... 524
881 Subsidence and strip mine rehabilitation,
Appalachia.............................. 526
882 Reclamation on private land................. 531
884 State reclamation plans..................... 533
885 Grants for certified States and Indian
tribes.................................. 536
[[Page 7]]
886 Reclamation grants for uncertified States
and Indian tribes....................... 538
887 Subsidence insurance program grants......... 544
SUBCHAPTER S [RESERVED]
SUBCHAPTER T--PROGRAMS FOR THE CONDUCT OF SURFACE MINING OPERATIONS
WITHIN EACH STATE
900 Introduction................................ 546
901 Alabama..................................... 547
902 Alaska...................................... 554
903 Arizona..................................... 557
904 Arkansas.................................... 564
905 California.................................. 567
906 Colorado.................................... 575
910 Georgia..................................... 584
912 Idaho....................................... 590
913 Illinois.................................... 595
914 Indiana..................................... 604
915 Iowa........................................ 615
916 Kansas...................................... 617
917 Kentucky.................................... 619
918 Louisiana................................... 630
920 Maryland.................................... 632
921 Massachusetts............................... 634
922 Michigan.................................... 639
924 Mississippi................................. 645
925 Missouri.................................... 647
926 Montana..................................... 650
931 New Mexico.................................. 660
933 North Carolina.............................. 671
934 North Dakota................................ 678
935 Ohio........................................ 687
936 Oklahoma.................................... 694
937 Oregon...................................... 703
938 Pennsylvania................................ 709
939 Rhode Island................................ 717
941 South Dakota................................ 723
942 Tennessee................................... 728
943 Texas....................................... 739
944 Utah........................................ 742
946 Virginia.................................... 752
947 Washington.................................. 760
948 West Virginia............................... 767
950 Wyoming..................................... 776
955 Certification of blasters in Federal program
States and on Indian lands.............. 785
956-999
[Reserved]
[[Page 9]]
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 What coal exploration and coal mining operations are subject to
our rules?
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.
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.
[[Page 10]]
(h) Subchapter J sets forth requirements for performance bonds and
public liability insurance for both surface mining and underground
mining activities.
(i) Subchapter K sets forth the environmental and other performance
standards which apply to coal exploration and to surface coal mining and
reclamation operations during the permanent regulatory program. The
regulations establish the minimum requirements for operations under
State and Federal programs. Performance standards applicable to special
mining situations such as anthracite mines, steep slope mining, alluvial
valley floors, and prime farmlands are included.
(j) Subchapter L sets forth the inspection, enforcement, and civil
penalty provisions that apply to a State, Federal, or Federal lands
program.
(k) Subchapter M sets forth the requirements for the training,
examination, and certification of blasters.
(l) Subchapter P sets forth the provisions for protection of
employees who initiate proceedings under the Act or testify in any
proceedings resulting from the administration or enforcement of the Act.
(m) Subchapter R sets forth the regulations for the abandoned mine
land reclamation program. These regulations include the fee collection
requirements and the mechanisms for implementing the State and Federal
portions of the abandoned mine land reclamation program.
(n) Subchapter S sets forth the regulations that apply to grants for
mining and mineral research institutes and grants for mineral research
projects.
[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.
[[Page 11]]
(c) The States are responsible for the regulation of surface coal
mining and reclamation operations under the initial regulatory program
and surface coal mining and reclamation operations and coal exploration
under an approved State program and the reclamation of abandoned mine
lands under an approved State Reclamation Plan on non-Federal and non-
Indian lands in accordance with procedures in this chapter.
(d) The Secretary may delegate to a State through a cooperative
agreement certain authority relating to the regulation of surface coal
mining and reclamation operations on Federal lands in accordance with 30
CFR part 745.
(e) The Director, Office of Hearings and Appeals, U.S. Department of
the Interior, is responsible for the administration of administrative
hearings and appeals required or authorized by the Act pursuant to the
regulations in 43 CFR part 4.
[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).
AML means abandoned mine land(s).
AML inventory means OSM's listing of abandoned mine land problems
eligible to be reclaimed using moneys from the Abandoned Mine
Reclamation Fund or the Treasury as appropriate.
Anthracite means coal classified as anthracite in ASTM Standard D
388-77. Coal classifications are published by the American Society of
Testing and Materials under the title, Standard Specification for
Classification of Coals by Rank, ASTM D 388-77, on pages 220 through
224. Table 1 which classifies the coals by rank is presented on page
223. This publication is hereby incorporated by reference as it exists
on the date of adoption of these regulations. Notices of changes made to
this publication will be periodically published by the Office of Surface
Mining in the Federal Register. This ASTM Standard is on file and
available for inspection at the OSM Office, U.S. Department of the
Interior, South Interior Building, Washington, DC 20240, at each OSM
Regional Office, District Office and Field Office, and at the central
office of the applicable State Regulatory Authority, if any. Copies of
this publication may also be obtained by writing to the above locations.
A copy of this publication will also be on file for public inspection at
the National Archives and Records Administration (NARA). For information
on the availability of this material at NARA, call 202-741-6030, or go
to: http://www.archives.gov/federal_register/
code_of_federal_regulations/ibr_locations.html. Incorporation by
reference provisions approved by the Director of the Federal Register
February 7, 1979. The Director's approval of this incorporation by
reference expires on July 1, 1981.
Coal means combustible carbonaceous rock, classified as anthracite,
bituminous, subbituminous, or lignite by ASTM Standard D 388-77,
referred to and incorporated by reference in the definition of
Anthracite immediately above.
Department means the Department of the Interior.
Director means the Director, Office of Surface Mining Reclamation
and Enforcement, or the Director's representative.
Eligible lands and water means lands and water eligible for
expenditures under title IV of SMCRA and this chapter. Eligible lands
and water for reclamation or drainage abatement expenditures under the
Abandoned Mine Land program contained in this chapter are those which
were mined for coal or which were affected by such mining, wastebanks,
coal processing, or other coal mining processes and left or abandoned in
either an unreclaimed or inadequately reclaimed condition prior to
August 3, 1977, and for which there is no continuing reclamation
responsibility. However, lands and water damaged by coal mining
operations after that date and on or before November 5, 1990, may also
be eligible for reclamation if they meet the requirements specified in
Sec. 874.12(d) and (e) of this chapter. Following certification of the
completion of all known coal problems,
[[Page 12]]
eligible lands and water for noncoal reclamation purposes are those
sites that meet the eligibility requirements specified in Sec. 875.14 of
this chapter. For additional eligibility requirements for water
projects, see Sec. 874.14 of this chapter, and for lands affected by
remining operations, see section 404 of SMCRA.
Emergency means a sudden danger or impairment that presents a high
probability of substantial physical harm to the health, safety, or
general welfare of people before the danger can be abated under normal
program operation procedures.
Expended means that moneys have been obligated, encumbered, or
committed by contract by the State, Tribe, or us for work to be
accomplished or services to be rendered.
Extreme danger means a condition that could reasonably be expected
to cause substantial physical harm to persons, property, or the
environment and to which persons or improvements on real property are
currently exposed.
Federal lands means any land, including mineral interests, owned by
the United States, without regard to how the United States acquired
ownership of the lands or which agency manages the lands. It does not
include Indian lands. However, lands or mineral interests east of the
100th meridian west longitude owned by the United States and entrusted
to or managed by the Tennessee Valley Authority are not subject to
sections 714 (surface owner protection) and 715 (Federal lessee
protection) of the Act.
Federal lands program means a program established by the Secretary
pursuant to section 523 of the Act to regulate surface coal mining and
reclamation operations on Federal lands.
Fund means the Abandoned Mine Reclamation Fund established on the
books of the U.S. Treasury for the purpose of accumulating revenues
designated for reclamation of abandoned mine lands and other activities
authorized by section 401 of SMCRA.
Indian lands means all lands, including mineral interests, within
the exterior boundaries of any Federal Indian reservation,
notwithstanding the issuance of any patent, and including rights-of-way,
and all lands including mineral interests held in trust for or
supervised by an Indian tribe.
Indian tribe means any Indian tribe, band, group, or community
having a governing body recognized by the Secretary.
Office means the Office of Surface Mining Reclamation and
Enforcement established under title II of the Act.
