[Federal Register Volume 80, Number 143 (Monday, July 27, 2015)]
[Proposed Rules]
[Pages 44436-44698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17308]



[[Page 44435]]

Vol. 80

Monday,

No. 143

July 27, 2015

Part II





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement





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





Stream Protection Rule; Proposed Rule

Federal Register / Vol. 80 , No. 143 / Monday, July 27, 2015 / 
Proposed Rules

[[Page 44436]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

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

RIN 1029-AC63
[Docket ID: OSM-2010-0018; S1D1S SS08011000 SX064A000 156S180110; S2D2S 
SS08011000 SX064A000 15X501520]


Stream Protection Rule

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

ACTION: Proposed rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE or OSM), are proposing to revise our regulations, based on, 
among other things, advances in science, to improve the balance between 
environmental protection and the Nation's need for coal as a source of 
energy. This proposed rule would better protect streams, fish, 
wildlife, and related environmental values from the adverse impacts of 
surface coal mining operations and provide mine operators with a 
regulatory framework to avoid water pollution and the long-term costs 
associated with water treatment. We propose to revise our regulations 
to clearly define ``material damage to the hydrologic balance outside 
the permit area'' and require that each permit specify the point at 
which adverse mining-related impacts on groundwater and surface water 
would reach that level of damage; collect adequate premining data about 
the site of the proposed mining operation and adjacent areas to 
establish an adequate baseline for evaluation of the impacts of mining 
and the effectiveness of reclamation; adjust monitoring requirements to 
enable timely detection and correction of any adverse trends in the 
quality or quantity of surface water and groundwater or the biological 
condition of streams; ensure protection or restoration of perennial and 
intermittent streams and related resources; ensure that permittees and 
regulatory authorities make use of advances in science and technology; 
ensure that land disturbed by mining operations is restored to a 
condition capable of supporting the uses that it was capable of 
supporting before mining; and update and codify the requirements and 
procedures for protection of threatened or endangered species and 
designated critical habitat. The proposed changes would apply to both 
surface mines and the surface effects of underground mines. The 
majority of the proposed revisions update our regulations to 
incorporate or reflect the best available science and experience gained 
over the last 30 years. Approximately thirty percent of the proposed 
rule consists of editorial revisions and organizational changes 
intended to improve consistency, clarity, accuracy, and ease of use.

DATES: Electronic or written comments: We will accept electronic or 
written comments on the proposed rule, the draft environmental impact 
statement, and the draft regulatory impact analysis on or before 
September 25, 2015.

ADDRESSES: You may submit comments by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. The Docket 
ID for the proposed rule is OSM-2010-0018, while the Docket ID for the 
draft environmental impact statement is OSM-2010-0021 and the docket ID 
for the draft regulatory impact analysis is OSM-2015-0002. Please 
follow the online instructions for submitting comments.
    Mail/Hand-Delivery/Courier: Office of Surface Mining Reclamation 
and Enforcement, Administrative Record, Room 252 SIB, 1951 Constitution 
Avenue NW., Washington, DC 20240. Please include the appropriate Docket 
ID: OSM-2010-0018 for the proposed rule, OSM-2010-0021 for the draft 
environmental impact statement, or OSM-2015-0002 for the draft 
regulatory impact analysis.
    If you wish to comment on the information collection aspects of 
this proposed rule, submit your comments to the Department of the 
Interior Desk Officer at OMB--OIRA, via email at 
[email protected], or via facsimile at (202) 395-5806. Also, 
send a copy of your comments to John A. Trelease, Office of Surface 
Mining Reclamation and Enforcement, 1951 Constitution Ave. NW., Room 
203 SIB, Washington, DC 20240, or via email at [email protected].
    You may review the proposed rule, the draft environmental impact 
statement, and the draft regulatory impact analysis online at 
www.osmre.gov. You also may review these documents in person at the 
location listed below and at the addresses listed in Part XII under 
SUPPLEMENTARY INFORMATION. You may also review the information 
collection requests at http://www.reginfo.gov/public/do/PRAMain.

Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, Room 101 SIB, 1951 Constitution Avenue NW., Washington, DC 
20240, 202-208-4264.

FOR FURTHER INFORMATION CONTACT:
    For the proposed rule: Dennis G. Rice, Office of Surface Mining 
Reclamation and Enforcement, U.S. Department of the Interior, 1951 
Constitution Avenue NW., Washington, DC 20240. Telephone: 202-208-2829.
    For the draft environmental impact statement: Robin T. Ferguson, 
Office of Surface Mining Reclamation and Enforcement, U.S. Department 
of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2802.
    For the draft regulatory impact analysis: Mark Gehlhar, Office of 
Surface Mining Reclamation and Enforcement, U.S. Department of the 
Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2716.
    For information collection matters: John A. Trelease, Office of 
Surface Mining Reclamation and Enforcement, U.S. Department of the 
Interior, 1951 Constitution Avenue NW., Washington, DC 20240. 
Telephone: 202-208-2716.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Why are we proposing to revise our regulations?
III. What needs does this proposed rule address?
IV. What Clean Water Act programs protect streams?
V. What provisions of SMCRA provide legal authority for the proposed 
rule?
VI. What is the history of our regulation of coal mining in relation 
to buffer zones for streams?
VII. Why does the proposed rule include protective measures for 
ephemeral streams?
VIII. Overview and Tabular Summaries of Proposed Revisions and 
Organizational Changes
IX. How do we propose to revise specific provisions of our existing 
regulations?
    A. Section 700.11(d): Termination and Reassertion of 
Jurisdiction
    B. Section 701.5: Definitions
    C. Part 773: Requirements for Permits and Permit Processing
    1. Section 773.5: How must the regulatory authority coordinate 
the permitting process with requirements under other laws?
    2. Section 773.7: How and when will the regulatory authority 
review and make a decision on a permit application?
    3. Section 773.15: What findings must the regulatory authority 
make before approving a permit application?
    4. Section 773.17: What conditions must the regulatory authority 
place on each permit issued?
    D. Part 774: Revision; Renewal; Transfer, Assignment, or Sale of 
Permit Rights; Post-Permit Issuance Requirements

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    1. Section 774.10: When must the regulatory authority review a 
permit?
    2. Section 774.15: How may I renew a permit?
    E. Part 777: General Content Requirements for Permit 
Applications
    1. Section 777.11: What are the format and content requirements 
for permit applications?
    2. Section 777.13: What requirements apply to the collection, 
analysis, and reporting of technical data and to the use of models?
    3. Section 777.15: What information must my application include 
to be administratively complete?
    F. Part 779: Surface Mining Permit Applications--Minimum 
Requirements for Information on Environmental Resources and 
Conditions
    1. Section 779.1: What does this part do?
    2. Section 779.2: What is the objective of this part?
    3. Why are we proposing to remove existing 30 CFR 779.11 and 
779.12?
    4. Section 779.19: What information on vegetation must I include 
in my permit application?
    5. Section 779.20: What information on fish and wildlife 
resources must I include in my permit application?
    6. Section 779.21: What information on soils must I include in 
my permit application?
    7. Section 779.22: What information on land use and productivity 
must I include in my permit application?
    8. Section 779.24: What maps, plans, and cross-sections must I 
submit with my permit application?
    G. Part 780: Surface Mining Permit Applications--Minimum 
Requirements for Reclamation and Operation Plans
    1. Section 780.1: What does this part do?
    2. Section 780.2: What is the objective of this part?
    3. Section 780.12: What information must the reclamation plan 
include?
    4. Section 780.13: What additional maps and plans must I include 
in the reclamation plan?
    5. Why are we proposing to remove existing 30 CFR 780.15?
    6. Section 780.16: What must I include in the fish and wildlife 
protection and enhancement plan?
    7. Section 780.19: What baseline information on hydrology, 
geology, and aquatic biology must I provide?
    8. Section 780.20: How must I prepare the determination of the 
probable hydrologic consequences of my proposed operation (PHC 
determination)?
    9. Section 780.21: What requirements apply to preparation and 
review of the cumulative hydrologic impact assessment (CHIA)?
    10. Section 780.22: What information must I include in the 
hydrologic reclamation plan and what information must I provide on 
alternative water resources?
    11. Section 780.23: What information must I include in plans for 
the monitoring of groundwater, surface water, and the biological 
condition of streams during and after mining?
    12. Section 780.24: What requirements apply to the postmining 
land use?
    13. Section 780.25: What information must I provide for 
siltation structures, impoundments, and refuse piles?
    14. Section 780.28: What additional requirements apply to 
proposed activities in, through, or adjacent to streams?
    15. Section 780.29: What information must I include in the 
surface-water runoff control plan?
    16. Section 780.35: What information must I provide concerning 
the minimization and disposal of excess spoil?
    17. Section 780.37: What information must I provide concerning 
access and haul roads?
    H. Part 783: Underground Mining Permit Applications--Minimum 
Requirements for Information on Environmental Resources and 
Conditions
    1. Section 783.24: What maps, plans, and cross-sections must I 
submit with my permit application?
    I. Part 784: Underground Mining Permit Applications--Minimum 
Requirements for Reclamation and Operation Plans
    1. Section 784.11: What must I include in the general 
description of my proposed operation?
    2. Section 784.13: What additional maps and plans must I include 
in the reclamation plan?
    3. Section 784.19: What baseline information on hydrology, 
geology, and aquatic biology must I provide?
    4. Section 784.20: How must I prepare the determination of the 
probable hydrologic consequences of my proposed operation (PHC 
determination)?
    5. Section 784.21: What requirements apply to preparation and 
review of the cumulative hydrologic impact assessment (CHIA)?
    6. Section 784.22: What information must I include in the 
hydrologic reclamation plan and what information must I provide on 
alternative water resources?
    7. Section 784.23: What information must I include in my plans 
for the monitoring of groundwater, surface water, and the biological 
condition of streams during and after mining?
    8. Section 784.24: What requirements apply to the postmining 
land use?
    9. Why are we proposing to remove existing 30 CFR 784.26?
    10. Section 784.26: What information must I provide if I plan to 
return coal processing waste to abandoned underground workings?
    11. Section 784.28: What additional requirements apply to 
proposed surface activities in, through, or adjacent to streams?
    12. Section 784.30: When must I prepare a subsidence control 
plan and what information must that plan include?
    13. Section 784.35: What information must I provide concerning 
the minimization and disposal of excess spoil?
    14. Why are we proposing to remove existing 30 CFR 784.200?
    J. Part 785: Requirements for Permits for Special Categories of 
Mining
    1. Section 785.14: What special provisions apply to proposed 
mountaintop removal mining operations?
    2. Section 785.16: What special requirements apply to proposed 
variances from approximate original contour restoration requirements 
for steep-slope mining?
    3. Section 785.25: What special provisions apply to proposed 
operations on lands eligible for remining?
    K. Part 800: Bond, Financial Assurance, and Liability Insurance 
Requirements for Surface Coal Mining and Reclamation Operations
    1. How do we propose to guarantee treatment of long-term 
discharges?
    2. How do we propose to revise the definitions in section 800.5?
    3. Section 800.9: What requirements apply to alternative bonding 
systems?
    4. Section 800.11: When and how must I file a bond?
    5. Section 800.12: What form of bond is acceptable?
    6. Section 800.13: What is the liability period for a bond?
    7. Section 800.14: How will the regulatory authority determine 
the amount of bond required?
    8. Section 800.15: When must the regulatory authority adjust the 
bond amount and when may I request adjustment of the bond amount?
    9. Section 800.16: What are the general terms and conditions of 
the bond?
    10. Why are we proposing to remove existing 30 CFR 800.17?
    11. Section 800.18: What special provisions apply to financial 
guarantees for treatment of long-term discharges?
    12. Section 800.21: What additional requirements apply to 
collateral bonds?
    13. Section 800.23: What additional requirements apply to self-
bonds?
    14. Section 800.30: When may I replace a bond or financial 
assurance instrument and when must I do so?
    15. Section 800.40: How do I apply for release of all or part of 
a bond?
    16. Section 800.41: How will the regulatory authority process my 
application for bond release?
    17. Section 800.42: What are the criteria for bond release?
    18. Section 800.43: When and how must the regulatory authority 
provide notification of its decision on a bond release application?
    19. Section 800.44: Who may file an objection to a bond release 
application and how must the regulatory authority respond to an 
objection?
    L. Part 816: Permanent Program Performance Standards--Surface 
Mining Activities
    1. Section 816.1: What does this part do?
    2. Section 816.2: What is the objective of this part?
    3. Section 816.11: What signs and markers must I post?
    4. Section 816.22: How must I handle topsoil, subsoil, and other 
plant growth media?
    5. Section 816.34: How must I protect the hydrologic balance?

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    6. Section 816.35: How must I monitor groundwater?
    7. Section 816.36: How must I monitor surface water?
    8. Section 816.37: How must I monitor the biological condition 
of streams?
    9. Section 816.38: How must I handle acid-forming and toxic-
forming materials?
    10. Section 816.40: What responsibility do I have to replace 
water supplies?
    11. Section 816.41: Under what conditions may I discharge to an 
underground mine?
    12. Section 816.42: What are my responsibilities to comply with 
water quality standards and effluent limitations?
    13. Section 816.43: How must I construct and maintain diversions 
and other channels to convey water?
    14. Section 816.45: What sediment control measures must I use?
    15. Section 816.46: What requirements apply to siltation 
structures?
    16. Section 816.47: What requirements apply to discharge 
structures for impoundments?
    17. Section 816.49: What requirements apply to impoundments?
    18. Section 816.57: What additional performance standards apply 
to activities in, through, or adjacent to a perennial or 
intermittent stream?
    19. Section 816.71: How must I dispose of excess spoil?
    20. Why are we proposing to remove the provisions for rock-core 
chimney drains in existing 30 CFR 816.72?
    21. Why are we proposing to remove the provisions for durable 
rock fills in existing 30 CFR 816.73?
    22. Section 816.74: What special requirements apply to the 
disposal of excess spoil on a preexisting bench?
    23. Section 816.81: How must I dispose of coal mine waste?
    24. Section 816.83: What special performance standards apply to 
coal mine waste refuse piles?
    25. Section 816.84: What special requirements apply to coal mine 
waste impounding structures?
    26. Section 816.95: How must I protect surface areas from wind 
and water erosion?
    27. Section 816.97: How must I protect and enhance fish, 
wildlife, and related environmental values?
    28. Section 816.99: What measures must I take to prevent and 
remediate landslides?
    29. Section 816.100: What are the standards for keeping 
reclamation contemporaneous with mining?
    30. Why are we proposing to remove existing 30 CFR 816.101?
    31. Section 816.102: How must I backfill the mined area and 
configure the land surface?
    32. Section 816.104: What special provisions for backfilling, 
grading, and surface configuration apply to sites with thin 
overburden?
    33. Section 816.105: What special provisions for backfilling, 
grading, and surface configuration apply to sites with thick 
overburden?
    34. Section 816.106: What special provisions for backfilling, 
grading, and surface configuration apply to previously mined areas 
with a preexisting highwall?
    35. Section 816.107: What special provisions for backfilling, 
grading, and surface configuration apply to steep slopes?
    36. Section 816.111: How must I revegetate the area disturbed by 
mining?
    37. Why are we proposing to remove existing 30 CFR 816.113 and 
816.114?
    38. Section 816.115: How long am I responsible for revegetation 
after planting?
    39. Section 816.116: What are the standards for determining the 
success of revegetation?
    40. Section 816.133: What provisions concerning the postmining 
land use apply to my operation?
    41. Why are we proposing to remove the interpretive rule in 
existing 30 CFR 816.200?
    M. Part 817: Permanent Program Performance Standards--
Underground Mining Activities
    1. Section 817.11: What signs and markers must I post?
    2. Section 817.34: How must I protect the hydrologic balance?
    3. Section 817.40: What responsibility do I have to replace 
water supplies?
    4. Section 817.44: What restrictions apply to gravity discharges 
from underground mines?
    5. Section 817.57: What additional performance standards apply 
to surface activities conducted in, through, or adjacent to a 
perennial or intermittent stream?
    6. Section 817.71: How must I dispose of excess spoil?
    7. Section 817.102: How must I backfill surface excavations and 
grade and configure the land surface?
    8. Section 817.121: What measures must I take to prevent, 
control, or correct damage resulting from subsidence?
    9. Why are we proposing to remove the interpretive rules in 
existing 30 CFR 817.200?
    N. Part 824: Special Permanent Program Performance Standards--
Mountaintop Removal Mining Operations
    O. Part 827: Special Permanent Program Performance Standards--
Coal Preparation Plants Not Located Within the Permit Area of a Mine
X. What effect would this rule have in federal program states and on 
Indian lands?
XI. How would this rule affect state regulatory programs?
XII. How do I submit comments on the proposed rule?
XIII. Procedural Matters and Required Determinations
    A. Regulatory Planning and Review (Executive Orders 12866 and 
13563)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates
    E. Executive Order 12630--Takings
    F. Executive Order 13132--Federalism
    G. Executive Order 12988--Civil Justice Reform
    H. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    I. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. Paperwork Reduction Act
    K. National Environmental Policy Act
    L. Data Quality Act
    M. 1 CFR part 51--Incorporation by reference

I. Executive Summary

    Significant advances in scientific knowledge and mining and 
reclamation techniques have occurred in the more than 30 years that 
have elapsed since the enactment of the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act) \1\ and the adoption of 
federal regulations implementing that law. The proposed rule seeks to 
acknowledge the advancements in science, technology, policy, and the 
law that impact coal communities and natural resources, based on our 
experience and engagement with state regulatory authorities, industry, 
non-governmental organizations, academia, citizens, and other 
stakeholders.
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    \1\ 30 U.S.C. 1201 et seq.
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    The primary purpose of this proposed rule is to reinforce the need 
to minimize the adverse impacts \2\ of surface coal mining operations 
on surface water, groundwater, fish, wildlife, and related 
environmental values, with particular emphasis on protecting or 
restoring streams and aquatic ecosystems. The proposed rule, if adopted 
as final, also will enhance public health by reducing exposure to 
contaminants from coal mining in drinking water. The proposed rule has 
the following seven major elements:
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    \2\ Impacts include loss of headwater streams, long-term 
degradation of water quality in streams downstream of a mine, 
displacement of native species, fragmentation of large blocks of 
mature hardwood forests, compaction and improper construction of 
postmining soils that inhibit the reestablishment of native plant 
communities and adverse impacts on watershed hydrology where coal 
mining occurs.
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     First, the proposed rule defines the term ``material 
damage to the hydrologic balance outside the permit area'' and requires 
that each permit establish the point at which adverse mining-related 
impacts on groundwater and surface water reach an unacceptable level; 
i.e., the point at which adverse impacts from mining would cause 
material damage to the hydrologic balance outside the permit area.
     Second, the proposed rule sets forth how to collect 
adequate premining data about the site of the proposed mining operation 
and adjacent areas to establish a comprehensive baseline that will

[[Page 44439]]

facilitate evaluation of the effects of mining operations.
     Third, the proposed rule outlines how to conduct 
effective, comprehensive monitoring of groundwater and surface water 
during and after both mining and reclamation and during the 
revegetation responsibility period to provide real-time information 
documenting mining-related changes in water quality and quantity. 
Similarly, the proposed rule addresses the need to require monitoring 
of the biological condition of streams during and after mining and 
reclamation to evaluate changes in aquatic life. Proper monitoring 
would enable timely detection of any adverse trends and allow timely 
implementation of any necessary corrective measures.
     Fourth, the proposed rule promotes the protection or 
restoration of perennial and intermittent streams and related 
resources, especially the headwater streams that are critical to 
maintaining the ecological health and productivity of downstream 
waters.
     Fifth, the proposed rule is intended to ensure that 
permittees and regulatory authorities make use of advances in 
information, technology, science, and methodologies related to surface 
and groundwater hydrology, surface-runoff management, stream 
restoration, soils, and revegetation, all of which relate directly or 
indirectly to protection of water resources.
     Sixth, the proposed rule is intended to ensure that land 
disturbed by surface coal mining operations is restored to a condition 
capable of supporting the uses that it was capable of supporting before 
mining. Soil characteristics and the degree and type of revegetation 
have a significant impact on surface-water runoff quantity and quality 
as well as on aquatic life and the terrestrial ecosystems dependent 
upon perennial and intermittent streams. The proposed rule also would 
require revegetation of reclaimed minesites with native species unless 
and until a conflicting postmining land use, such as intensive 
agriculture, is implemented.
     Seventh, the proposed rule would update and codify 
requirements and procedures to protect threatened and endangered 
species and designated critical habitat under the Endangered Species 
Act of 1973.\3\ It also would better explain how the fish and wildlife 
protection and enhancement provisions of SMCRA should be implemented.
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    \3\ 16 U.S.C. 1531 et seq.
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    This proposed rule would more completely implement SMCRA's 
permitting requirements and performance standards, provide regulatory 
clarity to operators and stakeholders while better achieving the 
purposes of SMCRA as set forth in section 102 of the Act.\4\ In 
particular, the proposed rule would more completely realize the 
purposes in paragraphs (a), (c), (d), and (f) of that section, which 
include establishing a nationwide program to protect society and the 
environment from the adverse effects of surface coal mining operations 
and assuring that surface coal mining operations are conducted in an 
environmentally protective manner and are not conducted where 
reclamation is not feasible. Furthermore, the proposed rule is intended 
to address recent court decisions, mitigate legal challenges, and 
strike the appropriate balance between environmental protection, 
agricultural productivity and the Nation's need for coal as an 
essential source of energy, while providing greater regulatory 
certainty to the mining industry.
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    \4\ 30 U.S.C. 1202.
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    Apart from the procedural determinations in Part XIII, this 
document does not discuss the benefits and costs of the proposed rule 
in detail. Please refer to the draft regulatory impact analysis for an 
in-depth analysis of projected benefits and costs of the proposed rule 
and other alternatives under consideration.

II. Why are we proposing to revise our regulations?

    Our primary purpose in proposing this rule is to strike a better 
balance between ``protection of the environment and agricultural 
productivity and the Nation's needs for coal as an essential source of 
energy.'' \5\ Specifically, the proposed rule is designed to minimize 
the adverse impacts of surface coal mining operations on surface water, 
groundwater, and site productivity, with particular emphasis on 
protecting or restoring streams, aquatic ecosystems, riparian habitats 
and corridors, native vegetation, and the ability of mined land to 
support the uses that it was capable of supporting before mining. Our 
proposed changes reflect our experience during the more than three 
decades since adoption of the existing regulations, as well as advances 
in scientific knowledge and mining and reclamation techniques during 
that time. The proposed rule would more completely implement sections 
515(b)(24) and 516(b)(11) of SMCRA, which provide that, to the extent 
possible using the best technology currently available, surface coal 
mining and reclamation operations must be conducted to minimize 
disturbances and adverse impacts on fish, wildlife, and related 
environmental values and to achieve enhancement of those resources 
where practicable.\6\ It also would update our regulations concerning 
compliance with the Endangered Species Act of 1973.\7\ In addition, we 
propose to revise and reorganize our regulations for clarity, to make 
them more user-friendly, to remove obsolete and redundant provisions, 
and to implement plain language principles.
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    \5\ 30 U.S.C. 1202(f).
    \6\ See 30 U.S.C. 1265(b)(24) and 1266(b)(11).
    \7\ 16 U.S.C. 1531 et seq.
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    Coal mining operations continue to have adverse impacts on streams, 
fish, and wildlife despite the enactment of SMCRA and the adoption of 
federal regulations implementing that law more than 30 years ago. Those 
impacts include loss of headwater streams, long-term degradation of 
water quality in streams downstream of a mine, displacement of 
pollution-sensitive species of fish and insects by pollution-tolerant 
species, fragmentation of large blocks of mature hardwood forests, 
replacement of native species by highly competitive non-native species 
that inhibit reestablishment of native plant communities, and 
compaction and improper construction of postmining soils that result in 
a reduction of site productivity and adverse impacts on watershed 
hydrology.

Impacts on Aquatic Ecology

    Headwater streams consist of first-order through third-order 
streams \8\ under the Strahler stream-order system, which is the 
generally-accepted geographical classification system for ranking 
streams by size.\9\ Headwater streams are the small swales, creeks, and 
streams that connect to form larger streams and rivers. They trap 
floodwaters, recharge groundwater, remove pollution, provide fish and 
wildlife habitat, and sustain the health of downstream rivers, lakes, 
and bays. These streams support diverse biological communities of 
aquatic invertebrates, such as insects, and

[[Page 44440]]

vertebrates, including fish and salamanders, that are often distinct 
from the species found further downstream. Headwater streams function 
as sources of sediment, water, nutrients, and organic matter for 
downstream systems. Riparian vegetation provides organic matter to 
headwater streams in the form of dropped leaves and other plant parts. 
This organic matter fuels the aquatic food web.\10\ According to the 
U.S. Environmental Protection Agency (EPA), headwater streams that flow 
only seasonally or in response to precipitation events; i.e., 
intermittent and ephemeral streams, comprise approximately 53 percent 
of the total stream miles in the continental United States.\11\
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    \8\ The U.S. Geological Survey sometimes characterizes only 
first-order and second-order streams as headwater streams. See, 
e.g., Argue, D. M., Pope, J. P., and Dieffenbach, Fred. 2012. 
Characterization of major-ion chemistry and nutrients in headwater 
streams along the Appalachian National Scenic Trail and within 
adjacent watersheds, Maine to Georgia: U.S. Geological Survey 
Scientific Investigations Report 2011-5151, 63 p., plus CD-ROM, p. 
4. Also available at http://pubs.usgs.gov/sir/2011/5151 (last 
accessed February 27, 2015).
    \9\ See http://geography.about.com/od/physicalgeography/a/streamorder.htm (last accessed January 29, 2015). A first-order 
stream has no tributaries. When two first-order streams join, they 
form a second-order stream. When two second-order streams join, they 
form a third-order stream.
    \10\ Palmer, Margaret A. and Emily S. Bernhardt. 2009. 
Mountaintop Mining Valley Fills and Aquatic Ecosystems: A Scientific 
Primer on Impacts and Mitigation Approaches. p. 12.
    \11\ See http://water.epa.gov/type/rsl/streams.cfm (last 
accessed January 12, 2015).
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    Headwater streams are the streams most likely to be directly 
disturbed or impacted by coal mining activities. The EPA estimates that 
SMCRA permits in existence between 1992 and 2002 authorized the 
destruction of 1,208 miles of headwater streams.\12\ This total 
included approximately 2 percent of the total stream miles and 4 
percent of the first-order and second-order stream miles in the central 
Appalachian coalfields.\13\
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    \12\ U.S. Environmental Protection Agency. 2011. A Field-Based 
Aquatic Life Benchmark for Conductivity in Central Appalachian 
Streams (Final Report). Office of Research and Development, National 
Center for Environmental Assessment, Washington, DC. EPA/600/R-10/
023F, p. 16.
    \13\ Id. However, the fact that the mining plan in the permit 
authorized destruction of a stream segment does not necessarily mean 
that the destruction occurred. In some cases, the permittee may have 
decided not proceed with mining or to alter mining plans subsequent 
to permit issuance. An unknown amount of the habitat destruction was 
offset through the section 404 permitting process of the U.S. Army 
Corps of Engineers, which requires mitigation of loss or degradation 
of waters of the United States.
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    Our proposed rule would address loss of stream miles in two ways. 
First, we propose to amend the standards governing excess spoil and 
coal mine waste to minimize both the generation of excess spoil and the 
placement of excess spoil and coal mine waste in perennial or 
intermittent streams. Second, we propose to adopt standards that would 
minimize mining through perennial and intermittent streams. When mining 
through a perennial or an intermittent stream does occur, our revised 
standards would require that the permittee restore both the 
hydrological form and the ecological function of the mined-through 
stream segment.
    Midwestern studies of reconstructed stream segments demonstrate 
that restoration of hydrological form and ecological function after 
mining through a stream is technologically feasible and attainable. In 
Illinois, case studies documented that streams flowing through channels 
reconstructed after mining can approach the regional biological 
diversity found in streams in unmined watersheds in that region.\14\ 
Another Illinois study focused on 25 miles of low-gradient perennial 
streams with moderately disturbed premining watersheds. Those stream 
segments were relocated in the 1980s to facilitate mining and then were 
restored in their approximate premining location, although two of the 
three streams were routed through permanent pit impoundments for part 
of their length. In general, the study found that the premining 
hydrological form and ecological function of the streams have been 
successfully restored, based on a comparison with relatively 
undisturbed segments of those streams that are upstream of the mining 
operations.\15\ The exception is fish abundance and diversity, which is 
substantially lower, perhaps, the authors suggest, because of the lack 
of mature riparian timber and instream woody debris.\16\ In addition, 
monitoring of habitat, water chemistry, and biological parameters of a 
low-gradient stream in Indiana that flows through a channel 
reconstructed after mining has demonstrated rapid recovery of the 
stream's ecological function.\17\
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    \14\ Nawrot, J., W.G. O'Leary, and P. Malone. 2009. Illinois 
stream restoration--opportunities for habitat enhancement: policy, 
principles, and practices. Pages 183-195 in Proceedings of the 2009 
Geomorphic Reclamation and Natural Stream Design at Coal Mines: A 
Technical Interactive Forum, 28-30 April 2009. Bristol, VA, 226 pp.
    \15\ Williard, Karl, B. Borries, T. Straub, D. Rosenboom, C. 
Nielson, and V. Kelly. 2013. Stream restoration--long term 
performance: a reassessment. Final report for Office of Surface 
Mining Cooperative Agreement S11AC20024 AS.
    \16\ Id. at 77-78. The restored streams have a relative lack of 
minnows and benthic invertivores along with an abundance of sunfish. 
Lentic species replaced lotic species in the two streams that were 
routed through permanent pit impoundments.
    \17\ ENVIRON International Corporation. September 10, 2010. 
Report for Fish and Macroinvertebrate Sampling for 2010 
Bioassessment Monitoring of West Fork Busseron Creek. Prepared for 
Peabody Energy, Evansville, Indiana.
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    The general consensus is that reconstruction and restoration of 
high-gradient streams after mining is more challenging. However, a 2012 
EPA publication notes that ``restoration of high-gradient, very small 
intermittent and ephemeral channels as part of stream mitigation 
projects is common in coalmining regions.'' \18\ This statement appears 
in the context of a discussion of improving existing degraded stream 
channels as mitigation for the adverse impacts of coal mining 
elsewhere, but the principles set forth in the publication also should 
apply to functional restoration of stream channels newly constructed or 
reconstructed as part of surface coal mining and reclamation 
operations. Appendix B of the publication describes a scenario in which 
high-gradient stream channels devoid of aquatic life on an abandoned 
minesite in West Virginia may be restored to biological health in an 
estimated 10 years.\19\
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    \18\ Harman, W., R. Starr, M. Carter, K. Tweedy, M. Clemmons, K. 
Suggs, C. Miller. 2012. A Function-Based Framework for Stream 
Assessment and Restoration Projects. U.S. Environmental Protection 
Agency, Office of Wetlands, Oceans, and Watersheds, Washington, DC 
EPA 843-K-12-006, p. 230.
    \19\ Id. at 336-339.
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    Most adverse impacts of surface coal mining operations on water 
quality occur as a result of the excavation and fracturing of the rock 
layers above the coal seam. The mining process converts mostly solid 
rock, which has few pore spaces and thus offers little opportunity for 
chemical reaction with air and water, into highly fragmented mine 
spoil, which contains a vastly greater number and volume of pore spaces 
and thus offers much greater opportunity for chemical reaction with air 
and water. Surface water and groundwater infiltrate the pore spaces in 
mine spoil placed in the backfilled area of a mine or in an excess 
spoil fill and react with air and the surfaces of the rock fragments to 
produce drainage with high ionic concentrations. Specifically, water 
percolating through an excess spoil fill or the backfilled area of a 
mine typically contains substantially higher concentrations of sulfate, 
bicarbonate, calcium, and magnesium ions, as well as some trace metals, 
compared to the concentrations of those ions and metals in groundwater 
discharges and surface runoff from areas undisturbed by mining.\20\
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    \20\ See, e.g., Lindberg. T.T., E.S. Bernhardt, R. Bier, A. 
Helton, R. Merola, A. Vengosh, and R.T. Di Giulio. 2011. Cumulative 
impacts of mountaintop mining on an Appalachian watershed. 
Proceedings of the National Academy of Sciences 108: 20929-20934, 
20929. The researchers state that typical specific conductance 
levels in low order streams in West Virginia range from 13 to 253 
microSiemens per centimeter ([mu]S/cm). Specific conductance levels 
in streams impacted by mining range from 502 to 2,540 [mu]S/cm. 
(Specific conductance is a measure of electrical conductivity. High 
specific conductance readings are a strong indicator of land 
disturbance, such as agriculture, urbanization, or mining. See Pond, 
G.J., M.E. Passmore, F.A. Borsuk, L. Reynolds, and C.J. Rose. 
2008..Downstream effects of mountaintop coal mining: comparing 
biological conditions using family- and genus-level 
macroinvertebrate bioassessment tools. J. N. Am. Benthol. Soc., 
2008, 27(3): 717-737, 720.)

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[[Page 44441]]

    When sulfate is the dominant anion in those discharges, the result 
can be acid mine drainage, which mobilizes metals such as iron, 
manganese, aluminum, and zinc that are directly toxic to fish at high 
levels.\21\ But high concentrations of sulfate ions do not necessarily 
result in acid mine drainage because groundwater discharges and surface 
runoff from backfilled areas and excess spoil fills often also contain 
elevated concentrations of alkaline ions (especially calcium, 
magnesium, and carbonate ions), which neutralize the acidic sulfate 
ions, thus preventing the formation of acid mine drainage.\22\
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    \21\ Williard, op. cit. at 4.
    \22\ Palmer, M.A. and E.S. Bernhardt. 2009. Mountaintop Mining 
Valley Fills and Aquatic Ecosystems: A Scientific Primer on Impacts 
and Mitigation Approaches, p. 14.
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    However, alkaline ions also can have negative impacts on water 
quality and aquatic life. Elevated concentrations of alkaline ions in 
mine drainage may result in significant increases in the pH and 
electrical conductivity of streams that receive discharges from mined 
areas.\23\ Elevated concentrations of both these ions and sulfate ions 
are highly correlated with elevated electrical conductivity in streams, 
which is highly correlated with the loss or absence of pollution-
sensitive species of aquatic insects and fish even when in-stream 
habitat downstream of the mining activity is otherwise intact.\24\ The 
adverse impacts may extend far downstream. One study found that adverse 
impacts from both surface and underground mines on water quality in 
Appalachian streams extended an average of 6.2 miles downstream from 
the mine.\25\
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    \23\ Id.
    \24\ Id. at 3, 14-15.
    \25\ Petty, T., K. Fulton, M. Strager, G. Merovich, J. Stiles, 
and P. Ziemkiewicz. 2010. Landscape indicators and thresholds of 
stream ecological impairment in an intensively mined Appalachian 
watershed. Journal of the North American Benthological Society 
29(4): 1292-1309.
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    The EPA has established an aquatic life benchmark of 300 
microsiemens per centimeter ([mu]S/cm) for electrical conductivity, 
based on a scientific determination that maintaining conductivity at or 
below this level should prevent the extirpation of 95 percent of 
invertebrate genera, such as mayflies, dragonflies, damselflies, and 
aquatic beetles, in central Appalachian streams.\26\ In other words, 
mining activities that cause an increase in the electrical conductivity 
of a stream to no more than 300 [mu]S/cm would be expected to result in 
the extirpation of no more than 5 percent of the invertebrate genera 
present in the stream before mining. A recent study suggests that a 
similar benchmark for fish would be somewhat higher because adverse 
impacts on the populations and diversity of fish species begin to 
appear at conductivity readings between 600 and 1,000 [mu]S/cm.\27\
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    \26\ U.S. Environmental Protection Agency. 2011. A Field-Based 
Aquatic Life Benchmark for Conductivity in Central Appalachian 
Streams (Final Report). Office of Research and Development, National 
Center for Environmental Assessment, Washington, DC. EPA/600/R-10/
023F, p. 41. EPA states that this benchmark applies to parts of West 
Virginia and Kentucky and that it may be applicable to Ohio, 
Tennessee, Pennsylvania, Virginia, Alabama, and Maryland in 
Ecoregions 68, 69, and 70 because the salt matrix and background 
(calcium and magnesium cations and sulfate and bicarbonate anions at 
circum-neutral pH) is expected to be similar throughout those 
ecoregions. EPA further states that this benchmark also may be 
appropriate for other nearby regions, but that it may not apply when 
the relative concentrations of dissolved ions are different.
    \27\ Hitt, N.P. and D.B. Chambers. 2014. Temporal changes in 
taxonomic and functional diversity of fish assemblages downstream 
from mountaintop mining. Freshwater Science 33(3):000-000. Published 
online June 30, 2014, in unpaginated form.
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    Elevated electrical conductivity in streams can persist for many 
years after the completion of mining and land reclamation.\28\ This 
water quality characteristic can prevent or restrict recolonization by 
the species of fish \29\ and insects \30\ that inhabited the affected 
stream segment before mining began in the watershed. Studies in 
Appalachia of existing minesites have not found any ecologically 
significant improvement in electrical conductivity with either time or 
the extent of reforestation of the minesite.\31\ However, a recent 
study of test plots on a surface mine in Kentucky found that the 
quality of water emanating from plots that used the Forestry 
Reclamation Approach \32\ to soil reconstruction improved dramatically 
within 3 to 9 years after spoil placement, with electrical conductivity 
apparently stabilizing at levels 50 percent below those recorded during 
the first 3 years.\33\ Our proposed rule would address the conductivity 
issue by requiring that backfilling techniques consider impacts on 
electrical conductivity, by requiring that excess spoil fills be 
constructed in compacted lifts, and by incorporating elements of the 
Forestry Reclamation Approach into our soil reconstruction and 
revegetation rules.
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    \28\ See, e.g., Lindberg. T.T., E.S. Bernhardt, R. Bier, A. 
Helton, R. Merola, A. Vengosh, R.T. Di Giulio. 2011. Cumulative 
impacts of mountaintop mining on an Appalachian watershed. 
Proceedings of the National Academy of Sciences 108: 20929-20934, 
20931. Available at http://www.pnas.org/cgi/doi/10.1073/pnas.1112381108 (last accessed January 29, 2015).
    \29\ Hitt and Chambers, op. cit.
    \30\ Pond, G.J., M.E. Passmore, N.D. Pointon, J.K. Felbinger, 
C.A. Walker, K.J.G. Krock, G.B. Fulton, and W.L. Nash. 2014. Long-
Term Impacts on Macroinvertebrates Downstream of Reclaimed 
Mountaintop Mining Valley Fills in Central Appalachia. Environmental 
Management 54(4), 919-933.
    \31\ Id.
    \32\ The Forestry Reclamation Approach is a set of five steps 
for reclaiming mined sites to encourage native forest regeneration. 
These steps are: (1) Prepare a suitable growth medium, (2) minimize 
compaction, (3) minimize competition from groundcover, (4) plant 
early[hyphen] and late[hyphen]successional tree species, and (5) use 
proper tree-planting techniques. See http://arri.osmre.gov/FRA/FRApproach.shtm (last accessed January 6, 2015).
    \33\ Sena, Kenton L., ``Influence of Spoil Type on Afforestation 
Success and Hydrochemical Function on a Surface Coal Mine in Eastern 
Kentucky'' (2014). Theses and Dissertations--Forestry. Paper 16, pp. 
39 and 60. See http://uknowledge.uky.edu/forestry_etds/16 (last 
accessed January 6, 2015). Electrical conductivity during the first 
3 years averaged between 829 and 1224 [mu]S/cm, depending upon 
whether the soil consisted of brown sandstone, gray sandstone, or a 
mix. Electrical conductivity in the last year of the study averaged 
between 421 and 564 [mu]S/cm.
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Selenium Impacts

    In locations with geological formations that contain selenium, 
mining has sometimes resulted in elevated levels of selenium in streams 
downgradient of the minesite. Mining exposes elemental selenium to air, 
thus facilitating oxidation to selenite and selenate, which are soluble 
in water. Selenium bioaccumulates \34\ in fish tissues, causing 
reproductive problems, physical deformities, and, in extreme cases, 
mortality in fish in the affected streams.\35\ Selenium is beneficial 
to animals, including humans, when ingested in small amounts, but toxic 
when ingested in amounts ranging from 0.1 to 10 mg/kg of food.\36\ 
Humans have a dietary requirement estimated to be 0.04 to 0.10 mg/kg of 
food, but ingestion of selenium in amounts as low as 0.07 mg per day 
has been shown to have deleterious effects similar to arsenic 
poisoning.\37\ Thus, selenium concentrations in streams may be a human 
health concern when the stream serves as a drinking water supply or

[[Page 44442]]

when fish in the stream are used for human consumption.
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    \34\ Bioaccumulation means an increase in the concentration of a 
chemical in a biological organism over time, compared to the 
chemical's concentration in the environment. Compounds accumulate in 
living things any time they are taken up and stored faster than they 
are broken down (metabolized) or excreted. See extoxnet.orst.edu/tibs/bioaccum.htm (last accessed January 6, 2015).
    \35\ Hitt and Chambers, op. cit., suggest that an aquatic life 
benchmark for total dissolved selenium concentrations using the 
criteria that EPA relied upon to establish a benchmark for 
electrical conductivity would be between four and seven micrograms 
per liter, at least for fish.
    \36\ U.S. Environmental Protection Agency, ``Quality Criteria 
for Water'' (1976), p. 200.
    \37\ Id.
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    The proposed rule would address the environmental and human health 
concerns related to selenium by requiring collection of baseline 
hydrologic and geologic information on this element. If selenium is 
present in any of the overburden to be removed as part of the mining 
process, the proposed rule would require that the permit include limits 
on selenium discharges to prevent material damage to the hydrologic 
balance outside the permit area. The hydrologic reclamation plan and 
toxic materials handling plan must address selenium and the surface 
water and groundwater monitoring plans must include selenium.

Impacts on Stream Flow Regime and Flooding

    In addition to the water quality impacts discussed above, mining 
may affect the flow regime of streams by removing springs and otherwise 
causing changes in base flow, water temperature, seasonal variations in 
flow, and fluctuations in flow in response to storm events. Reclaimed 
minesites generally exhibit both reduced evapotranspiration (as a 
result of forest loss due to mining) and reduced infiltration of 
rainfall (as a result of soil compaction during reclamation), compared 
to unmined areas. A 2009 study of flood response in Virginia watersheds 
found that flood magnitude increased with the amount of surface-mined 
land within the watershed. In contrast, logging operations that removed 
most forest cover in similar Virginia watersheds increased overall 
water yield within the watershed without increasing flood volume, a 
difference that the authors of the study attributed to the soil 
compaction associated with typical surface mine reclamation. Another 
study in Maryland found that the volume of surface runoff as a result 
of a storm in a watershed influenced by surface mining was 
significantly higher than the volume of runoff from an undisturbed 
forested watershed as a result of the same-size storm. The authors 
attributed this difference to soil compaction on the mined land, which 
reduced infiltration rates to less than 1 cm/hr, compared to 30 cm/hr 
in the undisturbed watershed. Increased surface runoff in response to 
storms increases the potential for flood damage and may adversely 
impact the hydrological function of the stream by causing stream 
channelization.\38\ Our proposed rule would address this issue by 
minimizing soil compaction and maximizing reforestation.
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    \38\ Sena at 27.
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Impacts on Topography and Microclimates

    Mining impacts on the terrestrial environment include a loss of 
topographic complexity; i.e., regraded minesites generally are flatter 
and more uniform in terms of surface elevation and configuration when 
compared with the premining topography. U.S. Geological Survey studies 
of central Appalachia found that surface coal mining reduced ridgetop 
elevations by an average of 112 feet, raised valley floor elevations by 
an average of 174 feet, reduced slope steepness by 9.5-11 percent, and 
changed slope aspect \39\ by 38-41 degrees.\40\ Changes are less 
dramatic in areas with flatter topography, but the same principle of 
greater uniformity and less topographic diversity after mining and 
regrading still applies. Regraded minesites usually lack the small 
drainageways and variations in slope and other topographical features 
found prior to mining. Therefore, they also lack the microclimates and 
associated ecosystems found prior to mining. Landsat data from 2007-
2009 for the area containing a large mountaintop removal mining 
operation in West Virginia indicate that surface temperatures of areas 
disturbed by mining were warmer and more variable in all seasons except 
winter.\41\ Surface temperatures influence the type of vegetation that 
can survive on mined land and the extent and rate at which the 
premining plant community and associated fauna can recolonize the site.
---------------------------------------------------------------------------

    \39\ Aspect is the compass direction that a slope faces. It has 
a significant effect on the soils and microclimate of the slope and 
hence on the plant and animal life found there, as well as the 
site's productivity.
    \40\ Wickham, James, Petra Bohall Wood, Matthew C. Nicholson, 
William Jenkins, Daniel Druckenbrod, Glenn W. Suter, Michael P. 
Strager, Christine Mazzarella, Walter Galloway, and John Amos. The 
overlooked terrestrial impacts of mountaintop mining. BioScience 63, 
no. 5 (2013): 335-348, 338-339.
    \41\ Id. at 338.
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Impacts on Soils, Vegetation, and Terrestrial Wildlife

    Other terrestrial impacts include forest fragmentation (loss of 
large blocks of contiguous mature interior forest and increases in 
forest edge and grassland habitat), loss of native forests, changes in 
species composition and biodiversity of both plants and animals, and 
loss or severe compaction of soil horizons and organic matter. At least 
temporarily, mining of previously forested areas adversely impacts 
species that prefer or require interior forest (for example, the 
cerulean warbler, the ovenbird, and the scarlet tanager) and favors 
species that prefer or require edge habitat (for example, the cardinal, 
the brown-headed cowbird, and many species of sparrows).
    Furthermore, conventional reclamation techniques typically result 
in heavily compacted soils that offer a hostile environment for native 
plant species and soil microorganisms, which means that minesites 
reclaimed by those techniques often are either planted with or 
colonized by nonnative species and remain in a state of arrested 
ecological succession. Both soil compaction and competitive herbaceous 
ground covers inhibit the establishment of native forests similar to 
those that occupied the area prior to mining. Soil compaction also 
reduces the site indices for tree growth, which means that the 
reclaimed minesite is not capable of supporting a forest with a 
productivity equal to that of the forest that either existed or could 
have existed prior to mining.
    Our proposed rule would address terrestrial impacts in a variety of 
ways, including a requirement for restoration of the premining drainage 
pattern to the extent possible and incorporation of elements of the 
Forestry Reclamation Approach. Use of that approach would minimize soil 
compaction and maximize reforestation and restoration of site 
productivity. Our proposed rule emphasizes revegetation with native 
species, restoration of natural plant communities whenever there is no 
conflict with implemented postmining land uses, and the protection or 
establishment of riparian corridors along streams to promote 
protection, restoration, and enhancement of fish, wildlife, and related 
environmental values. It also would modify the standards for approval 
of exceptions to the approximate original contour restoration 
requirement by limiting exceptions to those necessary to implement the 
postmining land use within the revegetation responsibility period.

Draft Environmental Impact Statement (EIS)

    The draft EIS for this proposed rule contains an expanded 
discussion of the impacts of mining on the environment. Almost all the 
literature surveys and studies reviewed for this rulemaking process 
have been published since the adoption in 1983 of our principal 
regulations concerning protection of the hydrologic balance \42\ and 
protection of fish, wildlife, and related environmental

[[Page 44443]]

values,\43\ which underscores the need to update our regulations to 
reflect new scientific understanding of impacts associated with coal 
mining.
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    \42\ 48 FR 43956 (Sept. 26, 1983).
    \43\ 48 FR 30312 (Jun. 30, 1983).
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Relationship to 2009 MOU

    This proposed rule helps fulfill our responsibilities under a 
memorandum of understanding (MOU) that the Secretary of the Department 
of the Interior, the Administrator of the EPA, and the Acting Assistant 
Secretary of the Army (Civil Works) entered into on June 11, 2009. This 
MOU implemented an interagency action plan designed to significantly 
reduce the harmful environmental consequences of surface coal mining 
operations in six Appalachian states and ensure that future mining is 
conducted consistent with federal law. Specifically, Part III.A. of the 
MOU provides that we will review our ``existing regulatory authorities 
and procedures to determine whether regulatory modifications should be 
proposed to better protect the environment and public health from the 
impacts of Appalachian surface coal mining.'' It also provides that, at 
a minimum, we will consider revisions to the stream buffer zone rule 
published December 12, 2008,\44\ and our existing regulatory 
requirements concerning approximate original contour. Ultimately, we 
determined that development of a comprehensive, nationally applicable 
stream protection rule would be the most appropriate and effective 
method of achieving the purposes and requirements of SMCRA, as well as 
meeting the goals set forth in the MOU.\45\
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    \44\ The U.S. District Court for the District of Columbia 
vacated the 2008 stream buffer zone rule on February 20, 2014, in 
National Parks Conservation Ass'n v. Jewell, 2014 U.S. Dist. LEXIS 
152383 (D.D.C. Feb. 20, 2014). See also 79 FR 76227-76233 (Dec. 22, 
2014).
    \45\ In keeping with our commitment in the MOU, we considered 
making revisions to our approximate original contour regulations. 
Ultimately, we decided not to propose any major changes to our 
permitting requirements and performance standards concerning 
approximate original contour restoration at this time because of 
cost concerns and perceived difficulty of implementation. However, 
we are proposing revisions to our regulations governing exceptions 
to the requirement to restore the approximate original contour.
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III. What needs does this proposed rule address?

    All versions of the stream buffer zone rule that we have adopted 
over the years, including the version now in effect, focused primarily 
on activities in or within 100 feet of the stream itself.\46\ Yet, 
mining activities beyond the 100-foot stream buffer zone can adversely 
impact the quality and quantity of water in streams by disturbing 
aquifers, by altering the physical and chemical nature of recharge 
zones as well as surface-water runoff and infiltration rates and 
drainage patterns, and by modifying the topography and vegetative 
composition of the watershed. Thus, there are many components of our 
regulations that could be revised to improve implementation of SMCRA 
with regard to protection of streams in particular and the hydrologic 
balance in general. We have identified six specific areas in which we 
propose to revise our regulations to better protect streams and 
associated environmental values.
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    \46\ The 2008 rule was somewhat broader in that it also included 
provisions intended to minimize the creation of excess spoil and to 
limit the footprint of excess spoil fills.
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    First, while ephemeral streams derive their flow from surface 
runoff from precipitation events, perennial and intermittent streams 
derive their flow from both groundwater discharges and surface runoff 
from precipitation events. Therefore, there is a need to clearly define 
the point at which adverse mining-related impacts on both groundwater 
and surface water reach an unacceptable level; that is, the point at 
which adverse impacts from mining cause material damage to the 
hydrologic balance outside the permit area. Neither SMCRA nor the 
existing regulations define the term ``material damage to the 
hydrologic balance outside the permit area'' or establish criteria for 
determining what level of adverse impacts would constitute material 
damage. In particular, there is no requirement that the SMCRA 
regulatory authority establish a specific standard for conductivity or 
selenium, both of which can have deleterious effects on aquatic life at 
elevated levels.
    Second, there is a need to collect adequate premining data about 
the site of the proposed mining operation and adjacent areas to 
establish a comprehensive baseline that will facilitate evaluation of 
the effects of mining. The existing rules require data only for a 
limited number of water-quality parameters rather than the full suite 
needed to establish a complete baseline against which the impacts of 
mining can be compared. The existing rules also contain no requirement 
for determining the biological condition of streams within the proposed 
permit and adjacent areas, so there is no assurance that the permit 
application will include baseline data on aquatic life.
    Third, there is a need for effective, comprehensive monitoring of 
groundwater and surface water during and after both mining and 
reclamation and during the revegetation responsibility period to 
provide real-time information documenting mining-related changes in the 
values of the parameters being monitored. Similarly, there is a need to 
require monitoring of the biological condition of streams during and 
after mining and reclamation to evaluate changes in aquatic life. 
Proper monitoring will enable timely detection of any adverse trends 
and timely implementation of any necessary corrective measures. The 
existing rules require monitoring of only water quantity and a limited 
number of water-quality parameters, not all parameters necessary to 
evaluate the impact of mining and reclamation. The existing rules do 
not ensure that the number and location of monitoring points will be 
adequate to determine the impact of mining and reclamation. They also 
allow discontinuance or reduction of water monitoring too early to 
ascertain the impacts of mining and reclamation on water quality with a 
reasonable degree of confidence, especially for groundwater.
    Fourth, there is a need to ensure protection or restoration of 
streams and related resources, including the headwater streams that are 
important to maintaining the ecological health and productivity of 
downstream waters. The existing rules have not always been applied in a 
manner sufficient to ensure protection or restoration of streams, 
especially with respect to the ecological function of streams. 
Maintenance, restoration, or establishment of riparian corridors or 
buffers, comprised of native species, for streams is a critical element 
of stream protection. In forested areas, riparian buffers for streams 
moderate the temperature of water in the stream, provide food (in the 
form of fallen leaves and other plant parts) for the aquatic food web, 
roots that stabilize stream banks, reduce surface runoff, and filter 
sediment and nutrients in surface runoff.
    Fifth, there is a need to ensure that permittees and regulatory 
authorities make use of advances in information, technology, science, 
and methodologies related to surface and groundwater hydrology, 
surface-runoff management, stream restoration, soils, and revegetation, 
all of which relate directly or indirectly to protection of water 
resources.
    Sixth, there is a need to ensure that land disturbed by surface 
coal mining operations is restored to a condition capable of supporting 
the uses that it was capable of supporting before any mining, including 
both those uses dependent upon stream protection or restoration and 
those uses that promote or support protection and restoration of

[[Page 44444]]

streams and related environmental values. Existing rules and permitting 
practices have focused primarily on the land's suitability for a single 
approved postmining land use and they have not always been applied in a 
manner that results in the construction of postmining soils that 
provide a growth medium suitable for restoration of premining site 
productivity. A corollary need is to ensure that reclaimed minesites 
are revegetated with native species unless and until a conflicting 
postmining land use, such as intensive agriculture, is implemented. 
Soil characteristics and the degree and type of revegetation have a 
major impact on surface-water runoff quantity and quality as well as on 
aquatic life and the terrestrial ecosystems dependent upon perennial 
and intermittent streams. Under the existing rules, sites with certain 
postmining land uses have been revegetated with non-native species even 
when the postmining land use is not implemented prior to final bond 
release and even on those portions of the site where non-native species 
are not necessary to achieve the postmining land use.
    The proposed rule would address these needs in the manner described 
in Part IX of this preamble. As mentioned in Part II of this preamble, 
we determined that improved protection of the hydrologic balance, 
especially streams, and related environmental values would benefit all 
regions of the country, not just Appalachia. In addition, one of the 
reasons SMCRA was enacted was to ensure a minimum level of 
environmental protection nationwide by establishing national surface 
coal mining and reclamation standards to prevent competition for coal 
markets from undermining the ability of states to maintain adequate 
regulatory programs for coal mining operations within their borders. 
See section 101(g) of SMCRA, 30 U.S.C. 1201(g). Thus, we concluded that 
a nationwide rule is required to clearly articulate a minimum standard 
for protection of the hydrologic balance, especially streams, and 
related environmental values that strikes an appropriate balance 
between environmental protection and the Nation's need for coal.

IV. What Clean Water Act programs protect streams?

    The goal of the Clean Water Act is to ``restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters.'' 
\47\ To achieve that objective, section 301 of the Clean Water Act \48\ 
prohibits the discharge of pollutants from point sources into waters of 
the United States unless consistent with the requirements of the Act. 
Section 402 of the Clean Water Act \49\ governs the discharge of 
pollutants other than dredged or fill material, while section 404 \50\ 
governs the discharge of dredged or fill material into waters of the 
United States.
---------------------------------------------------------------------------

    \47\ 33 U.S.C. 1251(a).
    \48\ 33 U.S.C. 1311.
    \49\ 33 U.S.C. 1342.
    \50\ 33 U.S.C. 1344.
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Section 303 Water Quality Standards

    Section 303 of the Clean Water Act \51\ requires states to adopt 
water quality standards applicable to their intrastate and interstate 
waters. Water quality standards assist in maintaining the physical, 
chemical, and biological integrity of a water body by designating uses, 
setting water quality criteria to protect those uses, and establishing 
provisions to protect water quality from degradation. Water quality 
standards established by states \52\ are subject to EPA review. 40 CFR 
131.5; 33 U.S.C. 1313(c). EPA may object to state-adopted water quality 
standards and may require changes to the state-adopted water quality 
standards and, if the state does not respond to EPA's objections, EPA 
may promulgate federal standards. 33 U.S.C. 1313(c)(3)-(4); 40 CFR 
131.5, 131.21.
---------------------------------------------------------------------------

    \51\ 33 U.S.C. 1313.
    \52\ EPA may treat an eligible federally-recognized Indian tribe 
in the same manner as a state for implementing and managing certain 
environmental programs, including under the Clean Water Act.
---------------------------------------------------------------------------

    Water quality criteria may be expressed numerically and implemented 
in permits through specific numeric limitations on the concentration of 
a specific pollutant in the water (e.g., 0.1 milligrams of chromium per 
liter) or by more general narrative standards applicable to a wide set 
of pollutants. To assist states in adopting water quality standards 
that will meet with EPA's approval, Congress authorized EPA to develop 
and publish recommended criteria for water quality that accurately 
reflect ``the latest scientific knowledge.'' 33 U.S.C. 1314(a). Water 
quality standards are not self-implementing; they are implemented 
through permits, such as the section 402 permit or the section 404 
permit. 33 U.S.C. 1311(b)(1)(C); 40 CFR 122.44(d), 230.10(b).

Section 401 Water Quality Certification

    State water quality standards are incorporated into all federal 
Clean Water Act permits through section 401, which requires each 
applicant to submit a certification from the affected state that the 
discharge will be consistent with state water quality requirements. 33 
U.S.C. 1341(a)(1). Thus, section 401 provides states with a veto over 
federal permits that may allow exceedances of state water quality 
standards. It also empowers states to impose and enforce water quality 
standards that are more stringent than those required by federal law. 
33 U.S.C. 1370.

Section 402 National Pollutant Discharge Elimination System (NPDES)

    Section 402 of the Clean Water Act governs discharges of pollutants 
other than dredged or fill material into waters of the United States. 
Permits issued under the authority of section 402 are known as NPDES 
permits. They typically contain numerical limits called effluent 
limitations that restrict the amounts of specified pollutants that may 
be discharged. NPDES permits must contain technology-based effluent 
limits and any more stringent water quality-based effluent limits 
necessary to meet applicable state water quality standards. 33 U.S.C. 
1311(b)(1)(A) and (C), 33 U.S.C. 1342(a); 40 CFR 122.44(a)(1) and 
(d)(1). Water quality-based effluent limitations are required for all 
pollutants that the permitting authority determines ``are or may be 
discharged at a level [that] will cause, have the reasonable potential 
to cause, or contribute an excursion above any [applicable] water 
quality standard, including State narrative criteria for water 
quality.'' 40 CFR 122.44(d)(1)(i). The procedure for determining the 
need for water quality-based effluent limits is called a reasonable 
potential analysis, or ``RPA.''
    Section 402 permits are issued by EPA unless the state has an 
approved program whereby the state issues the permits, subject to EPA 
oversight. 33 U.S.C. 1342(b)(e); 551 U.S. 644, 650-651 (2007). The 
state must submit draft permits to EPA for review, and EPA may object 
to a proposed permit that is not consistent with the Clean Water Act 
and federal regulations. 33 U.S.C. 1342(d); 40 CFR 123.43 and 123.44. 
If the state does not adequately address EPA's objections, EPA may 
assume the authority to issue the permit. 33 U.S.C. 1342(d)(4). EPA's 
procedures for the review of state-issued permits are set forth in 
regulations at 40 CFR 123.44 and in memoranda of agreement with the 
states.

Section 404 Permits

    Section 404(a) of the Clean Water Act authorizes the Secretary of 
the Army, acting through the U.S. Army Corps of Engineers (ACE or the 
Corps), to ``issue

[[Page 44445]]

permits . . . for the discharge of dredged or fill material into the 
navigable waters at specified disposal sites.'' 33 U.S.C. 1344(a). By 
this authority, the ACE regulates discharges of dredged and fill 
material into waters of the United States in connection with surface 
coal mining and reclamation operations. The ACE's regulations governing 
section 404 permit procedures are set forth at 33 CFR part 325.
    Although the ACE is the permitting authority under section 404, EPA 
has an important role in the permitting process. Section 404(b) of the 
Clean Water Act requires that permitting decisions comply with 
guidelines developed by EPA in conjunction with the ACE. These 
guidelines, which are referred to as the ``404(b)(1) Guidelines,'' are 
codified in 40 CFR part 230. Among other things, the 404(b)(1) 
Guidelines prohibit the discharge of fill if it would cause or 
contribute to a violation of a water quality standard or cause or 
contribute to significant degradation of the waters of the United 
States. 40 CFR 230.10(b), (c)(1) through (c)(3). The 404(b)(1) 
Guidelines require the ACE to analyze more than 15 different factors 
that could be impacted by the proposed action, including substrate, 
suspended particulates, turbidity, water quality, water circulation, 
water level fluctuations, salinity gradients, threatened and endangered 
species, aquatic organisms in the food web, other wildlife special 
aquatic sites, water supplies, fisheries, recreation, aesthetics, and 
parks. 40 CFR 230(c) through (f). The 404(b)(1) Guidelines provide that 
the ACE must ensure that the proposed discharges would not cause or 
contribute to significant adverse effects on human health or welfare, 
aquatic life, or aquatic ecosystems. 40 CFR 230.10(c)(1) through 
(c)(3).
    Before the ACE may issue a section 404 permit, it must provide 
notice to the public, EPA, and other resource agencies, which may 
provide comments to the ACE for consideration. 33 CFR 325.3(d). In 
addition, the ACE and EPA have entered into a Memorandum of Agreement 
(MOA) as directed by section 404(q) of the Clean Water Act, 33 U.S.C. 
1344(q), that expressly recognizes that ``the EPA has an important role 
in the Department of the Army Regulatory Program under the Clean Water 
Act[.]'' The MOA provides that ``[p]ursuant to its authority under 
section 404(b)(1) of the Clean Water Act, the EPA may provide comments 
to the Corps identifying its views regarding compliance with the 
section 404(b)(1) Guidelines'' and ``[t]he Corps will fully consider 
EPA's comments when determining [compliance] with the National 
Environmental Policy Act, and other relevant statutes, regulations, and 
policies.'' Id.
    In addition, section 404(c) of the Clean Water Act provides EPA 
with the authority to prohibit, withdraw, deny, or restrict the 
specification of disposal sites that would otherwise be authorized by a 
section 404 permit. This provision is often referred to as EPA's permit 
veto authority.
    The ACE reviews individual permit applications under section 404(a) 
of the Clean Water Act on a case-by-case basis. 33 U.S.C. 1344(a). 
Individual permits may be issued or denied after a review involving, 
among other things, site-specific documentation and analysis, 
opportunity for public hearing, public interest review, and a formal 
determination that the permit is lawful and warranted. 33 CFR parts 
320, 323, and 325.
    Not every discharge is of such significance that an individual 
evaluation of the discharge's environmental effects is necessary. 
Instead, section 404(e) of the Clean Water Act authorizes the Secretary 
of the Army to issue general permits for categories of activities 
involving discharges of dredged or fill material that, as a group, have 
only minimal impacts on the waters of the United States. The ACE can 
issue these general permits (as well as individual permits) on a state, 
regional, or nationwide basis. The ACE refers to general permits issued 
on a nationwide basis as ``nationwide permits'' (NWP). NWPs must be 
reviewed reissued every 5 years to remain valid. The ACE last reissued 
the NWPs on February 21, 2012 (77 FR 10184).
    NWP 21, Surface Coal Mining Activities, provides authorization for 
the discharge of dredged or fill material into waters of the United 
States when those discharges are associated with surface coal mining 
activities. The permittee must submit a preconstruction notification to 
the ACE district engineer and receive written authorization prior to 
commencing the activity. The ACE review of preconstruction 
notifications under NWP 21 is focused on the individual and cumulative 
adverse effects to the aquatic environment and on determining 
appropriate mitigation should mitigation be necessary. The ACE review 
does not extend to upland areas or the mining operation as a whole.
    To qualify for NWP 21, an activity must meet all of the following 
criteria:
    (1) The activities are already authorized or are currently being 
processed by a SMCRA-approved state program or an integrated permit 
processing procedure by the Department of the Interior.
    (2) The discharge will not cause the loss of more than \1/2\ acre 
of non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of streambed, unless, for intermittent and 
ephemeral streambeds, the ACE district engineer waives the 300-linear-
foot limit by making a written determination concluding that the 
discharge will result in minimal individual and cumulative adverse 
effects.
    (3) The discharge is not associated with the construction of valley 
fills which are fill structures associated with surface coal mining 
activities that are typically constructed within valleys associated 
with steep, mountainous terrain.
    Any surface mining activity that does not meet all three criteria 
must apply for an individual permit instead unless the activity 
qualifies for NWP 49 as discussed below.
    Two other NWPs may apply to coal mining activities under SMCRA.
    NWP 49, Coal Remining Activities, applies to discharges of dredged 
or fill material into non-tidal waters of the United States when those 
discharges are associated with the remining and reclamation of lands 
that were previously mined for coal. The activities must already be 
authorized by the SMCRA regulatory authority or be in process as part 
of an integrated permit processing procedure under SMCRA.
    The permittee may conduct new coal mining activities in conjunction 
with the remining activities when he or she clearly demonstrates to the 
ACE that the overall mining plan will result in a net increase in 
aquatic resource functions. The ACE will consider the SMCRA regulatory 
authority's decision regarding the amount of currently undisturbed 
adjacent lands needed to facilitate the remining and reclamation of the 
previously mined area. The total area disturbed by new mining must not 
exceed 40 percent of the total acreage covered by both the remined area 
and the additional area necessary to carry out the reclamation of the 
previously mined area. The permittee must submit a pre-construction 
notification and a document describing how the overall mining plan will 
result in a net increase in aquatic resource functions to the district 
engineer and receive written authorization prior to commencing the 
activity.

[[Page 44446]]

    NWP 50, Underground Coal Mining Activities, applies to discharges 
of dredged or fill material into non-tidal waters of the United States 
when those discharges are associated with the remining and reclamation 
of lands that were previously mined for coal. The activities must 
already be authorized by the SMCRA regulatory authority or be in 
process as part of an integrated permit processing procedure under 
SMCRA.
    The discharge must not cause the loss of greater than \1/2\ acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless, for intermittent and 
ephemeral streambeds, the ACE district engineer waives the 300-linear-
foot limit by making a written determination concluding that the 
discharge will result in minimal adverse effects. This NWP does not 
authorize coal preparation and processing activities outside the 
minesite or discharges into nontidal wetlands adjacent to tidal waters. 
The permittee must submit a pre-construction notification to the ACE 
district engineer and receive written authorization prior to commencing 
the activity.

V. What provisions of SMCRA provide legal authority for the proposed 
rule?

    This proposed rule would more completely implement SMCRA's 
permitting requirements and performance standards and better achieve 
the purposes of SMCRA as set forth in section 102 of the Act.\53\ It is 
intended to balance all relevant purposes of the Act, which include 
ensuring that surface coal mining operations are conducted in a manner 
that protects the environment, establishing a nationwide program to 
protect society and the environment from the adverse effects of surface 
coal mining operations, and ensuring a coal supply adequate for our 
Nation's energy needs.
---------------------------------------------------------------------------

    \53\ 30 U.S.C. 1202.
---------------------------------------------------------------------------

    Our proposed rule is intended to address the adverse impacts and 
needs discussed in Parts II and III of this preamble by adding 
specificity to and otherwise revising our existing regulations to more 
completely implement various provisions of SMCRA, including, but not 
limited to:
    Section 101(c),\54\ in which Congress finds that ``many surface 
coal mining operations result in disturbances of surface areas that 
burden and adversely affect commerce and the public welfare by * * * 
polluting the water, by destroying fish and wildlife habitats, by 
impairing natural beauty, * * * and by counteracting governmental 
programs and efforts to conserve soil, water, and other natural 
resources.''
---------------------------------------------------------------------------

    \54\ 30 U.S.C. 1201(c).
---------------------------------------------------------------------------

    Section 102(a),\55\ which provides that one of the purposes of the 
Act is to ``establish a nationwide program to protect society and the 
environment from the adverse effects of surface coal mining 
operations.''
---------------------------------------------------------------------------

    \55\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

    Section 102(d),\56\ which provides that one of the purposes of the 
Act is to ``assure that surface coal mining operations are so conducted 
as to protect the environment.''
---------------------------------------------------------------------------

    \56\ 30 U.S.C. 1202(d).
---------------------------------------------------------------------------

    Section 102(f),\57\ which provides that one of the purposes of the 
Act is to ``strike a balance between protection of the environment and 
agricultural productivity and the Nation's need for coal as an 
essential source of energy.''
---------------------------------------------------------------------------

    \57\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

    Section 102(m),\58\ which provides that the Secretary, wherever 
necessary, ``exercise the full reach of Federal constitutional powers 
to insure the protection of the public interest through effective 
control of surface coal mining operations.''
---------------------------------------------------------------------------

    \58\ 30 U.S.C. 1202(m).
---------------------------------------------------------------------------

    Section 201(c)(2),\59\ which provides that the Secretary, acting 
through OSMRE, will ``publish and promulgate such rules and regulations 
as may be necessary to carry out the purposes and provisions of this 
Act.''
---------------------------------------------------------------------------

    \59\ 30 U.S.C. 1211(c)(2).
---------------------------------------------------------------------------

    Section 510(b)(2),\60\ which provides that the regulatory authority 
may not approve a permit application unless it first finds that ``the 
applicant has demonstrated that reclamation as required by this Act and 
the State or Federal program can be accomplished under the reclamation 
plan contained in the permit application.''
---------------------------------------------------------------------------

    \60\ 30 U.S.C. 1260(b)(2).
---------------------------------------------------------------------------

    Section 510(b)(3),\61\ which provides that the regulatory authority 
may not approve a permit application unless it first finds that the 
proposed operation ``has been designed to prevent material damage to 
the hydrologic balance outside the permit area.''
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    \61\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    Section 515(b)(2),\62\ which requires that the permittee restore 
land affected by surface coal mining and reclamation operations ``to a 
condition capable of supporting the uses which it was capable of 
supporting prior to mining.'' This paragraph also allows restoration to 
a condition capable of supporting ``higher or better uses of which 
there is reasonable likelihood,'' provided certain conditions relating 
to public health or safety, water pollution, and consistency with land 
use policies, plans, and legal requirements are met.
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    \62\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    Section 515(b)(10),\63\ which requires that surface coal mining and 
reclamation operations ``minimize the disturbances to the prevailing 
hydrologic balance at the mine site and in associated offsite areas and 
to the quality and quantity of water in surface and ground water 
systems both during and after surface coal mining operations and during 
reclamation.'' Section 516(b)(9) \64\ contains similar provisions 
applicable to underground mining operations.
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    \63\ 30 U.S.C. 1265(b)(10).
    \64\ 30 U.S.C. 1266(b)(9).
---------------------------------------------------------------------------

    Section 515(b)(19),\65\ which requires that surface coal mining and 
reclamation operations ``establish on the regraded areas, and all other 
lands affected, a diverse, effective, and permanent vegetative cover of 
the same seasonal variety native to the area of land to be affected and 
capable of self-regeneration and plant succession at least equal in 
extent of cover to the natural vegetation of the area; except that 
introduced species may be used in the revegetation process where 
desirable and necessary to achieve the approved postmining land use 
plan.'' Section 516(b)(6) \66\ contains generally similar provisions 
applicable to underground mining operations.
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    \65\ 30 U.S.C. 1265(b)(19).
    \66\ 30 U.S.C. 1266(b)(6).
---------------------------------------------------------------------------

    Section 515(b)(22)(A),\67\ which requires that all excess spoil 
material be ``transported and placed in a controlled manner in position 
for concurrent compaction and in such a way to assure mass stability 
and to prevent mass movement.''
---------------------------------------------------------------------------

    \67\ 30 U.S.C. 1265(b)(22)(A).
---------------------------------------------------------------------------

    Section 515(b)(23),\68\ which requires that surface coal mining and 
reclamation operations ``meet such other criteria as are necessary to 
achieve reclamation in accordance with the purposes of this Act, taking 
into consideration the physical, climatological, and other 
characteristics of the site.''
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    \68\ 30 U.S.C. 1265(b)(23).
---------------------------------------------------------------------------

    Section 515(b)(24),\69\ which provides that surface coal mining and 
reclamation operations must, ``to the extent possible using the best 
technology currently available, minimize disturbances and adverse 
impacts of the operation on fish, wildlife, and related environmental 
values, and achieve enhancement of such resources where practicable.'' 
Section 516(b)(11) \70\ contains similar

[[Page 44447]]

provisions for underground mining operations.
---------------------------------------------------------------------------

    \69\ 30 U.S.C. 1265(b)(24).
    \70\ 30 U.S.C. 1266(b)(11).
---------------------------------------------------------------------------

    Finally, section 702(a) of SMCRA \71\ provides that ``[n]othing in 
this Act shall be construed as superseding, amending, modifying, or 
repealing'' the Clean Water Act, any rule or regulation adopted under 
the Clean Water Act, or any state laws enacted pursuant to the Clean 
Water Act. While this provision does not provide rulemaking authority, 
it does place limits on rulemaking under SMCRA.
---------------------------------------------------------------------------

    \71\ 30 U.S.C. 1292(a).
---------------------------------------------------------------------------

VI. What is the history of our regulation of coal mining in relation to 
buffer zones for streams?

    The U.S. House of Representatives first passed a bill (H.R. 6482) 
to regulate surface coal mining operations in 1972. Section 9(a) of 
that bill included a flat prohibition on mining within 100 feet of any 
``body of water, stream, pond, or lake to which the public enjoys use 
and access, or other private property.'' However, the bill never became 
law and the provision did not appear in either the House or Senate 
versions of the bills that ultimately became SMCRA. Therefore, nothing 
in SMCRA specifically establishes or requires a buffer zone for 
streams, although sections 515(b)(24) and 516(b)(11) of SMCRA \72\ 
require that mining operations minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values to the 
extent possible using the best technology currently available. We have 
consistently interpreted those and other provisions of SMCRA as meaning 
that protection of perennial and intermittent streams, with their 
intrinsic value to fish and wildlife, is an important element of the 
environmental protection regime that SMCRA established. Since the 
enactment of SMCRA, we have adopted four sets of regulations, which we 
discuss below, that included the concept of a buffer zone for streams.
---------------------------------------------------------------------------

    \72\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

The 1977 Stream Buffer Zone Rule

    In 1977, we published initial regulatory program regulations 
providing that no land within 100 feet of an intermittent or perennial 
stream could be disturbed by surface coal mining and reclamation 
operations unless the regulatory authority specifically authorizes 
those operations. See 30 CFR 715.17(d)(3) and 717.17(d), as published 
at 42 FR 62639, 62686, 62697 (Dec. 13, 1977). We stated that we adopted 
that rule as a means ``to protect stream channels from abnormal 
erosion'' from nearby upslope mining activities.\73\ However, that 
rule, which applies only to the now-limited subset of surface coal 
mining and reclamation operations subject to the initial regulatory 
program, does not specify the conditions under which the regulatory 
authority may authorize surface coal mining operations within the 
buffer zone.
---------------------------------------------------------------------------

    \73\ Id. at 62652.
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The 1979 Stream Buffer Zone Rule

    In 1979, we published the original version of our permanent 
regulatory program regulations. Those regulations, as codified at 30 
CFR 816.57 and 817.57, provided that, with the exception of stream 
diversions, the surface of land within 100 feet of a perennial stream 
or a non-perennial stream with a biological community could not be 
disturbed by surface mining activities or surface operations and 
facilities associated with an underground mine unless the regulatory 
authority specifically authorized mining-related activities closer to 
or through the stream. Under the regulations, the regulatory authority 
could grant that authorization only after making a finding that the 
original stream channel would be restored and that, during and after 
the mining, the water quantity and quality in the section of the stream 
within 100 feet of the mining activities would not be adversely 
affected.
    Paragraph (c) of these rules provided that a biological community 
existed if, at any time, the stream contained an assemblage of two or 
more species of arthropods or molluscan animals that were adapted to 
flowing water for all or part of their life cycle, dependent upon a 
flowing water habitat, reproducing or could reasonably be expected to 
reproduce in the water body where they are found, and longer than two 
millimeters at some stage of the part of their life cycle spent in the 
flowing water habitat. See 44 FR 14902, 15175 (Mar. 13, 1979).
    The preamble to the 1979 rules explains that the purpose of the 
revised rules was to implement paragraphs (b)(10) and (b)(24) of 
section 515 of the Act.\74\ It states that ``[b]uffer zones are 
required to protect streams from the adverse effects of sedimentation 
and from gross disturbance of stream channels,'' but that ``if 
operations can be conducted within 100 feet of a stream in an 
environmentally acceptable manner, they may be approved.'' \75\ In 
addition, it states that ``[t]he 100-foot limit is based on typical 
distances that should be maintained to protect stream channels from 
sedimentation,'' but that, while the 100-foot standard provides a 
simple rule for enforcement purposes, ``site-specific variation should 
be made available when the regulatory authority has an objective basis 
for either increasing or decreasing the width of the buffer zone.'' 
\76\
---------------------------------------------------------------------------

    \74\ Id. at 15176.
    \75\ Id.
    \76\ Id. at 15176-15177.
---------------------------------------------------------------------------

The 1983 Stream Buffer Zone Rule

    In 1983, we revised 30 CFR 816.57 and 817.57 by deleting the 
requirement to restore the original stream channel. We also replaced 
the biological community criterion for determining which non-perennial 
streams are protected under the rule with a requirement for protection 
of all perennial and intermittent streams. We redefined an intermittent 
stream as a stream or reach of a stream that (a) drains a watershed of 
at least one square mile or (b) is below the local water table for at 
least some part of the year and obtains its flow from both surface 
runoff and groundwater discharge. Finally, we replaced the 1979 finding 
with a requirement that the regulatory authority find that the proposed 
mining activities would not cause or contribute to a violation of 
applicable state or federal water quality standards and would not 
adversely affect the quantity or quality of the water in the stream or 
the other environmental resources of the stream. See 48 FR 30312, 
30327-30328 (Jun. 30, 1983).
    In 1983, we also adopted revised performance standards for coal 
preparation plants not located within the permit area of a mine. At 
that time, we decided not to apply the stream buffer zone rule to those 
preparation plants. See 30 CFR 827.12 and the preamble to those rules 
at 48 FR 20399 (May 5, 1983).
    The preamble to the 1983 stream buffer zone rules reiterates the 
general rationale for adoption of a stream buffer zone rule that we 
specified in the preamble to the 1979 rules. In addition, it identifies 
the reason for replacing the biological community criterion with the 
intermittent stream threshold as a matter of improving the ease of 
administration and eliminating the possibility of applying the rule to 
ephemeral streams:

    The biological-community standard was confusing to apply since 
there are areas with ephemeral surface waters of little biological 
or hydrologic significance which, at some time of the year, contain 
a biological community as defined by previous Sec.  816.57(c). Thus, 
much confusion arose when operators attempted to apply the previous 
rule's standards to springs, seeps,

[[Page 44448]]

ponding areas, and ephemeral streams. While some small biological 
communities which contribute to the overall production of downstream 
ecosystems will be excluded from special buffer-zone protection 
under final Sec.  816.57(a), the purposes of Section 515(b)(24) of 
the Act will best be achieved by providing a buffer zone for those 
streams with more significant environmental-resource values.\77\
---------------------------------------------------------------------------

    \77\ 48 FR 30313 (Jun. 30 1983). Based upon additional 
scientific information developed over the last 30 years, we no 
longer concur with this characterization of the significance of 
ephemeral streams.

    Referring to those streams that would not be protected by 30 CFR 
816.57, i.e., ephemeral streams, the preamble further states that 
``[i]t is impossible to conduct surface mining without disturbing a 
number of minor natural streams, including some which contain biota.'' 
\78\ Referring to those streams that would be protected by 30 CFR 
816.57, i.e., perennial and intermittent streams, the preamble also 
states that ``surface coal mining operations will be permissible as 
long as environmental protection will be afforded to those streams with 
more significant environmental-resource value.'' \79\ The preamble 
further provides that the revised rules ``also recognize that 
intermittent and perennial streams generally have environmental-
resource values worthy of protection under Section 515(b)(24) of the 
Act.'' \80\ In addition, the preamble notes that ``[a]lthough final 
Sec.  816.57 is intended to protect significant biological values in 
streams, the primary objective of the rule is to provide protection for 
the hydrologic balance and related environmental values of perennial 
and intermittent streams''.\81\ It further states that ``[t]he 100-foot 
limit is used to protect streams from sedimentation and help preserve 
riparian vegetation and aquatic habitats.'' \82\
---------------------------------------------------------------------------

    \78\ Id.
    \79\ Id.
    \80\ Id. at 30312.
    \81\ Id. at 30313. However, as discussed in Part II and 
elsewhere in this preamble, implementation of the 1983 rule has not 
resulted in uniform or consistent achievement of this primary 
objective.
    \82\ Id. at 30314.
---------------------------------------------------------------------------

    We also stated that we removed the requirement to restore the 
original stream channel in deference to the stream-channel diversion 
requirements of 30 CFR 816.43 and 817.43 and to clarify that there does 
not have to be a stream diversion for mining to occur inside the buffer 
zone.\83\
---------------------------------------------------------------------------

    \83\ Id.
---------------------------------------------------------------------------

    Finally, the preamble states that we expanded the finding in 30 CFR 
816.57(a)(1) to include environmental resources of the stream other 
than water quantity and quality to clarify ``that regulatory 
authorities will be allowed to consider factors other than water 
quantity and quality in making buffer-zone determinations'' and ``to 
provide a more accurate reflection of the objectives of Sections 
515(b)(10) and 515(b)(24) of the Act.'' \84\ In fact, the language of 
the revised finding not only allowed regulatory authorities to consider 
environmental resources of the stream other than water quantity and 
quality, it required that they do so.
---------------------------------------------------------------------------

    \84\ Id. at 30316.
---------------------------------------------------------------------------

    The National Wildlife Federation challenged this regulation as 
being inconsistent with sections 515(b)(10) and (24) of the Act, 
primarily because it deleted the biological community criterion for 
non-perennial stream protection. However, the court rejected that 
challenge, finding without elaboration that the ``regulation is not in 
conflict with either section 515(b)(10) or 515(b)(24).'' \85\ The court 
also noted that the Secretary had properly justified the rule change on 
the grounds that the previous rule was confusing and difficult to apply 
without protecting areas of little biological significance.
---------------------------------------------------------------------------

    \85\ In re: Permanent Surface Mining Regulation Litigation II-
Round II, 21 ERC 1725, 1741-1742 (D.D.C. 1984).
---------------------------------------------------------------------------

    Industry also challenged the 1983 version of 30 CFR 817.57(a) to 
the extent that it included all underground mining activities. However, 
industry withdrew its challenge when the Secretary stipulated that the 
rule would apply only to surface lands and surface activities 
associated with underground mining.\86\
---------------------------------------------------------------------------

    \86\ See footnote 21, id. at 1741.
---------------------------------------------------------------------------

    Historically, we and some state regulatory authorities applied the 
1983 stream buffer zone rule in a manner that allowed the placement of 
excess spoil fills, refuse piles, slurry impoundments, and 
sedimentation ponds in intermittent and perennial streams within the 
permit area. However, as discussed at length in the preamble to a 2004 
proposed rule,\87\ which we never finalized, there has been 
considerable controversy over the proper interpretation of both the 
Clean Water Act and our 1983 rules as they apply to the placement of 
fill material in or near perennial and intermittent streams.
---------------------------------------------------------------------------

    \87\ See 69 FR 1038-1042 (Jan. 7, 2004).
---------------------------------------------------------------------------

    One interpretation of the 1983 stream buffer zone rules appears in 
our annual oversight reports for West Virginia for 1999 and 2000, which 
state that the stream buffer zone rule does not apply to the footprint 
of a fill placed in a perennial or intermittent stream as part of a 
surface coal mining operation. On June 4, 1999, in West Virginia 
Highlands Conservancy v. Babbitt, Civ. No. 1:99CV01423 (D.D.C.), the 
plaintiffs challenged the validity of that interpretation, alleging 
that it constituted rulemaking in violation of the Administrative 
Procedure Act.
    However, on August 9, 1999, OSMRE, the U.S. Army Corps of 
Engineers, EPA, and the West Virginia Division of Environmental 
Protection (WVDEP) signed a memorandum of understanding (MOU) in which 
all four agencies in effect agreed to an interpretation that allowed 
valley fills in intermittent or perennial streams to be approved only 
if the buffer zone findings were made for the filled stream segments. 
The MOU also stated that the Clean Water Act Section 404(b)(1) 
Guidelines at 40 CFR part 230 contain requirements comparable to the 
findings required by the combination of OSMRE's 1983 stream buffer zone 
rule and the West Virginia stream buffer zone rule. Consequently, the 
MOU found that, ``where a proposed fill is consistent with the 
requirements of the Section 404(b)(1) Guidelines and applicable 
requirements for Section 401 certification of compliance with water 
quality standards, the fill would also satisfy the criteria for 
granting a stream buffer zone variance under SMCRA and WVDEP 
regulations.'' \88\ As a result of the signing of the MOU, the court 
approved an unopposed motion to dismiss the case mentioned above \89\ 
as moot in an order filed September 23, 1999.
---------------------------------------------------------------------------

    \88\ Memorandum Of Understanding among the U.S. Office of 
Surface Mining, U.S. Environmental Protection Agency, U.S. Army 
Corps of Engineers, and West Virginia Division Of Environmental 
Protection for the Purpose of Clarifying the Application of 
Regulations Related to Stream Buffer Zones under the Surface Mining 
Control and Reclamation Act for Surface Coal Mining Operations that 
Result in Valley Fills, August 9, 1999, p. 4.
    \89\ West Virginia Highlands Conservancy v. Babbitt, Civ. No. 
1:99CV01423 (D.D.C.).
---------------------------------------------------------------------------

    In a lawsuit filed in the U.S. District Court for the Southern 
District of West Virginia in July 1998, plaintiffs asserted that the 
1983 stream buffer zone rule should be interpreted to allow mining 
activities through a perennial or intermittent stream or within the 
buffer zone for a perennial or intermittent stream only if the 
activities are minor incursions.\90\ They argued that the rule did not 
allow substantial segments of a perennial or intermittent stream to be 
buried underneath excess spoil fills or other mining-related 
structures.\91\ On October 20, 1999, the district court ruled in favor 
of the plaintiffs on this

[[Page 44449]]

point, holding that the West Virginia version of the stream buffer zone 
rule applies to all segments of a stream, including those segments 
within the footprint of an excess spoil fill, not just to the stream as 
a whole.\92\ The court stated that the construction of fills in 
perennial or intermittent streams is inconsistent with the language of 
the West Virginia counterpart to 30 CFR 816.57(a)(1), which provides 
that the regulatory authority may authorize surface mining activities 
within a stream buffer zone only after making certain findings, 
including a finding that the proposed activities would not ``adversely 
affect the normal flow or gradient of the stream, adversely affect fish 
migration or related environmental values, materially damage the water 
quantity or quality of the stream . . . .'' \93\ The court also 
concluded that, contrary to the August 1999 MOU, satisfaction of the 
Section 404(b)(1) Guidelines is not equivalent to satisfaction of the 
SMCRA buffer zone rule.\94\
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    \90\ See Bragg v. Robertson, 72 F. Supp. 2d 642, 660-663 (S.D. 
W. Va. 1999).
    \91\ Id.
    \92\ Id.
    \93\ Id. at 650-653, 661. In a related matter, a consent decree 
filed on January 3, 2000, and approved on February 17, 2000, stated 
that the West Virginia stream buffer zone rules only apply 
downstream from the toes of downstream faces of embankments of 
sediment control structures in perennial and intermittent streams. 
Bragg v. Robertson, 83 F. Supp. 2d 713, 718 n.4 (S.D. W. Va. 2000).
    \94\ Id. at 660.
---------------------------------------------------------------------------

    On appeal, the U.S. Court of Appeals for the Fourth Circuit vacated 
the judgment of the district court and remanded the case with 
instructions to dismiss the counts concerning the stream buffer zone 
rule as barred by the Eleventh Amendment to the U.S. Constitution. See 
Bragg v. West Virginia Coal Ass'n, 248 F.3d 275, 296 (4th Cir. 2001), 
cert. denied, 534 U.S. 1113 (2002). While the Fourth Circuit did not 
interpret the 1983 version of the stream buffer zone rule, the brief 
for the federal appellants in that case included another interpretation 
of the regulation in their brief. In sum, the federal appellants 
supported an interpretation based on the district court decision and 
stated that 30 CFR 816.57 ``prohibits the burial of substantial 
portions of intermittent and perennial streams beneath excess mining 
spoil.'' \95\
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    \95\ Brief for Federal Appellants at 2, Bragg v. West Virginia 
Coal Ass'n, 248 F.3d 275 (4th Cir. 2001) (No. 99-2683) (footnote 
omitted).
---------------------------------------------------------------------------

    In a different case related to the issuance of a nationwide section 
404 permit under the Clean Water Act, the U.S. District Court for the 
Southern District of West Virginia stated in an opinion that SMCRA and 
the 1983 stream buffer zone rule do not authorize disposal of 
overburden in streams: ``SMCRA contains no provision authorizing 
disposal of overburden waste in streams, a conclusion further supported 
by the buffer zone rule.'' \96\ Yet, on appeal, the U.S. Court of 
Appeals for the Fourth Circuit rejected the district court's 
conclusion, stating that ``SMCRA does not prohibit the discharge of 
surface coal mining excess spoil in waters of the United States.'' \97\ 
The court further stated that ``it is beyond dispute that SMCRA 
recognizes the possibility of placing excess spoil material in waters 
of the United States even though those materials do not have a 
beneficial purpose.'' \98\
---------------------------------------------------------------------------

    \96\ Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 
F. Supp. 2d 927, 942 (S.D. W. Va. 2002).
    \97\ Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 
F.3d 425, 442 (4th Cir. 2003).
    \98\ Id. at 443. The preamble to a proposed rule, which we 
published on January 7, 2004, but which we never adopted in final 
form, contains additional discussion of litigation and related 
matters arising from the 1983 stream buffer zone rule through 2003. 
See especially Part I.B.1. at 69 FR 1038-1040.
---------------------------------------------------------------------------

    In subsequent litigation, the federal appellants stated that ``OSM 
has historically interpreted its `stream buffer zone' rule . . . to 
allow for the construction of valley fills in intermittent and 
perennial streams, even if such fills cover a stream segment. The 
traditional interpretation of the [stream buffer zone] is in harmony 
with this Court's decision in Rivenburgh.'' \99\ Additionally, the U.S. 
Court of Appeals for the Fourth Circuit has discussed SMCRA's role in 
the regulation of valley fills in the context of a challenge to 
individual permits under section 404 of the Clean Water Act.\100\ See 
Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 195 (4th 
Cir. 2009) (``Congress clearly contemplated that the regulation of the 
disposal of excess spoil and the creation of valley fills falls under 
the SMCRA rubric.'').
---------------------------------------------------------------------------

    \99\ Corrected Brief for Federal Appellants at 9 n.2, Ohio 
Valley Envtl. Coal. v. Bulen, 556 F.3d 177 (4th Cir. 2009) (Nos. 04-
2129 (L), 04-2137, 04-2402) (footnote omitted).
    \100\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

The 2008 Rule

    In 2004, we proposed a rule to revise the 1983 version of the 
stream buffer zone rule in order ``to clarify the circumstances in 
which mining activities such as the construction of excess spoil fills 
may be allowed within the [stream buffer zone]''.\101\ Although we 
abandoned this proposed rule, we proposed another rule in 2007, in part 
``to end the ambiguity in interpretation of the stream buffer zone 
rules and to ensure that regulatory authorities, mine operators, other 
governmental entities, landowners, and citizens all can have a common 
understanding of what the stream buffer zone rules do and do not 
require, consistent with underlying statutory authority.'' \102\
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    \101\ 69 FR 1039-1040 (Jan. 7, 2004).
    \102\ 72 FR 48890, 48892 (Aug. 24, 2007).
---------------------------------------------------------------------------

    We subsequently adopted a final rule that revised the circumstances 
under which mining activities may be conducted in or near perennial or 
intermittent streams and established new requirements for the creation 
and disposal of excess spoil and coal mine waste. Among other things, 
the rule required that mining operations be designed to minimize the 
creation of excess spoil and that permit applicants consider a range of 
reasonable alternatives to the disposal of excess spoil and coal mine 
waste in perennial or intermittent streams or their buffer zones and 
select the alternative with the least overall adverse impact on fish, 
wildlife, and related environmental values. With respect to activities 
in the stream itself, it replaced the findings in the 1983 rule with a 
requirement for a finding that avoiding disturbance of the stream is 
not reasonably possible. It also required a demonstration of compliance 
with the Clean Water Act before the permittee initiates mining 
activities in a perennial or intermittent stream if those activities 
require authorization or certification under the Clean Water Act. With 
respect to activities confined to the stream buffer zone, the rule 
replaced the findings in the 1983 rule with a requirement for a finding 
that avoiding disturbance of land within 100 feet of the stream either 
is not reasonably possible or is not necessary to meet the fish and 
wildlife and hydrologic balance protection requirements of the 
regulatory program. That rule, which we refer to in this preamble as 
the 2008 rule, took effect January 12, 2009. For a more detailed 
history of the 2008 rule, please refer to the discussion in the 
preamble to that rule.\103\
---------------------------------------------------------------------------

    \103\ See 73 FR 75814, 75816-75818 (Dec. 12, 2008).
---------------------------------------------------------------------------

Litigation Concerning the 2008 Rule

    Shortly after publication of the 2008 rule, ten environmental 
organizations challenged the validity of the rule. See Coal River 
Mountain Watch v. Salazar (``Coal River''), No. 08-2212 (D.D.C., filed 
Dec. 22, 2008) and National Parks Conservation Ass'n v. Salazar 
(``NPCA''), No. 09-115 (D.D.C., filed Jan. 16, 2009).
    In NPCA, the Federal Government filed a motion on April 27, 2009, 
for voluntary remand and vacatur of the 2008 rule. The motion was based 
on the Secretary's determination that OSMRE

[[Page 44450]]

erred in failing to initiate consultation with the U.S. Fish and 
Wildlife Service (FWS or the Service) under section 7(a)(2) of the 
Endangered Species Act, 16 U.S.C. 1536(a)(2), to evaluate possible 
effects of the 2008 rule on threatened and endangered species. In Coal 
River, the Federal Government filed a motion on April 28, 2009, to 
dismiss the complaint as moot if the court granted the motion in NPCA.
    On August 12, 2009, the court denied the Federal Government's 
motion in NPCA, holding that, absent a ruling on the merits, 
significant new evidence, or consent of all the parties, a grant of 
vacatur would allow the government to improperly bypass the procedures 
set forth in the Administrative Procedure Act, 5 U.S.C. 551 et seq., 
for repealing an agency rule. On the same date, the court denied the 
Federal Government's motion to dismiss in Coal River. See Nat'l Parks 
Conservation Ass'n v. Salazar, 660 F. Supp. 2d 3, 4 (D.D.C. 2009).
    On March 19, 2010, the parties involved in the NPCA and Coal River 
litigation signed a settlement agreement in which the Secretary agreed 
to make best efforts to sign a proposed rule to amend or replace the 
2008 rule within a year and sign a final rule within approximately 18 
months. On April 2, 2010, the court granted the parties' motion to hold 
in abeyance further judicial proceedings concerning the 2008 rule to 
allow time for us to conduct this rulemaking. However, for a variety of 
reasons, the Secretary had not yet published a proposed rule as of the 
beginning of 2013. Given this delay, on March 19, 2013, the court 
granted the plaintiffs' motions to resume the litigation.
    On February 20, 2014, the court vacated the 2008 rule because 
``OSM's determination that the revisions to the stream protection rule 
encompassed by the 2008 Rule would have no effect on threatened and 
endangered species or critical habitat was not a rational conclusion'' 
and that therefore our failure to initiate consultation on the 2008 
rule was a violation of section 7(a)(2) of the Endangered Species Act. 
NPCA v. Jewell, 2014 U.S. Dist. LEXIS 152383, at * 13-* 14 (D.D.C. Feb. 
20, 2014).\104\ Given the court's ruling in NPCA, the court determined 
that ``there is no further relief that the court can grant'' in Coal 
River and dismissed that case. Coal River v. Jewell, No. 08-2212, 
Memorandum Decision and Order of Dismissal at 2.
---------------------------------------------------------------------------

    \104\ Pursuant to Federal Rule of Civil Procedure 25(d), S.M.R. 
``Sally'' Jewell was automatically substituted for Ken Salazar as 
Secretary of the Interior.
---------------------------------------------------------------------------

    The court in NPCA remanded the vacated rule to us for further 
proceedings consistent with the decision.\105\ The court's decision 
also stated that vacatur of the 2008 rule resulted in reinstatement of 
the rule in effect before the vacated rule took effect.\106\ In 
response, OSMRE published a notice of vacatur in the Federal 
Register.\107\ Therefore, the proposed rule that we are publishing 
today uses the pre-2008 rules as the baseline for all proposed changes.
---------------------------------------------------------------------------

    \105\ NPCA v. Jewell, U.S. Dist. LEXIS 152383 at * 22.
    \106\ Id. at * 19.
    \107\ See 79 FR 76227-76233 (Dec. 22, 2014).
---------------------------------------------------------------------------

The 2009 Memorandum of Understanding

    As mentioned above, on June 11, 2009, the Secretary, the 
Administrator of the EPA, and the Acting Assistant Secretary of the 
Army (Civil Works) entered into an MOU \108\ implementing an 
interagency action plan designed to significantly reduce the harmful 
environmental consequences of surface coal mining operations in six 
Appalachian states,\109\ while ensuring that future mining remains 
consistent with federal law. Among other things, in the MOU we 
committed to review our ``existing regulatory authorities and 
procedures to determine whether regulatory modifications should be 
proposed to better protect the environment and public health from the 
impacts of Appalachian surface coal mining.'' It also provides that, at 
a minimum, we will consider revisions to the 2008 rule and our 
regulatory requirements concerning approximate original contour.\110\
---------------------------------------------------------------------------

    \108\ The MOU can be viewed online at www.osmre.gov/resources/mou/ASCM061109.pdf (last accessed August 1, 2014).
    \109\ Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and 
West Virginia.
    \110\ The MOU also stated that we would develop guidance 
clarifying how the 1983 stream buffer zone rule would be applied to 
reduce adverse impacts on streams if the court granted the 
Government's motion in NPCA for remand and vacatur of the 2008 rule. 
However, the court in NPCA did not grant the specific motion 
mentioned in the MOU. See Nat'l Parks Conservation Ass'n v. Salazar, 
660 F. Supp. 2d 3, 4 (D.D.C. 2009).
---------------------------------------------------------------------------

    The proposed rule that we are publishing today is, in part, the 
result of our review of existing regulatory authorities and procedures 
as promised in the MOU. The proposed rule would replace the vacated 
2008 rule and the reinstated pre-2008 rules. However, we have decided 
not to propose any major changes to our permitting requirements and 
performance standards concerning approximate original contour 
restoration at this time because of cost concerns and perceived 
difficulty of implementation.\111\
---------------------------------------------------------------------------

    \111\ The draft EIS and draft regulatory impact analysis for 
this rulemaking evaluate potential changes to approximate original 
contour requirements, including the addition of landforming and 
digital modeling requirements, as part of Alternative 4.
---------------------------------------------------------------------------

The Advance Notice of Proposed Rulemaking (ANPRM)

    On November 30, 2009 (74 FR 62664-64668), we published an advance 
notice of proposed rulemaking, consistent with the MOU and National 
Parks Conservation Association v. Salazar, 660 F. Supp. 2d 3, 4 (D.D.C. 
2009). Specifically, the notice described ten alternatives for revising 
the 2008 rule and related rules and invited the public to comment on 
those alternatives and to suggest other ways that the 2008 rule should 
be revised to better protect streams and implement the MOU. We also 
invited the public to identify provisions of our regulations other than 
the 2008 rule that should be revised to better protect the environment 
and the public from the impacts of Appalachian surface coal mining. We 
received approximately 32,750 comments during the 30-day comment 
period.
    After evaluating the comments that we received on the ANPRM, re-
examining the 2008 rule, and re-examining practices in and outside 
Appalachia, we determined that development of a comprehensive stream 
protection rule would be the most appropriate and effective method of 
better achieving the purposes and requirements of SMCRA as well as the 
goals set forth in the MOU and the ANPRM. Consequently, we are 
proposing a rule that would identify measures that mine operators and 
SMCRA regulatory authorities must take to prevent or minimize mining-
related impacts on streams and fish, wildlife and related environmental 
values.
    Thus, the scope of this proposed rule is broader than the scope of 
the 2008 rule, which focused primarily on excess spoil handling, coal 
mine waste disposal, and activities conducted in or near streams. 
Consistent with the broader scope of the proposed rule, we are 
preparing a new EIS, rather than supplementing the EIS prepared for the 
2008 rule. We also are consulting with the U.S. Fish and Wildlife 
Service as required by section 7 of the Endangered Species Act. 
Furthermore, if we determine that adoption of this proposed rule may 
affect species under the jurisdiction of the National Marine Fisheries 
Service (NMFS), we will consult with NMFS, which is

[[Page 44451]]

responsible for administration and enforcement of the Endangered 
Species Act with respect to anadromous and marine species.
    Comments that we received in response to the ANPRM differed as to 
whether the proposed rule should be national in scope or whether it 
should be limited to central Appalachia or to steep-slope mining 
operations. After evaluating those comments, we have decided to propose 
rules that are national in scope because streams are ecologically 
important regardless of topography or where they are located in the 
country. Measures to protect the quality and quantity of streamflow, 
both from surface sources and groundwater discharges, are likewise 
important regardless of topography or location. In addition, section 
101(g) of SMCRA states that ``[national] surface mining and reclamation 
standards are essential in order to insure that competition in 
interstate commerce among sellers of coal produced in different States 
will not be used to undermine the ability of the several States to 
improve and maintain adequate standards on coal mining operations 
within their borders.'' In other words, national standards are 
necessary because they define a set of environmental protection 
requirements that a state cannot relax as an incentive to coal 
producers to either continue to mine coal in the state or to relocate 
to the state.
    Protecting our water resources and preventing water pollution is 
important everywhere, especially in the arid and semiarid West and 
portions of the country that are experiencing droughts. There is a need 
for consistent, scientifically-valid documentation of the premining 
physical, chemical, and biological condition of streams and the impacts 
of mining and reclamation on those streams. All permits should include 
plans for stream protection or restoration that require use of best 
practices to either maintain the ecological condition of streams or 
restore both the physical form and the ecological function of affected 
streams. The proposed rule is sufficiently flexible to accommodate the 
different regions where coal is mined and the differences in streams 
found in those regions.
    In addition, the proposed rule would address some concerns that 
commenters on the ANPRM expressed with respect to other provisions of 
our regulations that are not necessarily directly related to stream 
protection, but that are important in terms of protecting the 
hydrologic balance or better achieving other requirements and purposes 
of SMCRA. We also propose to reorganize, revise, and streamline our 
rules to improve their readability and internal consistency, to update 
or remove obsolete provisions, to remove redundant and unneeded 
provisions, to be consistent with court decisions, and to incorporate 
plain language principles.

VII. Why does the proposed rule include protective measures for 
ephemeral streams?

    Unlike the regulations implementing the Clean Water Act, the 
existing regulations implementing SMCRA contain no specific protections 
for ephemeral streams. As summarized in Part II of this preamble, 
scientific studies completed since the enactment of SMCRA and the 
adoption of our existing rules have documented the importance of 
headwater streams, including ephemeral streams, in maintaining the 
ecological health and function of streams downgradient of headwater 
streams. EPA recently completed a literature review of the importance 
of headwater streams and published a report summarizing the findings of 
more than 1,200 peer-reviewed studies.\112\ With some exceptions, the 
report generally does not differentiate between the various types of 
headwaters streams, which consist of a mix of perennial, intermittent, 
and ephemeral streams, but it does emphasize that ephemeral streams are 
an important component of headwaters streams and that they have an 
effect on the form and function of downstream channels and aquatic 
life. Consistent with the findings of this report and other studies, 
our proposed rule includes some protections for ephemeral streams, 
tailored to their hydrologic and ecological functions.
---------------------------------------------------------------------------

    \112\ U.S. Environmental Protection Agency, Connectivity of 
Streams and Wetlands to Downstream Waters: A Review and Synthesis of 
the Scientific Evidence (Final Report). Office of Research and 
Development, National Center for Environmental Assessment, 
Washington, DC EPA/600/R-14/47F (2015). Available at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414 (last accessed 
June 16, 2015).
---------------------------------------------------------------------------

    We also are considering adopting an alternative that would provide 
equal protection to all streams, without regard to whether the stream 
is perennial, intermittent, or ephemeral. We invite comment on whether 
we should adopt this alternative in the final rule and, if so, whether 
we should extend all the protections that this proposed rule would 
afford to perennial and intermittent streams to ephemeral streams or 
whether we should instead scale back those protections to avoid undue 
adverse impacts on the mining industry, while still providing improved 
environmental protection to all streams compared with the existing 
regulations.

A. What are the findings of the EPA report?

    The report states that the evidence unequivocally demonstrates that 
the stream channels, riparian wetlands, floodplain wetlands, and open 
waters that together form river networks are clearly connected to 
downstream waters in ways that profoundly influence downstream water 
integrity. According to the authors, the body of literature documenting 
connectivity and downstream effects is most abundant for perennial and 
intermittent streams and for riparian and floodplain wetlands. However, 
the report states that, although less abundant, the evidence for 
connectivity and downstream effects of ephemeral streams is strong and 
compelling, particularly in context with the large body of evidence 
supporting the physical connectivity and cumulative effects of 
channelized flows that form and maintain stream networks.\113\
---------------------------------------------------------------------------

    \113\ Id. at ES-7.
---------------------------------------------------------------------------

    The report identifies five principal contributions of ephemeral 
streams: (1) Providing streamflow to larger streams; (2) conveying 
water into local storage compartments such as ponds, shallow aquifers, 
or streambanks that are important sources of water for maintenance of 
the baseflow in larger streams; (3) transporting sediment, woody 
debris, and nutrients; (4) providing the biological connectivity that 
is necessary either to support the life cycle of some invertebrates or 
to facilitate the transport of terrestrial invertebrates that serve as 
food resources in downstream communities; and (5) influencing 
fundamental biogeochemical processes such as the assimilation and 
transformation of nitrogen that may otherwise have detrimental impacts 
on downstream communities. The report's explanation of these 
contributions is summarized below. In addition, headwater streams, 
including ephemeral and intermittent streams, shape downstream channels 
by accumulating and gradually or episodically releasing stored 
materials such as sediment and large woody debris.\114\ These materials 
help structure stream and river channels by slowing the flow of water 
through channels and providing substrate and habitat for aquatic 
organisms.\115\
---------------------------------------------------------------------------

    \114\ Id. at ES-8.
    \115\ Id.

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[[Page 44452]]

Providing Streamflow to Larger Streams
    Ephemeral streams are hydrologically connected to downstream waters 
via channels that convey surface and subsurface water in direct 
response to precipitation. Moreover, these streams are the defining 
characteristic of many watersheds in arid and semi-arid regions of the 
United States; thus serving a critical role in the maintenance of water 
resources.\116\
---------------------------------------------------------------------------

    \116\ U.S. Environmental Protection Agency, The Ecological and 
Hydrological Significance of Ephemeral and Intermittent Streams in 
the Arid and Semi-Arid American Southwest. Office of Research and 
Development, Washington, DC Final Report No. EPA/600/R-08/134 
(2008).
---------------------------------------------------------------------------

Conveyance of Water Into Local Storage Compartments
    Ephemeral streams may convey water to local storage compartments, 
such as ponds, shallow aquifers, and streambanks, and recharge regional 
alluvial aquifers, depending upon the frequency, duration, magnitude, 
and timing of precipitation events. These local storage compartments 
are important sources of water for maintaining baseflow in perennial 
streams. Streamflow typically depends on the delayed (i.e., lagged) 
release of shallow groundwater from local storage, especially during 
dry periods and in areas with shallow groundwater tables and pervious 
subsurfaces. Relative to their cumulative surface area, an inordinate 
amount of groundwater recharge occurs in headwater ephemeral and 
intermittent channels within arid drainage basins. Furthermore, in the 
southwestern United States, short-term shallow groundwater storage in 
alluvial floodplain aquifers, with gradual release into stream 
channels, is a major source of annual flow in rivers.\117\
---------------------------------------------------------------------------

    \117\ EPA, Connectivity of Streams and Wetlands to Downstream 
Waters, op. cit., at ES-8 and 3-11.
---------------------------------------------------------------------------

Transport of Sediment and Nutrients
    Ephemeral streams frequently contain boulders and woody debris that 
entrain and store loose, unconsolidated sediment during smaller 
precipitation events that is subsequently released during infrequent, 
high-magnitude precipitation events. Because of the abundance and 
distribution of headwater streams, sediment storage and transport by 
those streams can have a substantial cumulative effect on downstream 
waters; headwater streams are important sediment sources for 
maintaining channels and floodplains.\118\ Similarly, headwater streams 
are important sources of organic matter (organic carbon) that serves as 
a downstream food source for aquatic life forms such as benthic 
macroinvertebrates and that enhances the fertility of agriculture on 
alluvial fans where some of the organic matter is deposited.\119\
---------------------------------------------------------------------------

    \118\ Id. at 3-15.
    \119\ Id. at 3-31 and 3-32.
---------------------------------------------------------------------------

Biological Connectivity
    Headwaters streams, including ephemeral streams, play an important 
role in the dispersal of genetic material and production and transport 
of food resources. For example, headwaters streams provide habitat that 
is critical for completion of one or more life-cycle stages of many 
aquatic and semiaquatic species capable of moving throughout water 
networks. These streams provide habitat for completion of complex life 
cycles. They also provide a refuge from predators, competitors, 
parasites, or adverse physical conditions in downstream waters.\120\
---------------------------------------------------------------------------

    \120\ Id. at ES-8.
---------------------------------------------------------------------------

    Because biological connections often result from passive transport 
of organisms or their products with water flow, biological connectivity 
often depends on hydrologic connectivity. Many living organisms, 
however, also can actively move with or against water flow; others 
disperse actively or passively over land by walking, flying, drifting, 
or ``hitchhiking.'' All of these organism-mediated connections form the 
basis of biological connectivity between headwater streams and 
downstream waters. Biological connections between upstream and 
downstream reaches can affect downstream waters via multiple pathways 
or functions. For organisms capable of significant upstream movement, 
headwater streams, including ephemeral and intermittent streams, can 
increase both the amount and quality of habitat available to those 
organisms. Many organisms require different habitats for different 
resources (e.g., food, spawning habitat, overwintering habitat), and 
thus move throughout the river network--both longitudinally and 
laterally--over their life cycles, with some requiring dry channels to 
complete part of their life cycle. Furthermore, dry stream channels can 
facilitate dispersal of aquatic invertebrates by serving as dispersal 
corridors for terrestrial adult forms. Headwater streams also provide 
food resources to downstream waters, especially in the form of 
terrestrial invertebrates that accumulate in intermittent and ephemeral 
streams during dry periods and are then transported downstream by storm 
flows during and after a precipitation event.\121\
---------------------------------------------------------------------------

    \121\ Id. at 3-37, 3-38, and 3-39.
---------------------------------------------------------------------------

Biogeochemical Processes
    There is strong evidence that headwater streams function as 
nitrogen sources (via export) and sinks (via uptake and transformation) 
for river networks. For example, one study estimated that rapid cycling 
of nutrients, including nitrogen, in small streams with no agricultural 
or urban impacts removed 20-40% of the nitrogen that otherwise would be 
delivered to downstream waters. Nutrients, including nitrogen, are 
necessary to support aquatic life, but excess nutrients lead to 
eutrophication and hypoxia, in which over-enrichment causes dissolved 
oxygen concentrations to fall below the level necessary to sustain most 
aquatic animal life in the stream and streambed. Thus, the influence of 
streams on nutrient loads can have significant repercussions for 
hypoxia in downstream waters.\122\
---------------------------------------------------------------------------

    \122\ Id. at ES-8.
---------------------------------------------------------------------------

B. What specific rule changes are we proposing with respect to 
ephemeral streams?

    We propose to require that the permit applicant identify and map 
all ephemeral streams within the proposed permit and adjacent areas. 
The applicant must describe the physical and hydrologic characteristics 
of those streams in detail, as well as any associated vegetation in the 
riparian zone if one exists. In addition, the applicant must assess the 
biological condition of a representative sample of those ephemeral 
streams. See proposed 30 CFR 780.19(c)(6) and 784.19(c)(6).
    We also propose to require that the significance of ephemeral 
streams be evaluated during the permitting process as part of the 
determination of the probable hydrologic consequences of mining and the 
cumulative hydrologic impact assessment. See proposed 30 CFR 780.20, 
780.21, 784.20, and 784.21.
    We further propose to specify that the backfilling and grading plan 
in the reclamation plan required by proposed 30 CFR 780.12(d) and 
784.12(d) must include contour maps, cross-sections, or models that 
show in detail the anticipated final surface configuration, including 
drainage patterns, of the proposed permit area. Proposed 30 CFR 
780.28(c)(1) and 784.28(c)(1) would require that the postmining 
drainage pattern, including ephemeral streams, be similar to the 
premining drainage pattern, with limited exceptions.

[[Page 44453]]

    Under proposed 30 CFR 780.28(b)(3) and 784.28(b)(3), the 
reclamation plan for an operation that proposes to disturb a perennial, 
intermittent, or ephemeral stream, or the surface of land within 100 
feet of that stream, must include the planting of native species, 
including, when appropriate, species adapted to and suitable for 
planting in riparian zones, within a corridor at least 100 feet in 
width on each side of the stream as part of the reclamation process 
following the completion of mining activities. The riparian corridor 
requirement would not apply to prime farmland or when a corridor would 
be inconsistent with an approved postmining land use that is actually 
implemented before expiration of the revegetation responsibility 
period. Nor would it apply to stream segments that are buried beneath 
an excess spoil fill or a coal mine waste disposal facility.

VIII. Overview and Tabular Summaries of Proposed Revisions and 
Organizational Changes

    The following derivation tables summarize the organizational 
changes in the proposed rule, relative to the existing rules. They also 
indicate whether we propose to revise the rule text in each 
redesignated section or paragraph. The organizational changes serve 
several purposes, including--
     Breaking up overly long sections and paragraphs into 
multiple shorter sections and paragraphs for ease of reference and 
improved comprehension.
     Renumbering sections in the underground mining rules to 
align their numbering with the corresponding sections in the surface 
mining rules. This change would greatly improve ease of reference and 
the user-friendliness of our rules.
     Moving permitting requirements from subchapter K 
(performance standards) to subchapter G to consolidate permitting 
requirements in subchapter G.
     Restructuring subchapter G to better distinguish between 
baseline information requirements and reclamation plan requirements.
     Removing redundant, suspended, and obsolete provisions.
    The following table is organized in the numerical order of the 
existing rule citations. It includes only those provisions of the 
existing regulations that we propose to move or remove.