Left or abandoned in either an unreclaimed or inadequately reclaimed
condition means, for Abandoned Mine Land programs, lands and water:
(1) Which were mined or which were affected by such mining,
wastebanks, processing or other mining processes prior to August 3,
1977, or between August 3, 1977, and November 5, 1990, as authorized
pursuant to section 402(g)(4) of SMCRA, and on which all mining has
ceased;
(2) Which continue, in their present condition, to degrade
substantially the quality of the environment, prevent or damage the
beneficial use of land or water resources, or endanger the health and
safety of the public; and
(3) For which there is no continuing reclamation responsibility
under State or Federal laws, except as provided in sections 402(g)(4)
and 403(b)(2) of SMCRA.
OSM and OSMRE mean the Office of Surface Mining Reclamation and
Enforcement established under title II of the Act.
Person means an individual, Indian tribe when conducting surface
coal mining and reclamation operations on non-Indian lands, partnership,
association, society, joint venture, joint stock company, firm, company,
corporation, cooperative or other business organization and any agency,
unit, or instrumentality of Federal, State or local government including
any publicly owned utility or publicly owned corporation of Federal
State or local government.
Person having an interest which is or may be adversely affected or
person with a valid legal interest shall include any person--
(a) Who uses any resource of economic, recreational, esthetic, or
environmental value that may be adversely affected by coal exploration
or surface
[[Page 13]]
coal mining and reclamation operations or any related action of the
Secretary or the State regulatory authority; or
(b) Whose property is or may be adversely affected by coal
exploration or surface coal mining and reclamation operations or any
related action of the Secretary or the State regulatory authority.
Project means a delineated area containing one or more abandoned
mine land problems. A project may be a group of related reclamation
activities with a common objective within a political subdivision of a
State or within a logical, geographically defined area, such as a
watershed, conservation district, or county planning area.
Public office means a facility under the direction and control of a
governmental entity which is open to public access on a regular basis
during reasonable business hours.
Reclamation activity means the reclamation, abatement, control, or
prevention of adverse effects of past mining by an Abandoned Mine Land
program.
Reclamation program means a program established by a State or an
Indian tribe in accordance with Title IV of SMCRA for reclamation of
lands and water adversely affected by past mining, including the
reclamation plan and annual applications for grants under the plan.
Regional Director means a Regional Director of the Office or a
Regional Director's representative.
Regulatory authority means the department or agency in each State
which has primary responsibility at the State level for administering
the Act in the initial program, or the State regulatory authority where
the State is administering the Act under a State regulatory program, or
the Secretary in the initial or permanent program where the Secretary is
administering the Act, or the Secretary when administering a Federal
program or Federal lands program or when enforcing a State program
pursuant to section 521(b) of the Act.
Regulatory program means any approved State or Federal program or,
in a State with no approved State or Federal program and coal
exploration and surface coal mining and reclamation operations are on
Federal lands, the requirements of subchapters A, F, G, J, K, L, M, and
P of this chapter.
Secretary means the Secretary of the Interior or the Secretary's
representative.
SMCRA means the Surface Mining Control and Reclamation Act of 1977,
30 U.S.C. 1201 et seq., as amended.
State regulatory authority means the department or agency in each
State which has primary responsibility at the State level for
administering the initial or permanent State regulatory program.
Surface coal mining operations mean--
(a) Activities conducted on the surface of lands in connection with
a surface coal mine or, subject to the requirements of section 516 of
the Act, surface operations and surface impacts incident to an
underground coal mine, the products of which enter commerce or the
operations of which directly or indirectly affect interstate commerce.
Such activities include excavation for the purpose of obtaining coal,
including such common methods as contour, strip, auger, mountain top
removal, box cut, open pit, and area mining; the use of explosives and
blasting; in situ distillation or retorting; leaching or other chemical
or physical processing; and the cleaning, concentrating, or other
processing or preparation of coal. Such activities also include the
loading of coal for interstate commerce at or near the mine site.
Provided, these activities do not include the extraction of coal
incidental to the extraction of other minerals, where coal does not
exceed 16\2/3\ percent of the tonnage of minerals removed for purposes
of commercial use or sale, or coal exploration subject to section 512 of
the Act; and, Provided further, that excavation for the purpose of
obtaining coal includes extraction of coal from coal refuse piles; and
(b) The areas upon which the activities described in paragraph (a)
of this definition occur or where such activities disturb the natural
land surface. These areas shall also include any adjacent land the use
of which is incidental to any such activities, all lands affected by the
construction of new roads or the improvement or use of existing
[[Page 14]]
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; 73 FR 67629, Nov. 14, 2008; 80 FR 6446, Feb. 5,
2015]
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 What coal exploration and coal mining operations
are subject to our rules?
(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 15]]
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) Termination and reassertion of jurisdiction--(1) Termination of
jurisdiction for initial regulatory program sites. A regulatory
authority may terminate its jurisdiction under the initial regulatory
program over a completed surface coal mining and reclamation operation,
or portion thereof, when the regulatory authority determines in writing
that all requirements imposed under subchapter B of this chapter have
been successfully completed.
(2) Termination of jurisdiction for permanent regulatory program
sites. A regulatory authority may terminate its jurisdiction under the
permanent regulatory program over a completed surface coal mining and
reclamation operation, or portion thereof, when--
(i) The regulatory authority determines in writing that all
requirements imposed under the applicable regulatory program have been
successfully completed; or
(ii) Where a performance bond or financial assurance was required,
the regulatory authority has made a final decision in accordance with
the applicable regulatory program to release the performance bond or
financial assurance fully.
(3) Reassertion of jurisdiction. Following a termination under
paragraph
[[Page 16]]
(d)(1) or (2) of this section, the regulatory authority must reassert
jurisdiction under the regulatory program over a site or operation
whenever--
(i) Conditions develop after termination of jurisdiction that would
constitute a violation of the reclamation requirements of the applicable
regulatory program;
(ii) The conditions described in paragraph (d)(3)(i) of this section
are the result of surface coal mining operations for which jurisdiction
was terminated; and
(iii) The written determination or bond release referred to in
paragraph (d)(1) or (2) of this section was based upon fraud, collusion,
or the intentional or unintentional misrepresentation of a material
fact. The intentional or unintentional misrepresentation of a material
fact includes the discovery of a discharge requiring treatment after
termination of jurisdiction, provided that the conditions creating the
need for treatment are the result of the mining operation.
(4) Exception for certain underground mining requirements. The
provisions of paragraphs (d)(1) and (2) of this section do not apply to
the domestic water supply replacement requirements of Sec. 817.40 of
this chapter or to the structural damage repair or compensation
requirements of Sec. 817.121(d) of this chapter.
[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; 81 FR 93319, Dec. 20,
2016]
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.
[[Page 17]]
(c) Notice shall be given by certified mail to the alleged violator,
if the complaint alleges a violation of the Act or any regulation,
order, or permit issued under the Act.
(d) Service of notice under this section is complete upon mailing to
the last known address of the person being notified.
(e) A person giving notice regarding an alleged violation shall
state, to the extent known--
(1) Sufficient information to identify the provision of the Act,
regulation, order, or permit allegedly violated;
(2) The act or omission alleged to constitute a violation;
(3) The name, address, and telephone numbers of the person or
persons responsible for the alleged violation;
(4) The date, time, and location of the alleged violation;
(5) The name, address, and telephone number of the person giving
notice; and
(6) The name, address, and telephone number of legal counsel, if
any, of the person giving notice.
(f) A person giving notice of an alleged failure by the Secretary or
a State regulatory authority to perform a mandatory act or duty under
the Act shall state, to the extent known:
(1) The provision of the Act containing the mandatory act or duty
allegedly not performed;
(2) Sufficient information to identify the omission alleged to
constitute the failure to perform a mandatory act or duty under the Act;
(3) The name, address, and telephone number of the person giving
notice; and
(4) The name, address, and telephone number of legal counsel, if
any, of the person giving notice.
Sec. 700.14 Availability of records.
(a) Records required by the Act to be made available locally to the
public shall be retained at the geographically closest office of the
State or Federal regulatory authority having jurisdiction over the area
involved.
(b) Other records or documents in the possession of the Office may
be requested under 43 CFR part 2, which implements the Freedom of
Information Act and the Privacy Act.
Sec. 700.15 Computation of time.
(a) Except as otherwise provided, computation of time under this
chapter is based on calendar days.
(b) In computing any period of prescribed time, the day on which the
designated period of time begins is not included. The last day of the
period is included unless it is a Saturday, Sunday, or legal holiday on
which the regulatory authority is not open for business, in which event
the period runs until the end of the next day which is not a Saturday,
Sunday, or legal holiday.
(c) Intermediate Saturdays, Sundays, and legal holidays are excluded
from the computation when the period of prescribed time is 7 days or
less.
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.
701.16 How will the stream protection rule apply to existing and future
permits and permit applications?
Authority: 30 U.S.C. 1201 et seq.
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
[[Page 18]]
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
(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
[[Page 19]]
take appropriate action to cause a violation to be corrected; and
(4) Issuing cessation orders, including imposing affirmative
obligations, when a condition, practice, or violation exists which
creates an imminent danger to the health or safety of the public, or is
causing or could reasonably be expected to cause significant, imminent
environmental harm to land, air, or water resources.
(c) The Office shall implement a Federal program in a State, if that
State does not have an approved State program by June 3, 1980. The
Office shall not implement a Federal program in a State for a period of
up to 1 year following that date if the State's failure to have an
approved program by that date is due to an injunction imposed by a court
of competent jurisdiction.
(d) Under a Federal program, the Office shall be the regulatory
authority for all coal exploration and surface coal mining and
reclamation operations in that State and shall perform the functions
that a State regulatory authority would perform under an approved State
program.
(e) During the period in which a State program is in effect, the
Office shall assume responsibility for enforcing permit conditions,
issuing new or revised permits, and issuing necessary notices and
orders, when required by 30 CFR part 733.
(f) The Secretary shall substitute a Federal program under 30 CFR
part 736 for an approved State program, when required by 30 CFR part
733.
(g) The Secretary shall have the responsibility for administration
of the Federal lands program. The Director and other Federal authorities
shall have the responsibilities under a Federal lands program as are
provided for under subchapter D of this chapter. In addition, State
regulatory authorities shall have responsibilities to administer the
Federal lands program as provided for under cooperative agreements
approved by the Secretary in accordance with 30 CFR part 745.
(h) The Secretary shall have the responsibility for the
administration of the Federal program for Indian lands, as provided for
under subchapter E of this chapter. The Director and other Federal
authorities have the responsibilities under the Indian lands program as
are provided for under subchapter E of this chapter.
[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 or acid mine drainage means water with a pH of less
than 6.0 and in which total acidity exceeds total alkalinity that is
discharged from an active, inactive, or abandoned surface coal mining
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--
(1) Basic definition for all operations and all resources. (i)
Except as provided in paragraph (1)(ii) of this definition, the adjacent
area includes those areas outside the proposed or actual permit area
within which there is a reasonable probability of adverse impacts from
surface coal mining operations or underground mining activities, as
determined by the regulatory authority. The area covered by this term
will vary with the context in which a regulation uses this term; i.e.,
the nature of the resource or resources addressed by a regulation in
which the term ``adjacent area'' appears will determine the size and
other dimensions of the adjacent area for purposes of that regulation.
(ii) In the context of the Endangered Species Act of 1973, 16 U.S.C.
1531 et seq., the term adjacent area includes those areas outside the
proposed or actual permit area where surface coal mining operations or
underground mining activities may affect a species listed or proposed
for listing as endangered or threatened under that Act or designated or
proposed critical habitat under that Act.
(2) Underground mines. For underground mines, the adjacent area
includes, at a minimum, the area overlying the underground workings plus
[[Page 20]]
the area within a reasonable angle of dewatering from the perimeter of
the underground workings.
(3) Underground mine pools. For all operations, the adjacent area
also includes the area that might be affected physically or
hydrologically by the dewatering of existing mine pools as part of
surface or underground mining operations, plus the area that might be
affected physically or hydrologically by mine pools that develop after
cessation of mining activities.
Administratively complete application means an application for
permit approval or approval for coal exploration where required, which
the regulatory authority determines to contain information addressing
each application requirement of the regulatory program and to contain
all information necessary to initiate processing and public review.
Affected area means any land or water surface area which is used to
facilitate, or is physically altered by, surface coal mining and
reclamation operations. The affected area includes the disturbed area;
any area upon which surface coal mining and reclamation operations are
conducted; any adjacent lands the use of which is incidental to surface
coal mining and reclamation operations; all areas covered by new or
existing roads used to gain access to, or for hauling coal to or from,
surface coal mining and reclamation operations, except as provided in
this definition; any area covered by surface excavations, workings,
impoundments, dams, ventilation shafts, entryways, refuse banks, dumps,
stockpiles, overburden piles, spoil banks, culm banks, tailings, holes
or depressions, repair areas, storage areas, shipping areas; any areas
upon which are sited structures, facilities, or other property material
on the surface resulting from, or incident to, surface coal mining and
reclamation operations; and the area located above underground workings.
The affected area shall include every road used for purposes of access
to, or for hauling coal to or from, surface coal mining and reclamation
operations, unless the road (a) was designated as a public road pursuant
to the laws of the jurisdiction in which it is located; (b) is
maintained with public funds, and constructed, in a manner similar to
other public roads of the same classification within the jurisdiction;
and (c) there is substantial (more than incidental) public use.
Agricultural activities means, with respect to alluvial valley
floors, the use of any tract of land for the production of animal or
vegetable life, based on regional agricultural practices, where the use
is enhanced or facilitated by subirrigation or flood irrigation. These
uses include, but are not limited to, farming and the pasturing or
grazing of livestock. These uses do not include agricultural activities
which have no relationship to the availability of water from
subirrigation or flood irrigation practices.
Agricultural use means the use of any tract of land for the
production of animal or vegetable life. The uses include, but are not
limited to, the pasturing, grazing, and watering of livestock, and the
cropping, cultivation, and harvesting of plants.
Alluvial valley floors means the unconsolidated stream-laid deposits
holding streams with water availability sufficient for subirrigation or
flood irrigation agricultural activities but does not include upland
areas which are 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.
Angle of dewatering means the angle created from a vertical line
drawn from the outer edge or boundary of high-extraction underground
mining workings and an oblique line drawn from terminus of the vertical
line at the mine floor to the farthest expected extent that the mining
will cause dewatering of groundwater or surface water.
Applicant means any person seeking a permit, permit revision,
renewal, and transfer, assignment, or sale of permit rights from a
regulatory authority to conduct surface coal mining and reclamation
operations or, where required, seeking approval for coal exploration.
Applicant/Violator System or AVS means an automated information
system of applicant, permittee, operator,
[[Page 21]]
violation and related data OSM maintains to assist in implementing the
Act.
Application means the documents and other information filed with the
regulatory authority under this chapter for the issuance of permits;
revisions; renewals; and transfer, assignment, or sale of permit rights
for surface coal mining and reclamation operations or, where required,
for coal exploration.
Approximate original contour means that surface configuration
achieved by backfilling and grading of the mined area so that the
reclaimed area closely resembles the general surface configuration of
the land within the permit area prior to any mining activities or
related disturbances and blends into and complements the drainage
pattern of the surrounding terrain. All highwalls and spoil piles must
be eliminated to meet the terms of the definition, but that requirement
does not prohibit the approval of terracing under Sec. 816.102 or
Sec. 817.102 of this chapter, the retention of access roads in
accordance with Sec. 816.150 or Sec. 817.151 of this chapter, or the
approval of permanent water impoundments that comply with Secs. 816.49,
816.55, and 780.24(b) or Secs. 817.49, 817.55, and 784.24(b) of this
chapter. For purposes of this definition, the term ``mined area'' does
not include excess spoil fills and coal refuse piles.
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.
Backfill, when used as a noun, means the spoil and waste materials
used to fill the void resulting from an excavation created for the
purpose of extracting coal from the earth. When used as a verb, the term
refers to the process of filling that void. The term also includes all
spoil and waste materials used to restore the approximate original
contour.
Bankfull stage means the water level at which a stream, river, or
lake begins to overflow its natural banks and enter the active
floodplain, with the exception of an entrenched stream, river, or lake,
in which case bankfull stage is the highest scour line, bench, or top of
the point bar.
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.
Biological condition refers to the type, diversity, distribution,
and abundance of aquatic organisms and communities found in surface
water bodies, including streams.
[[Page 22]]
Coal exploration means the field gathering of: (a) surface or
subsurface geologic, physical, or chemical data by mapping, trenching,
drilling, geophysical, or other techniques necessary to determine the
quality and quantity of overburden and coal of an area; or (b) the
gathering of environmental data to establish the conditions of an area
before beginning surface coal mining and reclamation operations under
the requirements of this chapter.