------------------------------------------------------------------------
                                                         Existing text
          Existing rule                Proposed           revised in
                                     redesignation      proposed rule?
------------------------------------------------------------------------
Sec.   700.11(d)(1)(i)..........  Sec.                Yes, editorial.
                                   700.11(d)(1).
Sec.   700.11(d)(1)(ii).........  Sec.                Yes.
                                   700.11(d)(2).
Sec.   700.11(d)(2).............  Sec.                Yes.
                                   700.11(d)(3).
Sec.   701.5 [paragraphs (a) and  Sec.  Sec.          Yes.
 (b) of definition of              816.40 and 817.40.
 ``replacement of water
 supply''].
Sec.   773.7(a) [last sentence].  Sec.   773.7(b)(1)  Yes, editorial.
Sec.   773.7(b).................  Sec.   773.7(c)...  Yes, editorial.
Sec.   773.15(n)................  Sec.   773.15(m)..  No.
Sec.   777.13(a)................  Sec.                Yes.
                                   777.13(a)(1).
Sec.   777.13(b)................  Sec.                Yes, editorial.
                                   777.13(a)(2).
Sec.   779.11...................  None..............  Proposed for
                                                       removal;
                                                       redundant of
                                                       remainder of part
                                                       779.
Sec.   779.12(a)................  None..............  Proposed for
                                                       removal;
                                                       redundant of
                                                       proposed Sec.
                                                       779.24(a)(3).
Sec.   779.12(b)................  Sec.   779.17.....  Yes, editorial.
Sec.   779.24(a) through (f)....  Sec.                Yes.
                                   779.24(a)(1)
                                   through (a)(6).
Sec.   779.24(g)................  Sec.                Yes.
                                   779.24(a)(10).
Sec.   779.24(h) through (k)....  Sec.                No, except for
                                   779.24(a)(14)       editorial changes
                                   through (a)(17).    in (a)(17).
Sec.   779.24(l)................  Sec.                No.
                                   779.24(a)(28).
Sec.   779.25(a)(1).............  Sec.                Yes.
                                   779.24(a)(18).
Sec.   779.25(a)(2).............  Sec.                Yes.
                                   779.24(a)(20).
Sec.   779.25(a)(3).............  Sec.                Yes.
                                   779.24(a)(21).
Sec.   779.25(a)(4).............  Sec.                No.
                                   779.24(a)(22).
Sec.   779.25(a)(5).............  Sec.                Yes, editorial.
                                   779.24(a)(23) and
                                   (a)(24).
Sec.   779.25(a)(6).............  Sec.                Yes.
                                   779.24(a)(19).
Sec.   779.25(a)(7).............  Sec.                Yes, editorial.
                                   779.24(a)(9).
Sec.   779.25(a)(8).............  Sec.                No.
                                   779.24(a)(25).
Sec.   779.25(a)(9).............  Sec.                Yes.
                                   779.24(a)(26).
Sec.   779.25(a)(10)............  Sec.                Yes.
                                   779.24(a)(8)
                                   [water wells],
                                   Sec.
                                   779.24(a)(27)
                                   [gas and oil
                                   wells].
Sec.   780.12...................  Sec.   780.14.....  Yes, editorial.
Sec.   780.13...................  Sec.   780.15.....  Yes.
Sec.   780.14...................  Sec.   780.13.....  Yes.
Sec.   780.15...................  None..............  Proposed for
                                                       removal as
                                                       obsolete.
Sec.   780.16(a)................  Sec.   779.20(a)    Yes.
                                   through (c).
Sec.   780.16(b)................  Sec.   780.16(a)    Yes.
                                   through (d).
Sec.   780.16(c)................  Sec.   779.20(d),   Yes.
                                   Sec.   780.16(e).
Sec.   780.18 [in general]......  Sec.   780.12 [in   Yes.
                                   general].
Sec.   780.18(b)(1).............  Sec.   780.12(b)..  Yes.
Sec.   780.18(b)(2).............  Sec.   780.12(c)..  Yes.
Sec.   780.18(b)(3).............  Sec.   780.12(d)..  Yes.
Sec.   780.18(b)(4).............  Sec.   780.12(e)    Yes.
                                   [in general].
Sec.   780.18(b)(5).............  Sec.   780.12(g)    Yes.
                                   [in general].
Sec.   780.18(b)(6).............  Sec.   780.12(i)..  Yes, editorial.
Sec.   780.18(b)(7).............  Sec.   780.12(j)..  Yes.
Sec.   780.18(b)(8).............  Sec.   780.12(k)..  Yes, editorial.
Sec.   780.18(b)(9).............  Sec.   780.12(l)..  Yes, editorial.
Sec.   780.21(a)................  Sec.   777.13(b)..  Yes.
Sec.   780.21(b)(1) [location     Sec.                Yes, editorial.
 and ownership information in      779.24(a)(7).
 first sentence].

[[Page 44454]]

 
Sec.   780.21(b)(1) [except       Sec.   780.19(b)..  Yes.
 location and ownership
 information in first sentence].
Sec.   780.21(b)(2) [first part   Sec.                Yes, editorial.
 of first sentence through         779.24(a)(9).
 ``impoundments''].
Sec.   780.21(b)(2) [the part of  Sec.                Yes, editorial.
 the first sentence that           779.24(a)(12).
 pertains to discharges].
Sec.   780.21(b)(2) [except the   Sec.   780.19(c)..  Yes.
 part of the first sentence that
 precedes ``and information on .
 . .''].
Sec.   780.21(b)(3).............  Sec.   780.20(b)..  Yes.
Sec.   780.21(c)................  Sec.   780.19(g)..  Yes.
Sec.   780.21(d)................  Sec.   777.13(d)..  Yes.
Sec.   780.21(e)................  Sec.                Yes.
                                   780.22(b)(1).
Sec.   780.21(f)(1) through       Sec.   780.20(a)..  Yes.
 (f)(3).
Sec.   780.21(f)(4).............  Sec.                Yes.
                                   780.20(c)(1).
Sec.   780.21(g)................  Sec.   780.21.....  Yes.
Sec.   780.21(h)................  Sec.   780.22(a)..  Yes.
Sec.   780.21(i)................  Sec.   780.23(a)..  Yes.
Sec.   780.21(j)................  Sec.   780.23(b)..  Yes.
Sec.   780.22(a)................  Sec.                Yes.
                                   780.19(a)(1).
Sec.   780.22(b)................  Sec.                Yes.
                                   780.19(f)(1)
                                   through (3).
Sec.   780.22(c)................  Sec.                Yes, editorial.
                                   780.19(f)(4).
Sec.   780.22(d)................  Sec.                Yes, editorial.
                                   780.19(f)(5).
Sec.   780.23(a)................  Sec.   779.22.....  Yes.
Sec.   780.23(b) [except (b)(3)]  Sec.   780.24(a)..  Yes.
Sec.   780.23(b)(3).............  Sec.   780.12(m)..  Yes, editorial.
Sec.   780.29...................  Sec.   780.29(c)..  Yes.
Sec.   780.35(a)................  Sec.   780.35(f)    Yes, editorial.
                                   and (h).
Sec.   780.35(b)................  Sec.   780.35(g)..  Yes.
Sec.   780.35(c)................  Sec.   780.35(i)..  Yes, editorial.
Sec.   783.11...................  None..............  Proposed for
                                                       removal;
                                                       redundant of
                                                       remainder of part
                                                       783.
Sec.   783.12(a)................  None..............  Proposed for
                                                       removal;
                                                       redundant of
                                                       proposed Sec.
                                                       783.24(a)(3).
Sec.   783.12(b)................  Sec.   783.17.....  Yes, editorial.
Sec.   783.24(a) through (f)....  Sec.                Yes.
                                   783.24(a)(1)
                                   through (a)(6).
Sec.   783.24(g)................  Sec.                Yes.
                                   783.24(a)(10).
Sec.   783.24(h) through (k)....  Sec.                No, except for
                                   783.24(a)(14)       editorial changes
                                   through (a)(17).    in (a)(17).
Sec.   783.24(l)................  Sec.                No.
                                   783.24(a)(28).
Sec.   783.25(a)(1).............  Sec.                Yes.
                                   783.24(a)(18).
Sec.   783.25(a)(2).............  Sec.                Yes.
                                   783.24(a)(20).
Sec.   783.25(a)(3), [Suspended   Sec.                Yes. We are re-
 August 4, 1980].                  783.24(a)(21).      proposing part of
                                                       this rule and
                                                       proposing to
                                                       remove the
                                                       remainder.
Sec.   783.25(a)(4).............  Sec.                Yes.
                                   783.24(a)(22).
Sec.   783.25(a)(5).............  Sec.                Yes.
                                   783.24(a)(23) and
                                   (a)(24).
Sec.   783.25(a)(6).............  Sec.                Yes.
                                   783.24(a)(19).
Sec.   783.25(a)(7).............  Sec.                Yes, editorial.
                                   783.24(a)(9).
Sec.   783.25(a)(8), [Suspended   Sec.                Yes, editorial. We
 August 4, 1980].                  783.24(a)(25).      are re-proposing
                                                       this rule.
Sec.   783.25(a)(9), [Suspended   Sec.                Yes. We are re-
 August 4, 1980].                  783.24(a)(26).      proposing part of
                                                       this rule and
                                                       proposing to
                                                       remove the
                                                       remainder.
Sec.   783.25(a)(10)............  Sec.                Yes.
                                   783.24(a)(8)
                                   [water wells],
                                   Sec.
                                   783.24(a)(27)
                                   [gas and oil
                                   wells].
Sec.   784.12...................  Sec.   784.14.....  Yes, editorial.
Sec.   784.13 [in general]......  Sec.   784.12 [in   Yes.
                                   general].
Sec.   784.13(b)(1).............  Sec.   784.12(b)..  Yes.
Sec.   784.13(b)(2).............  Sec.   784.12(c)..  Yes.
Sec.   784.13(b)(3).............  Sec.   784.12(d)..  Yes.
Sec.   784.13(b)(4).............  Sec.   784.12(e)    Yes.
                                   [in general].
Sec.   784.13(b)(5).............  Sec.   784.12(g)    Yes.
                                   [in general].
Sec.   784.13(b)(6).............  Sec.   784.12(i)..  Yes, editorial.
Sec.   784.13(b)(7).............  Sec.   784.12(j)..  Yes.
Sec.   784.13(b)(8).............  Sec.   784.12(k)..  Yes, editorial.
Sec.   784.13(b)(9).............  Sec.   784.12(l)..  Yes, editorial.
Sec.   784.14(a)................  Sec.   777.13(b)..  Yes.
Sec.   784.14(b)(1) [location     Sec.                Yes, editorial.
 and ownership information in      783.24(a)(7).
 first sentence].
Sec.   784.14(b)(1) [except       Sec.   784.19(b)..  Yes.
 location and ownership
 information in first sentence].
Sec.   784.14(b)(2) [the part of  Sec.                Yes, editorial.
 the first sentence that           783.24(a)(9).
 precedes ``impoundments''].
Sec.   784.14(b)(2) [the part of  Sec.                Yes, editorial.
 the first sentence that           783.24(a)(12).
 pertains to discharges].

[[Page 44455]]

 
Sec.   784.14(b)(2) [except the   Sec.   784.19(c)..  Yes.
 part of the first sentence that
 precedes ``and information on .
 . .''].
Sec.   784.14(b)(3).............  Sec.   784.20(b)..  Yes
Sec.   784.14(c)................  Sec.   784.19(g)..  Yes.
Sec.   784.14(d)................  Sec.   777.13(d)..  Yes.
Sec.   784.14(e)(1) through       Sec.   784.20(a)..  Yes.
 (e)(3).
Sec.   784.14(e)(4).............  Sec.                Yes.
                                   784.20(c)(1).
Sec.   784.14(f)................  Sec.   784.21.....  Yes.
Sec.   784.14(g)................  Sec.   784.22(a)..  Yes.
Sec.   784.14(h)................  Sec.   784.23(a)..  Yes.
Sec.   784.14(i)................  Sec.   784.23(b)..  Yes.
Sec.   784.15(a)................  Sec.   783.22.....  Yes.
Sec.   784.15(b) [except (b)(3)]  Sec.   784.24(a)..  Yes.
Sec.   784.15(b)(3).............  Sec.   784.12(m)..  Yes, editorial.
Sec.   784.17...................  Sec.   784.31.....  No.
Sec.   784.18...................  Sec.   784.33.....  No.
Sec.   784.19...................  Sec.   784.35.....  Yes.
Sec.   784.20...................  Sec.   784.30.....  Yes.
Sec.   784.21(a)................  Sec.   783.20(a)    Yes.
                                   and (b).
Sec.   784.21(b)................  Sec.   784.16(a)    Yes.
                                   through (d).
Sec.   784.21(c)................  Sec.   783.20(d),   Yes.
                                   Sec.   784.16(e).
Sec.   784.22(a)................  Sec.                Yes.
                                   784.19(a)(1).
Sec.   784.22(b)................  Sec.                Yes.
                                   784.19(f)(1)
                                   through (4).
Sec.   784.22(c)................  Sec.                Yes, editorial.
                                   784.19(f)(5).
Sec.   784.22(d)................  Sec.                Yes, editorial.
                                   784.19(f)(6).
Sec.   784.23...................  Sec.   784.13.....  Yes.
Sec.   784.24...................  Sec.   784.37.....  Yes.
Sec.   784.25...................  Sec.   784.26.....  Yes, editorial.
Sec.   784.26...................  Sec.   784.12(f)..  Yes.
Sec.   784.29...................  Sec.   784.29(c)..  Yes
Sec.   784.30...................  Sec.   784.38.....  Yes, editorial.
Sec.   784.200(a)...............  Sec.   784.24(c)..  Yes.
Sec.   785.14(b)................  Sec.   701.5        Yes, editorial.
                                   [definition of
                                   ``mountaintop
                                   removal mining''].
Sec.   785.14(c) [introductory    Sec.   785.14(b)    Yes, editorial.
 text].                            [introductory
                                   text].
Sec.   785.14(c)(1)               Sec.                Yes, editorial.
 [introductory text].              785.14(b)(1).
Sec.   785.14(c)(1)(i)..........  Sec.                Yes, editorial.
                                   785.14(b)(2).
Sec.   785.14(c)(1)(ii).........  Sec.                Yes, editorial.
                                   785.14(b)(3).
Sec.   785.14(c)(1)(iii) [except  Sec.                Yes, editorial.
 paragraph (c)(1)(iii)(G)].        785.14(b)(4).
Sec.   785.14(c)(1)(iii)(G).....  Sec.                Yes, editorial.
                                   785.14(b)(5).
Sec.   785.14(c)(1)(iv).........  Sec.                Yes, editorial.
                                   785.14(b)(6).
Sec.   785.14(c)(1)(v)..........  Sec.                Yes, editorial.
                                   785.14(b)(7).
Sec.   785.14(c)(2).............  Sec.                Yes, editorial.
                                   785.14(b)(8).
Sec.   785.14(c)(3).............  None..............  Proposed for
                                                       removal as
                                                       unnecessary.
Sec.   785.14(c)(4).............  Sec.                Yes, editorial.
                                   785.14(b)(12).
Sec.   785.14(c)(5).............  Sec.   785.14(c)..  Yes.
Sec.   785.14(d)(1) and (2).....  Sec.                Yes.
                                   785.14(d)(1).
Sec.   785.14(d)(3).............  Sec.                Yes, editorial.
                                   785.14(d)(2).
Sec.   785.16(a) [introductory    Sec.   785.16(a)    Yes, editorial.
 text].                            (introductory
                                   text).
Sec.   785.16(a)(1).............  Sec.                Yes, editorial.
                                   785.16(a)(1).
Sec.   785.16(a)(2).............  Sec.                Yes, editorial.
                                   785.16(a)(2).
Sec.   785.16(a)(3).............  Sec.                Yes.
                                   785.16(a)(9).
Sec.   785.16(a)(4).............  Sec.                Yes.
                                   785.16(a)(10).
Sec.   785.16(b)(1).............  None..............  Proposed for
                                                       removal as
                                                       unnecessary.
Sec.   785.16(b)(2).............  Sec.                Yes, editorial.
                                   785.16(b)(1).
Sec.   785.16(c) and (d)........  Sec.                Yes.
                                   785.16(b)(2).
Sec.   785.16(e)................  Sec.                Yes, editorial.
                                   785.16(b)(3).
Sec.   785.16(f)................  Sec.                Yes, editorial.
                                   785.16(b)(4).
Sec.   785.25(b) [first           Sec.                Yes, editorial.
 sentence].                        785.25(b)(1).
Sec.   785.25(b) [except first    Sec.                Yes, editorial.
 sentence].                        785.16(b)(2).
Sec.   800.11(e)................  Sec.   800.9......  Yes.
Sec.   800.11(a) through (d)....  Sec.   800.11.....  Yes, editorial.
Sec.   800.15(c) [first           Sec.                Yes, editorial.
 sentence].                        800.15(a)(2)(ii).
Sec.   800.16(e)(2).............  Sec.   800.30(b)..  Yes.
Sec.   800.17...................  None..............  Proposed for
                                                       removal;
                                                       redundant of
                                                       remainder of part
                                                       800.
Sec.   800.30(a)................  Sec.                Yes.
                                   800.30(a)(1).
Sec.   800.30(b)................  Sec.                Yes.
                                   800.30(a)(3).
Sec.   800.40(a)................  Sec.   800.40.....  Yes, editorial,
                                                       except for
                                                       (b)(2)(vi), which
                                                       has substantive
                                                       changes.
Sec.   800.40(b)(1).............  Sec.   800.41.....  Yes, editorial,
                                                       except for
                                                       (a)(2), which has
                                                       substantive
                                                       changes.

[[Page 44456]]

 
Sec.   800.40(b)(2).............  Sec.   800.43(a)..  Yes, editorial.
Sec.   800.40(c)................  Sec.   800.42.....  Yes.
Sec.   800.40(d)................  Sec.   800.43(b)..  Yes, editorial.
Sec.   800.40(e)................  Sec.   800.43(c)..  Yes, editorial.
Sec.   800.40(f) through (h)....  Sec.   800.44(a)    Yes, editorial.
                                   through (c).
Sec.   816.13...................  Sec.   816.13(a),   Yes, editorial.
                                   (c), (d), and (f).
Sec.   816.14...................  Sec.   816.13(b)..  Yes, editorial.
Sec.   816.15...................  Sec.   816.13(e)..  Yes, editorial.
Sec.   816.22(a)(1) through (4).  Sec.                Yes.
                                   816.22(a)(1) and
                                   (2).
Sec.   816.22(b)................  Sec.                Yes.
                                   780.12(e)(2),
                                   Sec.   816.22(c).
Sec.   816.22(c)................  Sec.   816.22(b)..  Yes.
Sec.   816.22(d)(1).............  Sec.                Yes.
                                   816.22(e)(1).
Sec.   816.22(d)(2).............  Sec.                Yes, editorial.
                                   816.22(d)(2).
Sec.   816.22(d)(3).............  Sec.                Yes, editorial.
                                   816.22(e)(3).
Sec.   816.22(d)(4).............  None..............  Proposed for
                                                       removal; covered
                                                       by proposed Sec.
                                                        780.12(g)(1)(iii
                                                       ).
Sec.   816.22(e)................  Sec.                Yes.
                                   780.12(e)(1)(ii).
Sec.   816.41(a), (b), and (d)..  Sec.   816.34(a)    Yes.
                                   through (c).
Sec.   816.41(c)................  Sec.   816.35.....  Yes.
Sec.   816.41(e)................  Sec.   816.36.....  Yes.
Sec.   816.41(f)................  Sec.   816.38.....  Yes.
Sec.   816.41(g)................  Sec.   816.39.....  Yes.
Sec.   816.41(h)................  Sec.   816.40.....  Yes.
Sec.   816.41(i)................  Sec.   816.41.....  Yes.
Sec.   816.42...................  Sec.   816.42(a)..  Yes.
Sec.   816.43(a)(3) [last         Sec.   780.28(c),   Yes.
 sentence], Sec.   816.43(b).      Sec.   816.57(b).
Sec.   816.43(c)(3).............  Merged into Sec.    Yes.
                                   816.43(a)(5)(ii).
Sec.   816.46(b)(2), [Suspended   None..............  Proposed for
 December 22, 1986].                                   removal.
Sec.   816.46(c)(1)(i)..........  None..............  Proposed for
                                                       removal as
                                                       unnecessary.
Sec.   816.46(c)(1)(ii) and       Sec.                Yes.
 (iii).                            816.46(c)(1)(i)
                                   and (ii).
Sec.   816.57(a) [first           Sec.                Yes.
 sentence].                        816.57(a)(1).
Sec.   816.57(a) [except first    Sec.                Yes
 sentence].                        780.28(e)(2).
Sec.   816.57(b)................  Merged into Sec.    Yes, editorial.
                                   816.11(e).
Sec.   816.71(b)(1).............  Sec.   780.35(f)    Yes, editorial.
                                   and (j).
Sec.   816.71(b)(2).............  Sec.                Yes, editorial.
                                   816.71(b)(1).
Sec.   816.71(c)................  Sec.                Yes.
                                   780.35(e)(2) and
                                   (3).
Sec.   816.71(d)(1).............  Sec.                Yes.
                                   780.35(g)(1) and
                                   (4).
Sec.   816.71(d)(2) [first        Sec.                Yes.
 sentence].                        816.71(b)(2).
Sec.   816.71(d)(2) [second       Merged into Sec.    Yes, editorial.
 sentence].                        780.35(i).
Sec.   816.71(e)(1).............  Sec.   816.71(d)..  Yes.
Sec.   816.71(e)(2).............  Sec.                Yes.
                                   816.71(g)(1).
Sec.   816.71(e)(3).............  Sec.   816.71(h)..  Yes.
Sec.   816.71(e)(4).............  Sec.   816.71(i)..  Yes.
Sec.   816.71(e)(5).............  Sec.                Yes, editorial.
                                   816.71(g)(3).
Sec.   816.71(g)................  Sec.   816.71(j)..  Yes, editorial.
Sec.   816.71(h)................  Sec.   816.71(k)..  Yes.
Sec.   816.71(i)................  Sec.   816.71(l)..  Yes.
Sec.   816.71(j)................  Sec.   816.71(m)..  Yes, editorial.
Sec.   816.72(a)(1).............  Sec.                Yes, editorial.
                                   816.71(e)(2).
Sec.   816.72(a)(2).............  Sec.                Yes.
                                   816.71(e)(1).
Sec.   816.72 [except paragraph   None..............  Proposed for
 (a)].                                                 removal.
Sec.   816.73...................  None..............  Proposed for
                                                       removal.
Sec.   816.74(c) [first           Sec.                Yes, editorial.
 sentence].                        816.74(c)(1).
Sec.   816.74(c) [second          Sec.                Yes, editorial.
 sentence].                        816.74(c)(2).
Sec.   816.74(c) [third           Sec.                Yes, editorial.
 sentence].                        816.74(d)(1).
Sec.   816.74(c) [fourth          Sec.                Yes, editorial.
 sentence].                        816.74(d)(2).
Sec.   816.74(d) [except (d)(4)]  Sec.   816.74(e)..  Yes.
Sec.   816.74(d)(4).............  Sec.                Yes.
                                   816.74(c)(3).
Sec.   816.74(e)................  Sec.   816.74(f)..  Yes, editorial.
Sec.   816.74(f)................  Sec.   816.74(g)..  Yes, editorial.
Sec.   816.74(g)................  Sec.   816.74(h)..  Yes, editorial.
Sec.   816.74(h)................  None..............  Proposed for
                                                       removal.
Sec.   816.81(a) [first           Sec.   816.81(a)..  Yes, editorial.
 sentence].
Sec.   816.81(a) [except first    Sec.   816.81(b)..  Yes.
 sentence].
Sec.   816.81(b)................  Sec.   816.81(c)..  Yes, editorial.
Sec.   816.81(c)................  Sec.   816.81(d)..  Yes.
Sec.   816.81(d)................  Sec.   816.81(e)..  Yes, editorial.
Sec.   816.81(e)................  Sec.   816.81(g)..  Yes, editorial.
Sec.   816.81(f)................  Sec.   816.81(h)..  Yes, editorial.
Sec.   816.83 [introductory       Sec.   816.83(a)..  Yes, editorial.
 text].
Sec.   816.83(a)................  Sec.   816.83(b)..  Yes.
Sec.   816.83(b)................  Sec.   816.83(c)..  Yes, editorial.
Sec.   816.83(c)................  Sec.   816.83(d)..  Yes.

[[Page 44457]]

 
Sec.   816.83(d)................  Sec.   816.83(e)..  Yes, editorial.
Sec.   816.84 [introductory       Sec.   816.84(a)..  Yes, editorial.
 text].
Sec.   816.84(a)................  Sec.   816.84(b)..  Yes, editorial.
Sec.   816.84(b)................  Sec.   816.84(c)..  Yes, editorial.
Sec.   816.84(c)................  Sec.   816.84(d)..  Yes, editorial.
Sec.   816.84(d)................  Sec.   816.84(e)..  Yes.
Sec.   816.84(e)................  Sec.                Yes, editorial.
                                   780.25(d)(3)(iv).
Sec.   816.97(d)................  Sec.                Yes, editorial.
                                   816.97(b)(5) and
                                   (c)(4).
Sec.   816.97(e)................  Sec.   816.97(d)..  Yes.
Sec.   816.97(f)................  Sec.   816.97(e)..  Yes.
Sec.   816.97(g)................  Sec.   816.97(f)..  Yes.
Sec.   816.97(h)................  Sec.   816.97(g)..  Yes.
Sec.   816.101 [Suspended August  None..............  Proposed for
 31, 1992].                                            removal.
Sec.   816.102(a)(2)............  Sec.                Yes.
                                   816.102(a)(3)
                                   [introductory
                                   text].
Sec.   816.102(a)(3)............  Sec.                No.
                                   816.102(a)(4).
Sec.   816.102(a)(4)............  Sec.                Yes.
                                   816.102(a)(5).
Sec.   816.102(a)(5)............  Sec.                No.
                                   816.102(a)(6).
Sec.   816.102(b)...............  Sec.   816.102(b)   Yes, editorial.
                                   [introductory
                                   text] and (b)(1).
Sec.   816.102(d)...............  Sec.                Yes.
                                   816.102(b)(3).
Sec.   816.102(f)...............  Sec.   816.102(d).  Yes.
Sec.   816.102(g)...............  Sec.                Yes.
                                   816.102(a)(2).
Sec.   816.102(h)...............  Sec.                Yes.
                                   816.102(a)(3)(i).
Sec.   816.102(i)...............  Sec.                Yes.
                                   816.102(a)(3)(ii).
Sec.   816.102(j)...............  Sec.   816.102(f).  Yes.
Sec.   816.102(k)(1)............  Sec.                Yes, editorial.
                                   816.102(a)(1)(iii
                                   ).
Sec.   816.102(k)(2)............  Sec.                Yes, editorial.
                                   816.102(a)(1)(iv).
Sec.   816.102(k)(3)(i).........  Sec.                Yes, editorial.
                                   816.102(a)(1)(i).
Sec.   816.102(k)(3)(ii)........  Sec.                Yes, editorial.
                                   816.102(a)(1)(ii).
Sec.   816.102(k)(3)(iii).......  Sec.                Yes, editorial.
                                   816.102(a)(1)(v).
Sec.   816.111(a) [except (a)(2)  Sec.   816.111(a)   Yes.
 and (a)(4)].                      and (b).
Sec.   816.111(a)(2)............  Sec.                Yes.
                                   780.12(g)(3)(i).
Sec.   816.111(a)(4)............  Sec.                Yes.
                                   780.12(g)(3)(ii).
Sec.   816.111(b)(1)............  Sec.                No.
                                   780.12(g)(3)(iii).
Sec.   816.111(b)(2)............  Sec.                Yes.
                                   780.12(g)(3)(iv).
Sec.   816.111(b)(3)............  Sec.                Yes, editorial.
                                   780.12(g)(3)(v).
Sec.   816.111(b)(4)............  Sec.                No.
                                   780.12(g)(3)(vi).
Sec.   816.111(b)(5)............  Sec.                Yes, editorial.
                                   780.12(g)(3)(vii).
Sec.   816.111(c)...............  Sec.                Yes.
                                   780.12(g)(4).
Sec.   816.111(d)...............  Sec.                Yes, editorial.
                                   780.12(g)(5).
Sec.   816.113..................  Sec.   816.111(e).  Yes.
Sec.   816.114..................  Sec.   816.111(d).  Yes.
Sec.   816.116(a) [introductory   Sec.   816.116(b).  Yes.
 text].
Sec.   816.116(a)(1)............  Sec.   816.116(a).  Yes, editorial.
Sec.   816.116(a)(2) [first       Sec.   816.116(c).  Yes.
 sentence].
Sec.   816.116(a)(2) [second      Sec.   816.116(d).  Yes, editorial.
 sentence].
Sec.   816.116(b) [introductory   None..............  Proposed for
 text], (b)(1), (b)(2), and                            removal;
 introductory text of (b)(3).                          superseded by
                                                       remainder of
                                                       proposed Sec.
                                                       816.116.
Sec.   816.116(b)(3)(i).........  Sec.   816.116(e).  Yes.
Sec.   816.116(b)(3)(ii)........  Sec.                Yes.
                                   816.116(f)(1) and
                                   (f)(2).
Sec.   816.116(b)(3)(iii).......  Sec.                Yes.
                                   816.116(f)(3).
Sec.   816.116(b)(4)............  Sec.   816.116(g).  Yes.
Sec.   816.116(b)(5)............  Sec.   816.116(h).  Yes, editorial.
Sec.   816.116(c)...............  Sec.   816.115....  Yes.
Sec.   816.133(a) [introductory   Sec.   816.133      Yes, editorial.
 text].                            [introductory
                                   text].
Sec.   816.133(a)(1)............  Sec.   816.133(a).  Yes, editorial.
Sec.   816.133(a)(2)............  Sec.   816.133(b).  Yes, editorial.
Sec.   816.133(b) [first          Sec.   780.24(b)..  Yes.
 sentence].
Sec.   816.133(b) [last           Sec.   780.24(e)..  Yes.
 sentence].
Sec.   816.133(c)...............  Sec.   780.24(b)..  Yes.
Sec.   816.133(d)(1)............  None..............  Proposed for
                                                       removal;
                                                       redundant of Sec.
                                                         785.16(a).
Sec.   816.133(d)(2)............  Sec.                Yes, editorial.
                                   785.16(a)(2).
Sec.   816.133(d)(3)............  None..............  Proposed for
                                                       removal as
                                                       unnecessary and
                                                       duplicative.
Sec.   816.133(d)(4)............  Sec.                Yes, editorial.
                                   785.16(a)(3).
Sec.   816.133(d)(5)............  Sec.                Yes, editorial.
                                   785.16(a)(5).
Sec.   816.133(d)(6)............  Sec.                Yes.
                                   785.16(a)(9).
Sec.   816.133(d)(7)............  Sec.                Yes, editorial.
                                   785.16(a)(6).
Sec.   816.133(d)(8)............  Sec.                Yes, editorial.
                                   785.16(a)(7).
Sec.   816.133(d)(9)............  Sec.                Yes, editorial.
                                   785.16(a)(10).
Sec.   816.133(d)(10)...........  Sec.                Yes, editorial.
                                   785.16(a)(4).
Sec.   816.200..................  None..............  Proposed for
                                                       removal as
                                                       obsolete.
Sec.   817.13...................  Sec.   817.13(a),   Yes, editorial.
                                   (d), (e), and (g).
Sec.   817.14(a)................  Sec.   817.13(b)..  Yes, editorial.

[[Page 44458]]

 
Sec.   817.14(b)................  Sec.   817.13(c)..  Yes, editorial.
Sec.   817.15...................  Sec.   817.13(f)..  Yes, editorial.
Sec.   817.22(a)(1) through (4).  Sec.                Yes.
                                   817.22(a)(1) and
                                   (2).
Sec.   817.22(b)................  Sec.                Yes.
                                   784.12(e)(2),
                                   Sec.   817.22(c).
Sec.   817.22(c)................  Sec.   817.22(b)..  Yes.
Sec.   817.22(d)(1).............  Sec.                Yes.
                                   817.22(e)(1).
Sec.   817.22(d)(2).............  Sec.                Yes, editorial.
                                   817.22(d)(2).
Sec.   817.22(d)(3).............  Sec.                Yes, editorial.
                                   817.22(e)(3).
Sec.   817.22(d)(4).............  None..............  Proposed for
                                                       removal; covered
                                                       by proposed Sec.
                                                        784.12(g)(1)(iii
                                                       ).
Sec.   817.22(e)................  Sec.                Yes.
                                   784.12(e)(1)(ii).
Sec.   817.41(a), (b), and (d)..  Sec.   817.34(a)    Yes.
                                   through (c).
Sec.   817.41(c)................  Sec.   817.35.....  Yes.
Sec.   817.41(e)................  Sec.   817.36.....  Yes.
Sec.   817.41(f)................  Sec.   817.38.....  Yes.
Sec.   817.41(g)................  Sec.   817.39.....  Yes.
Sec.   817.41(j)................  Sec.   817.40.....  Yes.
Sec.   817.41(h)................  Sec.   817.41.....  Yes.
Sec.   817.41(i)................  Sec.   817.44.....  Yes, editorial.
Sec.   817.42...................  Sec.   817.42(a)..  Yes.
Sec.   817.43(a)(3) [last         Sec.   784.28(c),   Yes.
 sentence], Sec.   817.43(b).      Sec.   817.57(b).
Sec.   817.43(c)(3).............  Merged into Sec.    Yes.
                                   817.43(a)(5)(ii).
Sec.   817.46(b)(2) [Suspended    None..............  Proposed for
 December 22, 1986].                                   removal.
Sec.   817.46(c)(1)(i)..........  None..............  Proposed for
                                                       removal as
                                                       unnecessary.
Sec.   817.46(c)(1)(ii) and       Sec.                Yes.
 (iii).                            817.46(c)(1)(i)
                                   and (ii).
Sec.   817.57(a) [first           Sec.                Yes.
 sentence].                        817.57(a)(1).
Sec.   817.57(a) [except first    Sec.                Yes.
 sentence].                        784.28(e)(2).
Sec.   817.57(b)................  Merged into Sec.    Yes, editorial.
                                   817.11(e).
Sec.   817.71(b)(1).............  Sec.   784.35(f)    Yes, editorial.
                                   and (j).
Sec.   817.71(b)(2).............  Sec.                Yes, editorial.
                                   817.71(b)(1).
Sec.   817.71(c)................  Sec.                Yes.
                                   784.35(e)(2) and
                                   (3).
Sec.   817.71(d)(1).............  Sec.                Yes.
                                   784.35(g)(1) and
                                   (4).
Sec.   817.71(d)(2) [first        Sec.                Yes.
 sentence].                        817.71(b)(2).
Sec.   817.71(d)(2) [second       Merged into Sec.    Yes, editorial.
 sentence].                        784.35(i).
Sec.   817.71(e)(1).............  Sec.   817.71(d)..  Yes.
Sec.   817.71(e)(2).............  Sec.                Yes.
                                   817.71(g)(1).
Sec.   817.71(e)(3).............  Sec.   817.71(h)..  Yes.
Sec.   817.71(e)(4).............  Sec.   817.71(i)..  Yes.
Sec.   817.71(e)(5).............  Sec.                Yes, editorial.
                                   817.71(g)(3).
Sec.   817.71(g)................  Sec.   817.71(j)..  Yes.
Sec.   817.71(h)................  Sec.   817.71(k)..  Yes.
Sec.   817.71(i)................  Sec.   817.71(l)..  Yes.
Sec.   817.71(j)................  Sec.   817.71(m)..  Yes, editorial.
Sec.   817.72(a)(1).............  Sec.                Yes, editorial.
                                   817.71(e)(2).
Sec.   817.72(a)(2).............  Sec.                Yes.
                                   817.71(e)(1).
Sec.   817.72 [except paragraph   None..............  Proposed for
 (a)].                                                 removal.
Sec.   817.73...................  None..............  Proposed for
                                                       removal.
Sec.   817.74(c) [first           Sec.                Yes, editorial.
 sentence].                        817.74(c)(1).
Sec.   817.74(c) [second          Sec.                Yes, editorial.
 sentence].                        817.74(c)(2).
Sec.   817.74(c) [third           Sec.                Yes, editorial.
 sentence].                        817.74(d)(1).
Sec.   817.74(c) [fourth          Sec.                Yes, editorial.
 sentence].                        817.74(d)(2).
Sec.   817.74(d) [except (d)(4)]  Sec.   817.74(e)..  Yes.
Sec.   817.74(d)(4).............  Sec.                Yes.
                                   817.74(c)(3).
Sec.   817.74(e)................  Sec.   817.74(f)..  Yes, editorial.
Sec.   817.74(f)................  Sec.   817.74(g)..  Yes, editorial.
Sec.   817.74(g)................  Sec.   817.74(h)..  Yes, editorial.
Sec.   817.74(h)................  None..............  Proposed for
                                                       removal.
Sec.   817.81(a) [first           Sec.   817.81(a)..  Yes, editorial.
 sentence].
Sec.   817.81(a) [except first    Sec.   817.81(b)..  Yes.
 sentence].
Sec.   817.81(b)................  Sec.   817.81(c)..  Yes, editorial.
Sec.   817.81(c)................  Sec.   817.81(d)..  Yes.
Sec.   817.81(d)................  Sec.   817.81(e)..  Yes.
Sec.   817.81(e)................  Sec.   817.81(g)..  Yes, editorial.
Sec.   817.81(f)................  Sec.   817.81(h)..  Yes, editorial.
Sec.   817.83 [introductory       Sec.   817.83(a)..  Yes, editorial.
 text].
Sec.   817.83(a)................  Sec.   817.83(b)..  Yes.
Sec.   817.83(b)................  Sec.   817.83(c)..  Yes, editorial.
Sec.   817.83(c)................  Sec.   817.83(d)..  Yes.
Sec.   817.83(d)................  Sec.   817.83(e)..  Yes, editorial.
Sec.   817.84 [introductory       Sec.   817.84(a)..  Yes, editorial.
 text].
Sec.   817.84(a)................  Sec.   817.84(b)..  Yes, editorial.
Sec.   817.84(b)................  Sec.   817.84(c)..  Yes, editorial.
Sec.   817.84(c)................  Sec.   817.84(d)..  Yes, editorial.

[[Page 44459]]

 
Sec.   817.84(d)................  Sec.   817.84(e)..  Yes.
Sec.   817.84(e)................  Sec.                Yes, editorial.
                                   784.25(d)(3)(iv).
Sec.   817.97(d)................  Sec.                Yes, editorial.
                                   817.97(b)(5) and
                                   (c)(4).
Sec.   817.97(e)................  Sec.   817.97(d)..  Yes.
Sec.   817.97(f)................  Sec.   817.97(e)..  Yes.
Sec.   817.97(g)................  Sec.   817.97(f)..  Yes.
Sec.   817.97(h)................  Sec.   817.97(g)..  Yes.
Sec.   817.102(a)(2)............  Sec.                Yes.
                                   817.102(a)(3)
                                   [introductory
                                   text].
Sec.   817.102(a)(3)............  Sec.                No.
                                   817.102(a)(4).
Sec.   817.102(a)(4)............  Sec.                Yes.
                                   817.102(a)(5).
Sec.   817.102(a)(5)............  Sec.                No.
                                   817.102(a)(6).
Sec.   817.102(b)...............  Sec.   817.102(b)   Yes, editorial.
                                   [introductory
                                   text] and (b)(1).
Sec.   817.102(d)...............  Sec.                Yes.
                                   817.102(b)(2).
Sec.   817.102(f)...............  Sec.   817.102(d).  Yes.
Sec.   817.102(g)...............  Sec.                Yes.
                                   817.102(a)(2).
Sec.   817.102(h)...............  Sec.                Yes.
                                   817.102(a)(3)(i).
Sec.   817.102(i)...............  Sec.                Yes.
                                   817.102(a)(3)(ii).
Sec.   817.102(j)...............  Sec.   817.102(f).  Yes.
Sec.   817.102(k)(1)............  Sec.                Yes, editorial.
                                   817.102(a)(1)(i).
Sec.   817.102(k)(2)............  Sec.                Yes, editorial.
                                   817.102(a)(1)(ii).
Sec.   817.102(l)...............  Sec.                Yes.
                                   817.102(a)(1)(vii
                                   ).
Sec.   817.111(a) [except (a)(2)  Sec.   817.111(a)   Yes.
 and (a)(4)].                      and (b).
Sec.   817.111(a)(2)............  Sec.                Yes.
                                   784.12(g)(3)(i).
Sec.   817.111(a)(4)............  Sec.                Yes.
                                   784.12(g)(3)(ii).
Sec.   817.111(b)(1)............  Sec.                No.
                                   784.12(g)(3)(iii).
Sec.   817.111(b)(2)............  Sec.                Yes.
                                   784.12(g)(3)(iv).
Sec.   817.111(b)(3)............  Sec.                Yes, editorial.
                                   784.12(g)(3)(v).
Sec.   817.111(b)(4)............  Sec.                No.
                                   784.12(g)(3)(vi).
Sec.   817.111(b)(5)............  Sec.                Yes, editorial.
                                   784.12(g)(3)(vii).
Sec.   817.111(c)...............  Sec.                Yes.
                                   784.12(g)(4).
Sec.   817.111(d)...............  Sec.                Yes, editorial.
                                   784.12(g)(5).
Sec.   817.113..................  Sec.   817.111(e).  Yes.
Sec.   817.114..................  Sec.   817.111(d).  Yes.
Sec.   817.116(a) [introductory   Sec.   817.116(b).  Yes.
 text].
Sec.   817.116(a)(1)............  Sec.   817.116(a).  Yes, editorial.
Sec.   817.116(a)(2) [first       Sec.   817.116(c).  Yes.
 sentence].
Sec.   817.116(a)(2) [second      Sec.   817.116(d).  Yes, editorial.
 sentence].
Sec.   817.116(b) [introductory   None..............  Proposed for
 text], (b)(1), (b)(2), and                            removal;
 introductory text of (b)(3).                          superseded by
                                                       remainder of
                                                       proposed Sec.
                                                       817.116.
Sec.   817.116(b)(3)(i).........  Sec.   817.116(e).  Yes.
Sec.   817.116(b)(3)(ii)........  Sec.                Yes.
                                   817.116(f)(1) and
                                   (f)(2).
Sec.   817.116(b)(3)(iii).......  Sec.                Yes.
                                   817.116(f)(3).
Sec.   817.116(b)(4)............  Sec.   817.116(g).  Yes.
Sec.   817.116(b)(5)............  Sec.   817.116(h).  Yes, editorial.
Sec.   817.116(c)...............  Sec.   817.115....  Yes.
Sec.   817.121(c)(1)............  Sec.   817.121(c).  Yes, editorial.
Sec.   817.121(c)(2)............  Sec.   817.121(d).  Yes, editorial.
Sec.   817.121(c)(3)............  Sec.   817.121(e).  Yes, editorial.
Sec.   817.121(c)(4)(i) through   None..............  Proposed for
 (c)(4)(iv) [Suspended December                        removal.
 22, 1999].
Sec.   817.121(c)(4)(v).........  Sec.   817.121(f).  Yes, editorial.
Sec.   817.121(c)(5)............  Sec.   817.121(g).  Yes.
Sec.   817.121(d)...............  Sec.   817.121(h).  Yes, editorial.
Sec.   817.121(e)...............  Sec.   817.121(i).  Yes, editorial.
Sec.   817.121(f)...............  Sec.   817.121(j).  Yes, editorial
Sec.   817.121(g)...............  Sec.   817.121(k).  Yes, editorial.
Sec.   817.133(a) [introductory   Sec.   817.133      Yes, editorial.
 text].                            [introductory
                                   text].
Sec.   817.133(a)(1)............  Sec.   817.133(a).  Yes, editorial.
Sec.   817.133(a)(2)............  Sec.   817.133(b).  Yes, editorial.
Sec.   817.133(b) [first          Sec.   784.24(b)..  Yes.
 sentence].
Sec.   817.133(b) [last           Sec.   784.24(e)..  Yes.
 sentence].
Sec.   817.133(c)...............  Sec.   784.24(b)..  Yes.
Sec.   817.133(d)(1)............  None..............  Proposed for
                                                       removal;
                                                       redundant of Sec.
                                                         785.16(a).
Sec.   817.133(d)(2)............  Sec.                Yes, editorial.
                                   785.16(a)(2).
Sec.   817.133(d)(3)............  None..............  Proposed for
                                                       removal as
                                                       unnecessary and
                                                       duplicative.
Sec.   817.133(d)(4)............  Sec.                Yes, editorial.
                                   785.16(a)(3).
Sec.   817.133(d)(5)............  Sec.                Yes, editorial.
                                   785.16(a)(5).
Sec.   817.133(d)(6)............  Sec.                Yes.
                                   785.16(a)(9).
Sec.   817.133(d)(7)............  Sec.                Yes, editorial.
                                   785.16(a)(6).
Sec.   817.133(d)(8)............  Sec.                Yes, editorial.
                                   785.16(a)(7).
Sec.   817.133(d)(9)............  Sec.                Yes, editorial.
                                   785.16(a)(10).
Sec.   817.133(d)(10)...........  Sec.                Yes, editorial.
                                   785.16(a)(4).

[[Page 44460]]

 
Sec.   817.200 [except paragraph  None..............  Proposed for
 (d)(1)].                                              removal as
                                                       obsolete.
Sec.   817.200(d)(1)............  Sec.   784.24(c)..  Yes.
Sec.   824.11(a) [introductory    Sec.   824.11(a)..  Yes, editorial.
 text] and (a)(1).
Sec.   824.11(a)(2) and (a)(3)..  Sec.   701.5        Yes, editorial.
                                   [definition of
                                   ``mountaintop
                                   removal mining''].
Sec.   824.11(a)(4).............  None..............  Proposed for
                                                       removal;
                                                       redundant of
                                                       proposed Sec.
                                                       785.14(b)(3).
Sec.   824.11(a)(5).............  Sec.                Yes.
                                   824.11(b)(1).
Sec.   824.11(a)(6).............  Sec.                Yes.
                                   824.11(b)(2).
Sec.   824.11(a)(7).............  Sec.                Yes, editorial.
                                   824.11(b)(3).
Sec.   824.11(a)(8).............  Sec.                Yes.
                                   824.11(b)(4).
Sec.   824.11(a)(9).............  Sec.                Yes.
                                   785.14(b)(9).
Sec.   824.11(a)(10)............  None..............  Proposed for
                                                       removal;
                                                       redundant of
                                                       proposed
                                                       paragraph (b)(1).
Sec.   824.11(a)(11)............  Sec.                Yes.
                                   824.11(b)(5).
Sec.   827.12(a) through (l)....  Merged with         Yes, editorial.
                                   introductory text
                                   of Sec.   827.12.
------------------------------------------------------------------------

    The following table is organized in numerical order of the proposed 
rule citations. It does not include those provisions of the proposed 
rule for which there is no counterpart in the existing regulations. In 
addition, it includes only those provisions of the proposed rule for 
which we propose to move the existing rule counterpart to a different 
paragraph or section; i.e., those provisions that we propose to 
redesignate.

------------------------------------------------------------------------
                                                         Existing text
          Proposed rule              Existing rule        revised in
                                      counterpart       proposed rule?
------------------------------------------------------------------------
Sec.   700.11(d)(1).............  Sec.                Yes, editorial.
                                   700.11(d)(1)(i).
Sec.   700.11(d)(2).............  Sec.                Yes.
                                   700.11(d)(1)(ii).
Sec.   700.11(d)(3).............  Sec.                Yes.
                                   700.11(d)(2).
Sec.   701.5 [definition of       Sec.   785.14(b),   Yes, editorial.
 ``mountaintop removal mining''].  Sec.
                                   824.11(a)(2) and
                                   (a)(3).
Sec.   773.7(b)(1)..............  Sec.   773.7(a)     Yes, editorial.
                                   [last sentence].
Sec.   773.7(c).................  Sec.   773.7(b)...  Yes, editorial.
Sec.   773.15(m)................  Sec.   773.15(n)..  No.
Sec.   777.13(a)(1).............  Sec.   777.13(a)..  Yes.
Sec.   777.13(a)(2).............  Sec.   777.13(b)..  Yes, editorial.
Sec.   777.13(b)................  Sec.  Sec.          Yes.
                                   780.21(a) and
                                   784.14(a).
Sec.   777.13(d)................  Sec.  Sec.          Yes.
                                   780.21(d) and
                                   784.14(d).
Sec.   779.17...................  Sec.   779.12(b)..  Yes, editorial.
Sec.   779.20(a) through (c)....  Sec.   780.16(a)..  Yes.
Sec.   779.20(d)................  Sec.   780.16(c)..  Yes.
Sec.   779.22...................  Sec.   780.23(a)..  Yes.
Sec.   779.24(a)(1) through       Sec.   779.24(a)    Yes.
 (a)(6).                           through (f).
Sec.   779.24(a)(7).............  Sec.                Yes, editorial.
                                   780.21(b)(1)
                                   [location and
                                   ownership
                                   information in
                                   first sentence].
Sec.   779.24(a)(9).............  Sec.                Yes, editorial.
                                   780.21(b)(2)
                                   [first part of
                                   first sentence
                                   through
                                   ``impoundments'']
                                   and Sec.
                                   779.25(a)(7).
Sec.   779.24(a)(10)............  Sec.   779.24(g)..  Yes.
Sec.   779.24(a)(12)............  Sec.                Yes, editorial.
                                   780.21(b)(2) [the
                                   part of the first
                                   sentence that
                                   pertains to
                                   discharges].
Sec.   779.24(a)(14) through      Sec.   779.24(h)    No, except for
 (a)(17).                          through (k).        editorial changes
                                                       in (a)(17).
Sec.   779.24(a)(18)............  Sec.                Yes.
                                   779.25(a)(1).
Sec.   779.24(a)(19)............  Sec.                Yes.
                                   779.25(a)(6).
Sec.   779.24(a)(20)............  Sec.                Yes.
                                   779.25(a)(2).
Sec.   779.24(a)(21)............  Sec.                Yes.
                                   779.25(a)(3).
Sec.   779.24(a)(22)............  Sec.                No.
                                   779.25(a)(4).
Sec.   779.24(a)(23) and (a)(24)  Sec.                Yes, editorial.
                                   779.25(a)(5).
Sec.   779.24(a)(25)............  Sec.                No.
                                   779.25(a)(8).
Sec.   779.24(a)(26)............  Sec.                Yes.
                                   779.25(a)(9).
Sec.   779.24(a)(8) [water        Sec.                Yes.
 wells], Sec.   779.24(a)(27)      779.25(a)(10).
 [gas and oil wells].
Sec.   779.24(a)(28)............  Sec.   779.24(l)..  No.
Sec.   780.12 [in general]......  Sec.   780.18 [in   Yes.
                                   general].
Sec.   780.12(b)................  Sec.                Yes.
                                   780.18(b)(1).
Sec.   780.12(c)................  Sec.                Yes.
                                   780.18(b)(2).
Sec.   780.12(d)................  Sec.                Yes.
                                   780.18(b)(3).
Sec.   780.12(e) [in general]...  Sec.                Yes.
                                   780.18(b)(4).
Sec.   780.12(e)(1)(ii).........  Sec.   816.22(e)..  Yes.
Sec.   780.12(e)(2).............  Sec.   816.22(b)..  Yes.
Sec.   780.12(g) [in general]...  Sec.                Yes.
                                   780.18(b)(5).
Sec.   780.12(g)(3)(i)..........  Sec.                Yes.
                                   816.111(a)(2).
Sec.   780.12(g)(3)(ii).........  Sec.                Yes.
                                   816.111(a)(4).
Sec.   780.12(g)(3)(iii)........  Sec.                No.
                                   816.111(b)(1).

[[Page 44461]]

 
Sec.   780.12(g)(3)(iv).........  Sec.                Yes.
                                   816.111(b)(2).
Sec.   780.12(g)(3)(v)..........  Sec.                Yes, editorial.
                                   816.111(b)(3).
Sec.   780.12(g)(3)(vi).........  Sec.                No.
                                   816.111(b)(4).
Sec.   780.12(g)(3)(vii)........  Sec.                Yes, editorial.
                                   816.111(b)(5).
Sec.   780.12(g)(4).............  Sec.   816.111(c).  Yes.
Sec.   780.12(g)(5).............  Sec.   816.111(d).  Yes, editorial.
Sec.   780.12(i)................  Sec.                Yes, editorial.
                                   780.18(b)(6).
Sec.   780.12(j)................  Sec.                Yes.
                                   780.18(b)(7).
Sec.   780.12(k)................  Sec.                Yes, editorial.
                                   780.18(b)(8).
Sec.   780.12(l)................  Sec.                Yes, editorial.
                                   780.18(b)(9).
Sec.   780.12(m)................  Sec.                Yes, editorial.
                                   780.23(b)(3).
Sec.   780.13...................  Sec.   780.14.....  Yes.
Sec.   780.14...................  Sec.   780.12.....  Yes, editorial.
Sec.   780.15...................  Sec.   780.13.....  Yes.
Sec.   780.16(a) through (d)....  Sec.   780.16(b)..  Yes.
Sec.   780.16(e)................  Sec.   780.16(c)..  Yes.
Sec.   780.19(a)(1).............  Sec.   780.22(a)..  Yes.
Sec.   780.19(b)................  Sec.                Yes.
                                   780.21(b)(1)
                                   [except location
                                   and ownership
                                   information in
                                   the first
                                   sentence].
Sec.   780.19(c)................  Sec.                Yes.
                                   780.21(b)(2)
                                   [except the part
                                   of the first
                                   sentence that
                                   precedes ``and
                                   information on .
                                   . . ''].
Sec.   780.19(f)(1) through (3).  Sec.   780.22(b)..  Yes.
Sec.   780.19(f)(4).............  Sec.   780.22(c)..  Yes, editorial.
Sec.   780.19(f)(5).............  Sec.   780.22(d)..  Yes, editorial.
Sec.   780.19(g)................  Sec.   780.21(c)..  Yes.
Sec.   780.20(a)................  Sec.                Yes.
                                   780.21(f)(1)
                                   through (f)(3).
Sec.   780.20(b)................  Sec.                Yes.
                                   780.21(b)(3).
Sec.   780.20(c)(1).............  Sec.                Yes.
                                   780.21(f)(4).
Sec.   780.21...................  Sec.   780.21(g)..  Yes.
Sec.   780.22(a)................  Sec.   780.21(h)..  Yes.
Sec.   780.22(b)(1).............  Sec.   780.21(e)..  Yes.
Sec.   780.23(a)................  Sec.   780.21(i)..  Yes.
Sec.   780.23(b)................  Sec.   780.21(j)..  Yes.
Sec.   780.24(a)................  Sec.   780.23(b)    Yes.
                                   [except (b)(3)].
Sec.   780.24(b)................  Sec.   816.133(b)   Yes.
                                   [first sentence],
                                   Sec.   816.133(c).
Sec.   780.24(c)................  None..............  Yes, modeled on
                                                       existing Sec.
                                                       Sec.   784.200(a)
                                                       and
                                                       817.200(d)(1).
Sec.   780.24(e)................  Sec.   816.133(b)   Yes.
                                   [last sentence].
Sec.   780.25(d)(3)(iv).........  Sec.   816.84(e)..  Yes, editorial.
Sec.   780.28(c)................  Sec.                Yes.
                                   816.43(a)(3)
                                   [last sentence],
                                   Sec.   816.43(b).
Sec.   780.28(e)(2).............  Sec.   816.57(a)    Yes
                                   [except first
                                   sentence].
Sec.   780.29(c)................  Sec.   780.29.....  Yes.
Sec.   780.35(e)(2) and (3).....  Sec.   816.71(c)..  Yes.
Sec.   780.35(f)................  Sec.   780.35(a)    Yes, editorial.
                                   [in part], Sec.
                                   816.71(b)(1)
                                   [first sentence].
Sec.   780.35(g)................  Sec.   780.35(b),   Yes.
                                   Sec.
                                   816.71(d)(1).
Sec.   780.35(h)................  Sec.   780.35(a)    Yes, editorial.
                                   [in part].
Sec.   780.35(i)................  Sec.   780.35(c)..  Yes, editorial.
Sec.   780.35(j)................  Sec.                Yes, editorial.
                                   816.71(b)(1)
                                   [second sentence].
Sec.   783.17...................  Sec.   783.12(b)..  Yes, editorial.
Sec.   783.20(a) and (b)........  Sec.   784.21(a)..  Yes.
Sec.   783.20(d)................  Sec.   784.21(c)..  Yes.
Sec.   783.22...................  Sec.   784.15(a)..  Yes.
Sec.   783.24(a)(1) through       Sec.   783.24(a)    Yes.
 (a)(6).                           through (f).
Sec.   783.24(a)(7).............  Sec.                Yes, editorial.
                                   784.14(b)(1)
                                   [location and
                                   ownership
                                   information in
                                   first sentence].
Sec.   783.24(a)(9).............  Sec.                Yes, editorial.
                                   784.14(b)(2) [the
                                   part of the first
                                   sentence that
                                   precedes
                                   ``impoundments'']
                                   Sec.
                                   783.25(a)(7).
Sec.   783.24(a)(10)............  Sec.   783.24(g)..  Yes.
Sec.   783.24(a)(12)............  Sec.                Yes, editorial.
                                   784.14(b)(2) [the
                                   part of the first
                                   sentence that
                                   pertains to
                                   discharges].
Sec.   783.24(a)(14) through      Sec.   783.24(h)    No, except for
 (a)(17).                          through (k).        editorial changes
                                                       in (a)(17).
Sec.   783.24(a)(18)............  Sec.                Yes.
                                   783.25(a)(1).
Sec.   783.24(a)(19)............  Sec.                Yes.
                                   783.25(a)(6).
Sec.   783.24(a)(20)............  Sec.                Yes.
                                   783.25(a)(2).
Sec.   783.24(a)(21)............  Sec.                Yes. We are re-
                                   783.25(a)(3),       proposing part of
                                   [Suspended August   this rule and
                                   4, 1980].           proposing to
                                                       remove the
                                                       remainder.
Sec.   783.24(a)(22)............  Sec.                Yes.
                                   783.25(a)(4).
Sec.   783.24(a)(23) and (a)(24)  Sec.                Yes.
                                   783.25(a)(5).
Sec.   783.24(a)(25)............  Sec.                Yes, editorial. We
                                   783.25(a)(8),       are re-proposing
                                   [Suspended August   this rule.
                                   4, 1980].
Sec.   783.24(a)(26)............  Sec.                Yes. We are re-
                                   783.25(a)(9),       proposing part of
                                   [Suspended August   this rule and
                                   4, 1980].           proposing to
                                                       remove the
                                                       remainder.