Coal mine waste means coal processing waste and underground
development waste.
Coal preparation means chemical or physical processing and the
cleaning, concentrating, or other processing or preparation of coal.
Coal preparation plant means a facility where coal is subjected to
chemical or physical processing or cleaning, concentrating, or other
processing or preparation. It includes facilities associated with coal
preparation activities, including, but not limited to the following:
loading facilities; storage and stockpile facilities; sheds; shops, and
other buildings; water-treatment and water-storage facilities; settling
basins and impoundments; and coal processing and other waste disposal
areas.
Coal processing waste means earth materials which are separated and
wasted from the product coal during cleaning, concentrating, or other
processing or preparation of coal.
Combustible material means organic material that is capable of
burning, either by fire or through oxidation, accompanied by the
evolution of heat and a significant temperature rise.
Compaction means increasing the density of a material by reducing
the voids between the particles and is generally accomplished by
controlled placement and mechanical effort such as from repeated
application of wheel, track, or roller loads from heavy equipment.
Complete and accurate application means an application for permit
approval or approval for coal exploration where required, which the
regulatory authority determines to contain all information required
under the Act, this subchapter, and the regulatory program that is
necessary to make a decision on permit issuance.
Control or controller, when used in parts 773, 774, and 778 of this
chapter, refers to or means--
(a) A permittee of a surface coal mining operation;
(b) An operator of a surface coal mining operation; or
(c) Any person who has the ability to determine the manner in which
a surface coal mining operation is conducted.
Cropland means land used for the production of adapted crops for
harvest, alone or in a rotation with grasses and legumes, and includes
row crops, small grain crops, hay crops, nursery crops, orchard crops,
and other similar specialty crops.
Cumulative impact area means an area that includes the--
(1) Actual or proposed permit area.
(2) HUC-12 (U.S. Geological Survey 12-digit Watershed Boundary
Dataset) watershed or watersheds in which the actual or proposed permit
area is located or a differently-sized watershed adequate for purposes
of preparation of the cumulative hydrologic impact assessment, as
determined by the regulatory authority.
(3) Any other area within which impacts resulting from an actual or
proposed surface or underground coal mining operation may interact with
the impacts of all existing and anticipated surface and underground coal
mining on surface-water and groundwater systems, including the impacts
that existing and anticipated mining will have during mining and
reclamation until final bond release. At a minimum, existing and
anticipated mining must include:
(i) The proposed operation;
(ii) All existing surface and underground coal mining operations;
(iii) Any proposed surface or underground coal mining operation for
which a permit application has been submitted to the regulatory
authority;
(iv) Any proposed surface or underground coal mining operation for
which a request for an authorization, certification, or permit has been
submitted under the Clean Water Act; and
(v) All existing and proposed coal mining operations that are
required to meet diligent development requirements for leased federal
coal and for
[[Page 23]]
which a resource recovery and protection plan has been either approved
or submitted to and reviewed by the authorized officer of the Bureau of
Land Management under 43 CFR 3482.1(b).
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.
Ecological function of a stream means the species richness,
diversity, and extent of plants, insects, amphibians, reptiles, fish,
birds, mammals, and other organisms for which the stream provides
habitat, food, water, or shelter. The biological condition of a stream
is one way to describe its ecological function.
Embankment means an artificial deposit of material that is raised
above the natural surface of the land and used to contain, divert, or
store water, support roads or railways, or for other similar purposes.
Ephemeral stream means a stream or part of a stream that has flowing
water only during, and for a short duration after, precipitation and
snowmelt events in a typical year. Ephemeral streams include only those
conveyances with channels that display both a bed-and-bank configuration
and an ordinary high water mark, and that have streambeds located above
the water table year-round. Groundwater is not a source of water for
streamflow. Runoff from rainfall events and snowmelt is the primary
source of water for streamflow.
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 permanently disposed of within the
permit area in a location other than the mined-out area. This term also
includes all spoil material placed on the mined-out area in excess of
the amount necessary to restore the approximate original contour when
the spoil placement is part of an excess spoil fill with a toe located
outside the mined-out area. This term does not include--
(1) Spoil used to restore the approximate original contour;
(2) Spoil used to blend the final configuration of the mined-out
area with the surrounding terrain in non-steep slope areas in accordance
with Sec. 816.102(b)(3) or Sec. 817.102(b)(2) of this chapter;
(3) Spoil placed outside the mined-out area as part of a remining
operation under Sec. 816.106 or Sec. 817.106 of this chapter;
(4) Spoil placed within the mined-out area in accordance with the
thick overburden provisions of Sec. 816.105(b)(1) of this chapter, with
the exception of spoil material placed on the mined-out area as part of
an excess spoil fill with a toe located outside the mined-out area; or
(5) Any temporary stockpile of material that will be subsequently
transported to another location.
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
[[Page 24]]
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.
Fill means a permanent, non-impounding structure constructed under
Secs. 816.71 through 816.83 or Secs. 817.71 through 817.83 of this
chapter for the purpose of disposing of excess spoil or coal mine waste
generated by surface coal mining operations or underground mining
activities.
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.
Form, as used in Secs. 780.28, 784.28, 800.42, 816.57, and 817.57 of
this chapter, means the physical characteristics, pattern, profile, and
dimensions of a stream channel. The term includes, but is not limited
to, the ratio of the flood-prone area to the bankfull width
(entrenchment), the ratio of the channel width to channel depth, channel
slope, sinuosity, bankfull depth, dominant in-stream substrate particle
size, and capacity for riffles and pools.
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.
Groundwater means subsurface water located in soils and geologic
formations that are fully saturated with water, including regional,
local, and perched aquifers. This term does not include water in soil
horizons that are temporarily saturated by precipitation events.
Half-shrub means a perennial plant with a woody base whose annually
produced stems die back each year.
Head-of-hollow fill means a fill structure consisting of any
material, other than organic material, placed in the uppermost reaches
of a hollow where side slopes of the existing hollow, measured at the
steepest point, are greater than 20 degrees or the average slope of the
profile of the hollow from the toe of the fill to the top of the fill is
greater than 10 degrees. In head-of-hollow fills the top surface of the
fill, when completed, is at approximately the same elevation as the
adjacent ridge line, and no significant area of natural drainage occurs
above the fill draining into the fill area.
Higher or better uses means postmining land uses that have a higher
economic value or nonmonetary benefit to the landowner or the community
than the premining land uses.
Highwall means the face of exposed overburden and coal in an open
cut of a surface coal mining activity or for entry to underground mining
activities.
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
[[Page 25]]
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 storage of groundwater and surface
water, as well as interactions that result in changes in the chemical
composition or physical characteristics of groundwater and surface
water.
Hydrologic function, as used in Secs. 780.28, 784.28, 800.42,
816.57, and 817.57 of this chapter, means the role that streams play in
the transport of water and the flow of water within the stream channel
and floodplain. The term includes total flow volume, seasonal variations
in streamflow and base flow, and provision of the water needed to
maintain floodplains and wetlands associated with the stream.
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 stream or part of a stream that has
flowing water during certain times of the year when groundwater provides
water for streamflow. The water table is located above the streambed for
only part of the year, which means that intermittent streams may not
have flowing water during dry periods. Runoff from rainfall events and
snowmelt is a supplemental source of water for streamflow. Intermittent
streams include only those conveyances with channels that display both a
bed-and-bank configuration and an ordinary high water mark.
Invasive species means an alien species (a species that is not
native to the region or area), the introduction of which has caused or
is likely to cause economic or environmental harm or harm to human
health.
[[Page 26]]
Irreparable damage to the environment means any damage to the
environment, in violation of the Act, the regulatory program, or this
chapter, that cannot be corrected by actions of the applicant.
Knowing or knowingly means that a person who authorized, ordered, or
carried out an act or omission knew or had reason to know that the act
or omission would result in either a violation or a failure to abate or
correct a violation.
Land use means specific uses or management-related activities,
rather than the vegetation or cover of the land. Land uses may be
identified in combination when joint or seasonal uses occur. Each land
use category includes land used for facilities that support the land
use. For purposes of this chapter, the following land use categories
apply:
(1) Cropland. Land used for the production of crops for harvest,
either alone or in rotation with grasses and legumes. Crops include row
crops, small grains, hay, commercial nursery plantings, vegetables,
fruits, nuts, crops, and other plants typically cultivated for
commercial purposes in fields, orchards, vineyards, and similar
settings.