[[Page 44462]]

 
Sec.   783.24(a)(8) [water        Sec.                Yes.
 wells], Sec.   783.24(a)(27)      783.25(a)(10).
 [gas and oil wells].
Sec.   783.24(a)(28)............  Sec.   783.24(l)..  No.
Sec.   784.12 [in general]......  Sec.   784.13 [in   Yes.
                                   general].
Sec.   784.12(b)................  Sec.                Yes.
                                   784.13(b)(1).
Sec.   784.12(c)................  Sec.                Yes.
                                   784.13(b)(2).
Sec.   784.12(d)................  Sec.                Yes.
                                   784.13(b)(3).
Sec.   784.12(e) [in general]...  Sec.                Yes.
                                   784.13(b)(4).
Sec.   784.12(e)(1)(ii).........  Sec.   817.22(e)..  Yes.
Sec.   784.12(e)(2).............  Sec.   817.22(b)..  Yes.
Sec.   784.12(f)................  Sec.   784.26.....  Yes.
Sec.   784.12(g) [in general]...  Sec.                Yes.
                                   784.13(b)(5).
Sec.   784.12(g)(3)(i)..........  Sec.                Yes.
                                   817.111(a)(2).
Sec.   784.12(g)(3)(ii).........  Sec.                Yes.
                                   817.111(a)(4).
Sec.   784.12(g)(3)(iii)........  Sec.                No.
                                   817.111(b)(1).
Sec.   784.12(g)(3)(iv).........  Sec.                Yes.
                                   817.111(b)(2).
Sec.   784.12(g)(3)(v)..........  Sec.                Yes, editorial.
                                   817.111(b)(3).
Sec.   784.12(g)(3)(vi).........  Sec.                No.
                                   817.111(b)(4).
Sec.   784.12(g)(3)(vii)........  Sec.                Yes, editorial.
                                   817.111(b)(5).
Sec.   784.12(g)(4).............  Sec.   817.111(c).  Yes.
Sec.   784.12(g)(5).............  Sec.   817.111(d).  Yes, editorial.
Sec.   784.12(i)................  Sec.                Yes, editorial.
                                   784.13(b)(6).
Sec.   784.12(j)................  Sec.                Yes.
                                   784.13(b)(7).
Sec.   784.12(k)................  Sec.                Yes, editorial.
                                   784.13(b)(8).
Sec.   784.12(l)................  Sec.                Yes, editorial.
                                   784.13(b)(9).
Sec.   784.12(m)................  Sec.                Yes, editorial.
                                   784.15(b)(3).
Sec.   784.13...................  Sec.   784.23.....  Yes.
Sec.   784.14...................  Sec.   784.12.....  Yes, editorial.
Sec.   784.16(a) through (d)....  Sec.   784.21(b)..  Yes.
Sec.   784.16(e)................  Sec.   784.21(c)..  Yes.
Sec.   784.19(a)(1).............  Sec.   784.22(a)..  Yes.
Sec.   784.19(b)................  Sec.                Yes.
                                   784.14(b)(1)
                                   [except location
                                   and ownership
                                   information].
Sec.   784.19(c)................  Sec.                Yes.
                                   784.14(b)(2)
                                   [except the part
                                   of the first
                                   sentence that
                                   precedes ``and
                                   information on .
                                   . . ''].
Sec.   784.19(f)(1) through (4).  Sec.   784.22(b)..  Yes.
Sec.   784.19(f)(5).............  Sec.   784.22(c)..  Yes, editorial.
Sec.   784.19(f)(6).............  Sec.   784.22(d)..  Yes, editorial.
Sec.   784.19(g)................  Sec.   784.14(c)..  Yes.
Sec.   784.20(a)................  Sec.                Yes.
                                   784.14(e)(1)
                                   through (e)(3).
Sec.   784.20(b)................  Sec.                Yes.
                                   784.14(b)(3).
Sec.   784.20(c)(1).............  Sec.                Yes.
                                   784.14(e)(4).
Sec.   784.21...................  Sec.   784.14(f)..  Yes.
Sec.   784.22(a)................  Sec.   784.14(g)..  Yes.
Sec.   784.23(a)................  Sec.   784.14(h)..  Yes.
Sec.   784.23(b)................  Sec.   784.14(i)..  Yes.
Sec.   784.24(a)................  Sec.   784.15(b)    Yes.
                                   [except (b)(3)].
Sec.   784.24(b)................  Sec.   817.133(b)   Yes.
                                   [first sentence],
                                   Sec.   817.133(c).
Sec.   784.24(c)................  Sec.   784.200(a),  Yes.
                                   Sec.
                                   817.200(d)(1).
Sec.   784.24(e)................  Sec.   817.133(b)   Yes.
                                   [last sentence].
Sec.   784.25(d)(3)(iv).........  Sec.   817.84(e)..  Yes, editorial.
Sec.   784.26...................  Sec.   784.25.....  Yes, editorial.
Sec.   784.28(c)................  Sec.                Yes.
                                   817.43(a)(3)
                                   [last sentence],
                                   Sec.   817.43(b).
Sec.   784.28(e)(2).............  Sec.   817.57(a)    Yes
                                   [except first
                                   sentence].
Sec.   784.29(c)................  Sec.   784.29.....  Yes.
Sec.   784.30...................  Sec.   784.20.....  Yes.
Sec.   784.31...................  Sec.   784.17.....  No.
Sec.   784.33...................  Sec.   784.18.....  No.
Sec.   784.35...................  Sec.   784.19,      Yes.
                                   Sec.
                                   817.71(b)(1),
                                   (c), (d)(1), and
                                   (d)(2) [second
                                   sentence].
Sec.   784.37...................  Sec.   784.24.....  Yes.
Sec.   784.38...................  Sec.   784.30.....  Yes, editorial.
Sec.   785.14(b)................  Sec.   785.14(c)..  Yes, editorial.
Sec.   785.14(b) (introductory    Sec.   785.14(c)    Yes, editorial.
 text).                            [introductory
                                   text].
Sec.   785.14(b)(1).............  Sec.                Yes, editorial.
                                   785.14(c)(1)
                                   [introductory
                                   text].
Sec.   785.14(b)(2).............  Sec.                Yes, editorial.
                                   785.14(c)(1)(i).
Sec.   785.14(b)(3).............  Sec.                Yes, editorial.
                                   785.14(c)(1)(ii).
Sec.   785.14(b)(4).............  Sec.                Yes, editorial.
                                   785.14(c)(1)(iii)
                                   [except paragraph
                                   (c)(1)(iii)(G)].
Sec.   785.14(b)(5).............  Sec.                Yes, editorial.
                                   785.14(c)(1)(iii)
                                   (G).
Sec.   785.14(b)(6).............  Sec.                Yes, editorial.
                                   785.14(c)(1)(iv).
Sec.   785.14(b)(7).............  Sec.                Yes, editorial.
                                   785.14(c)(1)(v).
Sec.   785.14(b)(8).............  Sec.                Yes, editorial.
                                   785.14(c)(2).

[[Page 44463]]

 
Sec.   785.14(b)(9).............  Sec.                Yes.
                                   824.11(a)(9).
Sec.   785.14(b)(12)............  Sec.                Yes, editorial.
                                   785.14(c)(4).
Sec.   785.14(c)................  Sec.                Yes.
                                   785.14(c)(5).
Sec.   785.14(d)(1).............  Sec.                Yes.
                                   785.14(d)(1) and
                                   (2).
Sec.   785.14(d)(2).............  Sec.                Yes, editorial.
                                   785.14(d)(3).
Sec.   785.16(a) (introductory    Sec.   785.16(a)    Yes, editorial.
 text).                            [introductory
                                   text].
Sec.   785.16(a)(1).............  Sec.                Yes, editorial.
                                   785.16(a)(1).
Sec.   785.16(a)(2).............  Sec.                Yes, editorial.
                                   816.133(d)(2).
Sec.   785.16(a)(3).............  Sec.                Yes, editorial.
                                   816.133(d)(4).
Sec.   785.16(a)(4).............  Sec.                Yes, editorial.
                                   816.133(d)(10).
Sec.   785.16(a)(5).............  Sec.                Yes, editorial.
                                   816.133(d)(5).
Sec.   785.16(a)(6).............  Sec.                Yes, editorial.
                                   816.133(d)(7).
Sec.   785.16(a)(7).............  Sec.                Yes, editorial.
                                   816.133(d)(8).
Sec.   785.16(a)(9).............  Sec.                Yes.
                                   785.16(a)(3),
                                   Sec.
                                   816.133(d)(6).
Sec.   785.16(a)(10)............  Sec.                Yes.
                                   785.16(a)(4),
                                   Sec.
                                   816.133(d)(9).
Sec.   785.16(b)(1).............  Sec.                Yes, editorial.
                                   785.16(b)(2).
Sec.   785.16(b)(2).............  Sec.   785.16(c)    Yes.
                                   and (d).
Sec.   785.16(b)(3).............  Sec.   785.16(e)..  Yes, editorial.
Sec.   785.16(b)(4).............  Sec.   785.16(f)..  Yes, editorial.
Sec.   785.25(b)(1).............  Sec.   785.25(b)    Yes, editorial.
                                   [first sentence].
Sec.   785.25(b)(2).............  Sec.   785.25(b)    Yes, editorial.
                                   [except first
                                   sentence].
Sec.   800.9....................  Sec.   800.11(e)..  Yes.
Sec.   800.11...................  Sec.   800.11(a)    Yes, editorial.
                                   through (d).
Sec.   800.15(a)(2)(ii).........  Sec.   800.15(c)    Yes, editorial.
                                   [first sentence].
Sec.   800.30(a)(1).............  Sec.   800.30(a)..  Yes.
Sec.   800.30(a)(3).............  Sec.   800.30(b)..  Yes
Sec.   800.30(b)................  Sec.                Yes.
                                   800.16(e)(2).
Sec.   800.40...................  Sec.   800.40(a)..  Yes, editorial,
                                                       except for
                                                       (b)(2)(vi), which
                                                       has substantive
                                                       changes.
Sec.   800.41...................  Sec.                Yes, editorial,
                                   800.40(b)(1).       except for
                                                       (a)(2), which has
                                                       substantive
                                                       changes.
Sec.   800.42...................  Sec.   800.40(c)..  Yes.
Sec.   800.43(a)................  Sec.                Yes, editorial.
                                   800.40(b)(2).
Sec.   800.43(b)................  Sec.   800.40(d)..  Yes, editorial.
Sec.   800.43(c)................  Sec.   800.40(e)..  Yes, editorial
Sec.   800.44(a) through (c)....  Sec.   800.40(f)    Yes, editorial.
                                   through (h).
Sec.   816.13(a), (c), (d), and   Sec.   816.13.....  Yes, editorial.
 (f).
Sec.   816.13(b)................  Sec.   816.14.....  Yes, editorial.
Sec.   816.13(e)................  Sec.   816.15.....  Yes, editorial.
Sec.   816.22(a)(1) and (2).....  Sec.                Yes.
                                   816.22(a)(1)
                                   through (4).
Sec.   816.22(b)................  Sec.   816.22(c)..  Yes.
Sec.   816.22(c)................  Sec.   816.22(b)..  Yes.
Sec.   816.22(d)(2).............  Sec.                Yes, editorial.
                                   816.22(d)(2).
Sec.   816.22(e)(1).............  Sec.                Yes.
                                   816.22(d)(1).
Sec.   816.22(e)(3).............  Sec.                Yes, editorial.
                                   816.22(d)(3).
Sec.   816.34(a) through (c)....  Sec.   816.41(a),   Yes.
                                   (b), and (d).
Sec.   816.35...................  Sec.   816.41(c)..  Yes.
Sec.   816.36...................  Sec.   816.41(e)..  Yes.
Sec.   816.38...................  Sec.   816.41(f)..  Yes.
Sec.   816.39...................  Sec.   816.41(g)..  Yes.
Sec.   816.40...................  Sec.   816.41(h)    Yes.
                                   and paragraphs
                                   (a) and (b) of
                                   definition of
                                   ``replacement of
                                   water supply'' in
                                   Sec.   701.5.
Sec.   816.41...................  Sec.   816.41(i)..  Yes.
Sec.   816.42(a)................  Sec.   816.42.....  Yes.
Sec.   816.43(a)(5)(ii).........  Sec.                Yes.
                                   816.43(c)(3).
Sec.   816.46(c)(1)(i) and (ii).  Sec.                Yes.
                                   816.46(c)(1)(ii)
                                   and (iii).
Sec.   816.57(a)(1).............  Sec.   816.57(a)    Yes.
                                   [first sentence].
Sec.   816.57(b)................  Sec.                Yes.
                                   816.43(a)(3)
                                   (last sentence),
                                   Sec.   816.43(b).
Sec.   816.71(b)(1).............  Sec.                Yes, editorial.
                                   816.71(b)(2).
Sec.   816.71(b)(2).............  Sec.                Yes.
                                   816.71(d)(2)
                                   [first sentence].
Sec.   816.71(d)................  Sec.                Yes.
                                   816.71(e)(1).
Sec.   816.71(e)(1).............  Sec.                Yes.
                                   816.72(a)(2).
Sec.   816.71(e)(2).............  Sec.                Yes, editorial.
                                   816.72(a)(1).
Sec.   816.71(g)(1).............  Sec.                Yes.
                                   816.71(e)(2).
Sec.   816.71(g)(3).............  Sec.                Yes, editorial.
                                   816.71(e)(5).
Sec.   816.71(h)................  Sec.                Yes.
                                   816.71(e)(3).
Sec.   816.71(i)................  Sec.                Yes.
                                   816.71(e)(4).
Sec.   816.71(j)................  Sec.   816.71(g)..  Yes, editorial.
Sec.   816.71(k)................  Sec.   816.71(h)..  Yes.
Sec.   816.71(l)................  Sec.   816.71(i)..  Yes.
Sec.   816.71(m)................  Sec.   816.71(j)..  Yes, editorial.
Sec.   816.74(c)(1).............  Sec.   816.74(c)    Yes, editorial.
                                   [first sentence].
Sec.   816.74(c)(2).............  Sec.   816.74(c)    Yes, editorial.
                                   [second sentence].

[[Page 44464]]

 
Sec.   816.74(c)(3).............  Sec.                Yes.
                                   816.74(d)(4).
Sec.   816.74(d)(1).............  Sec.   816.74(c)    Yes, editorial.
                                   [third sentence].
Sec.   816.74(d)(2).............  Sec.   816.74(c)    Yes, editorial.
                                   [fourth sentence].
Sec.   816.74(e)................  Sec.   816.74(d)    Yes.
                                   [except (d)(4)].
Sec.   816.74(f)................  Sec.   816.74(e)..  Yes, editorial.
Sec.   816.74(g)................  Sec.   816.74(f)..  Yes, editorial.
Sec.   816.74(h)................  Sec.   816.74(g)..  Yes, editorial.
Sec.   816.81(a)................  Sec.   816.81(a)    Yes, editorial.
                                   [first sentence].
Sec.   816.81(b)................  Sec.   816.81(a)    Yes.
                                   [except first
                                   sentence].
Sec.   816.81(c)................  Sec.   816.81(b)..  Yes, editorial.
Sec.   816.81(d)................  Sec.   816.81(c)..  Yes.
Sec.   816.81(e)................  Sec.   816.81(d)..  Yes, editorial.
Sec.   816.81(g)................  Sec.   816.81(e)..  Yes, editorial.
Sec.   816.81(h)................  Sec.   816.81(f)..  Yes, editorial.
Sec.   816.83(a)................  Sec.   816.83       Yes, editorial.
                                   [introductory
                                   text].
Sec.   816.83(b)................  Sec.   816.83(a)..  Yes.
Sec.   816.83(c)................  Sec.   816.83(b)..  Yes, editorial.
Sec.   816.83(d)................  Sec.   816.83(c)..  Yes.
Sec.   816.83(e)................  Sec.   816.83(d)..  Yes, editorial.
Sec.   816.84(a)................  Sec.   816.84       Yes, editorial.
                                   [introductory
                                   text].
Sec.   816.84(b)................  Sec.   816.84(a)..  Yes, editorial.
Sec.   816.84(c)................  Sec.   816.84(b)..  Yes, editorial.
Sec.   816.84(d)................  Sec.   816.84(c)..  Yes, editorial.
Sec.   816.84(e)................  Sec.   816.84(d)..  Yes.
Sec.   816.97(b)(5) and (c)(4)..  Sec.   816.97(d)..  Yes, editorial.
Sec.   816.97(d)................  Sec.   816.97(e)..  Yes.
Sec.   816.97(e)................  Sec.   816.97(f)..  Yes.
Sec.   816.97(f)................  Sec.   816.97(g)..  Yes.
Sec.   816.97(g)................  Sec.   816.97(h)..  Yes.
Sec.   816.102(a)(1)(i).........  Sec.                Yes, editorial.
                                   816.102(k)(3)(i).
Sec.   816.102(a)(1)(ii)........  Sec.                Yes, editorial.
                                   816.102(k)(3)(ii).
Sec.   816.102(a)(1)(iii).......  Sec.                Yes, editorial.
                                   816.102(k)(1).
Sec.   816.102(a)(1)(iv)........  Sec.                Yes, editorial.
                                   816.102(k)(2).
Sec.   816.102(a)(1)(v).........  Sec.                Yes, editorial.
                                   816.102(k)(3)(iii
                                   ).
Sec.   816.102(a)(2)............  Sec.   816.102(g).  Yes.
Sec.   816.102(a)(3)              Sec.                Yes.
 [introductory text].              816.102(a)(2).
Sec.   816.102(a)(3)(i).........  Sec.   816.102(h).  Yes.
Sec.   816.102(a)(3)(ii)........  Sec.   816.102(i).  Yes.
Sec.   816.102(a)(4)............  Sec.                No.
                                   816.102(a)(3).
Sec.   816.102(a)(5)............  Sec.                Yes.
                                   816.102(a)(4).
Sec.   816.102(a)(6)............  Sec.                No.
                                   816.102(a)(5).
Sec.   816.102(b) [introductory   Sec.   816.102(b).  Yes, editorial.
 text] and (b)(1).
Sec.   816.102(b)(3)............  Sec.   816.102(d).  Yes.
Sec.   816.102(d)...............  Sec.   816.102(f).  Yes.
Sec.   816.102(f)...............  Sec.   816.102(j).  Yes.
Sec.   816.111(a) and (b).......  Sec.   816.111(a)   Yes.
                                   [except (a)(2)
                                   and (a)(4)].
Sec.   816.111(d)...............  Sec.   816.114....  Yes.
Sec.   816.111(e)...............  Sec.   816.113....  Yes.
Sec.   816.116(a)...............  Sec.                Yes, editorial.
                                   816.116(a)(1).
Sec.   816.116(b)...............  Sec.   816.116(a)   Yes.
                                   [introductory
                                   text].
Sec.   816.116(c)...............  Sec.                Yes
                                   816.116(a)(2)
                                   [first sentence].
Sec.   816.116(d)...............  Sec.                Yes, editorial.
                                   816.116(a)(2)
                                   [second sentence].
Sec.   816.116(e)...............  Sec.                Yes.
                                   816.116(b)(3)(i).
Sec.   816.116(f)(1) and (f)(2).  Sec.                Yes.
                                   816.116(b)(3)(ii).
Sec.   816.116(f)(3)............  Sec.                Yes.
                                   816.116(b)(3)(iii
                                   ).
Sec.   816.116(g)...............  Sec.                Yes.
                                   816.116(b)(4).
Sec.   816.116(h)...............  Sec.                Yes, editorial.
                                   816.116(b)(5).
Sec.   816.115..................  Sec.   816.116(c).  Yes.
Sec.   816.133 [introductory      Sec.   816.133(a)   Yes, editorial.
 text].                            [introductory
                                   text].
Sec.   816.133(a)...............  Sec.                Yes, editorial.
                                   816.133(a)(1).
Sec.   816.133(b)...............  Sec.                Yes, editorial.
                                   816.133(a)(2).
Sec.   817.13(a), (d), (e), and   Sec.   817.13.....  Yes, editorial.
 (g).
Sec.   817.13(b)................  Sec.   817.14(a)..  Yes, editorial.
Sec.   817.13(c)................  Sec.   817.14(b)..  Yes, editorial.
Sec.   817.13(f)................  Sec.   817.15.....  Yes, editorial.
Sec.   817.22(a)(1) and (2).....  Sec.                Yes.
                                   817.22(a)(1)
                                   through (4).
Sec.   817.22(b)................  Sec.   817.22(c)..  Yes.
Sec.   817.22(c)................  Sec.   817.22(b)..  Yes.
Sec.   817.22(d)(2).............  Sec.                Yes, editorial.
                                   817.22(d)(2).
Sec.   817.22(e)(1).............  Sec.                Yes.
                                   817.22(d)(1).
Sec.   817.22(e)(3).............  Sec.                Yes, editorial.
                                   817.22(d)(3).
Sec.   817.34(a) through (c)....  Sec.   817.41(a),   Yes.
                                   (b), and (d).
Sec.   817.35...................  Sec.   817.41(c)..  Yes.
Sec.   817.36...................  Sec.   817.41(e)..  Yes.

[[Page 44465]]

 
Sec.   817.38...................  Sec.   817.41(f)..  Yes.
Sec.   817.39...................  Sec.   817.41(g)..  Yes.
Sec.   817.40...................  Sec.   817.41(j)    Yes.
                                   and paragraphs
                                   (a) and (b) of
                                   definition of
                                   ``replacement of
                                   water supply'' in
                                   Sec.   701.5.
Sec.   817.41...................  Sec.   817.41(h)..  Yes.
Sec.   817.42(a)................  Sec.   817.42.....  Yes.
Sec.   817.43(a)(5)(ii).........  Sec.                Yes.
                                   817.43(c)(3).
Sec.   817.44...................  Sec.   817.41(i)..  Yes, editorial.
Sec.   817.46(c)(1)(i) and (ii).  Sec.                Yes.
                                   817.46(c)(1)(ii)
                                   and (iii).
Sec.   817.57(a)(1).............  Sec.   817.57(a)    Yes.
                                   [first sentence].
Sec.   817.57(b)................  Sec.                Yes.
                                   817.43(a)(3)
                                   [last sentence],
                                   Sec.   817.43(b).
Sec.   817.71(b)(1).............  Sec.                Yes, editorial.
                                   817.71(b)(2).
Sec.   817.71(b)(2).............  Sec.                Yes.
                                   817.71(d)(2)
                                   [first sentence].
Sec.   817.71(d)................  Sec.                Yes.
                                   817.71(e)(1).
Sec.   817.71(e)(1).............  Sec.                Yes.
                                   817.72(a)(2).
Sec.   816.71(e)(2).............  Sec.                Yes, editorial.
                                   817.72(a)(1).
Sec.   817.71(g)(1).............  Sec.                Yes.
                                   817.71(e)(2).
Sec.   817.71(g)(3).............  Sec.                Yes, editorial.
                                   817.71(e)(5).
Sec.   817.71(h)................  Sec.                Yes.
                                   817.71(e)(3).
Sec.   817.71(i)................  Sec.                Yes.
                                   817.71(e)(4).
Sec.   817.71(j)................  Sec.   817.71(g)..  Yes.
Sec.   817.71(k)................  Sec.   817.71(h)..  Yes.
Sec.   817.71(l)................  Sec.   817.71(i)..  Yes.
Sec.   817.71(m)................  Sec.   817.71(j)..  Yes, editorial.
Sec.   817.74(c)(1).............  Sec.   817.74(c)    Yes, editorial.
                                   [first sentence].
Sec.   817.74(c)(2).............  Sec.   817.74(c)    Yes, editorial.
                                   [second sentence].
Sec.   817.74(c)(3).............  Sec.                Yes.
                                   817.74(d)(4).
Sec.   817.74(d)(1).............  Sec.   817.74(c)    Yes, editorial.
                                   [third sentence].
Sec.   817.74(d)(2).............  Sec.   817.74(c)    Yes, editorial.
                                   [fourth sentence].
Sec.   817.74(e)................  Sec.   817.74(d)    Ye.s
                                   [except (d)(4)].
Sec.   817.74(f)................  Sec.   817.74(e)..  Yes, editorial.
Sec.   817.74(g)................  Sec.   817.74(f)..  Yes, editorial.
Sec.   817.74(h)................  Sec.   817.74(g)..  Yes, editorial.
Sec.   817.81(a)................  Sec.   817.81(a)    Yes, editorial.
                                   [first sentence].
Sec.   817.81(b)................  Sec.   817.81(a)    Yes.
                                   [except first
                                   sentence].
Sec.   817.81(c)................  Sec.   817.81(b)..  Yes, editorial.
Sec.   817.81(d)................  Sec.   817.81(c)..  Yes.
Sec.   817.81(e)................  Sec.   817.81(d)..  Yes.
Sec.   817.81(g)................  Sec.   817.81(e)..  Yes, editorial.
Sec.   817.81(h)................  Sec.   817.81(f)..  Yes, editorial.
Sec.   817.83(a)................  Sec.   817.83       Yes, editorial.
                                   [introductory
                                   text].
Sec.   817.83(b)................  Sec.   817.83(a)..  Yes.
Sec.   817.83(c)................  Sec.   817.83(b)..  Yes, editorial.
Sec.   817.83(d)................  Sec.   817.83(c)..  Yes.
Sec.   817.83(e)................  Sec.   817.83(d)..  Yes, editorial.
Sec.   817.84(a)................  Sec.   817.84       Yes, editorial.
                                   [introductory
                                   text].
Sec.   817.84(b)................  Sec.   817.84(a)..  Yes, editorial.
Sec.   817.84(c)................  Sec.   817.84(b)..  Yes, editorial.
Sec.   817.84(d)................  Sec.   817.84(c)..  Yes, editorial.
Sec.   817.84(e)................  Sec.   817.84(d)..  Yes.
Sec.   817.97(b)(5) and (c)(4)..  Sec.   817.97(d)..  Yes, editorial.
Sec.   817.97(d)................  Sec.   817.97(e)..  Yes.
Sec.   817.97(e)................  Sec.   817.97(f)..  Yes.
Sec.   817.97(f)................  Sec.   817.97(g)..  Yes.
Sec.   817.97(g)................  Sec.   817.97(h)..  Yes.
Sec.   817.102(a)(1)(i).........  Sec.                Yes, editorial.
                                   817.102(k)(1).
Sec.   817.102(a)(1)(ii)........  Sec.                Yes, editorial.
                                   817.102(k)(2).
Sec.   817.102(a)(1)(vii).......  Sec.   817.102(l).  Yes.
Sec.   817.102(a)(2)............  Sec.   817.102(g).  Yes.
Sec.   817.102(a)(3)              Sec.                Yes.
 [introductory text].              817.102(a)(2).
Sec.   817.102(a)(3)(i).........  Sec.   817.102(h).  Yes.
Sec.   817.102(a)(3)(ii)........  Sec.   817.102(i).  Yes.
Sec.   817.102(a)(4)............  Sec.                No.
                                   817.102(a)(3).
Sec.   817.102(a)(5)............  Sec.                Yes.
                                   817.102(a)(4).
Sec.   817.102(a)(6)............  Sec.                No.
                                   817.102(a)(5).
Sec.   817.102(b) [introductory   Sec.   817.102(b).  Yes, editorial.
 text] and (b)(1).
Sec.   817.102(b)(2)............  Sec.   817.102(d).  Yes.
Sec.   817.102(d)...............  Sec.   817.102(f).  Yes.
Sec.   817.102(f)...............  Sec.   817.102(j).  Yes.
Sec.   817.111(a) and (b).......  Sec.   817.111(a)   Yes.
                                   [except (a)(2)
                                   and (a)(4)].
Sec.   817.111(d)...............  Sec.   817.114....  Yes.
Sec.   817.111(e)...............  Sec.   817.113....  Yes.
Sec.   817.116(a)...............  Sec.                Yes, editorial.
                                   817.116(a)(1).

[[Page 44466]]

 
Sec.   817.116(b)...............  Sec.   817.116(a)   Yes.
                                   [introductory
                                   text].
Sec.   817.116(c)...............  Sec.                Yes.
                                   817.116(a)(2)
                                   [first sentence].
Sec.   817.116(d)...............  Sec.                Yes, editorial.
                                   817.116(a)(2)
                                   [second sentence].
Sec.   817.116(e)...............  Sec.                Yes.
                                   817.116(b)(3)(i).
Sec.   817.116(f)(1) and (f)(2).  Sec.                Yes.
                                   817.116(b)(3)(ii).
Sec.   817.116(f)(3)............  Sec.                Yes.
                                   817.116(b)(3)(iii
                                   ).
Sec.   817.116(g)...............  Sec.                Yes.
                                   817.116(b)(4).
Sec.   817.116(h)...............  Sec.                Yes, editorial.
                                   817.116(b)(5).
Sec.   817.115..................  Sec.   817.116(c).  Yes.
Sec.   817.133 [introductory      Sec.   817.133(a)   Yes, editorial.
 text].                            [introductory
                                   text].
Sec.   817.133(a)...............  Sec.                Yes, editorial.
                                   817.133(a)(1).
Sec.   817.133(b)...............  Sec.                Yes, editorial.
                                   817.133(a)(2).
Sec.   817.121(c)...............  Sec.                Yes, editorial.
                                   817.121(c)(1).
Sec.   817.121(d)...............  Sec.                Yes, editorial.
                                   817.121(c)(2).
Sec.   817.121(e)...............  Sec.                Yes, editorial.
                                   817.121(c)(3).
Sec.   817.121(f)...............  Sec.                Yes, editorial.
                                   817.121(c)(4)(v).
Sec.   817.121(g)...............  Sec.                Yes.
                                   817.121(c)(5).
Sec.   817.121(h)...............  Sec.   817.121(d).  Yes, editorial.
Sec.   817.121(i)...............  Sec.   817.121(e).  Yes, editorial.
Sec.   817.121(j)...............  Sec.   817.121(f).  Yes, editorial.
Sec.   817.121(k)...............  Sec.   817.121(g).  Yes, editorial.
Sec.   824.11(a)................  Sec.   824.11(a)    Yes, editorial.
                                   [introductory
                                   text] and (a)(1).
Sec.   824.11(b)(1).............  Sec.                Yes.
                                   824.11(a)(5).
Sec.   824.11(b)(2).............  Sec.                Yes.
                                   824.11(a)(6).
Sec.   824.11(b)(3).............  Sec.                Yes, editorial.
                                   824.11(a)(7).
Sec.   824.11(b)(4).............  Sec.                Yes.
                                   824.11(a)(8).
Sec.   824.11(b)(5).............  Sec.                Yes.
                                   824.11(a)(11).
------------------------------------------------------------------------

    In general, we drafted the proposed rule using plain language 
principles, consistent with section 501(b) of SMCRA, 30 U.S.C. 1251(a), 
which provides that regulations must be ``concise and written in plain, 
understandable language,'' and Executive Order 13563, which provides 
that our regulatory system ``must ensure that regulations are 
accessible, consistent, written in plain language, and easy to 
understand.'' \123\ In addition, a June 1, 1998, Executive Memorandum 
on Plain Language in Government Writing \124\ requires the use of plain 
language in all proposed and final rulemaking documents published after 
January 1, 1999. The Office of the Federal Register also encourages the 
use of plain language in writing regulations, as set forth in detail at 
www.plainlanguage.gov and associated links.
---------------------------------------------------------------------------

    \123\ 76 FR 3821 (Jan. 21, 2011).
    \124\ 63 FR 31883-31886 (Jun. 10, 1998).
---------------------------------------------------------------------------

    Plain language requirements vary from one document to another, 
depending on the intended audience. Plain language documents have 
logical organization and easy-to-read design features like short 
sections, short sentences, tables, and lots of white space. They use 
common everyday words (except for necessary technical terms), pronouns, 
the active voice, and a question-and-answer format when feasible.
    The proposed rule and preamble use the pronouns ``we,'' ``us,'' and 
``our'' to refer to OSMRE, and the pronouns ``I,'' ``you,'' and 
``your'' to refer to a permit applicant or permittee. We avoid use of 
the word ``shall'' in the proposed rule and preamble, except in quoted 
material. Instead, we use ``must'' to indicate an obligation, ``will'' 
to identify a future event, and ``may not'' to convey a prohibition.
    We invite comment on how we could more fully incorporate plain 
language principles.

IX. How do we propose to revise specific provisions of our existing 
regulations?

    In this portion of the preamble, we discuss selected provisions of 
our proposed rule in the order in which the regulations that we propose 
to revise would appear in Title 30, Chapter VII of the Code of Federal 
Regulations. In general, we do not discuss proposed organizational 
changes (see Part VIII of this preamble for a listing of organizational 
changes), nonsubstantive editorial revisions (e.g., plain language 
changes, correction of grammatical errors, and syntax improvements), 
cross-reference changes, or revisions of a minor nature. No substantive 
change in meaning is intended for proposed revisions made in accordance 
with plain language principles.

A. Section 700.11(d): Termination and Reassertion of Jurisdiction

    The basis and purpose for our termination-of-jurisdiction rules is 
set forth in the preamble to the 1988 version of these rules. See 53 FR 
44356-44363 (Nov. 2, 1988). We propose to revise paragraph (d)(1) of 
the existing rules by removing the phrase ``the reclaimed site of'' 
from the existing introductory language because the regulatory 
authority's jurisdiction extends to the entire surface coal mining and 
reclamation operation, not just to the lands disturbed and reclaimed by 
the operation. Hence, any decision to terminate jurisdiction likewise 
should extend to the entire operation.
    We propose to improve the structure of the existing rule by placing 
the termination of jurisdiction requirements for initial program 
operations in paragraph (d)(1) and the requirements for permanent 
program operations in paragraph (d)(2). We also propose to add a 
provision to paragraph (d)(2)(ii) to reflect the proposed addition to 
30 CFR part 800 of provisions concerning financial assurances for 
treatment of long-term discharges. In particular, we propose to allow 
the regulatory authority to terminate jurisdiction over all portions of 
a minesite and all aspects of the operation, except treatment-related 
facilities and obligations, once the permittee posts an acceptable 
financial assurance under proposed 30 CFR 800.18 to guarantee treatment 
of all long-term discharges. Termination of jurisdiction may not occur 
until all performance bonds for the remainder of the permit area are 
fully released. Our proposed rule would improve the efficiency of 
regulatory authorities by eliminating unnecessary inspections of

[[Page 44467]]

the portion of the permit area that has been fully reclaimed. It also 
would eliminate the need for federal oversight of those sites and allow 
the property owner to acquire full control over the land. Continuing to 
conduct inspections of a fully-reclaimed minesite or of fully-completed 
operations would divert scarce resources from unreclaimed sites and 
other regulatory program responsibilities.
    Because of the restructuring described above, we propose to 
redesignate existing paragraph (d)(2) as paragraph (d)(3). This 
paragraph provides that the regulatory authority must reassert 
jurisdiction if the termination was based upon fraud, collusion, or 
misrepresentation of a material fact. We also propose to revise this 
provision to clarify that it applies to both intentional and 
unintentional misrepresentations of a material fact, including the 
subsequent discovery of a discharge that requires treatment. Our 
proposed revision is consistent with the decision of the U.S. Court of 
Appeals for the District of Columbia Circuit that upheld our 
termination of jurisdiction rules.\125\
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    \125\ Nat'l Wildlife Fed'n v. Lujan, 950 F.2d 765, 770 (D.C. 
Cir. 1991); see also Brief for the Secretary at 27 n. 11.
---------------------------------------------------------------------------

    In addition, proposed paragraph (d)(4) would specify that the 
termination of jurisdiction provisions of proposed paragraphs (d)(1) 
and (2) do not apply to proposed 30 CFR 817.40, which contains the 
domestic water supply replacement requirements for underground mines, 
or to the structural damage repair or compensation requirements of 30 
CFR 817.121(c)(2). Proposed paragraph (d)(4) is consistent with the 
decision of the U.S. District Court for the District of Columbia 
concerning termination of jurisdiction for the water replacement and 
subsidence damage correction obligations imposed on underground mines 
by section 720(a) of SMCRA.\126\ In that decision, the court held that 
those obligations are not subject to the termination of jurisdiction 
provisions of 30 CFR 700.11(d).\127\
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    \126\ 30 U.S.C. 1309a(a).
    \127\ Nat'l Mining Ass'n v. Babbitt, No. 95-0938, slip op. at 15 
(D.D.C. May 29, 1998).
---------------------------------------------------------------------------

    Finally, we propose to revise existing 30 CFR 700.11(d)(1)(ii), 
which we propose to redesignate as 30 CFR 700.11(d)(2), to specify that 
the requirements of that paragraph also apply to coal exploration 
activities, as was intended when we first published our termination-of-
jurisdiction rules in 1988.\128\ The phrase ``or of a coal exploration 
site'' was inadvertently omitted from the published text of existing 30 
CFR 700.11(d)(1). We plan to correct this inadvertent error when 
publishing a final rule. However, we invite comment on whether we 
should instead limit the scope of that requirement to termination of 
jurisdiction for coal exploration permits issued under 30 CFR 772.12. 
The rationale for a limitation of this nature is that, unlike coal 
exploration permits, coal exploration notices do not require regulatory 
authority approval and do not involve activities that substantially 
disturb the land surface.
---------------------------------------------------------------------------

    \128\ 53 FR 44360 (Nov. 2, 1988).
---------------------------------------------------------------------------

B. Section 701.5: Definitions

    This portion of the preamble discusses, in alphabetical order, each 
definition that we propose to add, remove, or revise.
Acid Drainage
    We propose to revise the definition of this term to clarify that 
the same definition applies to the term ``acid mine drainage.'' We also 
propose to correct the terminology in the definition to comport with 
the terminology used in SMCRA. Specifically, we propose to replace the 
undefined term ``surface coal mine and reclamation operation'' with 
``surface coal mining and reclamation operations,'' which is defined at 
section 701(27) of SMCRA,\129\ as well as in 30 CFR 700.5.
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    \129\ 30 U.S.C. 1291(27).
---------------------------------------------------------------------------

Adjacent Area
    Proposed paragraph (a) would revise and broaden the existing 
definition of ``adjacent area'' to ensure that it includes all areas 
outside the proposed or actual permit area within which there is a 
reasonable possibility of adverse impacts from surface coal mining 
operations or underground mining activities, as applicable. The 
existing definition limits the adjacent area to areas where adverse 
impacts could reasonably be expected to occur and, for underground 
mining, to areas where subsidence is probable. Those limits are too 
restrictive because they effectively limit baseline data collection and 
monitoring to the area in which adverse impacts are almost certain to 
occur. If impacts occur outside that area, there will be no baseline 
data against which to evaluate those impacts. Therefore, we propose to 
revise the definition to include areas where impacts are reasonably 
possible, as determined by the regulatory authority on a site-specific 
basis.
    The revised definition would emphasize that the term ``adjacent 
area'' is both site-specific and context-specific. As in the existing 
definition, the nature of the resource and the context in which the 
regulations use the term ``adjacent area'' would determine the size and 
dimensions of the adjacent area for that resource. Our regulations 
require that each permit application contain information concerning 
historic resources, fish and wildlife resources, surface water, 
groundwater, and geology for the proposed permit and adjacent areas. 
The size and boundaries of the adjacent area in the context of historic 
resources, which are stationary, may differ substantially from the size 
and boundaries of the adjacent area for surface water, for which flow 
patterns are determined by topography, and the size and boundaries of 
the adjacent area for groundwater, which has a migration pattern 
determined by geology.
    Proposed paragraph (b) would specify that the adjacent area for an 
underground mine includes both the area overlying the proposed 
underground workings and the area within a reasonable angle of draw 
\130\ from the perimeter of the underground workings. This provision 
would ensure that the adjacent area includes all areas in which 
subsidence may reasonably occur.
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    \130\ The angle of draw is the angle between the outside edge of 
an underground mine void and the point on the surface to which 
subsidence may extend when the strata overlying the mine void 
collapse. Draw usually proceeds at an angle of 65-75[deg] to the 
horizontal. This definition is adapted from: Ailsa Allaby and 
Michael Allaby. ``angle of draw.'' A Dictionary of Earth Sciences. 
1999. Retrieved February 02, 2015, from Encyclopedia.com: http://www.encyclopedia.com/doc/1O13-angleofdraw.html.
---------------------------------------------------------------------------

    Proposed paragraph (c) would specify that, for all operations, the 
adjacent area also includes the area that might be affected physically 
or hydrologically by dewatering existing underground 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.
    We considered adding another paragraph to specify that, in the 
context of surface-water resources, the adjacent area would include, at 
a minimum, the HUC-12 (U.S. Geological Survey 12-digit Watershed 
Boundary Dataset) \131\ watershed or watersheds in which the proposed 
or actual permit area is located. However, we decided against including 
that provision because HUC boundaries are fixed and do not vary with 
the location of the mining operation. Surface-water data collected from 
those portions of the HUC-12 watershed that are upgradient of the

[[Page 44468]]

proposed operation would be of little or no value in making permitting 
decisions or evaluating the impacts of mining. In addition, HUC-12 
watersheds typically contain between 10,000 and 40,000 acres, which is 
much larger than the area necessary or appropriate to establish 
baseline conditions for most coal mines, which are only tens or 
hundreds of acres in size.
---------------------------------------------------------------------------

    \131\ See http://water.usgs.gov/GIS/huc.html (last accessed 
September 8, 2014).
---------------------------------------------------------------------------

    We invite comment on whether the definition should prescribe a more 
appropriate minimum size for the adjacent area for surface-water 
resources and, if so, how that minimum size should be determined. For 
example, a 2002 OSMRE reference document on baseline data recommends 
that the adjacent area for surface water include both the surface-water 
runoff drainage area for the proposed operation and at least the next 
higher-order drainage area.
Approximate Original Contour
    We propose to revise the definition of this term to explain its 
scope and to incorporate plain language principles. In concert with 
these changes, we propose to clarify that the term refers to the 
general surface configuration of the land within the permit area as it 
existed before any mining, not the configuration that existed 
immediately prior to the proposed or current operation. We intend this 
change to operate as a requirement that operations backfill and regrade 
previously mined areas to closely resemble the general surface 
configuration that existed before any mining, except as provided in 30 
CFR 816.106 or 817.106. This approach is consistent with section 
515(b)(2) of SMCRA,\132\ which requires that surface coal mining and 
reclamation operations be conducted so as to ``restore the land 
affected to a condition capable of supporting the uses which it was 
capable of supporting prior to any mining . . . .'' In ruling on the 
regulations implementing that provision of the Act, the U.S. District 
Court for the District of Columbia subsequently held that ``[t]he use 
of the word `any' indicates that Congress intended the operator to 
restore the land to the condition that existed before it was ever 
mined.'' \133\
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    \132\ 30 U.S.C. 1265(b)(2).
    \133\ In re Permanent Surface Mining Regulation Litig. I, Round 
I (PSMRL I, Round I), 1980 U.S. Dist. LEXIS 17722 at * 95 (D.D.C. 
1980), 14 Env't Rep. Cas. (BNA) 1083, 1107, 10 Envtl. L. Rep. 
(Envtl. Law Inst.) 20208.
---------------------------------------------------------------------------

    Our proposed addition of the phrase ``within the permit area'' when 
referring to the general surface configuration is intended to clarify 
that determinations of approximate original contour must be made based 
on the general surface configuration of the permit area, not the 
general surface configuration of the surrounding area. The proposed 
addition is consistent with section 701(2) of SMCRA,\134\ which defines 
``approximate original contour'' as meaning ``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 prior to mining and blends into and 
complements the drainage pattern of the surrounding terrain . . . .'' 
The statutory definition clearly applies the term ``general surface 
configuration'' only to the area that is mined and reclaimed; it does 
not extend to the surrounding area. Instead, with respect to the 
surrounding area, the statutory definition requires that the general 
surface configuration of the reclaimed area blend into and complement 
the drainage pattern of the surrounding terrain. Limiting the scope of 
the term ``general surface configuration'' to the mined and reclaimed 
area also is consistent with the discussion and diagrams in the 
legislative history of SMCRA. See H.R. Rep. No. 94-45, at 94 (1975).
---------------------------------------------------------------------------

    \134\ 30 U.S.C. 1291(2).
---------------------------------------------------------------------------

    In addition, we propose to revise the definition to include an 
exception for excess spoil fills, consistent with a June 18, 1999, 
legal opinion from the Department of the Interior's Office of the 
Solicitor. That opinion confirmed that the AOC restoration requirements 
of SMCRA do not apply to the construction of excess spoil fills, in 
part because the statutory definition of approximate original contour 
in section 701(2) of SMCRA \135\ applies only to ``that surface 
configuration achieved by backfilling and grading of the mined area.'' 
Excess spoil fills are not part of the backfilling process and they are 
at least initially located outside the mined area. We also propose to 
add an exception for coal mine waste refuse piles because the same 
rationale applies to the construction of those piles. Furthermore, 
sections 515(b)(11) and 516(b)(4) of SMCRA \136\ clearly envision the 
construction of permanent coal mine waste refuse piles on the land's 
surface, but there is no requirement to restore the surface of that 
land to approximate original contour, nor would it be possible to do 
so. Instead, section 515(b)(11) of the Act \137\ requires that the 
operation ``assure the final contour of the waste pile will be 
compatible with natural surroundings and that the site can and will be 
stabilized and revegetated according to the provisions of the Act.'' 
Section 516(b)(4) \138\ includes similar language for refuse piles 
associated with underground mines.
---------------------------------------------------------------------------

    \135\ Id.
    \136\ 30 U.S.C. 1265(b)(11) and 1266(b)(4).
    \137\ 30 U.S.C. 1265(b)(11).
    \138\ 30 U.S.C. 1266(b)(4).
---------------------------------------------------------------------------

    We also propose to revise the definition to clarify that, 
consistent with the legislative history, the potentially confusing 
placement of the phrase ``including any terracing or access roads'' in 
the statutory definition does not mean that terraces and access roads 
must be regraded to the approximate original contour. As explained in 
the legislative history of the definition of approximate original 
contour, Congress added this phrase to clarify that the AOC restoration 
requirement does not prohibit the construction of terraces or the 
retention of access roads on backfilled areas.\139\ Therefore, we 
propose to add language stating that the requirements of the definition 
do not prohibit the approval of terracing under 30 CFR 816.102 or 
817.102 or the retention of access roads under 30 CFR 816.150 or 
817.150.
---------------------------------------------------------------------------

    \139\ See H.R. Rep. No. 95-218, at 178 (1977) and H.R. Rep. No. 
95-493, at 112 (1977) (Conf. Rep.).
---------------------------------------------------------------------------

    Finally, we propose to replace the cross-references to 30 CFR 
816.133 and 817.133 with cross-references to 30 CFR 780.24(b) and 
784.24(b), respectively. This change reflects our proposal to move the 
relevant portions of 30 CFR 816.133 and 817.133 to 30 CFR 780.24(b) and 
784.24(b), respectively.
Backfill
    We propose to add a definition of ``backfill'' to clarify the 
difference between backfill, excess spoil fills, and thick overburden 
returned to the mined-out area under 30 CFR 816.105, all of which have 
different permitting requirements and performance standards. We derived 
our proposed definition from the definition of ``backfill'' in A 
Dictionary of Mining, Mineral, and Related Terms (U.S. Bureau of Mines, 
1968). However, we modified that definition by tailoring it to coal 
mining and the purpose stated in the first sentence of this discussion. 
Specifically, we propose to define ``backfill,'' when used as a noun, 
as 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 would refer to the process of 
filling that void. The definition also would include all materials used 
to restore the approximate original contour of the mined-out area. We 
propose to

[[Page 44469]]

make conforming changes to the definition of excess spoil, which is 
discussed below under a separate heading.
Bankfull
    We propose to add a definition of this technical and scientific 
term because we use this term in our proposed regulations to more 
precisely fix the boundaries of stream buffer zones and riparian 
corridors and in our proposed stream restoration requirements. Under 
our proposed definition, bankfull would mean the water level or stage 
at which a stream, river, or lake is at the top of its banks and any 
further rise would result in water moving into the flood plain. The 
proposed definition parallels the one that appears in the National 
Weather Service glossary.\140\
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    \140\ See http://forecast.weather.gov/glossary.php?word=BANKFULL 
(last accessed January 16, 2015).
---------------------------------------------------------------------------

Biological Condition
    We propose to add a definition of biological condition in 
conjunction with the new permitting requirements and performance 
standards concerning documentation, protection, and restoration of 
biological communities in streams. Specifically, we propose to define 
biological condition as a measure of the ecological health of a stream 
or segment of a stream as determined by the type, diversity, 
distribution, abundance, and physiological state of aquatic organisms 
and communities found in the stream or stream segment. The biological 
condition of a water body is the ultimate indicator of watershed health 
because aquatic organisms and communities reflect the cumulative 
conditions of all other watershed components and processes.\141\
---------------------------------------------------------------------------

    \141\ http://water.epa.gov/polwaste/nps/watershed/biotic.cfm 
(last accessed June 8, 2015).
---------------------------------------------------------------------------

    Our proposed rule would require application of a multimetric 
biological assessment and taxonomic assessment protocol to determine 
biological condition. See, e.g., proposed 30 CFR 780.19(e) and 
784.19(e). Multimetric indices include metrics such as species 
richness, complexity, and tolerance as well as trophic measures. They 
provide a quantitative comparison (often referred to as an index of 
biological or biotic integrity) of the ecological complexity of 
biological assemblages relative to a regionally-defined reference 
condition. For example, River Invertebrate Prediction and 
Classification System models quantify biological condition by comparing 
the observed taxa at a site to the taxa that would be expected to be 
present in the absence of human-caused stress.\142\
---------------------------------------------------------------------------

    \142\ Id.
---------------------------------------------------------------------------

    Our existing regulations do not specifically require collection of 
the baseline data necessary to determine the biological condition of 
streams. Consequently, the permit application often lacks specific 
descriptions of the aquatic community residing in streams within the 
permit and adjacent areas. The lack of baseline information on the 
biological condition of streams creates an impediment to determining 
whether the proposed operation has been designed to prevent material 
damage to the hydrologic balance outside the permit area, as required 
by sections 507(b) and 510(b)(3) of SMCRA.\143\ It also creates an 
impediment to evaluating whether the operation has been and is being 
conducted to minimize adverse impacts on fish, wildlife, and related 
environmental values, as required by sections 515(b)(24) and 516(b)(11) 
of SMCRA.\144\ Furthermore, preparation of a comprehensive cumulative 
hydrologic impact assessment is not always possible if the permit 
application does not include information on the biological condition of 
streams. While the information sometimes may be available from the 
agencies responsible for implementing the Clean Water Act, those 
agencies generally do not assess the cumulative loading of substances 
legally discharged into the receiving stream until the stream becomes 
impaired.
---------------------------------------------------------------------------

    \143\ 30 U.S.C. 1257(b) and 1260(b)(3).
    \144\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

Cumulative Impact Area
    Sections 507(b)(11) and 510(b)(3) of SMCRA \145\ require that the 
regulatory authority prepare an assessment of the probable cumulative 
impact of all anticipated mining in the area upon the hydrology of the 
general area. In 1983, we adopted a definition of cumulative impact 
area to identify both the extent of the area that must be included in 
this evaluation and the scope of the term ``anticipated mining.'' \146\ 
The first sentence of the 1983 definition mentions only anticipated 
mining, while the second sentence includes existing operations in the 
list of the types of operations encompassed by the term ``anticipated 
mining.'' We propose to resolve this inconsistency by replacing the 
term ``anticipated mining'' with ``existing and anticipated mining'' or 
its equivalent.
---------------------------------------------------------------------------

    \145\ 30 U.S.C. 1257(b)(1)) and 1260(b)(3).
    \146\ 48 FR 43956, 43957 (Sept. 26, 1983).
---------------------------------------------------------------------------

    In addition, we propose to add language clearly specifying that the 
term ``mining'' includes both surface and underground mining 
operations. Discharges of water from underground mines can cause 
material damage to the hydrologic balance outside the permit area, as 
demonstrated by a 2010 incident in which water discharged from an 
underground mine resulted in a golden algae bloom in Dunkard Creek in 
West Virginia and Pennsylvania that caused a major fish kill.\147\ Our 
revised definition would clarify that the cumulative impact area 
includes the area within which the proposed or actual operation may 
interact with the impacts of all existing and anticipated surface and 
underground coal mining operations.
---------------------------------------------------------------------------

    \147\ Reynolds, Louis. Update on Dunkard Creek (November 23, 
2009). U.S. Environmental Protection Agency, Region 3, Environmental 
Analysis and Innovation Division, Office of Monitoring and 
Assessment, Freshwater Biology Team.
---------------------------------------------------------------------------

    We propose to restructure the definition for clarity. Proposed 
paragraphs (a) through (c) would specify the areas that must be 
included in the cumulative impact area.
    Proposed paragraph (a) would require that the cumulative impact 
area include the actual or proposed permit area. The addition of the 
``actual or proposed'' language reflects the fact that the cumulative 
impact area is a concept that applies both before and after permit 
issuance.
    Proposed paragraph (b) would require that the cumulative impact 
area include the HUC-12 (U.S. Geological Survey 12-digit Watershed 
Boundary Dataset) \148\ watershed or watersheds in which the actual or 
proposed permit area is located. We propose to add this provision to 
establish a bright-line standard for the minimum size of the cumulative 
impact area. For operations that straddle a ridgeline or other 
watershed boundary, the cumulative impact area must include, at a 
minimum, the HUC-12 watershed on each side of the ridgeline or other 
boundary.
---------------------------------------------------------------------------

    \148\ See http://water.usgs.gov/GIS/huc.html (last accessed 
September 8, 2014).
---------------------------------------------------------------------------

    Proposed paragraph (c) would provide that, in addition to the areas 
specified in proposed paragraphs (a) and (b), the cumulative impact 
area must include 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

[[Page 44470]]

anticipated mining will have during mining and reclamation and after 
final bond release. Proposed paragraphs (c)(1) through (6) would 
specify the minimum components of the term ``existing and anticipated 
mining.'' Proposed paragraphs (c)(1) through (3) are substantively 
identical to paragraphs (a) through (c) of the existing definition.
    Proposed paragraph (c)(4) would specify that ``anticipated mining'' 
includes any proposed surface or underground mining operation for which 
a person has submitted a request for an authorization, certification, 
or permit under the Clean Water Act. Inclusion of proposed operations 
for which the Clean Water Act authorization process has begun would 
assist in preparation of a more comprehensive analysis on the part of 
both the permit applicant or permittee and the regulatory authority.
    Proposed paragraph (c)(5) would modify paragraph (d) of the 
existing definition to clarify that anticipated mining includes all 
lands for 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). The added language 
would clarify the point at which lands containing leased Federal coal 
must be included within the cumulative impact area.
    Proposed paragraph (c)(6) would specify that anticipated mining 
includes, for underground mines, all areas of contiguous coal reserves 
adjacent to an existing or proposed underground mine that are owned or 
controlled by the applicant. This addition is appropriate because, 
barring significant changes in economic or regulatory conditions, the 
mine very likely will be extended into those reserves in the future.
Ecological Function
    We propose to add a definition of this term in concert with our 
proposal to require that permittees restore the ecological function of 
the segments of perennial and intermittent streams through which they 
mine. Ecological function includes physical parameters, biological 
parameters, and a consideration of physical and biological interactions 
as nutrients and energy are collected and transferred down the stream 
continuum.\149\ Specifically, we propose to define this term as 
including the role that the stream plays in dissipating energy and 
transporting water, sediment, organic matter, and nutrients downstream. 
It also includes the ability of the stream ecosystem to retain and 
transform inorganic materials needed for biological processes into 
organic forms (forms containing carbon) and to oxidize those organic 
molecules back into elemental forms through respiration and 
decomposition. Finally, the term includes the role that the stream 
plays in the life cycles of plants, insects, amphibians (especially 
salamanders), reptiles, fish, birds, and mammals that either reside in 
the stream or depend upon it for habitat, reproduction, food, water, or 
protection from predators. The proposed definition is based upon a 
functional assessment guidebook that the U.S. Army Corps of Engineers 
developed for ephemeral and intermittent streams in central 
Appalachia.\150\ The biological condition of a stream is one measure of 
its ecological function.
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    \149\ Vannote, R. L., G. W. Minshall, K. W. Cummins, J. R. 
Sedell, and C. E. Cushing. The river continuum concept. (1980) Can. 
J. Fish. Aquat. Sci. 37:130-137.
    \150\ ``Operational Draft Regional Guidebook for the Functional 
Assessment of High-Gradient Ephemeral and Intermittent Headwater 
Streams in Western West Virginia and Eastern Kentucky.'' ERDC/EL TR-
10-11, July 2010, U.S. Army Engineer Research and Development 
Center, Vicksburg, MS.
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Ephemeral Stream
    We propose to redefine ``ephemeral stream'' in a manner that is 
substantively identical to the manner in which the U.S. Army Corps of 
Engineers defines that term in Part F of the 2012 reissuance of the 
nationwide permits under section 404 of the Clean Water Act. See 77 FR 
10184, 10288 (Feb. 21, 2012). Adoption of a substantively identical 
definition would promote consistency in application and interpretation 
of that term under both SMCRA and Clean Water Act programs.
    We invite comment on whether the definition in the final rule 
should include language specifying that the U.S. Army Corps of 
Engineers has the ultimate authority to determine the point at which an 
ephemeral stream becomes an intermittent stream or a perennial stream 
and vice versa. Further, if the final rule includes language to that 
effect, we invite comment on whether the definition also should provide 
that any determination that the Corps makes concerning these transition 
points will be controlling for purposes of SMCRA regulatory programs. 
Commenters should discuss the applicability of two SMCRA provisions in 
this context. First, section 702(a) of SMCRA \151\ provides that 
``[n]othing in this Act shall be construed as superseding, amending, 
modifying, or repealing'' the Clean Water Act, any rule or regulation 
adopted under the Clean Water Act, or any state laws enacted pursuant 
to the Clean Water Act. Second, section 505(b) of SMCRA \152\ provides 
that any provision of any state law or regulation may not be construed 
to be inconsistent with SMCRA if it ``provides for more stringent land 
use and environmental controls and regulations of surface coal mining 
and reclamation operation[s] than do the provisions of this Act or any 
regulation issued pursuant thereto.'' In other words, should our 
regulations allow states to adopt and apply stream definitions in a 
manner that would protect a greater length of stream than would the 
Corps determinations?
---------------------------------------------------------------------------

    \151\ 30 U.S.C. 1292(a).
    \152\ 30 U.S.C. 1255(b).
---------------------------------------------------------------------------

    The primary difference between our existing definition and the 
Corps definition that we propose to adopt concerns the treatment of 
snowmelt. Our existing definition classifies streamflow in response to 
the melting of snow and ice as an ephemeral stream, whereas the Corps 
definition is silent on this point. The preamble to the Corps 
definition notes that the Corps declined to accept a recommendation 
from a commenter that streamflow resulting from snowmelt be classified 
as an ephemeral stream. The preamble explains that, while snowmelt may 
contribute to the flow of ephemeral streams, snowmelt also contributes 
to the flow of intermittent and perennial streams, especially in areas 
with deep snow packs. The preamble further states that the definition 
appropriately focuses on the duration of flow and that melting snow 
should not be considered a precipitation event because the development 
of a snowpack occurs over the course of a winter season. See 77 FR 
10184, 10262 (Feb. 21, 2012).
Excess Spoil
    Our existing rules define excess spoil as spoil material disposed 
of in a location other than the mined-out area. The definition excludes 
spoil used to achieve the approximate original contour or to blend the 
mined-out area with the surrounding terrain in non-steep slope areas. 
However, the existing definition is silent with respect to the 
characterization of spoil placed on the mined-out area in excess of the 
amount of spoil needed to restore the approximate original contour. We 
propose to revise the definition of excess spoil and add a definition 
of backfill to more clearly differentiate among backfill, material 
placed in excess spoil fills, and thick overburden returned to the 
mined-out area under 30 CFR 816.105.