(2) 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.
(3) Grazing land. Land used for grasslands and forest lands where
the indigenous vegetation is actively managed for grazing, browsing, or
occasional hay production.
(4) Forestry. Land used or managed for the long-term production of
wood, wood fiber, or wood-derived products.
(5) Residential. Land used for single-and multiple-family housing,
mobile home parks, or other residential lodgings.
(6) Industrial/Commercial. Land used for--
(i) 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.
(ii) Retail or trade of goods or services, including hotels, motels,
stores, restaurants, and other commercial establishments.
(7) 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.
(8) Fish and wildlife habitat. Land dedicated wholly or partially to
the production, protection, or management of species of fish or
wildlife.
(9) Developed water resources. Land used for storing water for
beneficial uses, such as stock ponds, irrigation, fire protection, flood
control, and water supply.
(10) 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. 784.30 and 817.121 of this
chapter, which pertain to subsidence from underground mining operations,
means:
(1) Any functional impairment of surface lands, surface features
(including wetlands, streams, and bodies of water), structures, or
facilities;
(2) Any physical change that--
(i) Has a significant adverse impact on the affected land's
capability to support any current or reasonably foreseeable uses; or
(ii) Causes a significant loss in production or income; or
(3) Any significant change in the condition, appearance, or utility
of any structure or facility from its pre-subsidence condition.
Material damage to the hydrologic balance outside the permit area
means an adverse impact, as determined in accordance with the rest of
this definition, resulting from surface coal mining and reclamation
operations, underground mining activities, or subsidence associated with
underground mining activities, on the quality or quantity of
[[Page 27]]
surface water or groundwater, or on the biological condition of a
perennial or intermittent stream. The determination of whether an
adverse impact constitutes material damage to the hydrologic balance
outside the permit area will be based on consideration of the baseline
data collected under Sec. 780.19 or Sec. 784.19 of this chapter and the
following reasonably anticipated or actual effects of the operation:
(1) For a surface water located outside the permit area, effects
that cause or contribute to a violation of applicable state or tribal
water quality standards, including, but not limited to, state or tribal
water quality standards established under section 303(c) of the Clean
Water Act, 33 U.S.C. 1313(c), or, for a surface water for which water
quality standards have not been established, effects that cause or
contribute to non-attainment of any premining use of that surface water
outside the permit area;
(2) Effects that cause or contribute to a violation of applicable
state or tribal water quality standards for groundwater located outside
the permit area, or effects that preclude a premining use of groundwater
located outside the permit area; or
(3) Effects that result in a violation of the Endangered Species Act
of 1973, 16 U.S.C. 1531 et seq.
Materially damage the quantity or quality of water means, with
respect to alluvial valley floors, to degrade or reduce by surface coal
mining and reclamation operations the water quantity or quality supplied
to the alluvial valley floor to the extent that resulting changes would
signficantly decrease the capability of the alluvial valley floor to
support farming.
MSHA means the Mine Safety and Health Administration.
Moist bulk density means the weight of soil (oven dry) per unit
volume. Volume is measured when the soil is at field moisture capacity
(1/3 bar moisture tension). Weight is determined after drying the soil
at 105 C.
Mulch means vegetation residues or other suitable materials that aid
in soil stabilization and soil moisture conservation, thus providing
micro-climatic conditions suitable for germination and growth.
Native species means, with respect to a particular ecosystem, a
species that historically occurred or currently occurs in that
ecosystem. This term does not include alien species that occur in that
ecosystem or species introduced to that ecosystem.
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. 784.30 and 817.121 of this chapter, 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 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. This term does not include any structure used only
for commercial agricultural, industrial, retail or other commercial
purposes.
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.
Ordinary high water mark means that line on the bank established by
the fluctuations of water and indicated by physical characteristics such
as a
[[Page 28]]
clear, natural line impressed on the bank, shelving, changes in the
character of soil, destruction of terrestrial vegetation, the presence
of litter and debris, or other appropriate means that consider the
characteristics of the surrounding areas.
Other treatment facilities mean any chemical treatments, such as
flocculation or neutralization, or mechanical structures, such as
clarifiers or precipitators, that have a point source discharge and are
utilized:
(a) To prevent additional contributions of dissolved or suspended
solids to streamflow or runoff outside the permit area, or
(b) To comply with all applicable State and Federal water-quality
laws and regulations.
Outslope means the face of the spoil or embankment sloping downward
from the highest elevation to the toe.
Overburden means material of any nature, consolidated or
unconsolidated, that overlies a coal deposit, excluding topsoil.
Own, owner, or ownership, as used in parts 773, 774, and 778 of this
chapter (except when used in the context of ownership of real property),
means being a sole proprietor or owning of record in excess of 50
percent of the voting securities or other instruments of ownership of an
entity.
Parameters of concern means those chemical or physical
characteristics and properties of surface water or groundwater that
could be altered by surface or underground mining activities, including
discharges associated with those activities, in a manner that would
adversely impact the quality of groundwater or surface water, including
adverse impacts on aquatic life.
Perennial stream means a stream or part of a stream that has flowing
water year-round during a typical year. The water table is located above
the streambed for most of the year. Groundwater is the primary source of
water for streamflow. Runoff from rainfall events and snowmelt is a
supplemental source of water for streamflow. Perennial streams include
only those conveyances with channels that display both a bed-and-bank
configuration and an ordinary high water mark.
Performance bond means a surety bond, collateral bond or self-bond
or a combination thereof, by which a permittee assures faithful
performance of all the requirements of the Act, this chapter, a State,
Federal or Federal lands program, and the requirements of the permit and
reclamation plan.
Permanent diversion means a diversion remaining after surface coal
mining and reclamation operations are completed which has been approved
for retention by the regulatory authority and other appropriate State
and Federal agencies.
Permanent impoundment means an impoundment which is approved by the
regulatory authority and, if required, by other State and Federal
agencies for retention as part of the postmining land use.
Permit means a permit to conduct surface coal mining and reclamation
operations issued by the State regulatory authority pursuant to a State
program or by the Secretary pursuant to a Federal program. For purposes
of the Federal lands program, permit means a permit issued by the State
regulatory authority under a cooperative agreement or by OSM where there
is no cooperative agreement.
Permit area means the area of land, indicated on the approved map
submitted by the operator with his or her application, required to be
covered by the operator's performance bond under subchapter J of this
chapter and which shall include the area of land upon which the operator
proposes to conduct surface coal mining and reclamation operations under
the permit, including all disturbed areas; provided that areas
adequately bonded under another valid permit may be excluded from the
permit area.
Permittee means a person holding or required by the Act or this
chapter to hold a permit to conduct surface coal mining and reclamation
operations issued by a State regulatory authority pursuant to a State
program, by the Director pursuant to a Federal program, by the Director
pursuant to a Federal lands program, or, where a cooperative agreement
pursuant to section 523 of the Act has been executed, by the Director
and the State regulatory authority.
[[Page 29]]
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.
Premining refers to the conditions and features that exist on a site
at the time of application for a permit to conduct surface coal mining
operations.
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 and
associated disturbed areas to a condition in which the site is capable
of supporting the uses it was capable of supporting prior to any mining
or any higher or better uses approved by the regulatory authority. The
site also must meet all other requirements of the permit and regulatory
program that pertain to restoration of the site. For sites with
discharges that require treatment, this term also includes those actions
taken to eliminate, remediate, or treat those discharges, including both
discharges from the mined area and all other discharges that are
hydrologically connected to either the mined area or the operation,
regardless of whether those discharges are located within the disturbed
area.
Reclamation plan means the plan for reclamation of surface coal
mining operations under parts 780, 784, and 785 of this chapter.
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, aquifer recharge areas,
recharge areas for other subsurface water, watersheds for surface water
bodies that function as a water supply, areas for agricultural or
silvicultural production of food and fiber, and grazing lands.
Replacement of water supply means, with respect to protected water
supplies contaminated, diminished, or interrupted by coal mining
operations,
[[Page 30]]
provision of water supply on both a temporary and permanent basis
equivalent to premining quantity and quality. Replacement includes
provision of an equivalent water-delivery system and payment of
operation and maintenance costs in excess of customary and reasonable
delivery costs for premining water supplies.
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 these properties;
(c) B horizon. The layer that typically is immediately beneath the E
horizon and often called the subsoil. This middle layer commonly
contains more clay, iron, or aluminum than the A, E, or C horizons; and
(d) C horizon. The deepest layer of soil profile. It consists of
loose material or weathered rock that is relatively unaffected by
biologic activity.
Soil survey means a field and other investigation, resulting in a
map showing the geographic distribution of different kinds of soils and
an accompanying report that describes, classifies, and interprets such
soils for use. Soil surveys must meet the standards of the National
Cooperative Soil Survey as incorporated by reference in 30 CFR
785.17(c)(1).
[[Page 31]]
Special bituminous coal mines means those mines in existence on
January 1, 1972, or mines adjoining or having a common boundary with
those mines for which development began after August 3, 1977, that are
located in the State of Wyoming and that are being mined or will be
mined according to the following criteria:
(a) Surface mining takes place on a relatively limited site for an
extended period of time. The surface opening of the excavation is at
least the full size of the excavation and has a continuous border.
(b) Excavation of the mine pit follows a coal seam that inclines 15
or more from the horizontal, and as the excavation proceeds downward it
expands laterally to maintain stability of the pitwall or as necessary
to accommodate the orderly expansion of the total mining operation.
(c) The amount of material removed from the pit is large in
comparison to the surface area disturbed.
(d) There is no practicable alternative to the deep open-pit method
of mining the coal.
(e) There is no practicable way to reclaim the land as required in
subchapter K.
Spoil means overburden that has been removed during surface coal
mining operations.
Stabilize means to control movement of soil, spoil piles, or areas
of disturbed earth by modifying the geometry of the mass, or by
otherwise modifying physical or chemical properties, such as by
providing a protective surface coating.
State program means a program established by a State and approved by
the Secretary pursuant to section 503 of the Act to regulate surface
coal mining and reclamation operations on 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 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 channel constructed to convey streamflow
or overland flow away from the site of actual or proposed coal
exploration or surface coal mining and reclamation operations or to
convey those flows to a siltation structure or other treatment facility.
The term includes only those channels 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.
[[Page 32]]
Topsoil means the A and E soil horizon layers of the four master
soil horizons.
Toxic-forming materials means earth materials or wastes which, if
acted upon by air, water, weathering, or microbiological processes, are
likely to produce chemical or physical conditions in soils or water that
are detrimental to biota or uses of water.
Toxic mine drainage means water that is discharged from active or
abandoned mines or other areas affected by coal exploration or surface
coal mining and reclamation operations, which contains a substance that
through chemical action or physical effects is likely to kill, injure,
or impair biota commonly present in the area that might be exposed to
it.
Transfer, assignment, or sale of permit rights means a change of a
permittee.
Unanticipated event or condition, as used in Sec. 773.13 of this
chapter, means an event or condition related to prior mining activity
which arises from a surface coal mining and reclamation operation on
lands eligible for remining and was not contemplated by the applicable
permit.
Underground development waste means waste-rock mixtures of coal,
shale, claystone, siltstone, sandstone, limestone, or related materials
that are excavated, moved, and disposed of from underground workings in
connection with underground mining activities.
Underground mining activities means a combination of--
(a) Surface operations incident to underground extraction of coal or
in situ processing, such as construction, use, maintenance, and
reclamation of roads, above-ground repair areas, storage areas,
processing areas, shipping areas, areas upon which are sited support
facilities including hoist and ventilating ducts, areas utilized for the
disposal and storage of waste, and areas on which materials incident to
underground mining operations are placed; and
(b) Underground operations such as underground construction,
operation, and reclamation of shafts, adits, underground support
facilities, in situ processing, and underground mining, hauling,
storage, and blasting.
Undeveloped rangeland means, for purposes of alluvial valley floors,
lands where the use is not specifically controlled and managed.
Upland areas means, with respect to alluvial valley floors, those
geomorphic features located outside the floodplain and terrace complex,
such as isolated higher terraces, alluvial fans, pediment surfaces,
landslide deposits, and surfaces covered with residuum, mud flows or
debris flows, as well as highland areas underlain by bedrock and covered
by residual weathered material or debris deposited by sheetwash,
rillwash, or windblown material.
Valley fill means a fill structure consisting of any material, other
than organic material, that is placed in a valley where side slopes of
the existing valley, measured at the steepest point, are greater than 20
degrees, or where the average slope of the profile of the valley from
the toe of the fill to the top of the fill is greater than 10 degrees.
Violation, when used in the context of the permit application
information or permit eligibility requirements of sections 507 and
510(c) of the Act and related regulations, means--
(1) A failure to comply with an applicable provision of a Federal or
State law or regulation pertaining to air or water environmental
protection, as evidenced by a written notification from a governmental
entity to the responsible person; or
(2) A noncompliance for which OSM has provided one or more of the
following types of notice or a State regulatory authority has provided
equivalent notice under corresponding provisions of a State regulatory
program--
(i) A notice of violation under Sec. 843.12 of this chapter.
(ii) A cessation order under Sec. 843.11 of this chapter.
(iii) A final order, bill, or demand letter pertaining to a
delinquent civil penalty assessed under part 845 or 846 of this chapter.
(iv) A bill or demand letter pertaining to delinquent reclamation
fees owed under part 870 of this chapter.
(v) A notice of bond forfeiture under Sec. 800.50 of this chapter
when--
[[Page 33]]
(A) One or more violations upon which the forfeiture was based have
not been abated or corrected;
(B) The amount forfeited and collected is insufficient for full
reclamation under Sec. 800.50(d)(1) of this chapter, the regulatory
authority orders reimbursement for additional reclamation costs, and the
person has not complied with the reimbursement order; or
(C) The site is covered by an alternative bonding system approved
under Sec. 800.11(e) of this chapter, that system requires reimbursement
of any reclamation costs incurred by the system above those covered by
any site-specific bond, and the person has not complied with the
reimbursement requirement and paid any associated penalties.
Violation, failure or refusal, for purposes of parts 724 and 846 of
this chapter, means--
(1) A failure to comply with a condition of a Federally-issued
permit or of any other permit that OSM is directly enforcing under
section 502 or 521 of the Act or the regulations implementing those
sections; or
(2) A failure or refusal to comply with any order issued under
section 521 of the Act, or any order incorporated in a final decision
issued by the Secretary under the Act, except an order incorporated in a
decision issued under section 518(b) or section 703 of the Act.
Violation notice means any written notification from a regulatory
authority or other governmental entity, as specified in the definition
of violation in this section.
Water table means the upper surface of a zone of saturation, where
the body of ground water is not confined by an overlying impermeable
zone.
Willful or willfully means that a person who authorized, ordered or
carried out an act or omission that resulted in either a violation or
the failure to abate or correct a violation acted--
(1) Intentionally, voluntarily, or consciously; and
(2) With intentional disregard or plain indifference to legal
requirements.
[44 FR 15316, Mar. 13, 1979]
Editorial Notes: 1. For Federal Register citations affecting
Sec. 701.5, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
2. At 81 FR 93319, Dec. 20, 2016, Sec. 701.5 was amended; however,
the revision of the definition ``Mountaintop removal mining'' could not
be incorporated due to inaccurate amendatory instruction.
Effective Date Note: In Sec. 701.5, the definition of Affected area,
insofar as it excludes roads which are included in the definition of
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 773.4(b) of this
chapter, a person may continue operations under a previously issued
permit after 8 months from the date of approval of a State program or
implementation of a Federal program.
(b) Any person who conducts surface coal mining operations on
Federal lands on or after 8 months from the date of approval of a State
program or implementation of a Federal program for the State in which
the Federal lands are located shall have a permit issued pursuant to
part 740 of this chapter. However, under conditions specified in
Sec. 740.13(a)(3) of this chapter, a person may continue such operations
under a mining plan previously approved pursuant to 43 CFR part 3480 or
a permit issued by the State under the interim State program after 8
months after the date of approval of a State program or implementation
of a Federal program.
(c) Any person who conducts surface coal mining operations on Indian
lands on or after eight months from the effective date of the Federal
program for Indian lands shall have a permit issued pursuant to part 750
of this chapter. However, a person who is authorized to conduct surface
coal mining operations may continue to conduct those operations beyond
eight months from the effective date of the Federal program for Indian
lands if the following conditions are met:
[[Page 34]]
(1) An application for a permit to conduct those operations has been
made to the Director within two months after the effective date of the
Federal program for Indian lands and the initial administrative decision
on that application has not been issued; and
(2) Those operations are conducted in compliance with all terms and
conditions of the existing authorization to mine, the requirements of
the Act, 25 CFR part 216, and the requirements of all applicable mineral
agreements, leases or licenses.