[[Page 44471]]

    Specifically, we propose to define excess spoil as including all 
spoil material disposed of in a location other than the mined-out area 
within the permit area. The definition also would include all spoil 
material placed above the approximate original contour within the 
mined-out area as part of the continued construction of an excess spoil 
fill with a toe located outside the mined-out area. The added language 
concerning continuation of an excess spoil fill onto the mined-out area 
is intended to ensure that the fill is constructed using consistent 
standards for the entire structure so that the fill is uniformly 
stable.
    The revised definition would retain the clarification that spoil 
used to restore the approximate original contour of the mined-out area 
is not excess spoil. It also would retain the exception for spoil used 
to blend the mined-out area with the surrounding terrain in non-steep 
slope areas. We propose to add a new provision clarifying that the 
definition does not include spoil material placed within the mined-out 
area in accordance with the thick overburden provisions of 30 CFR 
816.105(b)(1), even if it exceeds the amount needed to restore the 
approximate original contour, unless that material is a continuation of 
an excess spoil fill. This provision would eliminate any ambiguity 
regarding thick overburden treatment in the existing rules and is 
consistent with the thick overburden provisions of section 515(b)(3) of 
SMCRA,\153\ which makes no reference to the excess spoil provisions of 
section 515(b)(22) of SMCRA \154\ in establishing requirements for the 
placement and grading of spoil within the mined-out area.
---------------------------------------------------------------------------

    \153\ 30 U.S.C. 1265(b)(3).
    \154\ 30 U.S.C. 1265(b)(22).
---------------------------------------------------------------------------

    In summary, under our proposed rule, the general backfilling and 
grading requirements of 30 CFR 816.102 or 817.102 would apply to all 
spoil placed in the mined-out area for the purpose of restoring the 
approximate original contour within the parameters of those rules. The 
thick overburden performance standards of 30 CFR 816.105(b) would apply 
to all spoil placed in or on the mined-out area in excess of the 
approximate original contour parameters established in 30 CFR 
816.102(a)(1) or 817.102(a)(1), with the exception of spoil that is a 
continuation of an excess spoil fill with a toe located outside the 
mined-out area. For all operations, the excess spoil disposal 
requirements of 30 CFR 816.71 and 816.74 or 817.71 and 817.74 would 
govern the construction of excess spoil fills, including any spoil 
placed above the approximate original contour within the mined-out area 
as part of the continuation of an excess spoil fill with a toe located 
outside the mined-out area.
Fill
    We propose to define the term ``fill'' to clarify the meaning of 
this term as it is used in the context of surface coal mining 
operations under SMCRA and to differentiate this term from the term 
``fill material'' as used and defined in the regulations implementing 
section 404 of the Clean Water Act.\155\ See 33 CFR 323.2(e) and 40 CFR 
232.2. Our proposed definition would include only permanent, non-
impounding structures constructed for the purpose of disposing of 
excess spoil and solid coal mine waste, consistent with the common 
usage of this term in the context of coal mining operations. It would 
not include any impoundments or temporary structures. It has no 
relationship to whether construction of the excess spoil or coal mine 
waste disposal facility involves the discharge of dredged or fill 
material into waters of the United States under the Clean Water Act.
---------------------------------------------------------------------------

    \155\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

Fugitive Dust
    We propose to remove this definition because it defines a term that 
we no longer use in our regulations. See the preamble discussions of 
proposed 30 CFR 780.12(f) and our proposed removal of existing 30 CFR 
780.15 and 784.26 for further explanation.
Groundwater
    This definition would replace the existing definition of the term 
``Ground water.'' We propose to replace the words ``ground water'' with 
the single word ``groundwater'' throughout our regulations for internal 
consistency. We also propose to revise the definition to add clarity 
and to more closely resemble generally-accepted definitions in 
scientific and trade publications. Specifically, our proposed 
definition is adapted from Freeze and Cherry (1979) \156\ and a 
publication entitled ``The ABCs of Aquifers.'' \157\ Under the proposed 
rule, ``groundwater'' would mean subsurface water located in those 
portions of soils and geologic formations that are completely saturated 
with water; i.e., those zones where all the pore spaces and rock 
fractures are completely filled with water. We propose to add a 
sentence clarifying that this term includes subsurface water in both 
regional and perched aquifers, but that it does not include water in 
soil horizons that are temporarily saturated by precipitation events.
---------------------------------------------------------------------------

    \156\ Freeze, R. A., and Cherry, J. A. Groundwater. (1979), 
Prentice-Hall, Englewood Cliffs, NJ, p. 2.
    \157\ Stone, Andrew. ``The ABCs of Aquifers,'' (May 30, 2010); 
available at http://www.nationaldriller.com/articles/85773-the-abcs-of-aquifers (last accessed September 8, 2014).
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    Perched aquifers occur where subsurface water collects above 
unsaturated rock formations as a result of a discontinuous impermeable 
layer.\158\ Perched aquifers are fairly common in glacial 
sediments.\159\ They also occur in other sedimentary formations where 
weathered layers, ancient soils or caliche (found in arid or semiarid 
areas) have created impermeable zones.\160\ Perched aquifers are often 
removed by surface coal mining operations; they need not be restored 
unless restoration is needed to prevent material damage to the 
hydrologic balance outside the permit area.
---------------------------------------------------------------------------

    \158\ Id.
    \159\ Id.
    \160\ Id.
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Highwall Remnant
    We propose to remove this definition because the term ``highwall 
remnant'' is self-explanatory and because the existing definition 
inappropriately limits the term to remining operations. There is no 
basis under SMCRA for this limitation.
Hydrologic Balance
    The existing definition of hydrologic balance mentions water 
quality, but focuses on water quantity, water flow and movement, water 
storage, and changes in the physical state of water. We propose to 
revise this definition to include provisions relating to water quality 
and the impact of water quality on the biological condition of streams. 
Specifically, we propose to add language stating that the term includes 
interactions that result in changes in the chemical composition or 
physical characteristics of groundwater and surface water, which may 
affect the biological condition of streams and other water bodies. The 
proposed revisions are intended to clarify that water quality is as 
important as water quantity. They are consistent with the manner and 
context in which the term ``hydrologic balance'' appears in SMCRA. 
Sections 507, 508, 510, 515, and 516 of SMCRA\161\ contain repeated 
references to water quality considerations. As summarized in Part II of 
this preamble, in many cases, adverse impacts on water quality and the 
resulting change in the biological condition of streams are the 
principal

[[Page 44472]]

cause of material damage to the hydrologic balance outside the permit 
area as we proposed to define that term in 30 CFR 701.5.
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    \161\ 30 U.S.C. 1257, 1258, 1260, 1265, and 1266.
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Intermittent Stream
    We propose to redefine ``intermittent stream'' in a manner that is 
substantively identical to the manner in which the U.S. Army Corps of 
Engineers defines that term in Part F of the 2012 reissuance of the 
nationwide permits under section 404 of the Clean Water Act. See 77 FR 
10184, 10288 (Feb. 21, 2012). Adoption of a substantively-identical 
definition would promote consistency in application and interpretation 
of that term under both SMCRA and Clean Water Act programs.
    We invite comment on whether the definition in the final rule 
should include language specifying that the U.S. Army Corps of 
Engineers has the ultimate authority to determine the point at which an 
ephemeral stream becomes an intermittent stream or a perennial stream 
and vice versa. Further, if the final rule includes language to that 
effect, we invite comment on whether the definition also should provide 
that any determination that the Corps makes concerning these transition 
points will be controlling for purposes of SMCRA regulatory programs. 
Commenters should discuss the applicability of two SMCRA provisions in 
this context. First, section 702(a) of SMCRA \162\ provides that 
``[n]othing in this Act shall be construed as superseding, amending, 
modifying, or repealing'' the Clean Water Act, any rule or regulation 
adopted under the Clean Water Act, or any state laws enacted pursuant 
to the Clean Water Act. Second, section 505(b) of SMCRA \163\ provides 
that any provision of any state law or regulation may not be construed 
to be inconsistent with SMCRA if it ``provides for more stringent land 
use and environmental controls and regulations of surface coal mining 
and reclamation operation[s] than do the provisions of this Act or any 
regulation issued pursuant thereto.'' In other words, should our 
regulations allow states to adopt and apply stream definitions in a 
manner that would protect a greater length of stream than would the 
Corps determinations?
---------------------------------------------------------------------------

    \162\ 30 U.S.C. 1292(a).
    \163\ 30 U.S.C. 1255(b).
---------------------------------------------------------------------------

    Our existing definition has two principal differences with the 
Corps' definition that we propose to adopt. First, paragraph (b) of our 
existing definition of an intermittent stream would not consider a 
stream with a base flow resulting from the melting of a snowpack to be 
an intermittent stream because the snowpack does not lie below the 
local water table and because snowmelt is not considered groundwater. 
However, the preamble to the definition of ``ephemeral stream'' that 
the Corps adopted as part of the 2012 reissuance of the nationwide 
permits under section 404 of the Clean Water Act states that snowmelt 
contributes to the flow of intermittent and perennial streams, 
especially in areas with deep snow packs, and that melting snow should 
not be considered a precipitation event because the development of a 
snowpack occurs over the course of a winter season. See 77 FR 10184, 
10262 (Feb. 21, 2012). In essence, the preamble discussion would allow 
a stream originating from a melting snowpack to be considered an 
intermittent stream even though the definition of ``intermittent 
stream'' requires groundwater as the source of base flow. We invite 
comment on whether we should revise our proposed definition of 
``intermittent stream'' to include language consistent with the 
discussion of snowmelt in the preamble to the Corps' definition of 
``ephemeral stream.''
    Second, we propose to remove paragraph (a) of our existing 
definition of ``intermittent stream.'' That paragraph automatically 
designates any stream or reach of a stream that drains a watershed of 
at least one square mile as an intermittent stream. This provision is 
inconsistent with generally-accepted stream classification systems 
because it is based on watershed size rather than streambed 
characteristics and duration and source of streamflow. For example, one 
study in West Virginia found perennial streams with a median drainage 
area of less than 0.1 square mile and intermittent flows with a median 
drainage area of 14.5 acres, both of which are much smaller than one 
square mile (640 acres).\164\ On the other hand, ephemeral streams in 
arid regions can have drainage areas of dozens of square miles. 
Furthermore, the existing definition could be construed as meaning that 
all streams with a watershed greater than one square mile are 
intermittent, even when they would otherwise be classified as perennial 
streams.
---------------------------------------------------------------------------

    \164\ Paybins, Katherine M., ``Flow Origin, Drainage Area, and 
Hydrologic Characteristics for Headwater Streams in the Mountaintop 
Coal-Mining Region of Southern West Virginia, 2000-2001.'' Water-
Resources Investigations Report 02-4300, U.S. Department of the 
Interior Geological Survey.
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    We originally adopted the watershed-size criterion because Alabama 
and Illinois found it easy to administer and apply and because we 
believed that a stream with a watershed of that size has a potential 
for flood volumes that would necessitate application of the stream-
channel diversion requirements.\165\ As explained below, we no longer 
find either reason compelling.
---------------------------------------------------------------------------

    \165\ 44 FR 14932 (Mar. 13, 1979).
---------------------------------------------------------------------------

    First, the easy-to-administer argument is valid only if the 
watershed-size criterion was the only criterion for determining whether 
a stream is intermittent. However, that is not the case. The existing 
definition also provides that any stream that is below the local water 
table for at least part of the year and obtains its flow from both 
surface runoff and groundwater discharge is an intermittent stream. As 
discussed above, both perennial and intermittent streams often have 
watersheds much smaller than one square mile, so the permit applicant 
and the regulatory authority still must conduct a hydrological 
evaluation of streams in watersheds smaller than one square mile to 
determine whether they are nonetheless intermittent or perennial based 
on the source of streamflow.
    With respect to the second reason, the possibility of flood damage 
from diversion of an otherwise-ephemeral stream with a watershed 
greater than one square mile does not justify retention of a definition 
of intermittent stream that is not consistent with definitions used by 
the U.S. Army Corps of Engineers and the scientific community. The 
preamble to 30 CFR 816.43 and 817.43 requests comment on whether we 
should revise our regulations governing diversions to adopt design 
requirements based on whether the diversion is permanent or temporary 
rather than on whether the flow being diverted is perennial, 
intermittent, or ephemeral.
Land Use
    We propose to revise the introductory text of this definition for 
clarity and to add a sentence specifying that the individual land use 
categories in the definition are the categories to be used in the 
regulatory program. In addition, we propose to remove the third 
sentence of the first paragraph of the existing definition. That 
sentence reads: ``Changes of land use from one of the following 
categories to another shall be considered as a change to an alternative 
land use which is subject to approval by the regulatory authority.'' 
This sentence is inconsistent with the revisions that we are proposing 
to 30 CFR 780.24 and 784.24, as discussed later in this preamble. Under 
our proposed revisions to those rules, a proposed postmining

[[Page 44473]]

land use that differs from the actual premining land use would not 
require approval as a higher or better use if the land as it existed 
before mining was already capable of supporting that use in its 
existing condition. Moreover, this change would better implement 
section 515(b)(2) of SMCRA,\166\ which provides that the permittee must 
``restore the land affected to a condition capable of supporting the 
uses [not just the use that existed immediately prior to mining] which 
it was capable of supporting prior to any mining, or higher or better 
uses of which there is reasonable likelihood.'' This statutory language 
indicates that the alternative postmining land use requirements in our 
rules should apply only when the applicant or permittee proposes a 
higher or better use, not a use that the land was capable of supporting 
before mining.
---------------------------------------------------------------------------

    \166\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    We also propose to revise the definition of cropland in paragraph 
(a) of the definition of land use to more accurately and inclusively 
describe the types of plantings and planting settings associated with 
that land use category. Specifically, we propose to include commercial 
nursery plantings, vegetables, fruits, nuts, and other plants typically 
grown in fields, orchards, vineyards, and similar settings involving 
intensive agricultural uses.
Material Damage
    We propose to revise a cross-reference to 30 CFR 784.20 in this 
definition to be consistent with our proposed redesignation of existing 
Sec.  784.20 as Sec.  784.30. We propose no other changes to this 
definition, which applies only in the context of damage that occurs as 
a result of subsidence caused by underground mining operations. It is 
not related to, nor does it replace or supersede, the definition of 
``material damage to the hydrologic balance outside the permit area'' 
or requirements related to that definition.
Material Damage to the Hydrologic Balance Outside the Permit Area
    Our existing regulations do not define this term, which, as 
discussed below, is central to one of the principal findings required 
for approval of a permit application. Section 510(b)(3) of SMCRA \167\ 
specifies that the regulatory authority may not approve a permit 
application unless the regulatory authority has ``made an assessment of 
the probable cumulative impact of all anticipated mining in the area on 
the hydrologic balance specified in section 507(b).'' This assessment 
is generally referred to as the cumulative hydrologic impact assessment 
(CHIA). Section 507(b)(11) of SMCRA,\168\ the pertinent part of the 
SMCRA section referenced in the quote above, requires that each permit 
application include--
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    \167\ 30 U.S.C. 1260(b)(3).
    \168\ 30 U.S.C. 1257(b)(11).

a determination of the probable hydrologic consequences of the 
mining and reclamation operations, both on and off the mine site, 
with respect to the hydrologic regime, quantity and quality of water 
in surface and ground water systems including the dissolved and 
suspended solids under seasonal flow conditions and the collection 
of sufficient data for the mine site and surrounding areas so that 
an assessment can be made by the regulatory authority of the 
probable cumulative impact of all anticipated mining in the area 
upon the hydrology of the area and particularly upon water 
---------------------------------------------------------------------------
availability.

    Section 510(b)(3) also specifies that the regulatory authority may 
not approve a permit unless the application affirmatively demonstrates 
and the regulatory authority finds in writing that the proposed 
operation ``has been designed to prevent material damage to the 
hydrologic balance outside the permit area.'' However, SMCRA does not 
define or explain the meaning of the term ``material damage to the 
hydrologic balance outside the permit area.''
    Our existing regulations do not fully integrate the implementation 
of sections 507(b)(11) and 510(b)(3) of SMCRA \169\ because they do not 
require collection of sufficient data for the proposed permit area and 
surrounding areas to prepare an adequate CHIA and because they do not 
define or establish criteria for determining material damage to the 
hydrologic balance outside the permit area. In particular, they do not 
specifically require data related to the biological community in 
streams or data comprised of a complete suite of the chemical and 
physical constituents and properties of groundwater and surface water. 
Without sound baseline information on surface-water and groundwater 
quality and quantity and the biological communities in streams, the 
regulatory authority cannot prepare an adequate cumulative hydrologic 
impact assessment or determine whether the proposed mining operation 
has been designed to prevent material damage to the hydrologic balance 
outside the permit area. This proposed rule is intended to correct this 
problem by adding a definition of the term ``material damage to the 
hydrologic balance outside the permit area'' and by refining and 
expanding baseline data requirements for permit applications, which we 
discuss later in this preamble in connection with proposed 30 CFR 
780.19. These two changes would promote more effective implementation 
of sections 507(b)(11) and 510(b)(3) of SMCRA \170\ and, in combination 
with the improved monitoring requirements in proposed 30 CFR 780.23 and 
816.35 through 816.37, would better protect streams.
---------------------------------------------------------------------------

    \169\ 30 U.S.C. 1257(b)(11) and 1260(b)(3).
    \170\ 30 U.S.C. 1257(b)(11) and 1260(b)(3).
---------------------------------------------------------------------------

    In developing a definition of ``material damage to the hydrologic 
balance outside the permit area,'' we looked to our previous statements 
on this matter in preambles to our regulations concerning hydrology and 
geology. We also examined other provisions of SMCRA and the legislative 
history of section 510(b)(3) of SMCRA.\171\ Several commenters on a 
proposed rule on hydrology and geology that we published on June 25, 
1982 (47 FR 27712), requested that we add a definition of material 
damage to the hydrologic balance outside the permit area to our 
regulations. However, the preamble to the final rule that we adopted in 
response to that proposed rule explains that we declined the requests 
for a definition ``because the gauges for measuring material damage may 
vary from area to area and from operation to operation. OSM[RE] has not 
established fixed criteria, except for those established under 
Sec. Sec.  816.42 and 817.42 related to compliance with water-quality 
standards and effluent limitations.'' \172\ The preamble provides no 
further explanation of that statement, but it does state that we agreed 
with commenters that ``regulatory authorities should establish criteria 
to measure material damage.'' \173\
---------------------------------------------------------------------------

    \171\ 30 U.S.C. 1260(b)(3).
    \172\ 48 FR 43973 (Sept. 26, 1983).
    \173\ Id.
---------------------------------------------------------------------------

    In the 30 years since we published that preamble, very few states 
have adopted a definition or established programmatic criteria for 
material damage to the hydrologic balance outside the permit area. 
Therefore, adoption of a federal definition of material damage to the 
hydrologic balance outside the permit area is both necessary and 
appropriate to ensure effective and consistent application of that 
term.
    In addition, the absence of either a federal definition of or 
criteria for material damage to the hydrologic balance outside the 
permit area has made it difficult for us to determine whether states 
are effectively implementing their counterparts to 30 CFR 773.15(c) and 
section 510(b)(3) of

[[Page 44474]]

SMCRA.\174\ As we have long recognized, definitions can help us more 
effectively implement SMCRA: ``Many of the terms used by Congress are 
not defined or explained and thus are too vague to be enforced 
effectively until given more precise meanings.'' \175\
---------------------------------------------------------------------------

    \174\ 30 U.S.C. 1260(b)(3).
    \175\ 44 FR 15148 (Mar. 13, 1979).
---------------------------------------------------------------------------

    The legislative history of section 510(b)(3) of SMCRA \176\ 
provides little illumination as to the meaning of material damage to 
the hydrologic balance outside the permit area and thus is of little 
assistance in developing a definition. The term first appears in H.R. 
2, the House version of the legislation that ultimately became SMCRA. 
Earlier unsuccessful precursors to SMCRA used the phrase ``significant 
irreparable offsite damage,'' which also was undefined. In explaining 
the change in terminology, the Committee report states only that the 
previous phrase was ``deleted in favor of language that specifies that 
the mine is to be designed to prevent damage to the hydrologic balance 
outside the permit area.'' \177\ There is no discussion of whether, in 
making this substitution, Congress intended to eliminate the elements 
of ``significant'' and ``irreparable'' from the standard, or whether 
the new language is merely a nonsubstantive change in wording.
---------------------------------------------------------------------------

    \176\ 30 U.S.C. 1260(b)(3).
    \177\ H.R. Rep. No. 218, at 65 (1977).
---------------------------------------------------------------------------

    When we declined to define ``material damage to the hydrologic 
balance outside the permit area'' in 1983, we noted that the only fixed 
criteria that we established at the time for such damage were those 
included in ``Sec. Sec.  816.42 and 817.42 related to compliance with 
water-quality standards and effluent limitations.'' However, we do not 
think it appropriate to interpret this preamble statement as meaning 
that any exceedance of water quality standards or effluent limitations, 
no matter how minor and no matter what the cause, would constitute 
material damage to the hydrologic balance outside the permit area.
    Our proposed definition reflects our conclusion that the mere 
possibility of an acid or toxic discharge or other type of degradation 
of surface water or groundwater does not provide an adequate basis for 
permit denial on the grounds that it would not prevent material damage 
to the hydrologic balance outside the permit area. Instead, for a 
permit to be denied on this basis, there must be some probability of 
the formation of acid or toxic mine drainage that may continue after 
the completion of mining and land reclamation, and there must be a 
reasonable likelihood that the reclamation plan proposed by the 
applicant will not be capable of preventing the formation of that 
drainage. We base our conclusion, in part, on our prior statements 
relating to the preparation of cumulative hydrologic impact 
assessments. We find these statements to be particularly instructive 
because section 510(b)(3) of SMCRA,\178\ which refers to those 
assessments, also contains the term ``material damage to the hydrologic 
balance outside the permit area.'' In particular, in the preamble to 
the 1983 version of 30 CFR 780.21(g), we stated that the cumulative 
hydrologic impact assessment must be ``accomplished in an 
environmentally and scientifically sound fashion,'' and that it 
``cannot reasonably be extended to include remote and speculative 
impacts.'' \179\ Instead, we determined that the assessment ``should be 
based upon those impacts that have a reasonable likelihood for 
occurring and which are sufficiently defined to enable the regulatory 
authority to reach a decision.'' \180\
---------------------------------------------------------------------------

    \178\ 30 U.S.C. 1260(b)(3).
    \179\ 48 FR at 43972 (Sept. 26, 1983).
    \180\ Id.
---------------------------------------------------------------------------

    That preamble, however, does not define or otherwise clarify the 
meaning of ``reasonable likelihood'' and ``sufficiently defined.'' 
Thus, we looked to other sources, including related provisions of 
SMCRA, to provide some guidance as to what material damage to the 
hydrologic balance outside the permit area means in the context of 
water quality parameters for which there are no effluent limitations. 
Section 508(a)(13) of SMCRA \181\ requires that each reclamation plan 
include--
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    \181\ 30 U.S.C. 1258(a)(13).

[A] detailed description of the measures to be taken during the 
mining and reclamation process to assure the protection of:
    (A) the quality of surface and ground water systems, both on- 
and off-site, from adverse effects of the mining and reclamation 
process;
    (B) the rights of present users to such water; and
    (C) the quantity of surface and ground water systems, both on- 
and off-site, from adverse effects of the mining and reclamation 
process or to provide alternative sources of water where such 
protection of quantity cannot be assured[.]

    In 1979, we noted that this provision of SMCRA, along with sections 
102, 510(b)(3), and 522(a) through (d) of the Act,\182\ ``requires that 
mining not be permitted at all, if reclamation cannot be feasibly 
performed to protect water uses. Thus, to the extent that mining would 
result in unacceptable discharges of sulfates and total dissolved 
solids, the regulatory authority should not issue permits for the areas 
involved.'' \183\ As that passage from the 1979 preamble indicates, we 
have never interpreted section 508(a)(13) of SMCRA \184\ to operate as 
an absolute prohibition on mining operations that would have adverse 
effects on the hydrologic balance. In our judgment, this provision also 
does not supersede the performance standards in sections 515 and 516 of 
SMCRA,\185\ which recognize that mining may cause some adverse effects 
on surface water and groundwater, particularly within the permit area. 
See, e.g., section 515(b)(10) of SMCRA,\186\ which provides that 
surface coal mining and reclamation operations must be conducted ``to 
minimize the disturbances to the prevailing hydrologic balance at the 
mine-site and in associated offsite areas and to the quality and 
quantity of water in surface and ground water systems both during and 
after surface coal mining operations and during reclamation.'' 
Significantly, this provision of SMCRA uses the term ``minimize'' 
rather than ``prevent'' when describing the standard that surface coal 
mining and reclamation operations must meet in this context.
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    \182\ 30 U.S.C. 1202, 1260(b)(3), and 1272(a) through (d).
    \183\ 44 FR 15156 (Mar. 13 1979).
    \184\ 30 U.S.C. 1258(a)(13).
    \185\ 30 U.S.C. 1265 and 1266.
    \186\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    With these considerations in mind, we have designed our proposed 
definition of material damage to the hydrologic balance outside the 
permit area to protect all designated uses of surface water and all 
existing and reasonably foreseeable uses of surface water and 
groundwater outside the permit area. Specifically, in relevant part, 
under our proposed definition, ``material damage to the hydrologic 
balance outside the permit area'' would mean any adverse impact from 
surface or underground mining operations on the quantity or quality of 
surface water or groundwater, or on the biological condition of a 
perennial or intermittent stream, that would preclude any designated 
surface-water use under sections 101(a) and 303(c) of the Clean Water 
Act \187\ or any existing or reasonably foreseeable use of surface 
water or groundwater outside the permit area. Our proposed definition 
is consistent with our statement in the 1979 preamble that mining 
should not be permitted at all if reclamation cannot feasibly protect 
water uses.\188\
---------------------------------------------------------------------------

    \187\ 33 U.S.C. 1251(a) and 1313(c).
    \188\ 44 FR 15156 (Mar. 13, 1979).

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[[Page 44475]]

    States have developed multimetric bioassessment protocols for use 
in determining the biological condition of streams and other surface 
waters for purposes of preparing the water quality inventory required 
under section 305(b) of the Clean Water Act. Multimetric indices 
include metrics such as species richness, complexity, and tolerance as 
well as trophic measures. They provide a quantitative comparison (often 
referred to as an index of biological or biotic integrity) of the 
ecological complexity of biological assemblages relative to a 
regionally-defined reference condition. Under proposed 30 CFR 
780.19(e)(2) and 784.19(e)(2), states would be required to establish a 
correlation between these index values and each designated use under 
sections 101(a) and 303(c) of the Clean Water Act, as well as any other 
existing or reasonably foreseeable uses. In other words, we anticipate 
that the SMCRA regulatory authority, with assistance from the 
appropriate Clean Water Act agencies, will define the range of index 
values required to support each existing, reasonably foreseeable, and 
designated use of the stream segment in question. Any change in the 
biological condition of the stream or other surface-water body, as 
documented by index scores resulting from use of the bioassessment 
protocol for monitoring purposes, that would preclude attainment or 
maintenance of an existing, reasonably foreseeable, or designated use 
of surface water would constitute material damage to the hydrologic 
balance outside the permit area if the change in scores is a result of 
the SMCRA operation. We seek comment on the effectiveness of using 
index scores from bioassessment protocols to ascertain impacts on 
existing, reasonably foreseeable, or designated uses. If you disagree 
with the use of index scores from bioassessment protocols, please 
identify a viable and scientifically-valid alternative.
    The regulations implementing the Clean Water Act define ``existing 
uses'' as ``those uses actually attained in a waterbody on or after 
November 28, 1975, whether or not they are included in the water 
quality standards.'' See 40 CFR 131.3. In the context of this proposed 
definition, we intend to interpret the term ``existing uses'' in a 
similar fashion; i.e., existing uses would be those uses in existence 
at the time of preparation of the permit application, regardless of 
whether those uses are designated uses. Alternatively, we may replace 
the term ``existing uses'' with ``premining uses'' for purposes of 
clarity. We invite comment on this topic.
    The second part of the proposed definition of ``material damage to 
the hydrologic balance outside the permit area'' provides that this 
term means any adverse impact from surface coal mining and reclamation 
operations or from underground mining activities, including any adverse 
impacts from subsidence that may occur as a result of underground 
mining activities, on the quality or quantity of surface water or 
groundwater, or on the biological condition of a perennial or 
intermittent stream, that would impact threatened or endangered 
species, or have an adverse effect on designated critical habitat, 
outside the permit area in violation of the Endangered Species Act of 
1973, 16 U.S.C. 1531 et seq. This provision is intended to ensure 
compliance with both the Endangered Species Act and the fish and 
wildlife protection provisions of sections 515(b)(24) and 516(b)(11) of 
SMCRA. We also are considering alternative language for the second part 
of the definition. That alternative would replace the phrase ``that 
would impact threatened or endangered species, or have an adverse 
effect on designated critical habitat, outside the permit area in 
violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 et 
seq.'' with ``that would jeopardize the continued existence of 
threatened or endangered species, or result in the destruction or 
adverse modification of designated critical habitat, outside the permit 
area in violation of the Endangered Species Act of 1973, 16 U.S.C. 1531 
et seq.'' The second alternative would parallel the language of 
existing and proposed 30 CFR 816.97(b) and 817.97(b).
    State water quality standards and associated water quality criteria 
provide a starting point for establishment of material damage criteria 
under SMCRA for surface waters, but they are not the endpoint. SMCRA 
material damage criteria must be no less stringent than Clean Water Act 
water quality standards and criteria in all cases, but, in some 
situations, they may need to be more stringent to protect unique uses 
or to comply with the Endangered Species Act. In addition, the SMCRA 
regulatory authority may need to establish numerical material damage 
criteria for parameters of concern for which there are no numerical 
water quality standards or water quality criteria under the Clean Water 
Act.
    The Clean Water Act does not apply to groundwater, so the SMCRA 
regulatory authority would need to use best professional judgment to 
establish material damage criteria to protect existing and reasonably 
foreseeable uses of groundwater. Material damage criteria for 
groundwater also would need to take into consideration the needs of any 
threatened or endangered species.
    The proposed definition does not differentiate between permanent or 
long-term impacts and temporary or short-term impacts. Any impact that 
would preclude a designated, existing, or reasonably foreseeable use of 
surface water outside the permit area, or an existing or reasonably 
foreseeable use of groundwater outside the permit area, would 
constitute material damage to the hydrologic balance, regardless of the 
duration of the impairment. Isolated noncompliant discharges would not 
be considered material damage unless those discharges are of a 
magnitude sufficient to preclude a protected use. We invite comment on 
whether the definition should exclude temporary adverse impacts if the 
permit applicant can demonstrate that there will be no long-term 
adverse impacts after mining is completed.
    Nothing in the proposed definition is intended to supersede the 
water supply replacement provisions of sections 717 and 720 of 
SMCRA.\189\ In other words, material damage to the hydrologic balance 
outside the permit area would not exist solely because the operation 
destroys or damages protected water supplies, provided that the 
permittee replaces those supplies in accordance with applicable 
regulatory program requirements (i.e., proposed 30 CFR 816.40 or 
817.40) and the definition of ``replacement of water supply'' in 30 CFR 
701.5.
---------------------------------------------------------------------------

    \189\ 30 U.S.C. 1307 and 1309a.
---------------------------------------------------------------------------

    The definition would apply to adverse impacts from subsidence 
resulting from underground mining operations and to other adverse 
impacts resulting from underground mining operations; e.g., dewatering 
a stream by mining through a fracture zone or dewatering an aquifer or 
saturated zone that serves as a water supply for legitimate uses. It 
would not be limited to the impacts of surface mining activities or the 
impacts of activities conducted on the surface of land in connection 
with an underground coal mine. Section 510(b)(3) of SMCRA\190\ applies 
to all applications for permits or permit revisions. This provision has 
never contained an exception for impacts from underground mining 
operations or for any other type of surface coal mining operations for 
which a permit is required.
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    \190\ 30 U.S.C. 1260(b)(3).

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[[Page 44476]]

    Paragraphs (a) and (d) of section 516 of SMCRA\191\ require that 
the Secretary take into consideration the distinct difference between 
surface and underground coal mining when promulgating regulations for 
underground mining operations. However, this provision does not justify 
allowing underground mining operations or subsidence resulting from 
underground mining operations to dewater or degrade a stream to the 
extent of precluding an existing, reasonably foreseeable, or designated 
use of that stream. Doing so would hold underground mines to a lesser 
standard of environmental protection than surface mines. Nothing in the 
environmental protection purposes of SMCRA, as set forth in paragraphs 
(a), (c), (d), and (f) of section 102 of the Act,\192\ suggests or 
supports the adoption of a lesser standard for underground mines.
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    \191\ 30 U.S.C. 1266(a) and (d).
    \192\ 30 U.S.C. 1202(a),(c),(d), and (f).
---------------------------------------------------------------------------

    We are aware of concerns that including impacts from subsidence in 
the definition could effectively prohibit use of the longwall mining 
method or other high-extraction methods of underground mining to 
recover a substantial proportion of coal reserves. However, application 
of this definition to the area overlying proposed underground workings 
and the area within a reasonable angle of draw from the perimeter of 
those workings would not prohibit all mining operations that would 
result in subsidence of streams. It would only prohibit mining 
operations that would result in dewatering of a stream to the extent 
that the stream would no longer be able to support existing or 
reasonably foreseeable uses or designated uses of the stream under the 
Clean Water Act and for which there are no viable measures to prevent 
this impact. Our draft regulatory impact analysis found that the 
proposed rule, including this definition, would not strand or sterilize 
any reserves; i.e., the proposed rule would not make any coal reserves 
that are technically and economically feasible to mine under baseline 
conditions unavailable for extraction.
    Underground mine operators cannot avoid application of section 
510(b)(3) of SMCRA\193\ by drawing the permit boundaries for the mine 
to include undisturbed areas that may be affected by subsidence. In 
revising the definition of ``permit area'' in 1983, we specifically 
rejected a suggestion that the definition should include all areas 
overlying underground workings. Instead, we stated that the permit area 
consists of all ``areas for which reclamation operations are planned 
and for which the performance bond can be accurately set,'' which, we 
further explain, would not include areas with subsidence potential but 
no planned disturbance.\194\ We recognize that some state regulatory 
programs may include the area overlying the proposed underground 
workings and other undisturbed areas with subsidence potential within 
their definitions of ``permit area.'' Should our proposed definition of 
material damage to the hydrologic balance outside the permit area 
become final, those states would need to specify that the prohibition 
on the approval of permit applications for operations that would result 
in material damage to the hydrologic balance outside the permit area 
applies to all lands to which that prohibition would apply under the 
federal regulations. In other words, state regulatory authorities would 
have to ensure that the prohibition would apply to all lands overlying 
the underground mine workings and to all lands within a reasonable 
angle of draw \195\ from the perimeter of those workings, if those 
lands are not otherwise disturbed by surface operations or facilities 
associated with the underground mine.
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    \193\ 30 U.S.C. 1260(b)(3).
    \194\ 48 FR 14820 (Apr. 5, 1983).
    \195\ The angle of draw would be determined on a site-specific 
basis after evaluating the thickness of the strata overlying the 
coal seam, the lithology of the strata overlying the coal seam, and 
the thickness of the coal seam mined.
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Mountaintop Removal Mining
    We propose to consolidate the descriptions of mountaintop removal 
mining operations in existing 30 CFR 785.14(b) and 824.11(a)(2) and (3) 
into a new definition in Sec.  701.5 for clarity and ease of use. This 
new definition is consistent with section 515(c)(2) of SMCRA,\196\ 
which pertains to operations that ``remove an entire coal seam or seams 
running through the upper fraction of a mountain, ridge, or hill . . . 
by removing all of the overburden and creating a level plateau or a 
gently rolling contour with no highwalls remaining, and capable of 
supporting postmining uses in accord with the requirements of this 
section.'' We anticipate that this definition also may be useful in 
correcting misconceptions about the meaning of this term and what types 
of operations it includes.
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    \196\ 30 U.S.C. 1265(c)(2).
---------------------------------------------------------------------------

Occupied Residential Dwelling and Structures Related Thereto
    We propose to revise a cross-reference to 30 CFR 784.20 in this 
definition to be consistent with our proposed redesignation of existing 
Sec.  784.20 as Sec.  784.30. We propose no other substantive revisions 
to this definition--only a plain language revision to the last 
sentence.
Parameters of Concern
    We propose to add a definition of this term because we use this 
term extensively in our proposed rule. Under the proposed definition, 
parameters of concern would consist of those chemical or physical 
characteristics or properties of surface water or groundwater that 
could be altered by mining activities in a manner that would adversely 
impact the quality of surface water or groundwater or the biological 
condition of a stream.
Perennial Stream
    We propose to redefine ``perennial stream'' in a manner that is 
substantively identical to the manner in which the U.S. Army Corps of 
Engineers defines that term in Part F of the 2012 reissuance of the 
nationwide permits under section 404 of the Clean Water Act. See 77 FR 
10184, 10288 (Feb. 21, 2012). Adoption of a substantively identical 
definition would promote consistency in application and interpretation 
of that term under both SMCRA and Clean Water Act programs.
    We invite comment on whether the definition in the final rule 
should include language specifying that the U.S. Army Corps of 
Engineers has the ultimate authority to determine the point at which an 
ephemeral stream becomes an intermittent stream or a perennial stream 
and vice versa. Further, if the final rule includes language to that 
effect, we invite comment on whether the definition also should provide 
that any determination that the Corps makes concerning these transition 
points will be controlling for purposes of SMCRA regulatory programs. 
Commenters should discuss the applicability of two SMCRA provisions in 
this context. First, section 702(a) of SMCRA \197\ provides that 
``[n]othing in this Act shall be construed as superseding, amending, 
modifying, or repealing'' the Clean Water Act, any rule or regulation 
adopted under the Clean Water Act, or any state laws enacted pursuant 
to the Clean Water Act. Second, section 505(b) of SMCRA \198\ provides 
that any provision of any state law or regulation may not be construed 
to be inconsistent with SMCRA if it ``provides for more stringent land 
use and environmental controls and regulations of surface coal mining 
and

[[Page 44477]]

reclamation operation[s] than do the provisions of this Act or any 
regulation issued pursuant thereto.'' In other words, should our 
regulations allow states to adopt and apply stream definitions in a 
manner that would protect a greater length of stream than would the 
Corps determinations?
---------------------------------------------------------------------------

    \197\ 30 U.S.C. 1292(a).
    \198\ 30 U.S.C. 1255(b).
---------------------------------------------------------------------------

    Our existing definition has two principal differences with the 
Corps' definition that we propose to adopt. First, our existing 
definition of a perennial stream would not consider a stream with a 
base flow resulting from the melting of a snowpack to be a perennial 
stream because the snowpack does not lie below the local water table 
and because snowmelt is not considered groundwater. However, the 
preamble to the definition of ``ephemeral stream'' that the Corps 
adopted as part of the 2012 reissuance of the nationwide permits under 
section 404 of the Clean Water Act states that snowmelt contributes to 
the flow of intermittent and perennial streams, especially in areas 
with deep snow packs, and that melting snow should not be considered a 
precipitation event because the development of a snowpack occurs over 
the course of a winter season. See 77 FR 10184, 10262 (Feb. 21, 2012). 
In essence, the preamble discussion would allow a stream originating 
from a melting snowpack to be considered a perennial stream even though 
the definition of ``perennial stream'' requires groundwater as the 
source of base flow. We invite comment on whether we should revise our 
proposed definition of ``perennial stream'' to include language 
consistent with the discussion of snowmelt in the preamble to the 
Corps' definition of ``ephemeral stream.''
    Second, the Corps' definition of ``perennial stream'' refers to 
continuous flow year-round ``during a typical year.'' Our existing 
definition refers to continuous flow during all of the calendar year. 
The Corps' definition--and hence our proposed definition--reflect the 
fact that perennial streams or segments of those streams may cease 
flowing during periods of sustained below-normal precipitation. Our 
proposed adoption of the Corps' definition would have the effect of 
clarifying that those stoppages do not result in reclassification of 
the stream as intermittent.
Reclamation
    The existing definition of reclamation in 30 CFR 701.5 provides 
that this term ``means those actions taken to restore mined land as 
required by this chapter to a postmining land use approved by the 
regulatory authority.'' This definition is too narrow and does not 
fully implement SMCRA.
    First, the existing definition applies only to the mined area, not 
to the entire disturbed area. Section 102(e) of SMCRA \199\ states that 
one of the purposes of SMCRA is to ``assure that adequate procedures 
are undertaken to reclaim surface areas as contemporaneously as 
possible with the surface coal mining operations.'' Among other things, 
the definition of ``surface coal mining operations'' in section 701(28) 
of SMCRA \200\ includes all activities conducted on the surface of 
lands in connection with a surface coal mine. Those activities are not 
limited to mined areas. In addition, paragraph (B) of the definition 
includes ``the areas upon which such activities occur or where such 
activities disturb the natural land surface.'' Therefore, we propose to 
apply the definition to the entire disturbed area, rather than limiting 
it to the mined area.
---------------------------------------------------------------------------

    \199\ 30 U.S.C. 1202(e).
    \200\ 30 U.S.C. 1291(28).
---------------------------------------------------------------------------

    Second, the existing definition includes only actions taken to 
restore land to an approved postmining land use, not to all actions 
taken to restore land and water to the conditions required by the Act 
and regulatory program. Third, the existing definition implies that the 
land must be restored to an actual postmining land use when, in fact, 
section 515(b)(2) of SMCRA\201\ requires only that the land be restored 
to a condition in which it is capable of supporting the uses it was 
capable of supporting prior to any mining or, subject to certain 
restrictions, higher or better uses.
---------------------------------------------------------------------------

    \201\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    The proposed definition corrects these deficiencies. Our proposed 
rule would define reclamation as meaning those actions taken to restore 
the mined land and associated disturbed areas to a condition in which 
the site is (1) 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, and (2) meets all other requirements of the 
permit and regulatory program that pertain to restoration of the site. 
In addition, our proposed definition specifically details what 
reclamation means for sites with discharges that require treatment. For 
those sites, we propose to revise the definition to specify that the 
term also includes those actions taken or that must be 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 mining 
operation, regardless of whether those discharges are located within 
the disturbed area.
    However, nothing in this proposed definition should be construed as 
meaning that the regulatory authority may approve a permit application 
for an operation that will cause, or that is likely to cause, a 
postmining discharge that requires treatment to prevent pollution. 
Doing so would violate SMCRA as explained in the acid mine drainage 
policy statement that we issued on March 31, 1997.\202\
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    \202\ ``Policy Goals and Objectives on Correcting, Preventing 
and Controlling Acid/Toxic Mine Drainage,'' OSMRE, March 31, 1997. 
Available at www.osmre.gov/lrg/docs/amdpolicy033197.pdf (last 
accessed August 27, 2014).
---------------------------------------------------------------------------

Reclamation Plan
    We propose to add this definition to clarify which provisions of 
our permit application requirements are considered part of the 
reclamation plan. Section 701(21) of SMCRA \203\ defines ``reclamation 
plan'' as ``a plan submitted by an applicant for a permit under a State 
program or Federal program which sets forth a plan for reclamation of 
the proposed surface coal mining operations pursuant to section 508 [of 
SMCRA.]'' In this proposed rule, we propose to adopt a streamlined 
version of the statutory definition that complies with plain language 
principles, eliminates the unnecessary reference to state or federal 
programs, and contains adaptations needed to reflect the structure and 
organization of the regulations that correspond to the reclamation plan 
requirements of SMCRA. Specifically, the proposed rule would replace 
the reference to section 508 of SMCRA \204\ with references to 30 CFR 
parts 780, 784, and 785. Part 780 contains the rules that implement 
section 508 of SMCRA.\205\ Part 784 is the underground mining 
counterpart of part 780. Part 785 contains permit application 
requirements, including reclamation plan requirements, that apply to 
special categories of mining.
---------------------------------------------------------------------------

    \203\ 30 U.S.C. 1291(21).
    \204\ 30 U.S.C. 1258.
    \205\ 30 U.S.C. 1258.
---------------------------------------------------------------------------

Renewable Resource Lands
    We propose to revise this definition to clarify that it includes 
recharge areas for surface waters, not just recharge areas for 
underground waters. We find no legal or technical reason to exclude 
recharge areas for lakes, ponds, and wetlands from classification as 
renewable resource lands. Section

[[Page 44478]]

522(a)(3)(C) of SMCRA \206\ uses this term in the context of 
establishing criteria for designating lands as unsuitable for certain 
types of surface coal mining operations. Specifically, it provides that 
lands are eligible for designation if surface coal mining operations 
would ``affect renewable resource lands in which such operations could 
result in a substantial loss or reduction of long-range productivity of 
water supply . . .'' This statutory provision further provides that 
those lands ``include aquifers and aquifer recharge areas,'' but it 
does not limit the scope of that provision to those areas. Many towns 
and cities depend upon surface-water reservoirs for their water supply, 
which means that paragraph (a)(3)(C) would include the watersheds of 
those reservoirs. Surface disturbances like mining that involve removal 
of vegetation can significantly impact both the quantity and quality of 
water available from those watersheds.
---------------------------------------------------------------------------

    \206\ 30 U.S.C. 1272(a)(3)(C).
---------------------------------------------------------------------------

Replacement of Water Supply
    We propose to revise this definition by moving existing paragraphs 
(a) and (b), which describe how the water supply replacement obligation 
may be satisfied, to the performance standards at 30 CFR 816.40 and 
817.40. Existing paragraphs (a) and (b) of the definition are more 
appropriately categorized as performance standards, which means that 
they should be codified as part of the performance standards in 
subchapter K, not as part of the definition of this term.
Temporary Diversion
    We propose to revise this definition in a manner that avoids using 
part of the term itself (``diversion'') as part of the definition. In 
addition, the existing definition, which includes only diversions of 
streams and overland flow, could be construed as excluding diversion 
channels used to convey surface runoff or pit water to a siltation 
structure or treatment facility. We propose to revise the definition to 
specifically include those channels.
Waters of the United States
    To promote consistency with the Clean Water Act, we propose to 
define this term as having the same meaning as the corresponding 
definition in 40 CFR 230.3(s), which is part of the Section 404(b)(1) 
Guidelines under the Clean Water Act

C. Part 773: Requirements for Permits and Permit Processing

1. Section 773.5: How must the regulatory authority coordinate the 
permitting process with requirements under other laws?
    Section 773.5 specifies that each regulatory program must provide 
for the coordination of review and issuance of SMCRA permits with 
applicable provisions of various federal laws. It implements, in part, 
section 503(a)(6) of SMCRA,\207\ which requires that each state 
regulatory program establish ``a process for coordinating the review 
and issuance of permits for surface coal mining and reclamation 
operations with any other Federal or State permit process applicable to 
the proposed operations.''
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    \207\ 30 U.S.C. 1253(a)(6).
---------------------------------------------------------------------------

    We propose to add the Clean Water Act, 33 U.S.C. 1251 et seq., to 
the list of laws for which coordination is required under both state 
and federal regulatory programs. Almost all surface coal mining 
operations require Clean Water Act permits and both SMCRA and the Clean 
Water Act are concerned with protection of water quality, so it makes 
sense to coordinate the SMCRA and Clean Water Act permitting processes. 
Coordination of the SMCRA and Clean Water Act permitting processes also 
would assist in reducing or eliminating potential conflicts between 
SMCRA and Clean Water Act permits. That outcome would be consistent 
with section 702(a) of SMCRA,\208\ which provides that ``[n]othing in 
this Act shall be construed as superseding, amending, modifying, or 
repealing'' the Clean Water Act, any rule or regulation adopted under 
the Clean Water Act, or any state laws enacted pursuant to the Clean 
Water Act.
---------------------------------------------------------------------------

    \208\ 30 U.S.C. 1292(a).
---------------------------------------------------------------------------

    In addition, we propose to add the National Environmental Policy 
Act of 1969 (NEPA), 42 U.S.C. 4371 et seq., to the list of laws for 
which a coordination process is required under federal regulatory 
programs. There is no need or basis to apply this coordination 
requirement to state regulatory programs approved under SMCRA because 
the Departmental Manual excludes permit applications under state SMCRA 
regulatory programs from NEPA compliance. See 516 DM 13.3.
    Finally, we propose to clarify that only federal regulatory 
programs must establish a process for coordination with the National 
Historic Preservation Act of 1966 (NHPA), 54 U.S.C. 300101 et seq. This 
change is consistent with National Mining Association v. John M. 
Fowler, 324 F.3d 752 (D.C. Cir. 2003), in which the court held that 
projects licensed or permitted by state and local agencies pursuant to 
a delegation or approval by a federal agency are not federally funded 
or federally licensed undertakings for purposes of section 106 of the 
NHPA.
2. Section 773.7: How and when will the regulatory authority review and 
make a decision on a permit application?
    We propose to restructure 30 CFR 773.7(a) to improve clarity and 
eliminate a grammatical error in the existing language. There are no 
substantive revisions to this paragraph.
    We also propose to add 30 CFR 773.7(b)(2), which would list the 
factors that the regulatory authority must consider in determining what 
constitutes a reasonable time for notifying a permit applicant whether 
the application has been approved or disapproved, in whole or in part. 
The factors in proposed paragraphs (b))(2)(i) through (iv) reflect the 
factors listed in section 514(b) of SMCRA.\209\ Proposed paragraph 
(b)(2)(v) would require consideration of the time required to complete 
the interagency permitting coordination process under 30 CFR 773.5.
---------------------------------------------------------------------------

    \209\ 30 U.S.C. 1264(b).
---------------------------------------------------------------------------

    Finally, we propose to redesignate existing 30 CFR 773.7(b) as 30 
CFR 773.7(c) and revise that paragraph to specifically state that an 
applicant for the transfer, assignment, or sale of permit rights has 
the burden of proof for establishing that the application is in 
compliance with all regulatory program requirements. We propose to make 
this change because the transfer, assignment, or sale of permit rights 
is a type of permit revision, which means that an application of that 
nature is subject to section 510(a) of SMCRA.\210\ In relevant part, 
that paragraph of the Act states that the applicant for a permit or 
permit revision has the burden of establishing that the application is 
in compliance with all requirements of the applicable regulatory 
program.
---------------------------------------------------------------------------

    \210\ 30 U.S.C. 1260(a).
---------------------------------------------------------------------------

3. Section 773.15: What findings must the regulatory authority make 
before approving a permit application?
    Most of the changes that we propose to make to this section result 
from either the application of plain language principles or an effort 
to clarify the meaning and scope of the findings that the regulatory 
authority must make before approving a permit application.
    Proposed paragraph (c)(2) would clarify that the finding that the 
proposed

[[Page 44479]]

permit area is not within an area designated as unsuitable for surface 
coal mining operations under 30 CFR parts 762 and 764 or 769 applies 
only to lands that are designated as unsuitable for the type of surface 
coal mining operations that the permit applicant proposed to conduct. 
For example, lands may be designated as unsuitable only for surface 
mining, in which case the regulatory authority may approve a permit for 
an underground mine. Similarly, proposed paragraph (c)(3) would clarify 
that the finding that the proposed permit area is not within an area 
subject to the prohibitions of 30 CFR 761.11 does not apply in 
situations in which one or more of the exceptions (valid existing 
rights, the existing operation exemption, landowner consent, joint 
approval, etc.) to those prohibitions applies.
    We propose to revise the finding in paragraph (e) concerning the 
assessment of the cumulative hydrologic impacts of mining by adding 
paragraph (e)(3), which would require that the regulatory authority 
find that it has inserted into the permit criteria defining material 
damage to the hydrologic balance outside the permit area on a site-
specific basis, expressed in numerical terms for each parameter of 
concern, as required by Sec.  780.21(b) or Sec.  784.21(b). Our 
proposed revision is intended to ensure that permit-specific criteria 
are both established and readily available to the permittee, 
inspectors, and permit reviewers.
    Existing paragraph (j) provides that, before approving a permit 
application, the regulatory authority must find that the proposed 
operation is not likely to either jeopardize the continued existence of 
threatened or endangered species or result in destruction or adverse 
modification of critical habitat, as determined under the Endangered 
Species Act of 1973, 16 U.S.C. 1531 et seq. In response to discussions 
with the U.S. Fish and Wildlife Service concerning compliance with the 
Endangered Species Act, we propose to modify paragraph (j) to extend 
the finding to include species that the Secretary has proposed for 
listing as threatened or endangered.\211\ The proposed change is 
consistent with section 7(a)(4) of the Endangered Species Act, which 
provides that ``[e]ach Federal agency shall confer with the Secretary 
on any agency action which is likely to jeopardize the continued 
existence of any species proposed to be listed under section 4 or 
result in the destruction or adverse modification of critical habitat 
proposed to be designated for such species.'' It also would assist in 
implementing the fish and wildlife protection provisions of sections 
515(b)(24) and 516(b)(11) of SMCRA. The conferencing requirement of 
section 7(a)(4) of the Endangered Species Act is not the same as the 
consultation requirement for threatened and endangered species under 
section 7(a)(2) of the Endangered Species Act. Also, the U.S. Fish and 
Wildlife Service is responsible for determining allowable take of 
species listed as threatened or endangered.
---------------------------------------------------------------------------

    \211\ We will revise this provision and other proposed rules 
concerning protection of threatened and endangered species to 
include the National Marine Fisheries Service (NMFS), which is 
responsible for administration and enforcement of the Endangered 
Species Act with respect to anadromous and marine species, if we 
determine that this rulemaking may affect species under NMFS 
jurisdiction.
---------------------------------------------------------------------------

    We propose to remove existing paragraph (m), which applies to 
permits to be issued under 30 CFR 785.25 (permits containing lands 
eligible for remining). This finding is not needed because it merely 
repeats requirements already stated in 30 CFR 785.25. In addition, 
paragraph (m) is duplicative of paragraph (h), which requires a finding 
that the applicant has satisfied all applicable requirements of 30 CFR 
part 785. Removal of existing paragraph (m) would result in the 
redesignation of existing paragraph (n) as paragraph (m).
    In addition, we propose to add a new paragraph (n), which would 
require that the regulatory authority find that the applicant has 
demonstrated that the operation has been designed to prevent the 
formation of discharges that would require long-term treatment after 
mining has been completed. The regulatory authority also would be 
required to find that the applicant has demonstrated that there is no 
credible evidence that the design of the operation will not work as 
intended to prevent the formation of discharges of that nature.
    Avoiding creation of discharges that require long-term treatment 
benefits both the permittee (because the permittee would bear the cost 
of treating the discharge) and the public (because there is no risk of 
environmental damage or use of tax receipts to pay for treatment if the 
permittee defaults). Adoption of proposed paragraph (n) would 
incorporate into regulation one of the provisions of the policy 
entitled ``Hydrologic Balance Protection: Policy Goals and Objectives 
on Correcting, Preventing, and Controlling Acid/Toxic Mine Drainage'' 
\212\ that we issued on March 31, 1997. In that policy, we explain that 
approval of a permit that would result in the creation of a discharge 
requiring long-term treatment would be inconsistent with SMCRA: ``In no 
case should a permit be approved if the determination of probable 
hydrologic consequences or other reliable hydrologic analysis predicts 
the formation of a postmining pollutional discharge that would require 
continuing long-term treatment without a defined endpoint.'' \213\ The 
regulatory authority may rely upon data from similar completed mining 
operations under conditions that are representative of those found at 
the site of the proposed operation as credible evidence for this 
demonstration and finding.
---------------------------------------------------------------------------

    \212\ See www.osmre.gov/lrg/docs/amdpolicy033197.pdf (last 
accessed August 5, 2014).
    \213\ Id., p. 5.
---------------------------------------------------------------------------

    We explained our authority for this provision when we issued our 
policy document:

Several commenters expressed concern that OSM exceeded its statutory 
authority by focusing on section 510(b)(3) of SMCRA, which provides 
that no permit application may be approved unless the regulatory 
authority finds that the operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area, 
and interpreting that section as requiring the prevention of AMD 
[acid mine drainage] formation. The commenters noted that sections 
515(b)(10) and 516(b)(9) of SMCRA refer to minimization (rather than 
prevention) of hydrologic disturbances and avoidance (rather than 
the prevention) of AMD, with the prevention of AMD formation being 
only one of the three avoidance mechanisms listed in these sections.
    Response: The minimization and avoidance provisions of sections 
515(b)(10) and 516(b)(9) of SMCRA do not negate the material damage 
prevention requirement of section 510(b)(3). Furthermore, the Act 
specifies that the provisions cited by the commenters apply only 
during mining and reclamation. OSM interprets this limitation as 
meaning that conducting operations in a manner likely to result in 
AMD production is acceptable only when AMD formation is expected to 
be a temporary phenomenon. In other words, discharge treatment is an 
appropriate means of avoiding AMD and minimizing damage to the 
hydrologic balance only when the need for treatment has a defined 
endpoint.
* * * * *
    The approach adopted in the policy statement is fully consistent 
with the Rith Energy decision in which the IBLA [Interior Board of 
Land Appeals] upheld OSM's refusal to approve a mining plan that 
sought to minimize, rather than avoid, AMD. In that case, the IBLA 
agreed with OSM that ``the statute, as properly read, requires the 
agency to minimize disturbance to the prevailing hydrologic balance 
by avoiding acid or toxic mine drainage. Minimizing the contact of 
water and toxic-producing deposits, as argued by petitioner [Rith 
Energy], is not the standard.'' 111 IBLA 249. The policy

[[Page 44480]]

statement accords with Rith Energy because it provides that 
``[p]ermits may only be approved where the operation is designed to 
ensure that off-site material damage to the hydrologic balance will 
be prevented.'' (Emphasis added.) Permittees may not plan in advance 
to allow AMD to occur and then simply mitigate the effects of the 
AMD.\214\
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    \214\ Id. at 12 and 14.