(d) The requirements of subchapter K of this chapter shall be
effective and shall apply to each surface coal mining and reclamation
operation for which the surface coal mining operation is required to
obtain a permit under the Act, on the earliest date upon which the Act
and this chapter require a permit to be obtained, except as provided in
paragraph (e) of this section.
(e)(1) Each structure used in connection with or to facilitate a
coal exploration or surface coal mining and reclamation operation shall
comply with the performance standards and the design requirements of
subchapter K of this chapter, except that--
(i) An existing structure which meets the performance standards of
subchapter K of this chapter but does not meet the design requirements
of subchapter K of this chapter may be exempted from meeting those
design requirements by the regulatory authority. The regulatory
authority may grant this exemption only as part of the permit
application process after obtaining the information required by 30 CFR
780.12 or 784.12 and after making the findings required in 30 CFR
773.15;
(ii) If the performance standard of subchapter B of this chapter is
at least as stringent as the comparable performance standard of
subchapter K of this chapter, an existing structure which meets the
performance standards of subchapter B of this chapter may be exempted by
the regulatory authority from meeting the design requirements of
subchapter K of this chapter. The regulatory authority may grant this
exemption only as part of the permit application process after obtaining
the information required by 30 CFR 780.12 or 784.12 and after making the
findings required in 30 CFR 773.15;
(iii) An existing structure which meets a performance standard of
subchapter B of this chapter which is less stringent than the comparable
performance standards of subchapter K of this chapter or which does not
meet a performance standard of subchapter K of this chapter, for which
there was no equivalent performance standards in subchapter B of this
chapter, shall be modified or reconstructed to meet the performance and
design standard of subchapter K of this chapter pursuant to a compliance
plan approved by the regulatory authority only as part of the permit
application as required in 30 CFR 780.12 or 784.12 and according to the
findings required by 30 CFR 773.15;
(iv) An existing structure which does not meet the performance
standards of subchapter B of this chapter and which the applicant
proposes to use in connection with or to facilitate the coal exploration
or surface coal mining and reclamation operation shall be modified or
reconstructed to meet the performance and design standards of subchapter
K prior to issuance of the permit.
(2) The exemptions provided in paragraphs (e)(1)(i) and (e)(1)(ii)
of this section shall not apply to--
(i) The requirements for existing and new coal mine waste disposal
facilities; and
(ii) The requirements to restore the approximate original contour of
the land.
(f)(1) Any person conducting coal exploration on non-Federal and
non-Indian lands on or after the date on which a State program is
approved or a Federal program implemented, shall either file a notice of
intention to explore or obtain approval of the regulatory authority, as
required by 30 CFR part 772.
(2) Coal exploration performance standards in 30 CFR part 815 shall
apply to coal exploration on non-Federal and non-Indian lands which
substantially disturbs the natural land surface 2 months after approval
of a
[[Page 35]]
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;
65 FR 79663, Dec. 19, 2000]
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.
Sec. 701.16 How will the stream protection rule apply to existing
and future permits and permit applications?
(a) General applicability. The revisions to parts 701 through 827 of
this chapter that became effective on January 19, 2017 (hereafter
referred to as the stream protection rule) apply as provided therein or,
if there is no specific applicability provision in the revisions, to--
(1) Any application for a new permit submitted to the regulatory
authority after the effective date of the stream protection rule under
the applicable regulatory program.
(2) Any application for a new permit pending a decision under
Sec. 773.7 of this chapter or its state program counterpart as of the
effective date of the stream protection rule under the applicable
regulatory program, unless the regulatory authority has determined the
application to be administratively complete under Sec. 777.15 of this
chapter or its state program counterpart before the effective date of
the stream protection rule under the applicable regulatory program.
(3) Any application for the addition of acreage to an existing
permit submitted to the regulatory authority after the effective date of
the stream protection rule under the applicable regulatory program, with
the exception of applications for incidental boundary revisions that do
not propose to add acreage for coal removal.
(4) Any application for the addition of acreage to an existing
permit pending a decision under Sec. 773.7 of this chapter or its state
program counterpart as of the effective date of the stream protection
rule under the applicable regulatory program, with two exceptions:
(i) Applications for incidental boundary revisions that do not
propose to add acreage for coal removal; and
(ii) Applications that the regulatory authority has determined to be
administratively complete before the effective date of the stream
protection rule under the applicable regulatory program.
(5) Any application for a permit revision submitted on or after the
effective date of the stream protection rule under the applicable
regulatory program, or pending a decision as of that date, that proposes
a new excess spoil fill, coal mine waste refuse pile, or coal mine waste
slurry impoundment or that proposes to move or expand the location of an
approved excess spoil fill or coal mine waste facility.
(b) [Reserved]
[81 FR 93323, Dec. 20, 2016]
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\
[[Page 36]]
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
(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
[[Page 37]]
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-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;
[[Page 38]]
(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, 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
[[Page 39]]
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
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.
[[Page 40]]
(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 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
[[Page 41]]
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.
(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.
[[Page 42]]
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 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;
[[Page 43]]
(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 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
[[Page 44]]
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 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
[[Page 45]]
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 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
[[Page 46]]
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 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
[[Page 47]]
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]
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
[[Page 48]]
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 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.
[[Page 49]]
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
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
[[Page 50]]
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 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
[[Page 51]]
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 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
[[Page 52]]
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.
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
[[Page 53]]
(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 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.
[[Page 54]]
(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 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
[[Page 55]]
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 at 50
percent or more by funds appropriated from a government financing
agency's budget or obtained from general revenue bonds. Government
financing at less than 50 percent may qualify if the construction is
undertaken as an approved reclamation project under Title IV of the Act.
Construction funded through government financing agency guarantees,
insurance, loans, funds obtained through industrial revenue bonds or
their equivalent, or in-kind payments does not qualify as government-
financed construction.
[44 FR 15322, Mar. 13, 1979, as amended at 64 FR 7482, Feb. 12, 1999; 68
FR 65625, Nov. 20, 2003]
Sec. 707.10 Information collection.
Since the information collection requirement contained in 30 CFR
707.12 consists only of expenditures on information collection
activities that would be incurred by persons in the normal course of
their activities, it is exempt from the requirements of the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.) and does not require clearance by
OMB.
[64 FR 7482, Feb. 12, 1999]
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 56]]
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 57]]
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 or the profile of
the hollow from the toe of the fill to the top of the fill is greater
than 10. 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,
[[Page 58]]
or reservoir. It encompasses the quantity and quality relationships
between precipitation, runoff, evaporation, and 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
[[Page 59]]
where leaching of soluble or suspended particles is the greatest.
(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 or the profile of the hollow from the toe of the fill to the top of
the fill is greater than 10.
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 60]]
(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 61]]
(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 62]]
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 63]]
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 64]]
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 65]]
(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 66]]
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 67]]
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 68]]
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 69]]
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 70]]
(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 71]]
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 72]]
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.
(i) The method of spoil placement shall be designed to ensure mass
stability and prevent mass movement in
[[Page 73]]
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--
(i) Achieve the most moderate slope possible which does not exceed
the angle of repose, and
[[Page 74]]
(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
contour. Stockpiles shall be selectively placed and protected from wind
and
[[Page 75]]
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
pH \3\...................................... (\4\ ) (\4\ )
------------------------------------------------------------------------
\1\ Based on representative sampling.
[[Page 76]]
\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 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
[[Page 77]]
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 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
[[Page 78]]
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 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.
[[Page 79]]
(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
(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
[[Page 80]]
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 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
[[Page 81]]
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 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
[[Page 82]]
(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.
(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
[[Page 83]]
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 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.
[[Page 84]]
(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 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 85]]
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 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
[[Page 86]]
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. 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
[[Page 87]]
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 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.
[[Page 88]]
(D) Blasting-level chart. (1) An operator may use the ground-
vibration limits in Figure 1 to determine the maximum allowable ground
vibration.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
(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 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:
[[Page 89]]
(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 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
[[Page 90]]
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 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
[[Page 91]]
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 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]
[[Page 92]]
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.