    Finally, we propose to add a new required finding in paragraph (o) 
in response to discussions with the U.S. Fish and Wildlife Service 
concerning compliance with the Endangered Species Act. This finding 
would specify that, to the extent possible using the best technology 
currently available, the proposed operation has been designed to 
minimize disturbances and adverse impacts on fish, wildlife, and 
related environmental values, as identified in Sec.  779.20 or Sec.  
783.20, and to enhance those resources where practicable, as required 
under Sec.  780.16 and Sec.  784.16. The proposed language is similar 
to sections 515(b)(24) and 516(b)(11) of SMCRA \215\ and is intended to 
reinforce those statutory provisions.
---------------------------------------------------------------------------

    \215\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

4. Section 773.17: What conditions must the regulatory authority place 
on each permit issued?
    We propose to revise paragraph (c) of this section to require that 
the permittee comply with all applicable requirements of the Act rather 
than all applicable performance standards of the Act. We propose to 
make this change because the condition also requires compliance with 
the requirements of the regulatory program, which means that the 
applicable performance standards would be in the program, not the Act.
    We propose to revise paragraph (e) of this section to require that 
the permittee notify the regulatory authority and other appropriate 
state and federal regulatory agencies of any adverse impact to the 
environment or public health or safety as a result of a noncompliance 
with any term or condition of the permit. Notification would allow 
those agencies to take any necessary action to minimize the impacts of 
the noncompliance on the environment or public health or safety, 
consistent with the purpose stated in section 102(a) of SMCRA.\216\
---------------------------------------------------------------------------

    \216\ 30 U.S.C. 1202.
---------------------------------------------------------------------------

    We propose to add a new permit condition in paragraph (h) of this 
section to require that the permittee obtain all necessary 
authorizations, certifications, and permits in accordance with Clean 
Water Act requirements before conducting any activities that require 
approval or authorization under the Clean Water Act. The new condition 
would be consistent with section 702(a) of SMCRA,\217\ which provides 
that ``[n]othing in this Act shall be construed as superseding, 
amending, modifying, or repealing'' the Clean Water Act,\218\ or any 
rule or regulation adopted under the Clean Water Act, or any state laws 
enacted pursuant to the Clean Water Act. It also would be consistent 
with our efforts to enhance coordination between the SMCRA and Clean 
Water Act regulatory authorities. Permit conditions are directly 
enforceable under SMCRA. Therefore, the addition of this permit 
condition would mean that the SMCRA regulatory authority must take 
enforcement action if the permittee does not obtain all necessary Clean 
Water Act authorizations, certifications, and permits before beginning 
any activity under the SMCRA permit that also requires approval, 
authorization, or certification under the Clean Water Act.
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    \217\ 30 U.S.C. 1292(a).
    \218\ 33 U.S.C. 1251 et seq.
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D. Part 774: Revision; Renewal; Transfer, Assignment, or Sale of Permit 
Rights; Post-Permit Issuance Requirements.

1. Section 774.10: When must the regulatory authority review a permit?
    We propose to revise paragraphs (a)(2) and (a)(3) of this section 
to establish identical review requirements for permits for mountaintop 
removal mining operations under 30 CFR 785.14 and for permits that 
include a variance from approximate original contour restoration 
requirements under 30 CFR 785.16. This change is appropriate because 
the statutory review requirements for those types of operations in 
paragraphs (c)(6) and (e)(6) of section 515 of SMCRA \219\ are 
substantively identical. Furthermore, these reviews are one-time 
events, not recurring requirements like midterm permit reviews.
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    \219\ 30 U.S.C. 1265(c)(6) and (e)(6).
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    In concert with this change, we propose to move the midterm review 
requirements for permits with a variance for a delay in contemporaneous 
reclamation requirements because of combined surface and underground 
mining from paragraph (a)(2) to a new paragraph (a)(4). Creation of the 
new single-topic paragraph also is in keeping with plain language 
principles.
2. Section 774.15: How may I renew a permit?
    We propose to revise paragraph (b)(2) of this section by adding 
paragraph (b)(2)(vii), which would require that each application for 
permit renewal include an analysis of the monitoring results for 
surface water, groundwater, and the biological condition of streams and 
an evaluation of the accuracy and adequacy of the determination of the 
probable hydrologic consequences of mining (PHC determination). We also 
propose to add paragraph (b)(2)(viii), which would require that the 
renewal application include either an update of the PHC determination 
or documentation that the findings in the existing PHC determination 
are still valid. Similarly, we propose to revise paragraph (c)(1) of 
this section by adding paragraph (c)(1)(viii), which would authorize 
the regulatory authority to withhold approval of a permit renewal 
application if monitoring results or the updated PHC determination 
indicate that the finding that the regulatory authority made under 30 
CFR 773.15(e) that the operation is designed to prevent material damage 
to the hydrologic balance outside the permit area is no longer 
accurate.
    These revisions would assist the regulatory authority in ensuring 
that the operation continues to be designed and conducted to prevent 
material damage to the hydrologic balance outside the permit area. A 
narrow reading of section 510(b)(3) of SMCRA \220\ and 30 CFR 773.15(e) 
might hold that the finding concerning material damage to the 
hydrologic balance outside the permit area is required only for the 
approval of an application for a permit or permit revision. However, we 
interpret section 510(b)(3) of SMCRA more broadly. Addition of a 
requirement for an equivalent finding as a prerequisite for the 
approval of permit renewal applications is consistent with the intent 
and purpose of section 510(b)(3) of the Act.\221\
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    \220\ 30 U.S.C. 1260(b)(3).
    \221\ 30 U.S.C. 1260(b)(3).
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    Proposed paragraph (b)(2)(v) is substantively identical to existing 
paragraph (b)(2)(iii), with the exception that we propose to remove the 
provision requiring that the application for a permit renewal include 
any additional bond requested by the regulatory authority. This 
provision is both unnecessary and out of sequence because, at the time 
that the permittee submits the application for renewal, the amount of 
additional bond needed, if any, would not yet be known. The regulatory 
authority determines the amount of additional bond required after 
completing a technical review of the renewal application. Proposed 
paragraph (c)(1)(vi), like existing paragraph (c)(1)(v), provides that 
the

[[Page 44481]]

regulatory authority may deny a permit renewal application if the 
applicant has not submitted the additional bond required by the 
regulatory authority. This paragraph provides sufficient protection 
against renewal of a permit that lacks the necessary bond coverage.
    We propose to revise paragraph (c)(1)(ii) to specify that the 
regulatory authority will apply the permit eligibility standards in 30 
CFR 773.12 through 773.14 in making this determination. In other words, 
applicants for permit renewal may avail themselves of the 
provisionally-issued permit procedures of 30 CFR 773.14 and the 
exception in 30 CFR 773.13 for unanticipated events or conditions at 
remining sites. Extending the exception for unanticipated events or 
conditions at remining sites to permit renewals is consistent with the 
intent of Congress in enacting section 510(e) of SMCRA.\222\
---------------------------------------------------------------------------

    \222\ 30 U.S.C. 1260(e).
---------------------------------------------------------------------------

    In addition, as a matter of equitable treatment, a permittee with a 
violation who is seeking renewal of a permit should have the same 
opportunity to obtain a provisionally-renewed permit as a person with a 
violation who is seeking to obtain a new permit has to obtain a 
provisionally-issued permit. Under 30 CFR 773.14, the regulatory 
authority may provisionally issue a permit if (1) the applicant 
certifies that each outstanding violation is being abated to the 
satisfaction of the agency with jurisdiction over the violation and the 
regulatory authority has no evidence to the contrary, (2) the applicant 
and operations owned or controlled by the applicant are in compliance 
with any abatement plan approved by the agency with jurisdiction over 
the violation, (3) the applicant is pursuing a good faith challenge to 
the pertinent ownership or control listing and there is no initial 
judicial decision in force affirming the listing, or (4) the violation 
is the subject of a good faith administrative or judicial appeal 
contesting the validity of the violation and there is no initial 
judicial decision in force affirming the violation. Our proposed 
revisions to 30 CFR 774.15(c)(1)(ii) would apply the same principles 
and criteria to the permit renewal process. In addition, the provisions 
of 30 CFR 773.14(c), which specify the actions that the regulatory 
authority must take to suspend or revoke the permit if the permittee 
ceases to be eligible for a provisionally-issued permit, would apply.
    We also propose assorted other nonsubstantive changes to 30 CFR 
774.15 to improve compliance with plain language principles.

E. Part 777: General Content Requirements for Permit Applications

1. Section 777.11: What are the format and content requirements for 
permit applications?
    We propose to revise paragraph (a)(3) of this section to require 
that permit applications be filed in an electronic format prescribed by 
the regulatory authority, unless the regulatory authority grants an 
exception to this requirement for good cause. We propose this change to 
facilitate public participation and interagency coordination in the 
permitting process because it is much more efficient and convenient to 
review and exchange information online or by email than it is to review 
hard copies, which are time-consuming to produce and which may involve 
considerable travel to other offices to review documents that cannot be 
copied. Electronic filing also would assist in the coordination of 
regulatory and inspection activities required by section 713 of 
SMCRA.\223\ Furthermore, use of an electronic format for the permitting 
process can improve efficiency by enabling correction letters and 
applicant responses to occur in real time with less expense to the 
regulatory authority and the applicant. Finally, electronic filing 
promotes attainment of the goals of the Paperwork Reduction Act.
---------------------------------------------------------------------------

    \223\ 30 U.S.C. 1303.
---------------------------------------------------------------------------

2. Section 777.13: What requirements apply to the collection, analysis, 
and reporting of technical data and to the use of models?
    We propose to consolidate existing paragraphs (a) and (b) into 
proposed paragraph (a) because both paragraphs pertain to technical 
data and analyses. Existing paragraph (a) would be recodified as 
paragraph (a)(1) and existing paragraph (b) would be recodified as 
paragraph (a)(2).
    Proposed paragraph (a)(1) would add a requirement for submission of 
metadata, which consists of data describing the contents and context of 
data files. The availability of metadata greatly increases the 
usefulness of the original data by providing information about how, 
where, when, and by whom the data were collected and analyzed. It 
enables reviewers to evaluate the validity of both the data itself and 
comparisons with data collected at other times and other places by 
other persons. Existing paragraph (a) already required submission of 
much of this information, i.e., the names of persons or organizations 
that collected and analyzed the data, the dates that the data were 
collected and analyzed, and descriptions of the methodology used to 
collect and analyze the data. We also propose to revise the rule to add 
requirements for submission of the field sampling sheets prepared for 
water samples collected from wells (the sheets would identify the 
presence of any well screens as well as the depth at which the sample 
was taken). For all samples that require laboratory analysis, the 
proposed rule would require information pertaining to the quality 
assurance and quality control procedures used by the laboratory that 
analyzed the sample. For electronic data, the proposed rule would 
require identification of any transformations that the data underwent. 
The proposed rule would not limit metadata to the specific items listed 
in proposed paragraph (a)(1). Although not specified in the proposed 
rule, metadata should be generated in a format commonly used by the 
scientific community.
    Proposed paragraph (b) would require that all sampling and analyses 
of groundwater and surface water performed to meet the permitting 
requirements of subchapter G of our regulations be conducted according 
to the methodology in 40 CFR parts 136 and 434. Proposed paragraph 
corresponds to the provisions concerning water-quality sampling and 
analysis methodologies in existing 30 CFR 780.21(a) and 784.14(a). 
Moving this provision to 30 CFR 777.13 would consolidate the 
requirements concerning sampling and analysis methodologies for 
groundwater and surface water in one location and expand their 
applicability to all pertinent data and analyses required for permit 
applications under subchapter G, which should promote better data 
collection and analysis procedures and, hence, improved permitting 
decisions.
    We propose to eliminate the incorporation by reference of the 15th 
edition of the ``Standard Methods for the Examination of Water and 
Wastewater'' in existing 30 CFR 780.21(a) and 784.14(a). That document 
is now obsolete because the current edition is the 22nd edition, which 
was published in 2012. However, rather than incorporating the current 
edition of the ``Standard Methods for the Examination of Water and 
Wastewater,'' we propose to remove the existing incorporation by 
reference of the 15th edition of that document while retaining the 
provision in the existing rule that allows use of the sampling and 
analysis methodologies in 40 CFR parts 136 and 434. This proposed 
change would ensure that sampling and analysis methodologies under 
SMCRA are

[[Page 44482]]

consistent with those approved by EPA for use for Clean Water Act 
purposes. We invite comment on whether there are any unique SMCRA-
related requirements that would necessitate incorporating the current 
edition of the ``Standard Methods for the Examination of Water and 
Wastewater'' into our rule. In other words, would the collection and 
analysis of the baseline and monitoring data that we propose to require 
under this rule involve the use of sampling and analysis methodologies 
that 40 CFR parts 136 and 434 do not include?
    Proposed paragraph (c) would require that all geological sampling 
and analyses performed to meet the permitting requirements of 
subchapter G of our regulations be conducted using a scientifically-
valid methodology. This new provision should promote better geologic 
data collection and analysis procedures and, hence, improved permitting 
decisions. Scientifically-valid methodologies include, but are not 
limited to, those set forth in the Engineering Geology Field Manual, 
Second Edition (1998), developed by the Bureau of Reclamation within 
the U.S. Department of the Interior.
    We propose to move the provisions concerning the use of models 
found in existing 30 CFR 780.21(d) and 784.14(d) to 30 CFR 777.13(d) to 
consolidate requirements concerning the use of models in the latter 
paragraph. If adopted as final, proposed paragraph (d) would apply to 
all permit application requirements. The existing provisions in 30 CFR 
780.21(d) and 784.14(d) apply only to hydrologic data, but we find no 
scientific reason for limiting the use of modeling in this manner. We 
also propose to modify the existing provisions by adding paragraph 
(d)(2), which would require that all models be calibrated using actual 
site-specific data and that they be validated for the region and 
ecosystem in which they will be used. The additional requirements are 
intended to improve the accuracy and validity of any models used. 
Finally, we propose to add a new paragraph (d)(3) clarifying that the 
regulatory authority has the discretionary authority to prohibit the 
use of models and to require the submission of additional actual, site-
specific data.
3. Section 777.15: What information must my application include to be 
administratively complete?
    We propose to revise this section to use terminology consistent 
with the revisions to the permitting regulations published on September 
28, 1983 (48 FR 44344), which removed the term ``complete application'' 
and replaced it with the terms ``administratively complete 
application'' and ``complete and accurate application.''

F. Part 779: Surface Mining Permit Applications--Minimum Requirements 
for Information on Environmental Resources and Conditions

1. Section 779.1: What does this part do?
    Existing 30 CFR 779.1 states that part 779 establishes the minimum 
requirements for the Secretary's approval of regulatory program 
provisions for the environmental resources contents of permit 
applications for surface mining activities. However, the content 
requirements and standards for approval of state regulatory programs 
are located in 30 CFR parts 730 through 732. Therefore, we propose to 
revise 30 CFR 779.1 to specify that part 779 sets forth permit 
application requirements relating to environmental resources and 
conditions.
2. Section 779.2: What is the objective of this part?
    We propose to revise this section to reflect plain language 
principles and to clarify that the objective of part 779 is to ensure 
that the permit applicant provides the regulatory authority with a 
complete and accurate description of both the environmental resources 
that may be impacted or affected by proposed surface mining activities 
and the environmental conditions that exist within the proposed permit 
and adjacent areas. The existing language does not mention 
environmental conditions, such as the information on climate required 
by 30 CFR 779.18.
3. Why are we proposing to remove existing 30 CFR 779.11 and 779.12?
    We propose to remove 30 CFR 779.11, which requires a description of 
the existing premining environmental resources within the proposed 
permit and adjacent areas, because the requirements for this 
description are set out in detail in other sections of part 779. 
Therefore, existing 30 CFR 779.11 is redundant and unnecessary.
    We propose to remove existing 30 CFR 779.12(a) because the 
anticipated mining schedule that it requires is duplicative of proposed 
30 CFR 779.24(a)(3). We propose to move the cultural resource 
requirements of existing 30 CFR 779.12(b) to a new 30 CFR 779.17 
devoted to that topic.
4. Section 779.19: What information on vegetation must I include in my 
permit application?
    We propose to revise existing 30 CFR 779.19 by adding more 
specificity and making submission of vegetation information mandatory 
rather than discretionary as under the existing rules. The changes that 
we propose are needed to ensure that native plant communities are 
restored on reclaimed areas as required by section 515(b)(19) of 
SMCRA.\224\ Further, these changes are intended to implement, in part, 
section 515(b)(24) of SMCRA,\225\ which requires that, ``to the extent 
possible using the best technology currently available,'' surface coal 
mining and reclamation operations be conducted in a manner that will 
``minimize disturbances and adverse impacts on fish, wildlife, and 
related environmental values, and achieve enhancement of such resources 
where practicable.''
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    \224\ 30 U.S.C. 1265(b)(19).
    \225\ 30 U.S.C. 1265(b)(24).
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    Restoration or establishment of native plant communities is the 
most effective way of restoring or enhancing wildlife habitat. The 
Virginia Department of Conservation and Natural Resources describes the 
benefits of native plants as follows:

    The benefit of growing plants within the region they evolved is 
they are more likely to thrive under the local conditions while 
being less likely to invade new habitats. Native plants are well 
adapted to local environmental conditions, maintain or improve soil 
fertility, reduce erosion, and often require less fertilizer and 
pesticides than many alien plants. These characteristics save time 
and money and reduce the amount of harmful run-off threatening the 
aquatic resources of our streams, rivers, and estuaries. In 
addition, functionally healthy and established natural communities 
are better able to resist invasions by alien plant species. So the 
use of native plants can help prevent the spread of alien species 
already present in a region and help avert future introductions. ***
    Native plants provide familiar sources of food and shelter for 
wildlife. As natural habitats are replaced by urban and suburban 
development, the use of native plants in landscaping can provide 
essential shelter for displaced wildlife. Land managers can use 
native plants to maintain and restore wildlife habitat. Native 
wildlife species comprise a majority of the game and non-game 
animals we manage habitat for, and they evolved with native plant 
species. Although alien species are often promoted for their value 
as wildlife food plants, there is no evidence that alien plant 
materials are superior to native plants. For instance, on land 
managed for upland game animals, native warm season grasses (big and 
little bluestem, switch grass, Indian grass, coastal panic grass, 
gama grass), and other native forbs (butterfly weed, ironweed,

[[Page 44483]]

Joe Pye weed) offer good sources of nutrition without the ecological 
threats associated with nonnative forage plants. Dramatic increases 
in nesting success of both game birds and songbirds have been 
observed in fields planted with native grasses, which also offer 
superior winter cover. In addition, warm season grasses provide 
productive and palatable livestock forage. ***
    On a broader ecological scale, planting native species 
contributes to the overall health of natural communities. 
Disturbances of intact ecosystems that open and fragment habitat, 
such as land clearing activities, increase the potential of invasion 
by alien species. Native plants provide important alternatives to 
alien species for conservation and restoration projects in these 
disturbed areas. They can fill many land management needs currently 
occupied by nonnative species, and often with lower costs and 
maintenance requirements. Once established in an appropriate area, 
most native plant species are hardy and do not require watering, 
fertilizers, or pesticides.\226\

    \226\ http://www.dcr.virginia.gov/natural_heritage/nativeplants.shtml (last accessed August 27, 2014).

    A U.S. Fish and Wildlife Service publication describes the benefits 
---------------------------------------------------------------------------
of native plants as follows:

    Native plants naturally occur in the region in which they 
evolved. While non-native plants might provide some of the above 
benefits, native plants have many additional advantages. Because 
native plants are adapted to local soils and climate conditions, 
they generally require less watering and fertilizing than non-
natives. Natives are often more resistant to insects and disease as 
well, and so are less likely to need pesticides. Wildlife evolved 
with plants; therefore, they use native plant communities for food, 
cover and rearing young. Using native plants helps preserve the 
balance and beauty of natural ecosystems.\227\
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    \227\ Slattery, Britt E., Kathryn Reshetiloff, and Susan M. 
Zwicker. 2003. ``Native Plants for Wildlife Habitat and Conservation 
Landscaping: Chesapeake Bay Watershed.'' U.S. Fish and Wildlife 
Service, Chesapeake Bay Field Office, Annapolis, MD. 82 pp.

    Notwithstanding the advantages of native plant communities, many 
regraded and revegetated areas do not contain a diverse, effective, 
permanent vegetative cover of the same seasonal variety native to the 
area as required by section 515(b)(19) of SMCRA.\228\ Instead, areas 
that were previously forested were backfilled, regraded, and 
revegetated in a manner that makes the land incapable of achieving its 
premining forested status. Those lands are now heavily compacted 
grasslands with scrub trees. Neither grassland nor the trees are 
representative of the native premining vegetation. A 2007 study 
estimates that Appalachia alone contains between 750,000 and 1.5 
million acres of such reclaimed mine land.\229\ Our proposed 
refinements to the regulations would lead to better implementation of 
the revegetation requirements of section 515(b)(19) of SMCRA.\230\ In 
addition, the proposed rule would assist in the implementation of 
section 508(a)(2) of SMCRA,\231\ which requires that the reclamation 
plan in each permit application identify both the premining land uses 
and the capability of the land prior to any mining to support a variety 
of uses.
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    \228\ 30 U.S.C. 1265(b)(19).
    \229\ Zipper, C.E., J.A. Burger, J.M. McGrath, and B. Amichev, 
``Carbon Accumulation Potentials of Post-SMCRA Coal-Mined Lands.'' 
Paper prepared for presentation at the 30 Years of SMCRA and Beyond 
Symposium, June 2-7, 2007. Published by the American Society of 
Mining and Reclamation, R. I. Barnhisel, ed. (unpaginated document).
    \230\ 30 U.S.C. 1265(b)(19).
    \231\ 30 U.S.C. 1258(a)(2).
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    Moreover, the proposed rule is consistent with Section 2.(a)(2)(iv) 
of Executive Order 13112, ``Invasive Species,'' which requires that 
``[e]ach Federal agency whose actions may affect the status of invasive 
species shall, to the extent practicable and permitted by law, . . . 
provide for the restoration of native species and habitat conditions in 
ecosystems that have been invaded.'' \232\
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    \232\ 64 FR 6184 (Feb. 8, 1999).
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    Proposed paragraph (a) would require that the permit application 
identify, describe, and map existing vegetation and plant communities, 
as well as those plant communities that would exist under conditions of 
natural succession. The description and map must be adequate to 
evaluate whether the vegetation provides important habitat for fish and 
wildlife and whether the site contains any native plant communities of 
local or regional significance.
    Proposed paragraph (b) would require that the applicant adhere to 
the classifications in the National Vegetation Classification Standard 
(NVCS) \233\ in preparing the description required under proposed 
paragraph (a). The NVCS is the standard endorsed by the Federal 
Geographic Data Committee.\234\ Use of this standard would promote 
consistent identification of plant communities and development of 
appropriate revegetation plans to restore those communities following 
mining.
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    \233\ See http://www.fgdc.gov/standards/projects/FGDC-standards-projects/vegetation/index_html (last accessed August 5, 2014).
    \234\ See https://www.fgdc.gov/standards/projects/FGDC-standards-projects/vegetation (last accessed January 21, 2015).
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    Proposed paragraph (c) would allow the regulatory authority to 
approve the use of other generally-accepted vegetation classification 
systems in lieu of the NVCS. We invite comment on what other systems 
may exist.
    Proposed paragraph (d) would require that the application include a 
discussion of the potential for reestablishing the plant communities 
described in paragraph (a) after the completion of mining. This 
discussion would assist the regulatory authority in evaluating the 
proposed revegetation plan and in determining which plant communities 
the permittee must reestablish.
5. Section 779.20: What information on fish and wildlife resources must 
I include in my permit application?
    The fish and wildlife resource information requirements in existing 
30 CFR 780.16(a) identify the baseline fish and wildlife resource 
information that each permit application must include. Therefore, we 
propose to move it to part 779, which contains environmental resource 
information requirements for permit applications. Part 779 is a better 
fit for a fish and wildlife resource information requirement than part 
780, which contains operation and reclamation plan requirements. The 
fish and wildlife information requirements in existing 30 CFR 780.16(a) 
and proposed 30 CFR 779.20 are necessary to fully implement the fish 
and wildlife protection and enhancement requirements of section 
515(b)(24) of SMCRA.\235\
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    \235\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Proposed paragraph (c)(1) is similar to the portion of existing 30 
CFR 780.16(a)(2)(i) that pertains to species listed or proposed for 
listing as threatened or endangered under the Endangered Species Act of 
1973, 16 U.S.C. 1531 et seq., and to critical habitat designated under 
that law. We propose to add a requirement that the site-specific 
resource information include a description of the effects of future 
state or private activities that are reasonably certain to occur within 
the proposed permit and adjacent areas. The requested information will 
assist the U.S. Fish and Wildlife Service in fulfilling its 
responsibilities under the coordination process pertaining to 
threatened or endangered species.
    Proposed paragraph (c)(2) is substantively identical to the portion 
of existing 30 CFR 780.16(a)(2)(i) that pertains to species or habitat 
protected by state statutes similar to the Endangered Species Act.
    In proposed paragraph (c)(3), which corresponds to existing 30 CFR 
780.16(a)(2)(ii), we propose to expand the list of examples of habitat 
of unusually high value to fish and

[[Page 44484]]

wildlife to include areas that support populations of endemic species 
that are vulnerable because of restricted ranges, limited mobility, 
limited reproductive capacity, or specialized habitat requirements. We 
propose to delete the reference to important streams in the existing 
regulation because proposed paragraph (c)(5) would require site-
specific information for all perennial and intermittent streams, not 
just important streams.
    Proposed paragraph (c)(4) is substantively identical to existing 30 
CFR 780.16(a)(2)(iii), except for the addition of language clarifying 
that this provision includes species identified as sensitive by a state 
or federal agency. Proposed paragraph (c)(6) would require submission 
of site-specific information when native plant communities of local or 
regional ecological significance are present.
    Proposed paragraph (d) includes the U.S. Fish and Wildlife Service 
permit application review provisions found at 30 CFR 780.16(c) in our 
existing rules. We propose to revise those provisions in response to 
discussions with the U.S. Fish and Wildlife Service concerning 
compliance with the Endangered Species Act. We will further revise this 
provision and other proposed rules concerning protection of threatened 
and endangered species to include the National Marine Fisheries Service 
(NMFS), which is responsible for administration and enforcement of the 
Endangered Species Act with respect to anadromous and marine species, 
if we determine that this rulemaking may affect species under NMFS 
jurisdiction.
    Proposed paragraph (d)(1)(i) would require that the regulatory 
authority provide the fish and wildlife resource information included 
in the permit application under proposed paragraph (c) to the 
applicable regional or field office of the U.S. Fish and Wildlife 
Service whenever that information includes species listed as threatened 
or endangered under the Endangered Species Act, critical habitat 
designated under that law, or species proposed for listing as 
threatened or endangered under that law. The proposed rule would 
require that the regulatory authority provide this information to the 
Service no later than the time that it provides written notice of 
receipt of an administratively complete permit application to the 
Service under Sec.  773.6(a)(3)(ii). Under the existing rule, the 
Service must request this information from the regulatory authority 
rather than receiving it automatically.
    Proposed paragraph (d)(1)(ii) is similar to the existing rule in 
that it allows the Service to request fish and wildlife resource 
information submitted as part of permit applications even when the 
information in those applications does not include species listed as 
threatened or endangered under the Endangered Species Act, critical 
habitat designated under that law, or species proposed for listing as 
threatened or endangered under that law. Under both the existing and 
proposed rules, the regulatory authority must provide that information 
to the Service within 10 days of receipt of the request.
    Proposed paragraph (d)(2) specifies how the regulatory authority 
must handle comments received from the Service and how any 
disagreements are to be resolved. This proposed paragraph generally 
parallels the provisions that we and the Service agreed to as a result 
of a formal section 7(a)(2) Endangered Species Act consultation 
pertaining to the approval and conduct of surface coal mining and 
reclamation operations under a SMCRA regulatory program. Specifically, 
proposed paragraphs (d)(2)(i) through (iii) provide that if the 
regulatory authority does not agree with a Service recommendation that 
pertains to fish and wildlife or plants listed as threatened or 
endangered under the Endangered Species Act or to critical habitat 
designated under that law, the regulatory authority must explain the 
rationale for that decision in a comment disposition document and must 
provide a copy of that document to the pertinent Service field office. 
The proposed rule also would require that the regulatory authority 
provide a copy of that document to the appropriate OSMRE field office 
for informational purposes and to allow the OSMRE field office to 
monitor resolution of the disagreement. If the Service field office 
does not concur with the regulatory authority's decision and the 
regulatory authority and the Service field office are subsequently 
unable to conclude an agreement at that level, the proposed rule allows 
either the regulatory authority or the Service to elevate the issue 
through the chain of command of the regulatory authority, the Service, 
and OSMRE for resolution.
    Proposed paragraph (d)(2)(iv) provides that the regulatory 
authority may not approve the permit application until all issues are 
resolved in accordance with this process and the regulatory authority 
receives written documentation from the Service that all issues have 
been resolved. Like all provisions in proposed paragraph (d)(2), this 
provision is intended to ensure the protection of threatened and 
endangered species in accordance with the Endangered Species Act.
    Proposed paragraph (e) provides that the regulatory authority may 
require the prevention of adverse impacts to streams and watersheds in 
the permit and adjacent areas in order to protect exceptional 
environmental values. The proposed rule would require that all 
decisions be based upon scientific principles and analyses. In 
addition, it would require coordination with state and federal fish and 
wildlife agencies and agencies responsible for implementing the Clean 
Water Act before taking action under this paragraph. The protection 
that this proposed rule would provide through the permitting process 
would be in addition to any protection that might be available through 
the process for designating lands as unsuitable for surface coal mining 
operations under section 522 of SMCRA.\236\ The proposed rule is 
consistent with section 102(c) of SMCRA,\237\ which provides that one 
of the purposes of the Act is to ``assure that surface mining 
operations are not conducted where reclamation as required by this Act 
is not feasible.'' Section 515(b)(23) of SMCRA,\238\ requires that 
surface coal mining and reclamation operations ``meet such other 
criteria as are necessary to achieve reclamation in accordance with the 
purposes of this Act, taking into consideration the physical, 
climatological, and other characteristics of the site.'' The site-
specific nature of our proposed rule is consistent with this provision 
of the Act.
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    \236\ 30 U.S.C. 1272.
    \237\ 30 U.S.C. 1202(c).
    \238\ 30 U.S.C. 1265(b)(23).
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6. Section 779.21: What information on soils must I include in my 
permit application?
    Existing 30 CFR 779.21 requires that each permit applicant submit 
adequate soil survey information for the proposed permit area. On 
August 4, 1980, we suspended the existing rules insofar as they apply 
to lands other than prime farmland.\239\ The suspension reflects the 
February 26, 1980, decision of the U.S. District Court for the District 
of Columbia in litigation concerning the permanent regulatory program 
rules that we adopted in 1979. In that decision, the court held that 
section 507(b)(16) of SMCRA \240\ is a clear expression of 
congressional intent to require soil surveys only for prime farmlands 
identified by a reconnaissance inspection. The court also ruled that 
the

[[Page 44485]]

Secretary's reliance on section 508(a)(3) of SMCRA \241\ as 
justification for the rule was misplaced.\242\
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    \239\ 45 FR 51548 (Aug. 4, 1980).
    \240\ 30 U.S.C. 1257(b)(16).
    \241\ 30 U.S.C. 1258(a)(3).
    \242\ In re Permanent Surface Mining Regulation Litig. I, Round 
I (PSMRL I, Round I), 1980 U.S. Dist. LEXIS 17722 at *62 (D.D.C., 
February 26, 1980), 14 Env't Rep. Cas. (BNA) 1083, 10 Envtl. L. Rep. 
(Envtl. Law Inst.) 20208.
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    We propose to lift the suspension of existing 30 CFR 779.21 and 
replace the provisions of the existing rule with revised rule text that 
is consistent with the court decision. Proposed paragraph (a) would 
require that the application include the results of a reconnaissance 
inspection of the proposed permit area to determine whether or not 
prime farmland is present, as required by 30 CFR 785.17(b)(1). If that 
inspection indicates that prime farmland may be present, proposed 
paragraph (e) would require that the application include the soil 
survey information required by 30 CFR 785.17(b)(3). Proposed paragraphs 
(a) and (e) do not contain any new requirements; they merely include 
and cross-reference existing prime farmland regulations.
    Proposed paragraph (b) would require a map showing all soil mapping 
units located within the proposed permit area, if the National 
Cooperative Soil Survey (NCSS) has completed and published a soil 
survey for the area. The application also would be required to include 
either a link to the appropriate soil survey information on the Natural 
Resources Conservation Service (NRCS) Web site, which is located at 
http://websoilsurvey.sc.egov.usda.gov/App/HomePage.htm (as of August 
27, 2014), or the equivalent information in paper form.
    Proposed paragraph (c) would require a description of soil depths 
within the proposed permit area. Proposed paragraph (d) would require 
detailed information on soil quality to satisfy the requirements of 
proposed 30 CFR 780.12(e)(2)(ii) if the permit applicant seeks approval 
for the use of soil substitutes or supplements under 30 CFR 780.12(e). 
Proposed paragraph (e) is discussed above together with proposed 
paragraph (a). Proposed paragraph (f) would require that the permit 
applicant provide any other information that the regulatory authority 
finds necessary to determine land use capability and to prepare the 
reclamation plan.
    The revised version of 30 CFR 779.21 that we are proposing today 
would be consistent with the decision in PSMRL I, Round I. First, the 
proposed rule would not require that the applicant conduct an actual 
soil survey for lands other than prime farmland. Instead, it would 
require submission of only existing soil survey information, which, 
apart from transferring pertinent information to the permit application 
maps, can be provided by reference to the appropriate link to the NRCS 
Web site. The proposed rule would not require that the applicant 
conduct an actual soil survey if the information is not available from 
the NRCS. (The NRCS has completed soil surveys for more than 99 percent 
of the land area within the conterminous states.)
    Second, the statutory basis for proposed 30 CFR 779.21 is section 
508(a)(2) of SMCRA,\243\ not section 508(a)(3).\244\ The court held 
that section 508(a)(3) did not constitute authority for the prior rule. 
However, section 508(a)(2) provides that--
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    \243\ 30 U.S.C. 1258(a)(2).
    \244\ 30 U.S.C. 1258(a)(3).

Each reclamation plan submitted as part of a permit application 
pursuant to any approved State program or a Federal program under 
the provisions of this Act shall include, in the degree of detail 
necessary to demonstrate that reclamation required by the State or 
Federal program can be accomplished, a statement of:
* * * * *
    (B) the capability of the land prior to any mining to support a 
variety of uses giving consideration to soil and foundation 
characteristics, topography, and vegetative cover, and, if 
applicable, a soil survey prepared pursuant to section 507(b)(16).

    All the information that we propose to require in 30 CFR 779.21 
consists of soil and foundation characteristics. Section 508(a)(2) of 
SMCRA \245\ requires the applicant to include that information in each 
permit application, not just in those applications that contain prime 
farmland. Identification of soil mapping units and submission of 
available soil survey information about those units, as proposed 
paragraph (b) would require, is critical to determining the premining 
capability of the land, as required by section 508(a)(2)(B) of 
SMCRA,\246\ and to establishing the soil salvage and replacement 
requirements needed to ensure that the revegetation requirements of the 
Act and regulations can be met.
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    \245\ 30 U.S.C. 1258(a)(2).
    \246\ 30 U.S.C. 1258(a)(2)(B).
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    Likewise, the premining soil depth, soil quality, and other 
information that would be required under proposed paragraphs (c), (d), 
and (f) also is needed for the applicant and the regulatory authority 
to effectively determine the premining capability of the land and to 
establish the soil salvage, soil substitute, and soil replacement 
requirements needed to ensure that the revegetation requirements of the 
Act and regulations can be met. Furthermore, soil depth and quality are 
critical to determining the productivity of the site and hence to 
establishing pertinent revegetation success standards for the site for 
certain postmining land uses.
7. Section 779.22: What information on land use and productivity must I 
include in my permit application?
    The counterpart in our existing rules to this section is 30 CFR 
780.23(a). We propose to delete the second sentence of existing 
paragraph (a)(1), which provides that the application must include a 
description of the historical use of the land if the premining use 
changed within the 5 years preceding the anticipated starting date of 
the proposed operation. SMCRA does not include a similar provision and 
this timeframe has sometimes proven difficult to determine with 
precision. Furthermore, this information has little or no value in the 
existing permitting process because it is not a criterion or 
determinant of any permitting decisions under the existing rules.
    The proposed rule would continue to require that the application 
include a narrative analysis of the capability of the land before any 
mining to support a variety of uses, as required by section 
508(a)(2)(B) of SMCRA.\247\ We propose to require a description of all 
historical uses of the land without a time limitation and without 
limitation to the single use preceding the permit application, as a 
component of this narrative because historical uses provide 
documentation, in part, of premining land use capability. Our proposed 
revisions are consistent with the legislative history of this provision 
of SMCRA, which states that:
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    \247\ 30 U.S.C. 1258(a)(2)(B).

The description is to serve as a benchmark against which the 
adequacy of reclamation and the degradation resulting from the 
proposed mining may be measured. It is important that the potential 
utility which the land had for a variety of uses be the benchmark 
rather than any single, possibly low value, use which by 
circumstances may have existed at the time mining began.\248\
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    \248\ S. Rep. No. 95-128, at 76-77 (1977).

    Thus, it is clear that a single-use criterion is not in accordance 
with sections 508(a) and 515(b)(2) of SMCRA \249\ or the legislative 
history of section 508(a). The postmining land use must be compared 
with the variety of uses that the land was capable of supporting before 
any mining, not just a single premining use.
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    \249\ 30 U.S.C. 1258(a) and 1265(b)(2), respectively.
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    We also propose to add paragraph (b)(3), which would require that 
the permit application include a narrative

[[Page 44486]]

analysis of the premining productivity of the proposed permit area for 
fish and wildlife. Section 508(a)(2)(C) of SMCRA \250\ lists 
productivity in terms of the average yield of food, fiber, forage, or 
wood products, but it is not an exclusive list of productivity measures 
that can be used to assess premining productivity. The fish and 
wildlife information required by proposed paragraph (b)(3) would assist 
the regulatory authority in evaluating the environmental impacts of the 
proposed operation and in determining what fish and wildlife protection 
and enhancement measures may be appropriate. Limiting productivity 
measures to quantifiable commodity indicators such as food, fiber, and 
wood products would incorrectly ignore the underlying purposes of 
SMCRA, one of which is to establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.\251\
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    \250\ 30 U.S.C. 1258(a)(2)(C).
    \251\ See 30 U.S.C. 1202(a).
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    Following the same logic, we propose to add paragraph (c), which 
would allow the regulatory authority to require submission of any 
additional information that the regulatory authority deems necessary to 
determine the condition, capability, and productivity of the land 
within the proposed permit area. This additional information may 
include data concerning the site's carbon absorption and storage 
capability.
8. Section 779.24: What maps, plans, and cross-sections must I submit 
with my permit application?
    We propose to consolidate existing 30 CFR 779.24 and 779.25 into 30 
CFR 779.24 and add a new paragraph (c) to clarify that the regulatory 
authority may require that the applicant submit all materials in a 
digital format that includes all necessary metadata. We invite comment 
on whether the digital format option should instead be mandatory to 
facilitate review by both the public and the regulatory authority.
    Other substantive proposed changes are discussed below.
    Proposed paragraph (a)(3) would require a description of the size, 
sequence, and timing of the mining of subareas for which the applicant 
anticipates seeking additional permits or expansion of an existing 
permit in the future. The corresponding existing rule at 30 CFR 
779.24(c) applies this requirement to areas for which the applicant 
anticipates seeking additional permits. However, in practice, 
regulatory authorities do not always require a new permit application 
for additional acreage to be mined. Some state regulatory programs 
allow expansion by means of permit amendments or revisions. We have 
approved state program amendments of this nature, provided that the 
program amendment specifies that the permit amendment or revision 
application is subject to the same information requirements as a new 
permit and that the application must be processed and approved in the 
same manner as a new permit. We have found that amendments containing 
those provisions are no less stringent than section 510(a)(3) of 
SMCRA,\252\ which provides that, except for incidental boundary 
revisions, any extension of the area covered by a permit must be made 
by application for a new permit. The proposed language would reflect 
this reality and ensure that the description would include all subareas 
for which the applicant anticipates seeking approval to mine in the 
future, not just those subareas for which the applicant anticipates 
seeking new permits.
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    \252\ 30 U.S.C. 1260(b)(3).
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    Proposed paragraphs (a)(7), (a)(8), (a)(9), (a)(18), (a)(20), and 
(a)(27) would allow certain information that is not particularly 
amenable to display on a map to instead be submitted in a table cross-
referenced to a map if approved by the regulatory authority. This 
information would include depth of water, gas and oil wells; ownership 
of wells and groundwater resources; ownership and descriptions of 
surface-water features; and elevations and geographic coordinates of 
test borings, core samplings, and monitoring stations.
    In proposed paragraph (a)(11), we propose to add a provision 
requiring mapping of all public water supplies and wellhead protection 
zones \253\ located within one-half mile of the proposed permit area. 
This information would be important in preparing the cumulative 
hydrologic impact assessment required by section 510(b)(3) of SMCRA 
\254\ and may be of value in preparing the PHC determination and 
hydrologic reclamation plan for the proposed permit.
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    \253\ A wellhead protection zone or area is a surface and 
subsurface land area regulated under the Safe Drinking Water Act (42 
U.S.C. 330f-300j) to prevent contamination of a well or well-field 
supplying a public water system.
    \254\ 30 U.S.C. 1260(b)(3).
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    Proposed paragraph (a)(13) would add a requirement for a map 
showing the location of any discharge, including, but not limited to, a 
mine-water treatment or pumping facility, into or from an active, 
inactive, or abandoned underground mine that is hydrologically 
connected to the proposed permit area or that is located within one-
half mile, measured horizontally, of the proposed permit area. The 
applicant will need this information to prepare the determination of 
the probable hydrologic consequences of mining required by section 
507(b)(11) of SMCRA.\255\ In addition, the regulatory authority will 
need this information to prepare the cumulative hydrologic impact 
assessment required by the same provision of the Act and by section 
510(b)(3) of SMCRA.\256\
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    \255\ 30 U.S.C. 1257(b)(11).
    \256\ 30 U.S.C. 1260(b)(3).
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    We propose to add a requirement in paragraphs (a)(18) and (20) that 
the application include the geographic coordinates of test borings, 
core samplings, and monitoring stations. Our inspectors have found that 
this information often is time-consuming or difficult to locate in the 
permit file or to determine from maps included in that file, so a list 
of features with their geographic coordinates should improve the 
efficiency with which regulatory authority and OSMRE personnel perform 
their duties by greatly improving the ability of regulatory authority 
and OSMRE personnel to field-check those locations using GPS devices. 
The requirement for geographic coordinates also is intended to ensure 
that the locations of these features are determined by an actual survey 
rather than approximated on a topographic map.
    Proposed paragraph (a)(19) would expand upon the requirement in 
existing 30 CFR 779.25(a)(6) for the location and extent of subsurface 
water, if encountered, by adding provisions concerning aquifers that 
currently are found only in the corresponding requirements for 
underground mines at existing 30 CFR 783.25(a)(6). Specifically, we 
propose to require that the application include the areal and vertical 
distribution of aquifers and a portrayal of seasonal variations in 
hydraulic head in different aquifers. This information is equally 
important for proposed surface mining operations because it would be 
used to establish baseline groundwater conditions and predict the 
impacts of the proposed mining operation on those aquifers, regardless 
of whether the proposed operation is a surface mine or an underground 
mine. Furthermore, section 507(b)(14) of SMCRA,\257\ which is the 
primary statutory counterpart to proposed 30 CFR 779.24, expressly 
requires that the application include the location of aquifers. In 
addition,

[[Page 44487]]

proposed 30 CFR 779.24(a)(19) would include a requirement for the 
estimated elevation of the water table, which section 507(b)(14) of 
SMCRA also requires.
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    \257\ 30 U.S.C. 1257(b)(14).
---------------------------------------------------------------------------

    In proposed paragraph (a)(21), we propose to add a requirement that 
the maps, cross-sections, and plans include the commonly used names of 
the coal seams to be mined, overburden strata, and the stratum 
immediately below the lowest coal seam to be mined. This information 
would assist reviewers in predicting the impacts of the proposed 
operation by facilitating consultation with published reference 
materials on the coal seams and geological strata in question.
    In proposed paragraph (a)(27), we propose to add a requirement that 
the application identify all directional or horizontal drilling for 
hydrocarbon extraction operations, including those using hydraulic 
fracturing methods, within or underlying the proposed permit and 
adjacent areas. Both the applicant and the regulatory authority need 
this information to determine the probable hydrologic consequences of 
the proposed operation and to ensure that the operation's design takes 
these operations and wells into consideration.

G. Part 780: Surface Mining Permit Applications--Minimum Requirements 
for Reclamation and Operation Plans

1. Section 780.1: What does this part do?
    Existing 30 CFR 780.1 states that part 780 provides the minimum 
requirements for the Secretary's approval of regulatory program 
provisions for the mining operations and reclamation plan portions of 
permit applications for surface mining activities, except to the extent 
that part 785 establishes different requirements. However, the content 
requirements and standards for approval of state regulatory programs 
are located in 30 CFR parts 730 through 732. Therefore, we propose to 
revise 30 CFR 780.1 to specify that part 780 sets forth permit 
application requirements for reclamation and operation plans for 
proposed operations.
2. Section 780.2: What is the objective of this part?
    We propose to revise this section to specifically mention 
reclamation of the disturbed area to reflect the fact that part 780 
includes numerous reclamation requirements. The existing rule only 
mentions surface mining activities. We recognize that this change is 
not essential because the definition of ``surface mining activities'' 
in 30 CFR 700.5 includes reclamation, but adding a mention of 
reclamation in 30 CFR 780.2 would make this rule clearer to the reader.
3. Section 780.12: What information must the reclamation plan include?
Paragraph (a): General Requirements
    Proposed paragraph (a) is substantively identical to existing 30 
CFR 780.18(a) with one exception. The existing rule requires that each 
permit application contain a reclamation plan showing how the applicant 
will comply with section 515 of SMCRA,\258\ the federal performance 
standards in subchapter K of 30 CFR Chapter VII, and the environmental 
protection performance standards of the regulatory program. We propose 
to revise this provision to be more consistent with section 508(a) of 
SMCRA,\259\ which requires that each reclamation plan include the 
information ``necessary to demonstrate that reclamation required by the 
State or Federal program can be accomplished.'' The existing rule is 
too limiting in that it refers only to performance standards, not to 
all reclamation requirements. In addition, the references to section 
515 of SMCRA and subchapter K of 30 CFR Chapter VII in the existing 
rule are inconsistent with the principle of state primacy under section 
503(a) of SMCRA,\260\ which specifies that a state with an approved 
regulatory program assumes exclusive jurisdiction over surface coal 
mining and reclamation operations on non-Federal, non-Indian lands 
within its borders, except as provided in sections 521 and 523 \261\ 
and title IV \262\ of the Act. Therefore, we propose to revise 
paragraph (a) by deleting the references to performance standards and 
to section 515 of SMCRA and subchapter K of 30 CFR Chapter VII. 
Instead, we propose to require that each permit application include a 
reclamation plan showing how the applicant will comply with the 
reclamation requirements of the applicable regulatory program.
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    \258\ 30 U.S.C. 1265.
    \259\ 30 U.S.C. 1258(a).
    \260\ 30 U.S.C. 1253(a).
    \261\ 30 U.S.C. 1271 and 1273.
    \262\ 30 U.S.C. 1231 through 1243.
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Paragraph (b): Reclamation Timetable
    Section 508(a)(7) of SMCRA \263\ requires the reclamation plan for 
each permit application include ``a detailed estimated timetable for 
the accomplishment of each major step in the reclamation plan.'' 
Existing 30 CFR 780.18(b)(1) implements this provision in part. We 
propose to revise the existing rule by listing the activities which, at 
a minimum, must be considered major steps in the reclamation process. 
In typical chronological order, those steps include, but are not 
limited to, backfilling, grading, restoration of the form of all 
reconstructed perennial and intermittent stream segments, soil 
redistribution, planting, demonstration of revegetation success, 
restoration of the ecological function of all reconstructed perennial 
and intermittent stream segments, and application for each phase of 
bond release. Establishment of a timetable that includes those steps 
should promote consistency in the application of this provision and 
result in a more comprehensive timetable, which would implement section 
508(a)(7) of SMCRA more completely.
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    \263\ 30 U.S.C. 1258(a)(7).
---------------------------------------------------------------------------

    The regulatory authority must evaluate the proposed timetable to 
determine whether it meets the contemporaneous reclamation requirements 
of section 515(b)(16) of SMCRA.\264\ Once approved as part of the 
permit, this timetable serves as a standard for evaluating compliance 
with the contemporaneous reclamation requirements of section 515(b)(16) 
of SMCRA.\265\
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    \264\ 30 U.S.C. 1265(b)(16).
    \265\ Id.
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Paragraph (c): Reclamation Cost Estimate
    We propose to revise this paragraph, which appears at 30 CFR 
780.18(b)(2) in our existing rules, by clarifying that the cost 
estimates must include both direct and indirect costs and by requiring 
that the permit applicant use current, standardized construction cost 
estimation methods and equipment cost guides in developing estimates of 
the cost of reclamation. These changes should improve the accuracy of 
cost estimates and increase the usefulness of these estimates to the 
regulatory authority in determining the amount of performance bond 
required under section 509 of SMCRA \266\ and 30 CFR part 800.
---------------------------------------------------------------------------

    \266\ 30 U.S.C. 1259.
---------------------------------------------------------------------------

Paragraph (d): Backfilling and Grading Plan
    Proposed paragraph (d) corresponds to existing 30 CFR 780.18(b)(3). 
We propose to add more specificity to the existing rule, which requires 
``[a] plan for backfilling, soil stabilization, compacting, and 
grading, with contour maps or cross-sections that show the anticipated 
final surface configuration of the proposed permit area, in

[[Page 44488]]

accordance with 30 CFR 816.102 through 816.107.''
    Proposed paragraph (d)(1) would require that the reclamation plan 
contain a plan for backfilling the mined-out area, compacting the 
backfill, and grading the disturbed area in accordance with 30 CFR 
817.102 through 817.107 of this chapter, using the best technology 
currently available. It also would specify that the plan must limit 
compaction to the minimum necessary to achieve stability requirements 
unless additional compaction is necessary to reduce infiltration to 
minimize leaching and discharges of parameters of concern. The added 
language is intended to achieve a balance between minimizing 
compaction, which research has shown stunts the growth of most crops 
and woody plants,\267\ and the need to minimize the formation of 
discharges that contain sulfate and other ions that could have adverse 
impacts on receiving streams and their aquatic life.
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    \267\ See, e.g., Hamza, M. A., and W. K. Anderson. ``Soil 
compaction in cropping systems: a review of the nature, causes and 
possible solutions.'' Soil and tillage research 82.2 (2005): 121-
145; Crossley, D. I. ``The effect of a compact subsoil horizon on 
root penetration.'' Journal of Forestry 38.10 (1940): 794-796.
---------------------------------------------------------------------------

    Proposed paragraph (d)(1) also would require that the plan be 
accompanied by models, contour maps, or cross-sections that show in 
detail the anticipated final surface elevations and configuration of 
the proposed permit area, including drainage patterns. The regulatory 
authority would use this information to determine whether the proposed 
plan satisfies the backfilling, grading, and surface configuration 
requirements of 30 CFR 816.102 through 816.107.
    Proposed paragraph (d)(2) would require that the plan describe in 
detail how the permittee will conduct backfilling and reclamation 
activities and handle acid-forming and toxic-forming materials, if 
present, to prevent the formation of acid or toxic mine drainage from 
acid-forming and toxic-forming materials within the overburden. It also 
would require an explanation of how the method selected will protect 
groundwater and surface water in accordance with 30 CFR 816.38, which 
contains the performance standards for handling acid-forming and toxic-
forming materials. Proposed paragraph (d)(2) would implement in part 
the requirements in section 515(b)(3) of SMCRA \268\ that surface coal 
mining and reclamation operations compact spoil where advisable to 
prevent leaching of toxic materials, cover all acid-forming and other 
toxic materials, and shape and grade overburden and spoil to prevent 
water pollution. It also would implement, in part, section 515(b)(14) 
of SMCRA,\269\ which requires that all acid-forming materials and toxic 
materials be ``treated or buried and compacted or otherwise disposed of 
in a manner designed to prevent contamination of ground or surface 
waters.''
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    \268\ 30 U.S.C. 1265(b)(3).
    \269\ 30 U.S.C. 1265(b)(14).
---------------------------------------------------------------------------

Paragraph (e): Soil Handling Plan
    We propose to extensively revise our existing rules concerning 
soils to promote salvage, preservation, and redistribution of the best 
available soil materials for the purpose of creating a growing medium 
(soil) suitable for the intended vegetation, including creation of a 
root zone of sufficient depth for that vegetation. Proposed paragraph 
(e) would include those provisions of our existing rules at 30 CFR 
816.22(b) and (e) that are permitting requirements rather than 
performance standards in an effort to consolidate permit application 
information and review requirements in subchapter G rather than having 
them split between subchapters G (permit requirements) and K 
(performance standards).
    We propose to extensively revise our existing rules to better 
implement section 515(b)(5) of SMCRA,\270\ which states that surface 
coal mining operations must--
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    \270\ 30 U.S.C. 1265(b)(5).

remove the topsoil from the land in a separate layer, replace it on 
the backfill area, or if not utilized immediately, segregate it in a 
separate pile from other spoil and when the topsoil is not replaced 
on a backfill area within a time short enough to avoid deterioration 
of the topsoil, maintain a successful cover by quick growing plant 
or other means thereafter so that the topsoil is preserved from wind 
and water erosion, remains free of any contamination by other acid 
or toxic material, and is in a usable condition for sustaining 
vegetation when restored during reclamation, except if topsoil is of 
insufficient quantity or of poor quality for sustaining vegetation, 
or if other strata can be shown to be more suitable for vegetation 
requirements, then the operator shall remove, segregate, and 
preserve in a like manner such other strata which is best able to 
---------------------------------------------------------------------------
support vegetation.

    Proposed paragraph (e)(1)(i) is similar to the first sentence of 
existing 30 CFR 780.18(b)(4). It would require that the reclamation 
plan include a plan and schedule for removal, storage, and 
redistribution of topsoil, subsoil, and other material to be used as a 
final growing medium in accordance with 30 CFR 816.22.
    Consistent with proposed 30 CFR 816.22(f), we also propose to add a 
requirement that the application include a plan for salvaging, 
protecting, and redistributing or otherwise using all organic matter 
(duff, other organic litter, and vegetative materials such as tree 
tops, small logs, and root balls) found on the site. Acceptable uses 
for organic matter are as a soil supplement, to promote revegetation, 
to assist in stream restoration, or to provide wildlife habitat. 
Preservation and distribution of organic matter on the regraded site 
would assist in meeting the requirement of section 515(b)(19) of SMCRA 
\271\ to establish on the regraded area a diverse, effective, and 
permanent vegetative cover of the same seasonal variety native to the 
area. Our proposed rule also is consistent with the findings of an 
extensive literature review of reforestation on minesites in 
Appalachia. That review recommended that ``all surface organic debris 
(including stumps, stems, roots, and litter), all soil layers, and the 
soft saprolite and weathered rock materials under the soil be removed, 
mixed in the process of excavating, hauling and dumping, and placed on 
the surface of reclaimed mine sites to a depth of 1 to 2 meters.'' 
\272\
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    \271\ 30 U.S.C. 1265(b)(19).
    \272\ Zipper, C. E., J. A. Burger, C D. Barton, and J. G. 
Skousen. ``Rebuilding Soils on Mined Land for Native Forest in 
Appalachia'' (2012). Soil Sci. Soc. Am. J. (77:337-349), p. 347.
---------------------------------------------------------------------------

    Proposed paragraph (e)(1)(ii) provides that the plan must require 
the removal, segregation, stockpiling, and redistribution of the B and 
C horizons and other underlying strata or portions thereof to the 
extent that those horizons and strata are needed to provide the root 
zone required to restore premining land use capability or to comply 
with the revegetation requirements of 30 CFR 816.111 and 816.116. The 
proposed rule differs from the existing rule at 30 CFR 816.22(e) in 
that the existing rule provides that salvage and redistribution of 
these soil materials is discretionary on the part of the regulatory 
authority.
    However, the subsoil (the B and C horizons) also is important for 
plant growth. Plant roots extend through the topsoil into the subsoil 
(root zone), which provides a substantial proportion of the plant's 
nutrient requirements. For example, field studies have shown that 
between 45 percent and 65 percent of nitrogen available to plants from 
the soil lies below a depth of 6 inches. During dry summer weather, 
many plants, especially deep-rooted plants like alfalfa and most trees, 
depend for their survival on moisture available in the subsoil. Alfalfa 
extracts 55 percent of its moisture requirements from soil

[[Page 44489]]

materials deeper than one foot and is capable of extracting water from 
subsoil up to 6 feet in depth. Even medium-rooted crops like wheat and 
corn extract up to 40 percent of their moisture requirements from soil 
materials deeper than one foot. Finally, many plants depend on root 
penetration well into the subsoil for physical support, especially 
where topsoil is thin. If plant roots are unable to penetrate deeply 
into a reclaimed subsoil, soil capability for plant growth will be 
degraded.\273\
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    \273\ Alberta Transportation, ``Alberta Transportation Guide to 
Reclaiming Borrow Excavations'' (December 2013); pp. 5-6.
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    Therefore, a failure to require salvage and redistribution of the B 
and C horizons under these conditions would result in a failure to 
restore the site to a condition in which it is capable of supporting 
those land uses that it was capable of supporting before any mining, as 
required by section 515(b)(2) of SMCRA.\274\
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    \274\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    Furthermore, proposed paragraph (e)(1)(ii) is consistent with, and 
would improve implementation of, section 515(b)(5) of SMCRA,\275\ which 
provides that if strata other than the topsoil ``can be shown to be 
more suitable for vegetation requirements, then the operator shall 
remove, segregate, and preserve in a like manner such other strata 
which is best able to support vegetation.'' The U.S. District Court for 
the District of Columbia upheld this interpretation of section 
515(b)(5) of SMCRA in 1980 in PSMRL I, Round I concerning the 1979 
version of our regulations at 30 CFR 816.22(d),\276\ which required 
segregation of the B horizon and portions of the C horizon if the 
regulatory authority determined that those materials were necessary or 
desirable to ensure soil productivity:
---------------------------------------------------------------------------

    \275\ 30 U.S.C. 1265(b)(5).
    \276\ 30 CFR 816.22(d) was subsequently redesignated as 30 CFR 
816.22(e) on May 16, 1983. See 48 FR 22100.

    Section 515(b)(5) authorizes segregation [of materials other 
than topsoil] if the topsoil cannot sustain vegetation or if other 
strata enhance post-mining vegetation. This is essentially what the 
regulations command. They focus on ``soil productivity,'' and grant 
the regulatory authority power to require segregation if necessary 
to improve such productivity.\277\
---------------------------------------------------------------------------

    \277\ PSMRL I, Round I, supra, slip op. at 54, 1980 U.S. Dist. 
LEXIS 17722 at *83.

    Proposed paragraph (e)(1)(iii) would require that the plan explain 
how soil materials would be handled and stored to avoid contamination 
by acid-forming or toxic-forming materials and to minimize the loss of 
desirable soil characteristics during handling and storage. These 
provisions mirror similar requirements in section 515(b)(5) of 
SMCRA.\278\
---------------------------------------------------------------------------

    \278\ 30 U.S.C. 1265(b)(5).
---------------------------------------------------------------------------

    Proposed paragraph (e)(2) contains expanded criteria and 
requirements for the approval and use of soil substitutes or 
supplements. It differs from existing 30 CFR 816.22(b) most 
significantly in that the existing rule allows use of topsoil 
substitutes or supplements if the resulting soil medium is equal to or 
more suitable than the existing topsoil in terms of its capability to 
sustain vegetation. We propose to eliminate the provision allowing use 
of topsoil substitutes or supplements when the resulting growing medium 
(soil) is only equal to the existing topsoil in terms of its capability 
to sustain vegetation. Our proposed revision would improve the 
implementation of section 515(b)(5) of SMCRA,\279\ which allows use of 
other overburden strata in place of the topsoil only if those strata 
``can be shown to be more suitable for vegetation requirements.'' 
Nothing in this provision of SMCRA authorizes the use of other strata 
in place of topsoil if the resulting medium is only equal in its 
ability to meet vegetation requirements.
---------------------------------------------------------------------------

    \279\ Id.
---------------------------------------------------------------------------

    While section 515(b)(5) of SMCRA \280\ is silent on the use of 
subsoil substitutes, we propose to apply the same standards to the use 
of subsoil substitutes and supplements as we do to topsoil substitutes 
and supplements. The subsoil is an important part of the growing medium 
in that, among other things, it provides the root zone required by many 
plants for physical support, moisture, and nutrient uptake.\281\ 
Therefore, application of the same standards for subsoil substitutes as 
for topsoil substitutes is appropriate to ensure that the reclaimed 
site is restored to a condition in which it is capable of supporting 
the uses that it was capable of supporting before any mining, as 
required by section 515(b)(2) of SMCRA.\282\
---------------------------------------------------------------------------

    \280\ Id.
    \281\ Alberta Transportation, ``Alberta Transportation Guide to 
Reclaiming Borrow Excavations'' (December 2013); pp. 5-6.
    \282\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    Proposed paragraph (e)(2)(i) explains that proposed paragraph 
(e)(2) would apply to all permit applicants proposing to use 
appropriate overburden materials as a supplement to or substitute for 
the existing topsoil or subsoil on the proposed permit area.
    Proposed paragraph (e)(2)(ii)(A) would require that the permit 
applicant demonstrate, and the regulatory authority find in writing, 
that either the quality of the existing topsoil and subsoil is inferior 
to that of the alternative overburden materials proposed for use or 
that the quantity of existing topsoil and subsoil is not adequate to 
provide the optimal rooting depth or to meet other growth requirements 
of the native species to be planted under the revegetation plan. In the 
latter case, the proposed rule also would require that the soil 
handling plan provide for the salvage and redistribution of all 
existing soil materials as a component of the approved growing medium 
to obtain the benefits of the native existing soil materials as a 
source of seeds, other plant propagules, mycorrhizae, other soil flora 
and fauna, and other biological components that promote revegetation. 
Studies in Appalachia have found that native soils contain nitrogen and 
phosphorus in organic forms that are readily available to plants; they 
also contain organic carbon that is essential to soil microorganisms 
and nutrient cycling.\283\ The author of an extensive literature review 
of reforestation on minesites in Appalachia concluded that native soils 
``will be the most favorable material available on most mine sites for 
use in constructing mine soils for reforestation'' and that, when use 
of rock spoil is necessary, the native soils, as well as stumps and 
woody debris, should be mixed with those spoils to enhance their 
chemical, biological, and physical properties.\284\
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    \283\ Zipper, et al. (2012), op. cit. at 346.
    \284\ Id.
---------------------------------------------------------------------------

    Proposed paragraph (e)(2)(ii)(B) would require that the permit 
applicant demonstrate, and the regulatory authority find in writing, 
that use of the alternative overburden materials, either in combination 
with or in place of the topsoil or subsoil, would result in a growing 
medium (soil) that will provide superior rooting depth in comparison to 
the existing topsoil and subsoil and that will be more suitable to 
sustain the vegetation required by the approved postmining land use and 
the revegetation plan than the existing topsoil and subsoil.
    Proposed paragraph (e)(2)(ii)(C) would require that overburden 
materials selected for use as a soil substitute or supplement be the 
best materials available in the proposed permit area to support the 
native vegetation to be established on the reclaimed area or the crops 
to be planted on that area.
    The demonstrations and findings required by proposed paragraphs 
(e)(2)(ii)(A) through (C) would, in part, improve implementation of 
section

[[Page 44490]]

515(b)(5) of SMCRA,\285\ which provides that ``if topsoil is of 
insufficient quantity or of poor quality for sustaining vegetation, or 
if other strata can be shown to be more suitable for vegetation 
requirements, then the operator shall remove, segregate, and preserve 
in a like manner such other strata which is best able to support 
vegetation.'' In addition, these demonstrations and findings are 
intended to ensure the establishment of a growing medium on the 
reclaimed area that is capable of supporting the uses that the land was 
capable of supporting before any mining, as required by section 
515(b)(2) of SMCRA.\286\ Finally, the emphasis on the use of native 
species to determine optimal rooting depths and other growth 
requirements when evaluating the suitability of potential soil 
substitutes is consistent with section 515(b)(19) of SMCRA,\287\ which 
requires establishment of a diverse, effective, and permanent 
vegetative cover of the same seasonal variety native to the area of 
land to be affected and capable of self-regeneration and plant 
succession. . . .''
---------------------------------------------------------------------------

    \285\ 30 U.S.C. 1265(b)(5).
    \286\ 30 U.S.C. 1265(b)(2).
    \287\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    Proposed paragraphs (e)(2)(iii) and (iv) would expand upon the 
second and third sentences of existing 30 CFR 780.18(b)(4), which 
establish minimum content requirements for the demonstration of the 
suitability of potential soil substitutes or supplements and which 
allow the regulatory authority to require other analyses, field trials, 
or greenhouse tests if necessary. Proposed paragraph (e)(2)(iii) would 
require that the regulatory authority specify suitability criteria for 
potential soil substitutes and supplements; chemical and physical 
analyses, field trials, or greenhouse tests that the applicant must 
conduct on potential soil substitutes and supplements; and sampling 
objectives, sampling techniques, and the techniques to be used to 
analyze the samples collected. Proposed paragraph (e)(2)(iv)(A) would 
require that demonstrations of the suitability of potential soil 
substitutes and supplements include the physical and chemical soil 
characteristics and root zones needed to support the type of vegetation 
to be established on the reclaimed area. Proposed paragraph 
(e)(2)(iv)(B) would require that those demonstrations include a 
comparison and analysis of the thickness, total depth, texture, percent 
coarse fragments, pH, thermal toxicity, and areal extent of the 
different kinds of soil horizons and overburden materials available 
within the proposed permit area, based upon a statistically valid 
sampling procedure.
    Proposed paragraphs (e)(2)(iii) and (iv) are intended to ensure 
that the determination of the suitability of potential soil substitutes 
and supplements is conducted in a scientifically-sound manner. Use of 
scientifically-invalid sampling and analytical techniques or a lack of 
comprehensive criteria for the evaluation and approval of potential 
soil substitutes and supplements could result in the establishment of 
an inferior growing medium on the reclaimed area that is incapable of 
supporting the uses that it was capable of supporting before any 
mining. Such a result would be inconsistent with section 515(b)(2) of 
SMCRA.\288\ It also would be inconsistent with the requirement in 
section 515(b)(5) of SMCRA \289\ that any topsoil substitutes be shown 
to be more suitable for vegetation requirements than the existing soil 
and that any substitute materials be the best able to support 
vegetation.
---------------------------------------------------------------------------

    \288\ 30 U.S.C. 1265(b)(2).
    \289\ 30 U.S.C. 1265(b)(5).
---------------------------------------------------------------------------

    Proposed paragraph (e)(2)(v) would require that the soil handling 
plan include a plan for testing and evaluating overburden materials 
during both removal and redistribution to ensure that the permittee 
removes and redistributes only those overburden materials approved for 
use as soil substitutes or supplements. This requirement would provide 
a safeguard against the salvage and redistribution of overburden 
materials that have not been approved for use as soil substitutes or 
supplements. Use of unapproved materials could result in the 
establishment of an inferior growing medium on the reclaimed area that 
is incapable of supporting the uses that it was capable of supporting 
before any mining. Such a result would be inconsistent with section 
515(b)(2) of SMCRA.\290\ It also would be inconsistent with the 
requirement in section 515(b)(5) of SMCRA \291\ that any topsoil 
substitutes be shown to be more suitable for vegetation requirements 
than the existing soil and that any substitute materials be the best 
able to support vegetation.
---------------------------------------------------------------------------

    \290\ 30 U.S.C. 1265(b)(2).
    \291\ 30 U.S.C. 1265(b)(5).
---------------------------------------------------------------------------

Paragraph (f): Surface Stabilization Plan
    We propose to add this paragraph to replace existing 30 CFR 780.15, 
which requires that the reclamation plan include an air pollution 
control plan for fugitive dust. Under existing 30 CFR 780.15, at a 
minimum, the permit application must include a ``plan for fugitive dust 
control practices, as required under 30 CFR 816.95.'' We propose to 
remove 30 CFR 780.15 because the references to fugitive dust and cross-
references to 30 CFR 816.95 in the existing rule refer to provisions 
that we removed in 1983 in response to a court decision striking down 
our authority to regulate air pollution under SMCRA, except for air 
pollution attendant to erosion. The court held that ``the legislative 
history indicates that Congress only intended to regulate air pollution 
related to erosion.'' \292\ The 1983 rulemaking removed all 
requirements in 30 CFR 816.95 for fugitive dust control practices, 
including requirements for monitoring of fugitive dust to determine 
compliance with federal and state air quality standards. That 
rulemaking also changed the section heading of 30 CFR 816.95 from ``Air 
resources protection'' to ``Stabilization of surface areas'' and 
replaced the air quality performance standards formerly located in that 
section with soil stabilization requirements that contain no mention of 
fugitive dust or air quality monitoring. See 48 FR 1160-1163 (Jan. 10, 
1983).
---------------------------------------------------------------------------

    \292\ In re Permanent Surface Min. Regulation Litig. I, Round II 
(PSMRL I, Round II), 1980 U.S. Dist. LEXIS 17660 at *43-44 (D.D.C., 
May 16, 1980), 19 Env't Rep. Cas. (BNA) 1477.
---------------------------------------------------------------------------

    However, the 1983 rulemaking did not remove the parallel permitting 
requirements in 30 CFR 780.15 and 784.26. Instead, we stated in the 
preamble to that rulemaking that we agreed with a commenter that we 
also needed to amend the permit application rules at 30 CFR 780.15 and 
784.26 for consistency with the revisions to 30 CFR 816.95 and 817.95, 
and that we would do so in a subsequent independent rulemaking.\293\ 
Adoption of this proposed rule would fulfill that commitment in part by 
adding permit application information requirements consistent with the 
1983 revisions to 30 CFR 816.95. In other words, we propose to replace 
the obsolete air pollution control plan requirements in existing 30 CFR 
780.15 with the surface stabilization plan requirements in proposed 30 
CFR 780.12(f) to correspond with the requirements in existing 30 CFR 
816.95, as revised in 1983.
---------------------------------------------------------------------------

    \293\ 48 FR 1161 (Jan. 10, 1983).
---------------------------------------------------------------------------

    Proposed paragraph (f) would add a permitting counterpart to the 
current performance standard at 30 CFR 816.95(a), which provides that 
all exposed surface areas must be protected and stabilized to 
effectively control erosion and air pollution attendant to

[[Page 44491]]

erosion. We also propose to add cross-references to the current dust 
control performance standards for roads in 30 CFR 816.150 and 816.151.
Paragraph (g): Revegetation Plan
    We propose to extensively revise this paragraph, which appears at 
30 CFR 780.18(b)(5) in our existing rules, by adding specificity for 
elements of the revegetation plan, by incorporating those provisions of 
30 CFR 816.111 that are more appropriately considered permitting 
requirements rather than performance standards, and by ensuring that 
there is a detailed counterpart in the revegetation plan to the 
revegetation performance standards in 30 CFR 816.111 through 816.116, 
when appropriate. The various components of proposed paragraph (g) are 
intended to ensure compliance with or improve implementation of section 
515(b)(19) of SMCRA,\294\ which requires that surface coal mining and 
reclamation operations establish ``a diverse, effective, and permanent 
vegetative cover of the same seasonal variety native to the area of 
land to be affected and capable of self-regeneration and plant 
succession at least equal in extent of cover to the natural vegetation 
of the area; except, that introduced species may be used in the 
revegetation process where desirable and necessary to achieve the 
approved postmining land use plan.''
---------------------------------------------------------------------------

    \294\ 30 U.S.C. 1265(b)(19).
---------------------------------------------------------------------------

    Proposed paragraph (g)(1)(ii) would add a site preparation element 
to the revegetation plan to reflect extensive research documenting the 
adverse impacts of excessive compaction on vegetation, especially woody 
plants. The new element would require a description of the measures 
that the permittee will take to avoid compaction or, when avoidance is 
not possible, to minimize and alleviate compaction of the root zone 
during backfilling, grading, soil redistribution, and planting.
    In addition, we propose to require in paragraph (g)(1)(viii) that 
the revegetation plan identify any normal husbandry practices that the 
permittee intends to use and explain whether the permittee intends to 
conduct irrigation or apply fertilizer after the first year and, if so, 
for how long and to what extent. This information will assist the 
regulatory authority in determining whether the proposed practices are 
normal husbandry practices or whether they are augmentative in nature, 
which would necessitate restarting the revegetation responsibility 
period under proposed 30 CFR 816.115, which corresponds to existing 30 
CFR 816.116(c). These provisions would serve as the permit application 
information counterpart to the performance standards in proposed 30 CFR 
816.115(a)(1) and (b), which correspond to existing 30 CFR 
816.116(c)(1) and (c)(4).
    Proposed paragraph (g)(1)(xi) would add a requirement that the 
revegetation plan include the measures that the permittee will take to 
avoid the establishment of invasive species on reclaimed areas or to 
control those species if they do become established. Invasive species 
are highly detrimental to native ecosystems, agriculture, and forestry. 
They have posed a problem on some minesites either because the permit 
improperly allowed the use of invasive non-native species or because of 
the reclamation practices used. We propose to add this provision to 
improve the implementation of section 515(b)(19) of SMCRA,\295\ which 
requires the establishment of a diverse, effective, and permanent 
vegetative cover of the same seasonal variety native to the area, and 
section 515(b)(2) of SMCRA,\296\ which requires restoration of mined 
land to a condition capable of supporting the uses it was capable of 
supporting before any mining. Allowing the establishment of invasive 
species also would be inconsistent with the fish and wildlife 
protection provisions of section 515(b)(24) of SMCRA.\297\ Moreover, 
proposed paragraph (g)(1)(xi) is consistent with Section 2.(a)(2)(i) 
and (iv) of Executive Order 13112, ``Invasive Species,'' which requires 
that ``[e]ach Federal agency whose actions may affect the status of 
invasive species shall, to the extent practicable and permitted by law, 
. . . (i) prevent the introduction of invasive species; . . . [and] 
(iv) provide for the restoration of native species and habitat 
conditions in ecosystems that have been invaded.'' \298\
---------------------------------------------------------------------------

    \295\ 30 U.S.C. 1265(b)(19).
    \296\ 30 U.S.C. 1265(b)(2).
    \297\ 30 U.S.C. 1265(b)(24).
    \298\ 64 FR 6184 (Feb. 8, 1999).
---------------------------------------------------------------------------

    Proposed paragraph (g)(2) would require that the plan be designed 
to create a diverse, effective, permanent vegetative cover that is 
consistent with the vegetative communities described in the permit 
application in accordance with 30 CFR 779.19. It also would require 
that the plan meet the other requirements of 30 CFR 816.116(a) and (b).
    Proposed paragraph (g)(3) is substantively identical to the 
species-selection criteria of existing 30 CFR 816.111(a)(2), (a)(4), 
and (b), with two exceptions. Proposed paragraph (g)(3)(i) would 
prohibit the use of introduced species unless they are non-invasive. 
This proposed requirement is consistent with section 515(b)(19) of 
SMCRA,\299\ which allows the use of introduced species only if they are 
desirable. Invasive introduced species are not desirable because they 
out-compete native vegetation and can have adverse impacts on fish and 
wildlife, which would be inconsistent with the fish and wildlife 
protection requirements of section 515(b)(24) of SMCRA.\300\ Moreover, 
proposed paragraph (g)(3)(i) is consistent with Section 2.(a)(2)(i) of 
Executive Order 13112, ``Invasive Species,'' which requires that 
``[e]ach Federal agency whose actions may affect the status of invasive 
species shall, to the extent practicable and permitted by law, . . . 
prevent the introduction of invasive species''.\301\
---------------------------------------------------------------------------

    \299\ 30 U.S.C. 1265(b)(19).
    \300\ 30 U.S.C. 1265(b)(24).
    \301\ 64 FR 6184 (Feb. 8, 1999).
---------------------------------------------------------------------------

    Proposed paragraph (g)(3)(ii) would provide that the species 
selected need to be capable of stabilizing the soil surface from 
erosion only to the extent that control of erosion with herbaceous 
species is consistent with establishment of a permanent vegetative 
cover that resembles native plant communities in the area. We propose 
to add this qualifier because some level of erosion is natural and 
because excessive herbaceous cover can inhibit establishment of woody 
plants, as discussed at length elsewhere in this preamble.
    Proposed paragraphs (g)(4) and (g)(5) are substantively identical 
to existing 30 CFR 816.116(c) and (d). Both paragraphs would provide 
limited exceptions to the species-selection requirements of proposed 
paragraphs (g)(3)(i), (iv), and (v), which correspond to the species-
selection provisions of section 515(b)(19) of SMCRA.\302\ Proposed 
paragraph (g)(3) would provide an exception for temporary cover, while 
proposed paragraph (g)(4) would provide an exception for long-term, 
intensive agricultural postmining land uses. These exceptions would be 
consistent with section 515(b)(19) of SMCRA,\303\ which allows the use 
of introduced species ``in the revegetation process where desirable and 
necessary to achieve the approved postmining land use plan.'' Proposed 
paragraph (g)(4) also would implement section 515(b)(20) of SMCRA \304\ 
to the extent that it provides exceptions to the requirements of 
section 515(b)(19) for

[[Page 44492]]

long-term, intensive agricultural postmining land uses.
---------------------------------------------------------------------------

    \302\ 30 U.S.C. 1265(b)(19).
    \303\ Id.
    \304\ 30 U.S.C. 1265(b)(20).
---------------------------------------------------------------------------

    Proposed paragraph (g)(6) would require that a professional 
forester or ecologist develop and certify all revegetation plans that 
include the establishment of trees and shrubs. It also would require 
that those plans include site-specific planting prescriptions for 
canopy trees, understory trees and shrubs, and herbaceous ground cover 
compatible with establishment of those trees and shrubs. In addition, 
this proposed paragraph would require that the plan rely exclusively 
upon the use of native species unless those species are inconsistent 
with the approved postmining land use and that land use is implemented 
before the entire bond amount for the area in question has been fully 
released.
Paragraph (h): Stream Restoration Plan
    We propose to add this paragraph to require that the reclamation 
plan expressly address in detail how the permittee will restore the 
form and ecological function of each segment of a perennial or 
intermittent stream that is proposed to be mined through under 30 CFR 
780.28. The plan must conform to the requirements of 30 CFR 780.28 and 
816.57. The U.S. Army Corps of Engineers may require additional onsite 
or offsite mitigation under section 404 of the Clean Water Act.\305\
---------------------------------------------------------------------------

    \305\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

Paragraph (i): Coal Resource Conservation Plan
    Proposed paragraph (i) corresponds to existing 30 CFR 780.18(b)(6). 
We propose to add language consistent with the existing coal recovery 
performance standard at 30 CFR 816.59. Proposed paragraph (i) would 
implement section 508(a)(6) of SMCRA,\306\ which provides that the 
reclamation plan must include a statement of ``the consideration which 
has been given to maximize the utilization and conservation of the 
solid fuel resource being recovered so that reaffecting the land in the 
future can be minimized.''
---------------------------------------------------------------------------

    \306\ 30 U.S.C. 1258(a)(6).
---------------------------------------------------------------------------

Paragraph (j): Plan for Disposal of Noncoal Waste Materials
    Proposed paragraph (j) corresponds to existing 30 CFR 780.18(b)(7). 
We propose to clarify that this requirement applies to all noncoal 
waste materials resulting from mining and reclamation activities, but 
not to coal combustion residuals such as fly ash and bottom ash. The 
existing rule applies to ``debris, acid-forming and toxic-forming 
materials, and materials constituting a fire hazard.'' We propose to 
delete the reference to acid-forming and toxic-forming materials 
because proposed 30 CFR 780.22 contains the permit application 
information requirements for those materials. As revised, proposed 
paragraph (j) would apply to all noncoal waste materials covered by 30 
CFR 816.89. It would serve as the permit application information 
counterpart to the performance standards for disposal of noncoal waste 
materials in 30 CFR 816.89.
    We also propose to require that the reclamation plan describe the 
type and quantity of noncoal waste materials that the permittee intends 
to dispose of within the proposed permit area, how the permittee 
intends to dispose of those materials in accordance with 30 CFR 816.89, 
and the locations of any noncoal waste material disposal sites within 
the proposed permit area, as well as the contingency plans developed to 
preclude sustained combustion of combustible noncoal materials. These 
permit application information requirements would enable the regulatory 
authority to evaluate the potential environmental impacts of the 
disposal of noncoal waste materials and ensure that the permit includes 
appropriate measures to protect society and the environment from the 
adverse effects of this aspect of surface coal mining operations, as 
provided in section 102(a) of SMCRA.\307\
---------------------------------------------------------------------------

    \307\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

Paragraph (m): Consistency With Land Use Plans and Landowner Plans
    In the existing rules, this paragraph appears in 30 CFR 
780.23(b)(3). However, section 780.23(b) applies only in the context of 
the postmining land use, which is not consistent with the underlying 
statutory requirement at section 508(a)(8) of SMCRA.\308\ That 
provision of the Act requires that the reclamation plan describe the 
consideration that has been given to making the surface coal mining and 
reclamation operations themselves consistent with surface owner plans 
and applicable state and local land use plans and programs. This 
provision is separate and distinct from the requirement in section 
508(a)(3) of the Act \309\ that the reclamation plan discuss the 
relationship of the postmining land use to existing land use policies 
and plans and the comments of the surface owner. Therefore, we propose 
to move the provision in existing 30 CFR 780.23(b)(3) to new Sec.  
780.12(m) to ensure that, in discussing consistency with surface owner 
plans and applicable state and local land use plans, the reclamation 
plan addresses the consistency of the proposed operations (not just the 
proposed postmining land use) with those plans.
---------------------------------------------------------------------------

    \308\ 30 U.S.C. 1258(a)(8).
    \309\ 30 U.S.C. 1258(a)(3).
---------------------------------------------------------------------------

4. Section 780.13: What additional maps and plans must I include in the 
reclamation plan?
    We propose to redesignate existing 30 CFR 780.14 as 30 CFR 780.13. 
We also propose to combine existing paragraphs (a) and (b) into 
paragraph (a) and redesignate existing paragraph (c) as paragraph (b).
    We propose to remove the requirement in existing 30 CFR 
780.14(b)(7) for maps showing each air pollution collection and control 
facility because that requirement is associated with regulations in 30 
CFR 816.95 that the court struck down in 1980 and that we removed in 
1983. Specifically, the court struck down our authority to regulate air 
pollution under SMCRA, except for air pollution attendant to 
erosion.\310\ See the portion of this preamble concerning our proposed 
removal of 30 CFR 780.15 for additional discussion.
---------------------------------------------------------------------------

    \310\ PSMRL I, Round II, 1980 U.S. Dist. LEXIS 17660 at *43-44, 
19 Env't Rep. Cas. (BNA) 1477.
---------------------------------------------------------------------------

    In proposed paragraph (a)(7), which corresponds to existing 
paragraph (b)(6), we propose to add a requirement for a map showing the 
location of each point at which water will be discharged from the 
proposed permit area to a surface-water body and the name of that water 
body, consistent with equivalent requirements in sections 507(b)(10) 
and (14) of SMCRA.\311\
---------------------------------------------------------------------------

    \311\ 30 U.S.C. 1257(b)(10) and (14).
---------------------------------------------------------------------------

    In proposed paragraph (a)(11), which corresponds to existing 
paragraph (b)(11), we propose to replace the terms ``coal processing 
waste bank'' and ``coal processing waste dam and embankment'' with 
``refuse pile'' and ``coal mine waste impounding structure'' to employ 
terminology consistent with the definitions and performance standards 
that we adopted on September 26, 1983 (48 FR 44006). We also propose to 
add a reference to siltation structures, consistent with our addition 
of that terminology and requirements for those structures on September 
26, 1983 (48 FR 44032).
    We propose to add paragraphs (a)(12) through (a)(14), which would 
require a map showing each segment of a perennial or intermittent 
stream that would be mined through, buried, or diverted; any perennial 
or intermittent stream segment to be restored, any temporary or 
permanent stream-channel

[[Page 44493]]

diversion, and each segment of a perennial or intermittent stream that 
would be improved as part of the fish and wildlife enhancement plan. 
The regulatory authority would need this information to assist in 
evaluating whether the proposed application is in compliance with 
requirements pertaining to activities in perennial and intermittent 
streams in proposed 30 CFR 780.28 and 816.57.
    We also propose to add paragraph (a)(15), which would require a map 
showing the location and geographic coordinates of each point at which 
the applicant proposes to monitor groundwater, surface water, or the 
biological condition of perennial and intermittent streams. The 
regulatory authority would need this information to determine whether 
the application includes a sufficient number of monitoring sites and 
whether those sites are adequately distributed and located to ensure 
that monitoring results are representative of the entire permit area, 
as required by proposed 30 CFR 780.23.
    In addition, we propose to revise existing 30 CFR 780.14(c), which 
we propose to redesignate as 30 CFR 780.13(b), by replacing the cross-
references to 30 CFR 780.35(c) and 816.71(b) with a cross-reference to 
30 CFR 780.35 to be consistent with other changes that we are proposing 
to those rules. Those changes include moving the design certification 
requirement formerly located in section 816.71(b) to 30 CFR 780.35(b) 
to consolidate permitting requirements in subchapter G. The existing 
rules also include a cross-reference to the certification requirements 
in 30 CFR 816.73(c) for durable rock fills. We do not propose to 
include a similar cross-reference in 30 CFR 780.13(b) because we are 
proposing to remove 30 CFR 816.73 in its entirety, which means that 
durable rock fills would no longer be allowed.
    We propose to add paragraph (c), which would authorize the 
regulatory authority to require submission of the information required 
by paragraph (a) in a digital format, when appropriate. We invite 
comment on whether submission of this information in a digital format 
should be mandatory rather than discretionary to facilitate review and 
analysis by the public and the regulatory authority.
5. Why are we proposing to remove existing 30 CFR 780.15?
    We propose to remove existing 30 CFR 780.15 and redesignate 
existing 30 CFR 780.13 as 30 CFR 780.15 because the references to 
fugitive dust and cross-references to 30 CFR 816.95 in existing 30 CFR 
780.15 refer to provisions that we removed in 1983 in response to a 
court decision striking down our authority to regulate air pollution 
under SMCRA, except for air pollution attendant to erosion. The court 
held that ``the legislative history indicates that Congress only 
intended to regulate air pollution related to erosion'' \312\ and that 
``the Secretary's authority to regulate [air] pollution is limited to 
activities related to erosion.'' \313\ The court remanded former 30 CFR 
816.95 and 817.95 (1979), which contained performance standards for 
fugitive dust control, for revision. However, the court did not address 
the parallel permitting requirements at 30 CFR 780.15 and 784.26.
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    \312\ PSMRL I, Round II, 1980 U.S. Dist. LEXIS 17660 at *43-44, 
19 Env't Rep. Cas. (BNA) 1477.
    \313\ Id. at *42.
---------------------------------------------------------------------------

    The 1983 rulemaking removed all requirements in 30 CFR 816.95 for 
fugitive dust control practices, including requirements for monitoring 
of fugitive dust to determine compliance with federal and state air 
quality standards. That rulemaking also changed the section heading of 
30 CFR 816.95 from ``Air resources protection'' to ``Stabilization of 
surface areas'' and replaced the air quality performance standards 
formerly located in 30 CFR 816.95 with soil stabilization requirements 
that contain no mention of fugitive dust or air quality monitoring. See 
48 FR 1160-1163 (Jan. 10, 1983).
    However, the 1983 rulemaking did not remove the parallel permitting 
requirements in 30 CFR 780.15. Instead, we stated in the preamble to 
that rulemaking that we agreed with a commenter that we also needed to 
amend the permit application rules at 30 CFR 780.15 and 784.26 for 
consistency with the revisions to 30 CFR 816.95 and 817.95, and that we 
would do so in a subsequent independent rulemaking.\314\ Adoption of 
this proposed rule would fulfill that long-delayed commitment.
---------------------------------------------------------------------------

    \314\ 48 FR 1161 (Jan. 10, 1983).
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    In concert with the removal of 30 CFR 780.15, we propose to 
redesignate existing 30 CFR 780.13, which concerns blasting, as 30 CFR 
780.15.
6. Section 780.16: What must I include in the fish and wildlife 
protection and enhancement plan?
    Proposed 30 CFR 780.16 is the counterpart to paragraphs (b) and (c) 
of existing 30 CFR 780.16. Our proposed revisions to the existing rule 
would provide greater specificity on the measures that the fish and 
wildlife protection and enhancement plan in the permit application must 
include. The proposed revisions would improve implementation of section 
515(b)(24) of SMCRA,\315\ which provides that ``to the extent possible 
using the best technology currently available,'' surface coal mining 
and reclamation operations must ``minimize disturbances and adverse 
impacts of the operation on fish, wildlife, and related environmental 
values, and achieve enhancement of those resources where practicable.'' 
The proposed revisions also are consistent with paragraphs (a) and (d) 
of section 102 of SMCRA,\316\ which provide that two of the purposes of 
SMCRA are establishing ``a nationwide program to protect society and 
the environment from the adverse effects of surface coal mining 
operations'' and assuring ``that surface coal mining operations are so 
conducted as to protect the environment.''
---------------------------------------------------------------------------

    \315\ 30 U.S.C. 1265(b)(24).
    \316\ 30 U.S.C. 1202(a) and (d).
---------------------------------------------------------------------------

    Likewise, the proposed revisions to 30 CFR 780.16 are consistent 
with section 515(b)(23) of SMCRA,\317\ which requires that surface coal 
mining and reclamation operations ``meet such other criteria as are 
necessary to achieve reclamation in accordance with the purposes of 
this Act, taking into consideration the physical, climatological, and 
other characteristics of the site.'' Long-standing case law supports 
the Secretary's authority to adopt these regulations \318\ and provides 
the Secretary ``great deference'' in determining how to ensure that the 
Act's provisions are enforced.\319\
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    \317\ 30 U.S.C. 1265(b)(23).
    \318\ Nat'l Wildlife Fed'n v. Hodel, 839 F.2d 694, 735 (D.C. 
Cir. 1988).
    \319\ Nat'l Wildlife Fed'n v. Lujan, 1990 U.S. Dist. LEXIS 8869 
at *84 (D.D.C. 1990).
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    Proposed paragraph (a) contains general requirements analogous to 
existing 30 CFR 780.16(b)(1) and (2). Like the existing rules, it 
provides that the fish and wildlife protection and enhancement plan 
must be consistent with the performance standards for fish and wildlife 
protection and enhancement at 30 CFR 816.97 and must be specific to the 
fish and wildlife resources of the proposed permit and adjacent areas 
as identified in the permit application in accordance with 30 CFR 
779.20. We propose to add a requirement that the plan also comply with 
the specific protection and enhancement requirements of 30 CFR 
780.16(b) through (e).
    Proposed paragraph (b) concerns protection of threatened and 
endangered species. Like the existing rule, it would require a 
description of how the proposed operation will comply with the 
Endangered Species Act. We

[[Page 44494]]

propose to add a provision that would expressly require that the fish 
and wildlife protection and enhancement plan contain a description of 
any species-specific protection and enhancement plans developed under 
the Endangered Species Act, which would include any plans developed in 
accordance with the existing formal section 7(a)(2) Endangered Species 
Act consultation pertaining to the approval and conduct of surface coal 
mining and reclamation operations under a SMCRA regulatory program. We 
propose to add these provisions in response to discussions with the 
U.S. Fish and Wildlife Service concerning compliance with the 
Endangered Species Act.
    Proposed paragraph (c) would contain requirements for the 
protection of fish and wildlife other than threatened and endangered 
species. It would require that the fish and wildlife protection and 
enhancement plan describe how, to the extent possible using the best 
technology currently available, the proposed operation will minimize 
disturbances and adverse impacts on fish, wildlife, and related 
environmental values, as required by section 515(b)(24) of SMCRA.\320\ 
It lists a number of measures that the fish and wildlife protection and 
enhancement plan must include to minimize disturbance and adverse 
impacts, including timing of operations to avoid or minimize disruption 
to wildlife and retention of forest cover and native vegetation for as 
long as possible.
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    \320\ 30 U.S.C. 12658(b)(24).
---------------------------------------------------------------------------

    As discussed below, riparian (streamside) vegetation plays a 
critical role in maintaining or restoring the ecological function of a 
stream. Therefore, proposed paragraph (c)(3) would specify that the 
fish and wildlife enhancement plan must require maintenance of an 
intact forested buffer at least 100 feet wide between surface 
disturbance and a perennial or intermittent stream to the extent 
possible. This requirement would apply only when the stream is located 
in a forested area.
    Researchers have found that, in small, well-shaded upland streams, 
as much as 75 percent of the organic food base may be supplied by 
dissolved organic compounds or detritus such as fruit, limbs, leaves 
and insects that fall from the forest canopy in the riparian zone. 
\321\ Benthic detritivores (bacteria, fungi and invertebrates) that 
live on the stream bottom feed on the detritus and form the basis of 
the aquatic food chain. They pass on this energy when they are, in 
turn, consumed by larger benthic fauna and eventually by fish. Thus, 
the streamside forest functions as an important energy source for the 
entire aquatic food chain from headwaters to estuary.\322\
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    \321\ Welsch, David J., ``Riparian Forest Buffers: Function and 
Design for Protection and Enhancement of Water Resources,'' NA-PR-
07-91, U.S. Dept. of Agriculture, Forest Service, Northeastern Area 
State and Private Forestry (1991). Unpaginated document available at 
http://www.na.fs.fed.us/spfo/pubs/n_resource/buffer/cover.htm (last 
accessed January 16, 2015).
    \322\ Id.
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    Furthermore, forested riparian buffers are essential to prevent 
excessively high water temperatures in coldwater streams and to 
moderate temperature variations in other streams. One study found a 
four-fold decline in fish density in coldwater streams after removal of 
the forested riparian buffer.\323\ Another study found that 
invertebrate populations in streams with forested buffers of 100 feet 
exhibited no change following clearcutting of the area outside the 
buffer zone. However, streams in watersheds in which clearcutting 
operations left narrower forested buffers experienced significant 
changes in the species diversity of invertebrate populations, with the 
extent of the changes correlating to buffer width.\324\
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    \323\ P. Lee et al., ``Quantitative review of riparian buffer 
width guidelines from Canada and the United States,'' Journal of 
Environmental Management 70 (2004) 165-180, p. 172. The review noted 
that fish populations recovered after stream temperatures decreased 
following reforestation.
    \324\ Id.
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    Studies of effective buffer widths for wildlife generally recommend 
wider buffers than those required for sediment control and protection 
of water quality. For example, recommended buffer widths for 
conservation of forest-dwelling birds often exceed 300 feet.\325\ A 
comprehensive guide to riparian forest buffers in the Chesapeake Bay 
watershed provides a range of recommended minimum buffer widths for 
different objectives: 50 to 275 feet for wildlife habitat, 60 to 225 
feet for flood mitigation, 50 to 175 feet for sediment removal, 35 to 
140 feet for nitrogen removal, 20 to 60 feet for water temperature 
moderation, and 20 to 45 feet for bank stabilization and aquatic food 
web maintenance.\326\ The minimum 100-foot buffer width that we propose 
to adopt lies within the lower end of the range of recommended minimum 
widths for wildlife habitat and flood mitigation, in the middle of the 
range for sediment removal and nitrogen removal, and exceeds the range 
recommended for water temperature moderation and bank stabilization and 
aquatic food web maintenance. Therefore, the 100-foot minimum width 
that we have proposed for the riparian buffer is an appropriate 
midrange compromise that strikes a balance among property rights and 
the various recommended buffer widths for relevant objectives, 
consistent with section 102(f) of SMCRA,\327\ which provides that one 
of the purposes of SMCRA is to strike a balance between environmental 
protection and the need for coal production.
---------------------------------------------------------------------------

    \325\ Fischer, R. A. and J.C. Fischenich, Design recommendations 
for riparian corridors and vegetated buffer strips (2000) in ``EMRRP 
Technical Notes Collection'' (ERDC TN-EMRRP-SR-24), U.S. Army 
Engineer Research and Development Center, Vicksburg, MS.
    \326\ Palone, Roxane S. and Albert H. Todd, ed. ``Chesapeake Bay 
Riparian Handbook: A Guide for Establishing and Maintaining Riparian 
Forest Buffers,'' U.S. Dept. of Agriculture, Forest Service, 
Northeastern Area State and Private Forestry, May 1997, rev. June 
1998. Figure 6-3, p. 132.
    \327\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

    We propose to specify that the buffer width must be measured 
horizontally on a line perpendicular to the stream beginning at the 
bankfull elevation or, if there are no discernible streambanks, the 
centerline of the active channel. We derived this provision primarily 
from Natural Resources Conservation Service Conservation Practice 
Standard Code 391 (``Riparian Forest Buffer'') (July 2010), which 
states: ``Measurement shall begin at and perpendicular to the normal 
water line, bank-full elevation, or the top of the bank as determined 
locally.'' For streams that lack defined banks, our proposed rule would 
adopt the standard used in a riparian buffer conservation zone model 
ordinance, which calls for measurement from the centerline of the 
stream in those circumstances.\328\
---------------------------------------------------------------------------

    \328\ Passaic River Coalition and New Jersey Dept. of 
Environmental Protection, Division of Watershed Management, 
``Riparian Buffer Conservation Zone Model Ordinance,'' Part IV 
(March 2005).
---------------------------------------------------------------------------

    Another measure listed in proposed paragraph (c) is a requirement 
for periodic evaluation of the impacts of the operation on fish, 
wildlife, and related environmental values in the permit and adjacent 
areas. This paragraph would require that the permittee use that 
information to modify operations or take other action if necessary to 
avoid or minimize unforeseen adverse impacts on fish, wildlife, and 
related environmental values.
    Proposed paragraph (d)(1) would require that the fish and wildlife 
protection and enhancement plan include a description of the measures 
that the permit applicant proposes to implement as the best technology 
currently available to enhance fish, wildlife, and related 
environmental values both within and outside the area

[[Page 44495]]

to be disturbed by mining activities, where practicable. If the 
applicant determines that it is not practicable to implement any 
enhancement measures, the application would have to explain the 
rationale for this determination. Proposed paragraphs (d)(1)(i) through 
(xi) list examples of potential enhancement measures. However, the 
applicant may select other measures. There is no expectation that each 
application will include all the measures listed here.
    Under proposed paragraph (d)(2), implementation of fish and 
wildlife enhancement measures would be mandatory whenever the proposed 
operation would result in the long-term loss of native forest, other 
native plant communities, or a segment of a perennial or intermittent 
stream. In this context, ``long-term'' means that the permittee would 
not be able to correct the resource loss before expiration of the 
period of extended revegetation responsibility as prescribed in 
proposed 30 CFR 816.115. Thus, the removal of significant native forest 
cover and the loss of the ecological benefits associated with that 
cover would be considered a long-term loss, as would the burial of a 
perennial or intermittent stream segment by an excess spoil fill or 
coal mine waste disposal facility.
    We invite comment on whether there are other interpretations of 
``long-term'' that we should consider. We also invite comment on 
whether the regulatory authority may consider mitigation measures 
approved under the authority of the Clean Water Act as satisfying the 
separate SMCRA requirement for mandatory enhancement measures. 
Acceptance may enhance coordination of permitting reviews under SMCRA 
and the Clean Water Act. We request that anyone with data on the 
effectiveness and long-term viability of Clean Water Act mitigation 
measures that have already been implemented submit that data to us for 
consideration in our decision as to whether to accept Clean Water Act 
mitigation measures as fish and wildlife enhancement measures under 
SMCRA. We also request that anyone with data on downstream impacts from 
coal mining and the effectiveness of Clean Water Act mitigation 
measures on those impacts submit that data to us for consideration. 
Finally, we request that anyone with data on the cumulative downstream 
impacts of coal mining that are not addressed by Clean Water Act 
mitigation measures or National Pollutant Discharge Elimination System 
(NPDES) permits submit that data to us for consideration.
    Proposed paragraph (d)(2)(ii) would require that the scope of the 
enhancement measures be commensurate with the potential long-term 
adverse impact to those resources and that the measures be permanent in 
nature. For example, riparian corridors must be protected by 
conservation easements (dedicated to an appropriate agency or 
organization) or deed restrictions or so that the newly planted 
vegetation is not destroyed after bond release and termination of 
jurisdiction under SMCRA. We invite comment on whether our regulations 
should define ``commensurate'' in this context and, if so, how we 
should define that term.
    Proposed paragraph (d)(2)(iii)(A) would require that enhancement 
measures be implemented within the watershed in which the proposed 
operation is located, unless opportunities for enhancement are not 
available within that watershed. In the latter situation, the proposed 
rule would allow the permit applicant to propose enhancement measures 
for implementation in the nearest adjacent watershed in which 
enhancement opportunities exist. Proposed paragraph (d)(2)(iii)(B) 
would require that each regulatory program prescribe the size of the 
watershed for purposes of paragraph (d)(2)(iii)(A) of this section, 
using a generally-accepted watershed classification system. We invite 
comment on whether we should instead establish a standard size 
nationwide as part of the final rule. The HUC-12 (U.S. Geological 
Survey 12-digit Watershed Boundary Dataset) watershed is one 
possibility.
    Proposed paragraph (d)(2)(iv) would require that completion of 
mandatory enhancement measures be made a condition of permit issuance 
to ensure that this requirement is both enforceable and covered by the 
performance bond posted for the operation.
    Proposed paragraph (d)(3) would require that the area to be 
disturbed by implementation of enhancement measures be included within 
the proposed permit area whenever implementation of those measures 
would result in more than a de minimis disturbance of the surface of 
land outside the area to be mined. This provision would ensure that the 
regulatory authority can enforce implementation of those measures under 
the SMCRA permit and that their implementation would be covered by the 
performance bond for the operation.
    Proposed paragraph (e) would contain the U.S. Fish and Wildlife 
Service permit application review provisions located at existing 30 CFR 
780.16(c). We propose to revise these provisions in response to 
discussions with the U.S. Fish and Wildlife Service concerning 
compliance with the Endangered Species Act.
    Proposed paragraph (e)(1)(i) would require that the regulatory 
authority provide the fish and wildlife protection and enhancement plan 
developed under this section as part of the permit application to the 
applicable regional or field office of the U.S. Fish and Wildlife 
Service whenever the resource information submitted under proposed 30 
CFR 779.20 includes species listed as threatened or endangered under 
the Endangered Species Act, critical habitat designated under that law, 
or species proposed for listing as threatened or endangered under that 
law. The proposed rule would require that the regulatory authority 
provide this information to the Service no later than the time that the 
regulatory authority provides written notice of receipt of an 
administratively complete permit application to the Service under 
proposed 30 CFR 773.6(a)(3)(ii). Under existing 30 CFR 780.16(c), the 
Service must request this information from the regulatory authority 
rather than receiving it automatically.
    Proposed paragraph (e)(1)(ii) is similar to existing 30 CFR 
780.16(c) in that it would allow the Service to request an opportunity 
to review the fish and wildlife protection and enhancement plans 
submitted as part of other permit applications even when the resource 
information in those applications does not include species listed as 
threatened or endangered under the Endangered Species Act, critical 
habitat designated under that law, or species proposed for listing as 
threatened or endangered under that law. Under both the existing and 
proposed rules, the regulatory authority must provide that information 
to the Service within 10 days of receipt of the request.
    Proposed paragraph (e)(2) would specify how the regulatory 
authority must handle comments received from the Service and how any 
disagreements are to be resolved. Proposed paragraph (e)(2) generally 
parallels the provisions that we and the Service agreed to as a result 
of a formal section 7(a)(2) Endangered Species Act consultation 
pertaining to the approval and conduct of surface coal mining and 
reclamation operations under a SMCRA regulatory program. Specifically, 
proposed paragraphs (e)(2)(i) through (iii) would provide that if the 
regulatory authority does not agree with a Service recommendation that 
pertains to fish and wildlife or plants listed as threatened or 
endangered under the

[[Page 44496]]

Endangered Species Act or to critical habitat designated under that 
law, the regulatory authority must explain the rationale for that 
decision in a comment disposition document and must provide a copy of 
that document to the pertinent Service field office. The proposed rule 
also would require that the regulatory authority provide a copy of that 
document to the appropriate OSMRE field office for informational 
purposes and to allow the OSMRE field office to monitor resolution of 
the disagreement. If the Service field office does not concur with the 
regulatory authority's decision and the regulatory authority and the 
Service field office are subsequently unable to conclude an agreement 
at that level, the proposed rule allows either the regulatory authority 
or the Service to elevate the issue through the chain of command of the 
regulatory authority, the Service, and OSMRE for resolution.
    Proposed paragraph (e)(2)(iv) would provide that the regulatory 
authority may not approve the permit application until all issues are 
resolved in accordance with this process and the regulatory authority 
receives written documentation from the Service that all issues have 
been resolved. Like all provisions of proposed paragraph (e)(2), this 
provision is intended to ensure the protection of threatened and 
endangered species in accordance with the Endangered Species Act.
7. Section 780.19: What baseline information on hydrology, geology, and 
aquatic biology must I provide?
Proposed paragraph (a): General Requirements
    Proposed paragraph (a) would require that each permit application 
contain information on the hydrology, geology, and aquatic biology of 
the proposed permit and adjacent areas in sufficient detail to assist 
in preparing the determination of the probable hydrologic consequences 
of mining under 30 CFR 780.20, preparing the hydrologic reclamation 
plan under 30 CFR 780.22, preparing the surface-water and groundwater 
monitoring plans under 30 CFR 780.23, preparing the plans for 
monitoring the biological condition of streams under 30 CFR 780.23, 
demonstrating that all reclamation required by the regulatory program 
can be accomplished as required by 30 CFR 773.15(b), preparing the 
cumulative hydrologic impact assessment under 30 CFR 780.21, and 
determining whether the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area as 
required by 30 CFR 773.15(e).
    Section 510(b)(3) of SMCRA \329\ specifies that the regulatory 
authority may not approve a permit application unless the regulatory 
authority has ``made an assessment of the probable cumulative impact of 
all anticipated mining in the area on the hydrologic balance specified 
in section 507(b).'' This assessment is commonly referred to as the 
CHIA. Section 507(b)(11) of SMCRA,\330\ the pertinent part of the SMCRA 
section referenced in the quote above, requires that each permit 
application include--
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    \329\ 30 U.S.C. 1260(b)(3).
    \330\ 30 U.S.C. 1257(b)(11).

a determination of the probable hydrologic consequences of the 
mining and reclamation operations, both on and off the mine site, 
with respect to the hydrologic regime, quantity and quality of water 
in surface and ground water systems including the dissolved and 
suspended solids under seasonal flow conditions and the collection 
of sufficient data for the mine site and surrounding areas so that 
an assessment can be made by the regulatory authority of the 
probable cumulative impact of all anticipated mining in the area 
upon the hydrology of the area and particularly upon water 
---------------------------------------------------------------------------
availability.

    Section 510(b)(3) also specifies that the regulatory authority may 
not approve a permit unless the application affirmatively demonstrates 
and the regulatory authority finds in writing that the proposed 
operation ``has been designed to prevent material damage to the 
hydrologic balance outside the permit area.'' In addition, section 
510(b)(2) of SMCRA \331\ specifies that the regulatory authority may 
not approve a permit unless the application affirmatively demonstrates 
and the regulatory authority finds in writing that the ``applicant has 
demonstrated that reclamation as required by this Act and the State or 
Federal program can be accomplished under the reclamation plan 
contained in the permit application.''
---------------------------------------------------------------------------

    \331\ 30 U.S.C. 1260(b)(2).
---------------------------------------------------------------------------

    Without sound baseline information on surface-water and groundwater 
quality and quantity and the biological communities in streams, the 
regulatory authority cannot prepare an adequate CHIA or determine 
whether the proposed mining operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. A 
lack of adequate baseline data and accurate mining impact analyses 
based on that data likewise would impair the ability of the regulatory 
authority to make the finding required by 30 CFR 773.15(b) and section 
510(b)(2) of SMCRA \332\ concerning the feasibility of reclamation. 
Proposed 30 CFR 780.19 would refine and expand baseline data 
requirements for permit applications to promote more effective 
implementation of sections 507(b)(11) and 510(b)(3) of SMCRA \333\ and 
better protect streams, groundwater, and related environmental values.
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    \332\ Id.
    \333\ 30 U.S.C. 1257(b)(11) and 1260(b)(3).
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Proposed Paragraph (b): Information on Groundwater
    Proposed paragraph (b)(1) would require that each permit 
application include information sufficient to document seasonal 
variations in the quality, quantity, and usage of groundwater, 
including all surface discharges, within the proposed permit and 
adjacent areas. Currently, this provision is part of existing 30 CFR 
780.21(b)(1).
    Proposed paragraph (b)(2) would require that the permit application 
include an assessment of the seasonal characteristics of any 
underground mine pool that is present within the proposed permit or 
adjacent areas unless the applicant demonstrates, and the regulatory 
authority finds, that the mine pool is not hydrologically connected to 
the proposed permit area. Proposed paragraph (b)(2) also would require 
that the determination of the probable hydrologic consequences of the 
proposed operation include a discussion of the effect of the proposed 
mining operation on any underground mine pools within the proposed 
permit and adjacent areas. In our experience, the mine pools associated 
with underground mines adjacent to, underlying, or overlying the 
proposed operation are not always properly or completely described, 
including the current or potential degree of hydrologic connection 
between the mine pool and the proposed operation. The level of detail 
and data collection needs to be sufficient for the reviewer to 
understand the complex interaction between the mine pools and the 
hydrology of the proposed permit and adjacent areas.
    Proposed paragraph (b)(3) would allow the regulatory authority to 
require the installation of properly-screened monitoring wells when 
necessary to obtain groundwater quality and quantity information 
sufficient to characterize seasonal variations. Properly-designed and 
constructed monitoring wells are essential to collection of reliable 
and scientifically-valid data, which section 517(b)(2) of SMCRA 
requires.