(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
[[Page 93]]
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--
(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
[[Page 94]]
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 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
[[Page 95]]
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. 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)
[[Page 96]]
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.
(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
[[Page 97]]
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 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
[[Page 98]]
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;
(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--
[[Page 99]]
(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 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,
[[Page 100]]
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.
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]
[[Page 101]]
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 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
[[Page 102]]
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 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. 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 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
[[Page 103]]
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 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
[[Page 104]]
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 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
[[Page 105]]
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;
(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
[[Page 106]]
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:
(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.
[[Page 107]]
(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
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--
[[Page 108]]
(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 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.
[[Page 109]]
(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 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.
[[Page 110]]
(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 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
[[Page 111]]
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).
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
[[Page 112]]
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--
(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;
[[Page 113]]
(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
(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.
[[Page 114]]
(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.
(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
[[Page 115]]
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 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-
[[Page 116]]
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 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.
[[Page 117]]
(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 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.
[[Page 118]]
(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: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., and 31 U.S.C.
3701.
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 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).
[[Page 119]]
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:
(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
[[Page 120]]
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.......................................................... 64
2.......................................................... 129
3.......................................................... 193
4.......................................................... 257
5.......................................................... 321
6.......................................................... 386
7.......................................................... 450
8.......................................................... 514
9.......................................................... 578
10......................................................... 643
11......................................................... 707
12......................................................... 771
13......................................................... 835
14......................................................... 900
15......................................................... 965
16......................................................... 1,029
17......................................................... 1,093
18......................................................... 1,158
19......................................................... 1,222
20......................................................... 1,286
21......................................................... 1,350
22......................................................... 1,415
23......................................................... 1,479
24......................................................... 1,543
25......................................................... 1,607
26......................................................... 1,929
27......................................................... 2,250
28......................................................... 2,571
29......................................................... 2,770
30......................................................... 3,215
31......................................................... 3,536
32......................................................... 3,857
33......................................................... 4,179
34......................................................... 4,500
35......................................................... 4,822
36......................................................... 5,143
37......................................................... 5,465
38......................................................... 5,786
39......................................................... 6,107
40......................................................... 6,428
41......................................................... 6,751
42......................................................... 7,072
43......................................................... 7,393
44......................................................... 7,715
45......................................................... 8,036
46......................................................... 8,358
47......................................................... 8,679
48......................................................... 9,001
49......................................................... 9,322
50......................................................... 9,643
51......................................................... 9,964
52......................................................... 10,287
53......................................................... 10,608
54......................................................... 10,929
55......................................................... 11,251
56......................................................... 11,572
57......................................................... 11,893
58......................................................... 12,215
59......................................................... 12,537
60......................................................... 12,858
61......................................................... 13,179
62......................................................... 13,501
63......................................................... 13,823
64......................................................... 14,144
65......................................................... 14,465
66......................................................... 14,787
67......................................................... 15,108
68......................................................... 15,429
69......................................................... 15,751
70......................................................... 16,073
------------------------------------------------------------------------
[[Page 121]]
[45 FR 58783, Sept. 4, 1980, as amended at 62 FR 63276, Nov. 28, 1997;
66 FR 58646, Nov. 21, 2001; 70 FR 70700, Nov. 22, 2005; 74 FR 34492,
July 15, 2009; 79 FR 18447, Apr. 2, 2014; 81 FR 44540, July 8, 2016; 82
FR 9353, Feb. 6, 2017]
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)
of this section, 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, 30 U.S.C. 1271(a), a civil penalty of not less than
$2,411 will 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;
66 FR 58647, Nov. 21, 2001; 70 FR 70700, Nov. 22, 2005; 81 FR 44540,
July 8, 2016; 82 FR 9354, Feb. 6, 2017]
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 notice of violation or
cessation order. The Office shall consider any information so submitted
in determining the
[[Page 122]]
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.
(e) The conference officer may terminate the conference when he
determines that the issues cannot be resolved or that the person
assessed is
[[Page 123]]
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.
724.12 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: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., and 31 U.S.C.
3701.
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. 724.12 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.
[[Page 124]]
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 will not exceed $16,073 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; 70
FR 70701, Nov. 22, 2005; 74 FR 34493, July 15, 2009; 79 FR 18447, Apr.
2, 2014; 81 FR 44541, July 8, 2016; 82 FR 9354, Feb. 6, 2017]
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, 801 North Quincy Street, 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 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; 67
FR 5204, Feb. 5, 2002]
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
[[Page 125]]
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
by the U.S. Department of the Treasury for late charges on late payments
to the Federal Government. The Treasury current value of funds rate is
published by the Fiscal Service in the notices section of the Federal
Register and on Treasury's Web site. 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 Sec. 870.23(a) through (f) of this chapter.
Delinquent penalties are subject to late payment penalties specified in
Sec. 870.21(c) of this chapter and processing and handling charges
specified in Sec. 870.21(d) of this chapter.
[53 FR 3674, Feb. 8, 1988, as amended at 73 FR 67630, Nov. 14, 2008]
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.
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]
[[Page 126]]
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]
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
[[Page 127]]
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 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.
[[Page 128]]
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 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
[[Page 129]]
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 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
[[Page 130]]
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 and 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 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
[[Page 131]]
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 132]]
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 133]]
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 134]]
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 135]]
(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 136]]
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 137]]
(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, 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;
[[Page 138]]
(10) Provide for public participation in the development, revision
and enforcement of State regulations and the 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]
Editorial Note: For a document suspending Sec. 732.15(b)(7) in part,
see 45 FR 51548, Aug. 4, 1980.
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
[[Page 139]]
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.
(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
information required by paragraph (f)(1), or does not subsequently
comply with the submitted timetable, or if the resulting proposed
amendment is not approved under this section, then the Director must
begin proceedings under 30 CFR part 733 if the Director has reason to
believe that such action is warranted because the State is not
effectively implementing, administering, maintaining or enforcing all or
part of its approved State 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 30 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.
(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
[[Page 140]]
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 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 does not approve the amendment request, the
State regulatory authority will have 60 days after publication of the
Director's decision to submit a revised amendment for consideration by
the Director. If more time may be needed by the State to submit a
revised amendment, the Director may grant more time by specifying in the
decision, a date by which the State regulatory authority must submit a
revised amendment. The date specified in the Director's decision should
be based on the circumstances of the situation and the established
administrative or legislative procedures of the State in question.
(9) The Director will approve or not approve revised amendment
submissions in accordance with the provisions under paragraph (h) 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 not approving program amendments
must be published in the Federal Register and will be effective upon
publication unless the notice specifies a different effective date. The
decision approving or not approving program amendments will be published
in the Federal Register within 30 days after the date of the Director's
decision.
(13) Final action on all amendment requests must be completed within
seven 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, 26367, June 17, 1982; 52 FR 4261, Feb. 10, 1987; 70 FR 61206,
Oct. 20, 2005]
[[Page 141]]
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 142]]
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 143]]
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 144]]
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 145]]
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 146]]
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 147]]
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 148]]
(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 149]]
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 150]]
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 151]]
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 152]]
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 153]]
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
[[Page 154]]
Act 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 155]]
(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 156]]
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.
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;
(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) Decisions on requests to determine whether a person possesses
valid existing rights to conduct surface coal mining operations on
Federal lands within the areas specified in Sec. 761.11(a) and (b) of
this chapter; and
(5) Issuance of findings concerning whether there are significant
recreational, timber, economic, or other values that may be incompatible
with surface coal mining operations on Federal lands within a national
forest, as specified in Sec. 761.11(b) of this chapter.
(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;
(4) Approval and release of performance bonds, liability insurance
and, as applicable, Federal lessee protection bonds required for surface
coal mining
[[Page 157]]
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; 64 FR 70830, Dec. 17, 1999]
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 Lands Leasing Act of 1947 (30 U.S.C. 351 et seq.).
[[Page 158]]
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.
(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. The OMB clearance number is 1029-0027. This
information is needed to implement section 523 of the Act, which governs
surface coal mining operations on Federal lands. Persons intending to
conduct such operations must respond to obtain a benefit.
(b) OSM estimates that the public reporting burden for this part
will average 26 hours per respondent, 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 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, N.W, Washington, DC
20503. Please refer to OMB Control Number 1029-0027 in any
correspondence.
[64 FR 70831, Dec. 17, 1999]
[[Page 159]]