[[Page 44497]]

    Proposed paragraph (b)(4) would expand the list of parameters in 
existing 30 CFR 780.21(b)(1) that must be included in the description 
of groundwater quality. Proposed new parameters include major anions, 
major cations, the cation-anion balance, hot acidity,\334\ total 
alkalinity, pH, ammonia, arsenic, cadmium, copper, nitrogen, selenium, 
and zinc. Our rationale for adding these parameters is that a complete 
characterization of the prevailing premining hydrologic balance, 
including water chemistry, is necessary to fully assess the impacts of 
the proposed operations. The additional data also would facilitate 
quality assurance and quality control procedures. Finally, the 
additional baseline data may document existing water quality or other 
problems and thus provide the permittee with a defense against later 
assertions that it has caused adverse impacts to a stream with respect 
to those parameters.
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    \334\ Hot acidity refers to the hot peroxide treatment titration 
method for determination of acidity.
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    The proposed addition of selenium and a requirement for both total 
dissolved solids and specific conductance (rather than either total 
dissolved solids or specific conductance, as in the existing 
regulations) reflect concerns identified in scientific studies 
documenting the adverse impacts that elevated concentrations of those 
parameters have had on aquatic life in streams in the central 
Appalachian coalfields. Part II of this preamble summarizes some of 
those studies.
    Proposed paragraph (b)(5) is substantively identical to the 
groundwater quantity information requirements in the last sentence of 
existing 30 CFR 780.21(b)(1).
    Proposed paragraph (b)(6)(i) would require that the permit 
applicant establish monitoring wells (or equivalent monitoring points 
like springs and other direct surface discharges of groundwater) at a 
sufficient number of locations within the proposed permit and adjacent 
areas to determine groundwater quality, quantity, and movement in each 
aquifer above or immediately below the lowest coal seam to be mined. At 
a minimum, for each aquifer, we propose to require monitoring points 
upgradient and downgradient of the proposed permit area and within the 
proposed permit area to ensure collection of data sufficient to fully 
describe baseline groundwater conditions.
    Proposed paragraph (b)(6)(ii) would require that the permit 
applicant collect water samples from the locations identified in 
proposed paragraph (b)(6)(i) at equally-spaced monthly intervals for a 
minimum of 12 consecutive months to document seasonal variations in the 
quality of groundwater through a complete hydrologic cycle. Proposed 
paragraph (b)(6)(ii) also would require that the permit applicant 
analyze those samples for all parameters listed in proposed paragraph 
(b)(4) at the same frequency. Analysis of all listed parameters would 
establish a comprehensive baseline for groundwater quality.
    Proposed paragraph (b)(6)(iii) would require that the permit 
applicant take the measurements listed in proposed paragraph (b)(5) at 
each location identified in proposed paragraph (b)(6)(i) at equally 
spaced monthly intervals for a minimum of 12 consecutive months to 
document seasonal variations in groundwater levels and to establish a 
comprehensive baseline for groundwater availability.
    Currently, regulatory authorities require anywhere from as few as 
three samples (high, mean, and low base flow) to multiple years of 
sampling. Requiring a minimum of 12 consecutive, equally-spaced monthly 
samples would ensure that the baseline data collected would cover the 
entire water year.\335\ Under both our existing rules and the 1979 
rules, the regulatory authority could accept fewer than 12 months of 
data, provided that, as explained in the preamble to the 1979 rules, 
the maximum seasonal variation could be established by extrapolation 
from existing data collected within the same watershed or in a similar 
watershed through the use of modeling or other reasonable predictive 
tools.\336\ However, our past experience indicates that extrapolation 
is not a reliably accurate method to document and describe seasonal 
variation. Therefore, we now propose to require collection of actual 
data for the complete water year.
---------------------------------------------------------------------------

    \335\ The water year runs from October 1 through September 30.
    \336\ 44 FR 15034 (Mar. 13, 1979).
---------------------------------------------------------------------------

    Proposed paragraph (b)(6)(iv) would require that the regulatory 
authority extend the minimum baseline data collection period whenever 
data available from the National Oceanic and Atmospheric Administration 
or similar databases indicate that the region in which the proposed 
operation is located experienced severe drought (-3.0 or lower on the 
Palmer Drought Severity Index \337\) or abnormally high precipitation 
(3.0 or higher on the Palmer Drought Severity Index) during the initial 
baseline data collection period. The Palmer Drought Severity Index is a 
national index used to characterize climatic conditions across the 
country on a weekly frequency. During excessively wet periods, the 
seasonal concentrations of chemical constituents might be lower than 
normal because flows and water levels are higher. During severe drought 
periods, the concentrations of chemical constituents might be higher 
than normal because flows and water levels are lower. We propose to 
require that baseline data collection continue until the dataset 
includes 12 consecutive months without severe drought or abnormally 
high precipitation. Without this provision, the baseline data in the 
permit application would not be an accurate description of normal 
premining conditions.
---------------------------------------------------------------------------

    \337\ See http://www.drought.gov/drought/content/products-current-drought-and-monitoring-drought-indicators/palmer-drought-severity-index (last accessed August 25, 2014).
---------------------------------------------------------------------------

Proposed Paragraph (c): Information on Surface Water
    Proposed paragraph (c)(1) would require that each permit 
application include information sufficient to document seasonal 
variation in surface-water quality, quantity, and usage within the 
proposed permit and adjacent areas. Currently, this provision is part 
of existing 30 CFR 780.21(b)(2).
    Proposed paragraph (c)(2) would expand the list of parameters in 
existing 30 CFR 780.21(b)(2) that must be included in the descriptions 
of surface water quality. Proposed new parameters include major anions, 
major cations, the cation-anion balance, hot acidity,\338\ total 
alkalinity, pH, ammonia, arsenic, cadmium, copper, nitrogen, selenium, 
and zinc. We also propose to require that the applicant include any 
additional parameters required by the agency implementing the NPDES 
program under section 402 of the Clean Water Act.\339\ Our rationale 
for adding these parameters is that a complete characterization of the 
prevailing premining hydrologic balance, including water chemistry, is 
necessary to fully assess the impacts of the proposed operations. The 
additional data also would facilitate quality assurance and quality 
control procedures. Finally, the additional baseline data may document 
existing water quality or other problems and thus provide the permittee 
with a defense against later assertions that it

[[Page 44498]]

has caused adverse impacts to a stream with respect to those 
parameters.
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    \338\ Hot acidity refers to the hot peroxide treatment titration 
method for determination of acidity.
    \339\ 33 U.S.C. 1342.
---------------------------------------------------------------------------

    The proposed addition of selenium and a requirement for both total 
dissolved solids and specific conductance (rather than just one or the 
other, as in the existing regulations) reflect concerns identified in 
scientific studies documenting the adverse impacts that elevated 
concentrations of those parameters have had on aquatic life in streams 
in the central Appalachian coalfields. Part II of this preamble 
summarizes some of those studies.
    Proposed paragraph (c)(3)(i) would require that the applicant 
provide baseline information on seasonal flow variations and peak-flow 
magnitude and frequency for all perennial, intermittent, and ephemeral 
streams and other surface-water discharges within the proposed permit 
and adjacent areas. This information is needed to prepare the 
determination of the probable hydrologic consequences of mining under 
proposed 30 CFR 780.20 and to prepare the surface-water runoff control 
plan that we propose to require under 30 CFR 780.29. Proposed paragraph 
(c)(3)(i) also would require that the applicant provide information on 
the extent of existing usage for existing uses and anticipated usage 
for all reasonably foreseeable uses. This information is needed to 
prepare the determination of the probable hydrologic consequences of 
mining and the CHIA and to establish permit-specific criteria for 
material damage to the hydrologic balance outside the permit area, 
consistent with our proposed definition of that term in 30 CFR 701.5.
    Proposed paragraph (c)(3)(ii) would require the use of generally-
accepted professional flow measurement techniques to ensure the 
accuracy of baseline flow data. The proposed rule would prohibit the 
use of subjective visual flow observations because of the inherent lack 
of precision in those observations and variations among observers.
    Proposed paragraph (c)(4)(i) would require that the permit 
applicant establish monitoring points at a sufficient number of 
locations within the proposed permit and adjacent areas to determine 
the quality and quantity of water in each stream within those areas. At 
a minimum, we propose to require monitoring points upgradient and 
downgradient of the proposed permit area in each perennial and 
intermittent stream within the proposed permit and adjacent areas, as 
well as in a representative number of ephemeral streams within the 
proposed permit area, to ensure collection of data sufficient to fully 
describe baseline surface water conditions. Ephemeral streams in the 
adjacent area are unlikely to be affected by mining, so we do not 
propose to require monitoring of those streams.
    Proposed paragraph (c)(4)(ii) would require that the permit 
applicant collect water samples from the locations identified in 
proposed paragraph (c)(4)(i) at equally-spaced monthly intervals for a 
minimum of 12 consecutive months to document seasonal variations in 
surface water quality through a complete hydrologic cycle. Proposed 
paragraph (c)(4)(ii) also would require that the permit applicant 
analyze those samples for all parameters listed in proposed paragraph 
(c)(2) at the same frequency. Analysis of all listed parameters would 
establish a comprehensive baseline for surface water quality.
    Proposed paragraph (c)(4)(iii) would require that the permit 
applicant take the measurements listed in proposed paragraph (c)(3) at 
each location identified in proposed paragraph (c)(4)(i) at equally 
spaced monthly intervals for a minimum of 12 consecutive months to 
document seasonal variations in streamflow and to establish a 
comprehensive baseline for streamflow and surface water availability.
    Currently, regulatory authorities require anywhere from as few as 
three samples (high, mean, and low base flow) to multiple years of 
sampling. Requiring a minimum of 12 consecutive, equally-spaced monthly 
samples would ensure that the baseline data collected would cover the 
entire water year.\340\ Under both our existing rules and the 1979 
rules, the regulatory authority could accept fewer than 12 months of 
data, provided that, as explained in the preamble to the 1979 rules, 
the maximum seasonal variation could be established by extrapolation 
from existing data collected within the same watershed or in a similar 
watershed through the use of modeling or other reasonable predictive 
tools.\341\ However, our past experience indicates that extrapolation 
is not a reliably accurate method to document and describe seasonal 
variation. Therefore, we now propose to require collection of actual 
data for the complete water year. In addition, our proposal is 
consistent with the approach now being taken by agencies responsible 
for implementing the Clean Water Act.
---------------------------------------------------------------------------

    \340\ The water year runs from October 1 through September 30.
    \341\ 44 FR 15034 (Mar. 13, 1979).
---------------------------------------------------------------------------

    Proposed paragraph (c)(4)(iv) would require that the regulatory 
authority extend the minimum baseline data collection period whenever 
data available from the National Oceanic and Atmospheric Administration 
or similar databases indicate that the region in which the proposed 
operation is located experienced severe drought (-3.0 or lower on the 
Palmer Drought Severity Index \342\) or abnormally high precipitation 
(3.0 or higher on the Palmer Drought Severity Index) during the initial 
baseline data collection period. The Palmer Drought Severity Index is a 
national index used to characterize climatic conditions across the 
country on a weekly frequency. During excessively wet periods, the 
seasonal concentrations of chemical constituents might be lower than 
normal because flows and water levels are higher. During severe drought 
periods, the concentrations of chemical constituents might be higher 
than normal because flows and water levels are lower. We propose to 
require that baseline data collection continue until the dataset 
includes 12 consecutive months without severe drought or abnormally 
high precipitation. Without this provision, the baseline data in the 
permit application would not be an accurate description of normal 
premining conditions.
---------------------------------------------------------------------------

    \342\ See http://www.drought.gov/drought/content/products-current-drought-and-monitoring-drought-indicators/palmer-drought-severity-index (last accessed August 25, 2014).
---------------------------------------------------------------------------

    Proposed paragraph (c)(5) would require that the applicant provide 
records of precipitation amounts for the proposed permit area, using 
on-site self-recording devices. Precipitation records must be adequate 
to generate and calibrate a hydrologic model of the site, should the 
regulatory authority require such a model. This information is needed 
to prepare the PHC determination under proposed 30 CFR 780.20 and the 
surface-water runoff control plan required under proposed 30 CFR 
780.29.
    Proposed paragraph (c)(6) would require that the applicant identify 
and assess all perennial, intermittent, and ephemeral streams within 
the permit and adjacent areas. The assessment would include a 
description of the physical and hydraulic characteristics of the stream 
channel, as well as the biological condition of each stream, and the 
nature of vegetation within the riparian zone. For streams that appear 
on the list of impaired surface waters prepared under section 303(d) of 
the Clean Water Act,\343\ it also would

[[Page 44499]]

require identification of the stressors and associated total maximum 
daily loads, if applicable. Proposed paragraph (c)(6) would result in 
documentation of the premining physical and biological conditions of 
streams for purposes of evaluating the impacts of mining, establishing 
stream restoration standards, and establishing revegetation 
requirements for riparian corridors.
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    \343\ 33 U.S.C. 1313(d).
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Proposed Paragraph (d): Additional Information for Discharges From 
Previous Coal Mining Operations
    Proposed paragraph (d) would require that the applicant collect and 
analyze a one-time sample of all existing discharges from previous 
mining operations within the proposed permit and adjacent areas during 
the low baseflow season. Both the applicant and the regulatory 
authority would use the results of these analyses to identify any 
additional parameters of concern. Data from previous mining operations 
also can be helpful in preparing the determination of the probable 
hydrologic consequences of mining and the CHIA. Hydrologic data from 
both reclaimed and unreclaimed minesites can be extremely valuable in 
predicting the impacts of future mining.
Proposed Paragraph (e): Biological Condition Information for Streams
    Proposed paragraph (e)(1) would require that each permit 
application include an assessment of the biological condition of each 
perennial and intermittent stream within the proposed permit and 
adjacent areas as well as an assessment of the biological condition of 
a representative sample of ephemeral streams within those areas. This 
requirement would not apply to a permit application for which the 
regulatory authority grants an exemption under proposed paragraph (h).
    Proposed paragraph (e)(2) would require that persons conducting the 
assessment use a multimetric bioassessment protocol approved by the 
state or tribal agency responsible for preparing the water quality 
inventory report required under section 305(b) of the Clean Water Act 
\344\ or other scientifically-valid multimetric bioassessment protocols 
used by agencies responsible for implementing the Clean Water Act. 
Multimetric indices include metrics such as species richness, 
complexity, and tolerance as well as trophic measures. They provide a 
quantitative comparison (often referred to as an index of biological or 
biotic integrity) of the ecological complexity of biological 
assemblages relative to a regionally-defined reference condition. 
However, we also propose to establish minimum standards that those 
protocols must meet. First, the bioassessment protocol must be based 
upon the measurement of an appropriate array of aquatic organisms, 
including benthic macroinvertebrates. Benthic macroinvertebrates are 
particularly useful for assessing the biological condition of the 
stream because certain species are highly sensitive to the presence of 
pollutants. Furthermore, we propose to require identification of 
benthic macroinvertebrates to the genus level because a bioassessment 
protocol that identifies macroinvertebrates only to the family level 
may not be capable of differentiating between pollution-tolerant and 
pollution-intolerant genera within the same family. On the other hand, 
a bioassessment protocol that identifies organisms to the species level 
may not be consistent with available indices of biological integrity.
---------------------------------------------------------------------------

    \344\ 33 U.S.C. 1315(b).
---------------------------------------------------------------------------

    Finally, proposed paragraph (e)(2) would require that the 
bioassessment protocol result in the calculation of index values for 
both habitat and macroinvertebrates and provide a correlation of index 
values to the capability of the stream to support designated uses under 
section 101(a) or 303(c) of the Clean Water Act, as well as any other 
existing or reasonably foreseeable uses. We seek comment on the 
effectiveness of using index scores from bioassessment protocols to 
ascertain impacts on existing, reasonably foreseeable, or designated 
uses. We also invite commenters to suggest other approaches that may be 
equally or more effective.
Proposed Paragraph (f): Geologic Information
    Proposed paragraph (f) is substantively identical to the existing 
rules at 30 CFR 780.22(b) through (d), except as discussed below. We 
propose to eliminate the provision in existing 30 CFR 780.22(b)(2)(ii) 
that allows the regulatory authority to waive the requirement that the 
permit application include analyses of each stratum in the geological 
column for alkalinity-producing materials. We also propose to eliminate 
the provision in existing 30 CFR 780.22(b)(2)(iii) that allows the 
regulatory authority to waive the requirement that the permit 
application include an analysis of the coal seam for pyritic sulfur. 
Both analyses are necessary for a complete acid-base accounting, 
assessment of the potential for acid mine drainage, and prediction of 
the total dissolved solids content of postmining discharges. In 
addition, this information is necessary to prepare an accurate 
determination of the probable hydrologic consequences of mining under 
proposed 30 CFR 780.20 and the cumulative hydrologic impact assessment 
under proposed 30 CFR 780.21. Finally, the information is necessary to 
assist the regulatory authority in determining whether reclamation is 
possible and whether the proposed operation will create a long-term 
postmining discharge requiring treatment.
    We invite comment on whether we should adopt provisions similar to 
proposed 30 CFR 777.13(b) to prescribe acceptable methodologies for the 
geochemical analyses required by proposed 30 CFR 780.19(f)(3)(ii) and 
(iii).
Proposed Paragraph (g): Cumulative Impact Area Information
    Proposed paragraph (g) is substantively identical to existing 30 
CFR 780.21(c), with the exception that we propose to clarify that the 
permit applicant may submit data and analyses from nearby mining 
operations if the site of those operations is representative of the 
proposed operations in terms of topography, hydrology, geology, 
geochemistry, and method of mining.
Proposed Paragraph (h): Exception for Operations That Avoid Streams
    Proposed paragraph (h) would allow a permit applicant to request 
that the regulatory authority waive the biological condition 
information requirements of proposed 30 CFR 780.19(e). The regulatory 
authority may approve the request only if it determines that the 
applicant has demonstrated that the proposed operation will not mine 
through or bury a perennial or intermittent stream; create a point-
source discharge to any perennial, intermittent, or ephemeral stream; 
or modify the baseflow of any perennial or intermittent stream.
Proposed Paragraph (i): Coordination With Clean Water Act Agencies
    Proposed paragraph (i) would require that SMCRA regulatory 
authorities consult with the agencies responsible for issuing permits, 
authorizations, and certifications under the Clean Water Act and make 
best efforts to minimize differences in baseline data collection points 
and parameters to the extent practicable and consistent with each 
agency's mission, statutory requirements, and implementing regulations. 
Coordination could reduce the overall regulatory impact to the 
industry, reduce the workload of

[[Page 44500]]

regulatory authorities, and expedite the permitting process. Applicants 
and permittees may use data already provided to or collected by a Clean 
Water Act agency to satisfy SMCRA requirements, provided that the data 
is reasonably current and of the type, scope, and quantity required for 
SMCRA purposes. Proposed paragraph (i) is consistent with the intent of 
section 713 of SMCRA,\345\ which, among other things, promotes 
coordination of regulatory activities under SMCRA and the Clean Water 
Act.
---------------------------------------------------------------------------

    \345\ 30 U.S.C. 1303.
---------------------------------------------------------------------------

Proposed Paragraph (j): Corroboration of Baseline Data
    Proposed paragraph (j) would require that the regulatory authority 
either corroborate a sample of the baseline information in each permit 
application or arrange for a third party to conduct the corroboration 
at the applicant's expense. Corroboration may include, but is not 
limited to, simultaneous sample collection and analysis, use of field 
verification measurements, or comparison of application data with 
application or monitoring data from adjacent operations. The existing 
regulations at 30 CFR 777.13 already require that the permit applicant 
document and describe the methods and persons collecting and analyzing 
technical data. We interpret the existing regulations as meaning that 
the regulatory authority has an obligation to monitor the accuracy and 
completeness of data collection and analyses for permit applications. 
Proposed paragraph (j) would make this responsibility explicit.
Proposed Paragraph (k): Permit Nullification for Inaccurate Information
    Proposed paragraph (k) specifies that a permit will be void from 
the date of issuance and have no legal effect if the permit issuance 
was based on substantially inaccurate baseline information. Under those 
circumstances, the proposed rule provides that the permittee must cease 
mining-related activities and immediately begin to reclaim the site. 
This measure would avoid or minimize the environmental harm that could 
result from initiation or continuation of an operation approved on the 
basis of substantially inaccurate data. We do not intend for this 
provision to apply in situations in which the application contains only 
minor omissions or errors. By ``substantially inaccurate,'' we mean 
situations such as missing or false chemical analyses of geologic 
strata or misrepresentation of data from another permit application as 
being collected from the proposed permit and adjacent areas. Adoption 
of proposed paragraph (k) would be in furtherance of section 102(a) of 
SMCRA,\346\ which provides that one of the purposes of the Act is to 
establish a nationwide program to protect society and the environment 
from the adverse effects of surface coal mining operations.
---------------------------------------------------------------------------

    \346\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

8. Section 780.20: How must I prepare the determination of the probable 
hydrologic consequences of my proposed operation (PHC determination)?
    Proposed paragraph (a) would revise the requirements concerning 
preparation of the determination of the probable hydrologic 
consequences of mining in existing 30 CFR 780.21(f)(1) through (f)(3) 
by adding a requirement to consider the impacts of the proposed 
operation on the biological condition of perennial, intermittent, and 
ephemeral streams located within the proposed permit and adjacent 
areas, not just on the quantity and quality of surface water and 
groundwater as in the existing rule. Proposed paragraph (a)(1) would 
replace the requirement in existing 30 CFR 780.21(f)(3)(i) for a 
finding on whether the proposed operation may cause adverse impacts to 
the hydrologic balance with a requirement for a finding on whether the 
proposed operation may cause material damage to the hydrologic balance 
outside the permit area. These proposed changes would more closely 
tailor the PHC determination to both the definition of ``material 
damage to the hydrologic balance outside the permit area'' that we 
propose to add to 30 CFR 701.5 and the existing finding that the 
regulatory authority must make before approving a permit application 
under 30 CFR 773.15(e), which, in relevant part, requires a 
determination that the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area.
    Proposed paragraph (a)(4) would require a finding on whether the 
proposed operation would either intercept or create aquifers in surface 
mine spoil or underground mine voids. Surface mining frequently results 
in the formation of a new aquifer in spoil that is placed in either the 
backfill or an excess spoil fill. This aquifer may have substantially 
different quality and quantity characteristics than water found in 
undisturbed overburden strata. Underground mine voids can store large 
volumes of water in what are commonly known as mine pools. The storage 
volume and discharge rates of these pools may be orders of magnitude 
larger than those associated with aquifers in surface mine spoil 
because mine pools typically collect water from a much larger area than 
do surface mine spoil aquifers. Discharges from underground mine pools 
are frequently of relatively high volume because their recharge rate 
averages 0.47 gallons per minute per acre of mine voids.\347\
---------------------------------------------------------------------------

    \347\ Parizek, R.R., 1971. Prevention of Coal Mine Drainage 
Formation by Well Dewatering. Special Report of Research, The 
Pennsylvania State University, 73 p.
---------------------------------------------------------------------------

    The quantity and quality of the groundwater that recharges the mine 
pool from overlying and underlying rock strata can significantly 
influence postmining water quality.\348\ These mine pool aquifers may 
discharge directly to the land surface or to groundwater systems 
downgradient of the aquifer. The PHC determination must consider the 
timing, quality, quantity, and location of these discharges to 
adequately assess the probable impacts of the proposed operation on the 
hydrologic balance. The new finding also would require evaluation of 
the impacts of any temporary or permanent dewatering of aquifers, 
including underground mine pools, on the hydrologic balance.
---------------------------------------------------------------------------

    \348\ See, e.g., McDonald, L. M., J. Skousen, and J. Demchak, 
2003, Longevity of Mine Discharges from Above-Drainage Underground 
Mines, in the Proceedings of the Twenty-Fourth West Virginia Surface 
Mine Drainage Task Force Symposium, Morgantown, WV, 54 pp.
---------------------------------------------------------------------------

    Proposed paragraph (a)(5) would expand the finding in existing 30 
CFR 780.21(f)(3)(iv) concerning what impact the proposed operation 
would have on specific water quality parameters to include the 
parameters for which baseline information would be required under 
proposed 30 CFR 780.19(b) and (c). Furthermore, we propose to add 
requirements in paragraph (a)(5) for findings on what impact the 
proposed operation would have on precipitation runoff patterns and 
characteristics; seasonal variations in streamflow; the magnitude and 
frequency of peak flows in perennial, intermittent, and ephemeral 
streams within the proposed permit and adjacent areas; and the 
biological condition of those streams. Finally, we propose to add a 
requirement in paragraph (a)(5)(iv) for a finding about the impact that 
any diversion of surface or subsurface flows to underground mine 
workings or any changes in watershed size as a result of the postmining 
surface configuration would have on the availability of surface water 
and groundwater. The changes in proposed paragraph (a)(5)

[[Page 44501]]

would improve the comprehensiveness and predictive accuracy of the PHC 
determination. They also would provide a more scientifically sound 
basis for development of the CHIA required by proposed 30 CFR 780.21 
and the hydrologic reclamation plan required by proposed 30 CFR 780.22.
    Proposed paragraph (b) is substantively identical to existing 30 
CFR 780.21(b)(3), with the exception that we propose to expand the 
conditions under which the regulatory authority may request that the 
applicant submit supplemental information to include those situations 
in which the PHC determination indicates that the proposed operation 
may result in adverse impacts to the biological condition of perennial 
or intermittent streams within the proposed permit area or the adjacent 
area. We also propose to clarify that the regulatory authority may 
request additional geochemical analyses of overburden materials and 
information concerning underground mine pools and their impacts. The 
new provisions are necessary to ensure that the PHC determination is 
sufficiently comprehensive to support development of the hydrologic 
reclamation plan required by 30 CFR 780.22 and the CHIA required by 30 
CFR 780.21.
    Proposed paragraph (c)(1) is substantively identical to existing 30 
CFR 780.21(f)(4), which requires that the regulatory authority 
determine whether a new or updated PHC determination is needed as part 
of the process of evaluating permit revision applications. We propose 
to add paragraph (c)(2) to clarify that the applicant must prepare a 
new or updated PHC determination whenever a regulatory authority review 
finds that one is needed.
9. Section 780.21: What requirements apply to preparation and review of 
the cumulative hydrologic impact assessment (CHIA)?
    Our existing regulations contain very few standards or criteria for 
preparation of the CHIA. Those regulations, which are located at 30 CFR 
780.21(g)(1), provide that the regulatory authority must prepare an 
assessment of the probable cumulative hydrologic impacts of the 
proposed operation and all anticipated mining upon surface-water and 
groundwater systems in the cumulative impact area. The regulations 
further state that the assessment must be sufficient to determine, for 
purposes of permit approval, whether the proposed operation has been 
designed to prevent material damage to the hydrologic balance outside 
the permit area. The lack of standards or content requirements for the 
CHIA, coupled with the lack of a definition of material damage to the 
hydrologic balance, is an impediment to stream protection under SMCRA 
because there are no objective criteria to apply.
    We propose to remedy that problem, in part, by establishing more 
detailed content requirements for the CHIA, based on our experience as 
the regulatory authority in Tennessee and on Indian lands and on our 
experience in evaluating the implementation of state regulatory 
programs. Our proposed requirements would improve implementation of 
sections 507(b)(11) and 510(b)(3) of SMCRA,\349\ which require that the 
regulatory authority prepare a CHIA and provide that the regulatory 
authority may not approve a permit application unless the application 
affirmatively demonstrates, and the regulatory authority finds in 
writing, that the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. 
Section 201(c)(2) of SMCRA \350\ directs the Secretary, acting through 
OSMRE, to ``publish such rules and regulations as may be necessary to 
carry out the purposes and provisions of the Act.'' This provision 
establishes statutory authority for the enhanced CHIA regulations in 
this proposed rule. The more detailed CHIA content requirements that we 
propose to adopt are prudent measures to ensure that the CHIA is 
adequate to prevent the approval or renewal of permits that would 
result in material damage to the hydrologic balance outside the permit 
area.
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    \349\ 30 U.S.C. 1257(b)(11) and 1260(b)(3).
    \350\ 30 U.S.C. 1211(c)(2).
---------------------------------------------------------------------------

    Proposed paragraph (a)(1) is substantively identical to existing 30 
CFR 780.21(g)(1), with the exception that we propose to clarify that 
the CHIA must be in writing. We also propose to remove the sentence 
stating that the regulatory authority may allow the permit applicant to 
submit data and analyses relevant to the CHIA with the application. 
This sentence that we propose to delete is unnecessary because it is 
inherently true, whether stated or not. In addition, proposed paragraph 
(a)(3) effectively replaces this sentence.
    Proposed paragraph (a)(2) would provide that, in preparing the 
CHIA, the regulatory authority must consider relevant information on 
file for other mining operations located within the cumulative impact 
area or in similar watersheds. This provision is intended to ensure 
that the regulatory authority considers all available information when 
preparing the CHIA.
    Proposed paragraph (a)(3) would provide that the regulatory 
authority may not approve a permit application until it receives the 
hydrologic, geologic, and biological information needed to prepare the 
CHIA, either from other federal and state agencies or from the 
applicant. This provision is consistent with similar language in the 
provisos at the end of section 507(b)(11) of SMCRA.\351\
---------------------------------------------------------------------------

    \351\ 30 U.S.C. 1257(b)(11).
---------------------------------------------------------------------------

    Proposed paragraph (b) would establish detailed content 
requirements for the CHIA to ensure that the assessment is sufficiently 
comprehensive to support the finding that the regulatory authority must 
make under section 510(b)(3) of SMCRA \352\ and 30 CFR 773.15(e) 
regarding whether the operation has been designed to prevent material 
damage to the hydrologic balance outside the permit area. The new 
requirements correspond to elements of the proposed definition of 
``material damage to the hydrologic balance outside the permit area'' 
in 30 CFR 701.5. By requiring the development of permit-specific, 
numerical material damage criteria, they also would facilitate 
implementation of the prohibition in section 510(b)(3) of SMCRA and 30 
CFR 773.15(e) on approval of a permit application unless the CHIA 
demonstrates that the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area.
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    \352\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    Proposed paragraph (b)(1) would require that the CHIA contain a map 
of the cumulative impact area. The boundaries of this area may differ 
for surface water and groundwater, in which case proposed paragraph 
(b)(1)(i) would require that the map identify and display those 
differences. Proposed paragraphs (b)(1)(ii) through (iv) would require 
that the map identify the locations of all previous, current, and 
anticipated surface and underground mining, the locations of all 
baseline data collection sites under proposed 30 CFR 780.19, and 
designated uses of surface water under section 101(a) or 303(c) of the 
Clean Water Act.
    Proposed paragraph (b)(2) would require that the CHIA contain a 
description of all previous, existing, and anticipated mining within 
the cumulative impact area, including, at a minimum, the coal seam or 
seams mined, the extent of mining, and the reclamation status of each 
operation.

[[Page 44502]]

    Proposed paragraph (b)(3) would require that the CHIA contain a 
description of the baseline hydrologic information collected from the 
proposed permit and adjacent areas under proposed 30 CFR 780.19. This 
description would include the quality and quantity of surface water and 
groundwater and seasonal variations therein; quantitative information 
about existing usage of surface water and groundwater, as well as 
information defining the quality of water required for each existing 
and reasonably foreseeable use of groundwater and surface water and 
each designated use of surface water under section 101(a) or 303(c) of 
the Clean Water Act; a description and map of the local and regional 
groundwater systems; and the biological condition of perennial, 
intermittent, and ephemeral streams within the proposed permit and 
adjacent areas. The requirements of proposed paragraph (b)(3) would not 
apply to the entire cumulative impact area.
    Proposed paragraph (b)(4) would require that the CHIA contain a 
discussion of any potential concerns identified in the PHC 
determination prepared under proposed 30 CFR 780.20 and how those 
concerns have been or will be resolved.
    Proposed paragraph (b)(5) would require that the CHIA contain a 
qualitative and quantitative assessment of how all anticipated surface 
and underground mining may impact water quality in surface water and 
groundwater in the cumulative impact area, expressed in terms of each 
baseline parameter identified under 30 CFR 780.19.
    Proposed paragraph (b)(6) would require that the CHIA contain 
criteria defining material damage to the hydrologic balance outside the 
permit area on a site-specific basis and that these numerical criteria 
be incorporated into the permit to ensure that they are enforceable. 
Proposed paragraphs (b)(6)(i) through (iii) would require that the 
criteria be expressed in numerical terms for each parameter of concern, 
that they take into consideration the biological requirements of any 
species listed as threatened or endangered under the Endangered Species 
Act when those species or designated critical habitat are present 
within the cumulative impact area, and that they identify the portion 
of the cumulative impact area to which the criteria apply and the 
locations at which impacts will be monitored. The regulatory authority 
may establish different criteria for subareas within the cumulative 
impact area when appropriate. Water quality standards established under 
the Clean Water Act or in the NPDES permit for the operation might 
suffice for some parameters of concern, but NPDES permits do not 
address cumulative impacts and are not necessarily structured to 
prevent material damage to the hydrologic balance outside the permit 
area.
    We invite comment on whether the rule also should require that the 
regulatory authority establish lower corrective action thresholds to 
identify the point at which the permittee must take action to minimize 
the potential that adverse trends will continue and ultimately cause 
material damage to the hydrologic balance outside the permit area. In 
particular, we are interested in whether corrective action thresholds 
would be both more effective and more efficient in preventing material 
damage to the hydrologic balance outside the permit area, as required 
by SMCRA, and in avoiding designation of streams as impaired under 
section 303(d) of the Clean Water Act.\353\
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    \353\ 33 U.S.C. 1313(d).
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    Proposed paragraph (b)(7) would require an assessment of how all 
anticipated surface and underground mining may affect groundwater 
movement and availability within the cumulative impact area. This 
information is important in the determination of whether adverse 
impacts on groundwater would be severe enough to result in material 
damage to the hydrologic balance outside the permit area.
    Proposed paragraph (b)(8) would require an evaluation of whether 
the CHIA will support a finding that the operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area, as required by 30 CFR 773.15(e) and section 510(b)(3) of 
SMCRA.\354\ This evaluation would have to contain supporting data and 
analyses. Proposed paragraph (b)(8) also would require that the CHIA 
include certain documented determinations as a prerequisite for a 
finding that the operation has been designed to prevent material damage 
to the hydrologic balance outside the permit area.
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    \354\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    Proposed paragraph (b)(8)(i) would require a determination that, 
during all phases of mining and reclamation and at all times of the 
year, variations in streamflow and groundwater availability resulting 
from the operation, as well as variations in the amount and 
concentration of parameters of concern in discharges from the operation 
to groundwater and surface water, would not--
     Result in conversion of a perennial or intermittent stream 
to an ephemeral stream or conversion of a perennial stream to an 
intermittent stream. Conversion of an intermittent stream to a 
perennial stream or conversion of an ephemeral stream to an 
intermittent or perennial stream may be acceptable, provided the 
conversion would not disrupt or preclude any existing, reasonably 
foreseeable, or designated use of the stream under section 101(a) or 
303(c) of the Clean Water Act and would not adversely impact threatened 
or endangered species or designated critical habitat in violation of 
the Endangered Species Act. We also are considering replacement of 
``would not adversely impact threatened or endangered species or 
designated critical habitat in violation of the Endangered Species 
Act'' with ``would not jeopardize the continued existence of threatened 
or endangered species or result in the destruction or adverse 
modification of designated critical habitat in violation of the 
Endangered Species Act.'' The second alternative would parallel the 
language of existing and proposed 30 CFR 816.97(b) and 817.97(b).
     Result in an exceedance of applicable water quality 
standards in any stream located outside the permit area.
     Disrupt or preclude any existing or reasonably foreseeable 
use of surface water outside the permit area or any designated use of 
surface water under section 101(a) or 303(c) of the Clean Water Act 
\355\ outside the permit area, except as provided in water supply 
replacement provisions of proposed 30 CFR 780.22(b) and 816.40.
---------------------------------------------------------------------------

    \355\ 33 U.S.C. 1251(a) and 1313(c).
---------------------------------------------------------------------------

    Proposed paragraph (b)(8)(ii) would require a determination that 
the operation has been designed to ensure that neither the mining 
operation nor the final configuration of the reclaimed area will result 
in changes in the size or frequency of peak flows from precipitation 
events or thaws that would cause an increase in damage from flooding, 
when compared with premining conditions.
    Proposed paragraph (b)(8)(iii) would require a determination that 
perennial and intermittent streams located outside the permit area but 
within the cumulative impact area would continue to have sufficient 
baseflow and recharge capacity to maintain their premining flow regime 
both during and after mining and reclamation. In other words, the 
regulatory authority must find that

[[Page 44503]]

perennial stream segments will retain perennial flows and intermittent 
stream segments will retain intermittent flows during and after mining 
and reclamation. Conversion of an intermittent stream to a perennial 
stream or conversion of an ephemeral stream to an intermittent or 
perennial stream may be acceptable, provided the conversion would not 
disrupt or preclude any existing, reasonably foreseeable, or designated 
use of the stream under section 101(a) or 303(c) of the Clean Water Act 
and would not adversely impact threatened or endangered species or 
designated critical habitat in violation of the Endangered Species Act. 
We also are considering replacement of ``would not adversely impact 
threatened or endangered species or designated critical habitat in 
violation of the Endangered Species Act'' with ``would not jeopardize 
the continued existence of threatened or endangered species or result 
in the destruction or adverse modification of designated critical 
habitat in violation of the Endangered Species Act.'' The second 
alternative would parallel the language of existing and proposed 30 CFR 
816.97(b) and 817.97(b).
    Proposed paragraph (b)(8)(iv) would require a determination that 
the operation has been designed to protect the quantity and quality of 
water in any aquifer that significantly ensures the prevailing 
hydrologic balance.
    Proposed paragraph (c)(1) would require that the regulatory 
authority review each application for a significant permit revision to 
determine whether a new or updated CHIA is needed. This paragraph is 
similar to existing 30 CFR 780.21(g)(2), except that we propose to add 
a requirement that the regulatory authority document the review, 
including the analysis and conclusions, together with the rationale for 
the conclusions, in writing. In addition, we propose to require this 
review only for applications for significant permit revisions, not for 
all applications for any type of permit revisions as under the existing 
rule. We are not aware of any situation in which a non-significant 
permit revision application has required an update of the CHIA under 
the existing rules. Therefore, conducting this review of non-
significant permit revision applications is not a meaningful or 
productive use of regulatory authority resources.
    Proposed paragraph (c)(2) would add a requirement that the 
regulatory authority reevaluate the CHIA during the permit renewal 
process or every 5 years, whichever is more frequent, to determine 
whether the CHIA remains accurate and whether the material damage 
criteria in the CHIA and the permit are adequate to ensure that 
material damage to the hydrologic balance outside the permit area will 
not occur. This evaluation must include a review of all water 
monitoring data from both the operation in question and all coal mining 
operations within the cumulative impact area. We invite comment on 
whether this 5-year review frequency for water monitoring data is 
adequate to detect adverse trends in a timely manner or whether more 
frequent reviews, such as during midterm permit review, should be 
required. In addition, we invite comment on whether the permittee also 
should be required to conduct this review.
    Proposed paragraph (c)(3) would require preparation of a new or 
updated CHIA whenever the regulatory authority finds that one is needed 
based on the evaluation required by proposed paragraph (c)(2). Proposed 
paragraphs (c)(2) and (c)(3) are logical extensions of the finding that 
the regulatory authority must make under section 510(b)(3) of SMCRA 
\356\ and 30 CFR 773.15(e) regarding whether the operation has been 
designed to prevent material damage to the hydrologic balance outside 
the permit area.
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    \356\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

10. Section 780.22: What information must I include in the hydrologic 
reclamation plan and what information must I provide on alternative 
water resources?
    Proposed paragraph (a) would be substantively identical to the 
hydrologic reclamation plan requirements in existing 30 CFR 780.21(h), 
except as discussed below. Proposed paragraph (a)(2)(v) would replace 
the existing requirement for measures to avoid acid or toxic drainage 
with a requirement for preventive and remedial measures to avoid acid 
or toxic discharges to surface water and to avoid (or, if avoidance is 
not possible, minimize) degradation of groundwater. The new language 
reflects the nature of the surface mining process, which typically 
converts solid rock to highly-fragmented spoil, thus altering 
groundwater composition and quality.
    Proposed paragraph (a)(3) would require that the hydrologic 
reclamation plan address the impacts of any transfers of water among 
active and abandoned mines within the proposed permit and adjacent 
areas. The transfer of water between mines, whether intentional through 
direct connections or unintentional through leakage, can have 
substantial impacts on the availability, quality, and distribution of 
groundwater and surface water in the permit and adjacent areas, which 
in turn may have a substantial impact on users of groundwater and 
surface water. For example, a reduction in baseflow of a stream would 
reduce the assimilative capacity of the stream. In addition, increases 
in the hydrostatic head elevations of underground mine pools might 
cause blowouts or landslides or have other adverse impacts on land and 
water resources.
    Proposed paragraph (a)(4) would add a requirement for a description 
of the steps that the permittee will take during mining and reclamation 
through final bond release to protect and enhance aquatic life and 
related environmental values to the extent possible using the best 
technology currently available. This requirement would more completely 
implement section 515(b)(24) of SMCRA,\357\ which provides that surface 
coal mining and reclamation operations must use the best technology 
currently available to minimize disturbances and adverse impacts to 
fish, wildlife, and related environmental values to the extent possible 
and enhance those resources where practicable.
---------------------------------------------------------------------------

    \357\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Proposed paragraph (b) would replace and expand the alternative 
water source information required by existing 30 CFR 780.21(e) if the 
proposed operation may result in contamination, diminution, or 
interruption of a protected water supply. Proposed paragraph (b)(1) 
would require that the applicant identify alternative water sources 
that are available, feasible to develop, and suitable in quality and 
sufficient in quantity to support premining uses and approved 
postmining land uses. Proposed paragraph (b)(2) would prohibit any 
mining that would contaminate, diminish, or interrupt a protected water 
supply if the applicant is unable to identify any suitable alternative 
water sources. These provisions are intended to prevent situations in 
which high-quality water from a spring is replaced with well water that 
requires substantial treatment.
    When a suitable alternative water source is available, proposed 
paragraph (b)(3) would require that the permittee develop and install 
the alternative water supply on a permanent basis before adversely 
affecting an existing water supply protected under proposed 30 CFR 
816.40. This provision would not apply if the permittee demonstrates, 
and the regulatory authority finds, that the proposed operation also 
would adversely affect the replacement supply.

[[Page 44504]]

In that case, the proposed rule would require that the permittee 
provide a temporary replacement water supply until it is safe to 
install the permanent replacement water supply.
    Finally, proposed paragraph (b)(4) would require a description of 
how the applicant would provide both temporary and permanent 
replacements for any unexpected losses of protected water supplies in 
accordance with the timeframes and other requirements of proposed 30 
CFR 816.40.
    Proposed paragraph (b) is intended to more completely implement the 
water supply replacement requirements of sections 717(b) and 720(a)(2) 
of SMCRA.\358\
---------------------------------------------------------------------------

    \358\ 30 U.S.C. 1307(b) and 1309a(a)(2).
---------------------------------------------------------------------------

11. Section 780.23: What information must I include in plans for the 
monitoring of groundwater, surface water, and the biological condition 
of streams during and after mining?
    Paragraphs (b)(1) and (2) of section 517 of SMCRA \359\ provide 
authority for the adoption of regulations establishing monitoring 
requirements for surface coal mining and reclamation operations. Among 
other things, paragraph (b)(1) provides that ``the regulatory authority 
shall require any permittee to . . . install, use, and maintain any 
necessary monitoring equipment or methods [and] evaluate results in 
accordance with such methods, at such locations, intervals, and in such 
manner as a regulatory authority shall prescribe.'' Paragraph (b)(2) 
includes the following additional provisions:
---------------------------------------------------------------------------

    \359\ 30 U.S.C. 1267(b)(1) and (2).

    [F]or those surface coal mining and reclamation operations which 
remove or disturb strata that serve as aquifers which significantly 
insure the hydrologic balance of water use either on or off the 
mining site, the regulatory authority shall specify those--
    (A) monitoring sites to record the quantity and quality of 
surface drainage above and below the minesite as well as in the 
potential zone of influence;
    (B) monitoring sites to record level, amount, and samples of 
ground water and aquifers potentially affected by the mining and 
also directly below the lowermost (deepest) coal seam to be mined;
    (C) records of well logs and borehole data to be maintained; and
    (D) monitoring sites to record precipitation.
    The monitoring data collection and analysis required by this 
section shall be conducted according to standards and procedures set 
forth by the regulatory authority in order to assure their 
reliability and validity.

    Proposed 30 CFR 780.23 would establish more detailed requirements 
for groundwater and surface-water monitoring plans than those that 
appear in existing 30 CFR 780.21(i) and (j). Thus, they would more 
completely implement the statutory provisions described and quoted 
above. Furthermore, our proposed enhanced monitoring requirements are 
intended to ensure that, as required by section 515(b)(24) of 
SMCRA,\360\ surface coal mining and reclamation operations are 
conducted so as to minimize disturbances to and adverse impacts on 
fish, wildlife, and related environmental values to the extent possible 
using the best technology currently available.
---------------------------------------------------------------------------

    \360\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Finally, our proposed enhanced monitoring requirements would be 
consistent with both the more comprehensive baseline information that 
we propose to require in 30 CFR 780.19 and the definition of ``material 
damage to the hydrologic balance outside the permit area'' that we 
propose to adopt in 30 CFR 701.5. Comprehensive baseline information 
and monitoring are critical to evaluating the impact of the mining 
operation on the hydrologic balance, which in turn is essential to 
preventing the occurrence of material damage to the hydrologic balance 
outside the permit area, consistent with section 510(b)(3) of 
SMCRA.\361\
---------------------------------------------------------------------------

    \361\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

Proposed Paragraphs (a): Groundwater Monitoring Plan
    Proposed paragraph (a) would include the groundwater monitoring 
plan requirements in existing 30 CFR 780.21(i). We propose to revise 
those requirements by adding more specific minimum requirements for the 
groundwater monitoring plan to ensure that the plan is adequate to 
evaluate the impacts of the mining operation on groundwater in the 
proposed permit and adjacent areas and to identify adverse trends in 
sufficient time to initiate corrective action to prevent the operation 
from causing material damage to the hydrologic balance outside the 
permit area. The following discussion highlights the more significant 
elements of proposed paragraph (a).
    Proposed paragraph (a)(1)(iii)(A) would require that each 
groundwater monitoring plan include monitoring wells (or equivalent 
monitoring points with direct groundwater discharges, such as springs) 
located upgradient and downgradient of the proposed operation to 
facilitate identification of potential mining-related changes in 
groundwater quantity or quality and to assist in an evaluation of 
whether any downgradient changes are the result of the mining and 
reclamation activities. The proposed rule would require separate wells 
for each aquifer above or immediately below the lowest coal seam to be 
mined. This provision would ensure identification of impacts on each 
aquifer, consistent with section 517(b)(2)(B) of SMCRA, which requires 
monitoring of ``aquifers potentially affected by the mining and also 
directly below the lowermost (deepest) coal seam to be mined.''
    Proposed paragraph (a)(1)(iii)(B) would require placement of 
monitoring wells in backfilled portions of the permit area after 
backfilling and grading of all or a portion of the permit area is 
completed. The purpose of these wells is to identify how infiltration 
through the spoil may alter groundwater levels and quality. The 
proposed rule would allow the regulatory authority to waive placement 
of monitoring wells in the backfilled area if it finds that wells in 
the backfilled area are not necessary to determine or predict the 
future impact of the mining operation on groundwater quality.
    Finally, to monitor impacts on underground mine pools, proposed 
paragraph (a)(1)(iii)(C) would require placement of monitoring wells in 
any existing underground mine workings that would have a direct 
hydrological connection to the proposed operation. These mine pools may 
serve as municipal, industrial, or residential water supplies. In 
addition, sudden, unplanned releases of the water in those mine pools 
can result in flooding damage or adverse impacts on receiving streams.
    Proposed paragraph (a)(1)(iv) would require that the plan describe 
how the monitoring data will be used to determine the impacts of the 
operation upon the hydrologic balance and the biological condition of 
perennial and intermittent streams within the permit and adjacent 
areas, as well as to prevent material damage to the hydrologic balance 
outside the permit area.
    Proposed paragraph (a)(1)(v) would require that the plan describe 
how monitoring practices will comply with the sampling, analysis, and 
reporting requirements of proposed 30 CFR 777.13(a) and (b) to ensure 
that samples are collected and analyzed in a legally and scientifically 
valid manner. Proposed paragraph (a)(1)(v) is consistent with the 
requirement in the text after section 517(b)(2)(D) of SMCRA \362\ that 
the regulatory authority set forth standards and procedures for 
monitoring data collection and analysis

[[Page 44505]]

to assure the reliability and validity of the data.
---------------------------------------------------------------------------

    \362\ 30 U.S.C. 1267(b)(2)(D).
---------------------------------------------------------------------------

    Proposed paragraph (a)(2)(i) would require that the groundwater 
monitoring plan provide for the monitoring of parameters that could be 
affected by the proposed operation if those parameters relate to the 
findings and predictions in the PHC determination prepared under 30 CFR 
780.20, the biological condition of perennial and intermittent streams 
and other surface-water bodies that receive discharges from groundwater 
within the proposed permit and adjacent areas, the suitability of the 
groundwater for existing and reasonably foreseeable uses, and the 
suitability of the groundwater to support the premining and postmining 
land uses. Monitoring of these parameters would assist the permittee 
and regulatory authority in preventing material damage to the 
hydrologic balance outside the permit area and in determining 
compliance with the water supply protection and postmining land use 
requirements of SMCRA and its implementing regulations.
    Proposed paragraph (a)(2)(ii) would require quarterly monitoring of 
14 specific parameters, including, among others, selenium and the 
minimum water-quality parameters required by existing 30 CFR 
780.21(i)(1) (pH, total iron, total manganese, and total dissolved 
solids or specific conductance). As summarized in Part II of this 
preamble, selenium can have deleterious effects upon fish and human 
health. In addition, this proposed paragraph would require quarterly 
monitoring of major anions (including, at a minimum, bicarbonate, 
chloride, and sulfate), major cations (including, at a minimum, 
calcium, magnesium, potassium, and sodium), and the cation-anion 
balance. As summarized in Part II of this preamble, these anions and 
cations form salts that can alter water chemistry in a manner that 
sometimes has a substantial adverse impact on aquatic life. With 
respect to water quantity, proposed paragraph (a)(2)(ii) would require 
quarterly measurement of water levels, discharge rates, or yield rates. 
Existing 30 CFR 780.21(i) only requires monitoring of water levels, 
which may not be sufficient to fully evaluate groundwater quantity and 
availability in all cases. Finally, proposed paragraph (a)(2)(ii) would 
require quarterly monitoring of certain metals (if present in 
discharges from prior underground mines) and any other parameters of 
local significance, as determined by the regulatory authority based 
upon the information collected and the analyses conducted under 
proposed 30 CFR 780.19 through 780.21.
    Proposed paragraph (a)(3) would require that the regulatory 
authority reconsider the adequacy of the groundwater monitoring plan at 
two points during the permit application review process. The first 
reconsideration would occur after the regulatory authority completes 
the technical review of the application. At that point, the regulatory 
authority may require that the permit applicant revise the plan to 
increase the frequency of monitoring, to require monitoring of 
additional parameters, or to require monitoring at additional 
locations, if the additional requirements would contribute to 
protection of the hydrologic balance. The second reconsideration would 
occur after preparation of the CHIA under proposed 30 CFR 780.21. At 
that point, the regulatory authority would be responsible for ensuring 
that the groundwater monitoring plan requires monitoring of all 
parameters for which the CHIA establishes material damage criteria; 
i.e., all parameters of concern. These reconsiderations are intended to 
ensure that the monitoring plans are designed to provide sufficiently 
comprehensive monitoring data to enable both the permittee and the 
regulatory authority to identify any adverse impacts on groundwater in 
time to take corrective action to prevent material damage to the 
hydrologic balance outside the permit area.
    Finally, proposed paragraph (a)(4) would modify the provision in 
existing 30 CFR 780.21(i)(2) that authorizes a groundwater-monitoring 
exception for any water-bearing stratum that does not serve as an 
aquifer that significantly ensures the hydrologic balance within the 
cumulative impact area. Specifically, proposed paragraph (a)(4) would 
allow a groundwater-monitoring exception for a water-bearing stratum 
that does not serve as an aquifer that significantly ensures the 
hydrologic balance within the cumulative impact area only if that 
stratum has no existing or foreseeable use for agricultural or other 
human purposes or for fish and wildlife purposes. The addition of this 
requirement would more fully implement the environmental protection 
purposes set forth in sections 102(a) and (d) of SMCRA.\363\ We 
recognize that the proposed new criterion does not appear in section 
517(b)(2) of SMCRA.\364\ However, addition of the new criterion is 
appropriate because use of water for agricultural or fish and wildlife 
purposes impacts land use capability and productivity and would assist 
in the implementation of the postmining land use requirements of 
section 515(b)(2) of SMCRA \365\ and the fish and wildlife protection 
and enhancement requirements of section 515(b)(24) of SMCRA.\366\
---------------------------------------------------------------------------

    \363\ 30 U.S.C. 1202(a) and (d).
    \364\ 30 U.S.C. 1267(b)(2).
    \365\ 30 U.S.C. 1265(b)(2).
    \366\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

Proposed Paragraph (b): Surface-Water Monitoring Plan
    Proposed paragraph (b) would include the surface-water monitoring 
plan requirements in existing 30 CFR 780.21(j). We propose to revise 
those requirements by adding more specific minimum requirements for the 
surface-water monitoring plan to ensure that the plan is adequate to 
evaluate the impacts of the mining operation on streams and other 
surface-water bodies in the proposed permit and adjacent areas and to 
identify adverse trends in sufficient time to initiate corrective 
action to prevent the operation from causing material damage to the 
hydrologic balance outside the permit area. The following discussion 
highlights the more significant elements of proposed paragraph (b).
    Proposed paragraph (b)(1)(ii) would require on-site measurement of 
precipitation amounts at specified locations within the permit area, 
using self-recording devices. Measurement of precipitation amounts at 
the minesite is an important component of the surface water runoff 
control plan required under proposed 30 CFR 780.29. We propose to 
require that precipitation measurements continue through Phase II bond 
release under proposed 30 CFR 800.42(c) or for any longer period 
specified by the regulatory authority. Phase II bond release is the 
point at which revegetation has been established.
    Proposed paragraph (b)(1)(iv) would require that, at a minimum, 
each surface-water monitoring plan include monitoring of point-source 
discharges from the proposed operation as well as monitoring points 
located upgradient and downgradient of the proposed permit area in each 
perennial and intermittent stream within the proposed permit and 
adjacent areas to facilitate identification of potential mining-related 
changes in surface-water quantity or quality and to assist in an 
evaluation of whether any downgradient changes are the result of the 
mining and reclamation activities. This provision would be consistent 
with section 517(b)(2)(A) of SMCRA, which requires

[[Page 44506]]

that the regulatory authority specify ``monitoring sites to record the 
quantity and quality of surface drainage above and below the minesite 
as well as in the potential zone of influence.'' Point-source 
discharges would be located within the potential zone of influence.
    Proposed paragraph (b)(1)(v) would require that the plan describe 
how the monitoring data will be used to determine the impacts of the 
operation upon the hydrologic balance and the biological condition of 
perennial and intermittent streams within the permit and adjacent 
areas, as well as to prevent material damage to the hydrologic balance 
outside the permit area.
    Proposed paragraph (b)(1)(vi) would require that the plan describe 
how surface-water monitoring practices will comply with the sampling, 
analysis, and reporting requirements of proposed 30 CFR 777.13(a) and 
(b) to ensure that samples are collected and analyzed in a legally and 
scientifically valid manner. Proposed paragraph (b)(1)(vi) is 
consistent with the requirement in the text after section 517(b)(2)(D) 
of SMCRA that the regulatory authority set forth standards and 
procedures for monitoring data collection and analysis to assure the 
reliability and validity of the data.
    Proposed paragraph (b)(2)(i) would require that the surface-water 
monitoring plan provide for the monitoring of parameters that could be 
affected by the proposed operation if those parameters relate to 
applicable effluent limitation guidelines under 40 CFR part 434, the 
findings and predictions in the PHC determination prepared under 30 CFR 
780.20, the surface-water runoff control plan prepared under proposed 
30 CFR 780.29, the biological condition of perennial and intermittent 
streams and other surface-water bodies within the proposed permit and 
adjacent areas, the suitability of the surface water for existing and 
reasonably foreseeable uses as well as designated uses under section 
101(a) or 303(c) of the Clean Water Act, and the suitability of the 
surface water to support the premining and postmining land uses. 
Monitoring of these parameters would assist the permittee and 
regulatory authority in preventing material damage to the hydrologic 
balance outside the permit area and in determining compliance with the 
water supply protection and postmining land use requirements of SMCRA 
and its implementing regulations.
    Proposed paragraph (b)(2)(ii) would require quarterly monitoring of 
15 specific parameters, including, among others, selenium and the 
minimum water-quality parameters required by existing 30 CFR 
780.21(j)(2)(i) (pH, total iron, total manganese, total suspended 
solids, and total dissolved solids or specific conductance). As 
summarized in Part II of this preamble, selenium can have deleterious 
effects upon fish and human health. In addition, this proposed 
paragraph would require quarterly monitoring of major anions 
(including, at a minimum, bicarbonate, chloride, and sulfate), major 
cations (including, at a minimum, calcium, magnesium, potassium, and 
sodium), and the cation-anion balance. As summarized in Part II of this 
preamble, these anions and cations form salts that can alter water 
chemistry in a manner that sometimes has a significant adverse impact 
on aquatic life. With respect to water quantity, proposed paragraphs 
(b)(2)(ii)(A) and (iii)(B), like existing 30 CFR 780.21(j)(2)(i), would 
require quarterly measurement of flow rates. We propose to require use 
of generally-accepted professional flow measurement techniques, rather 
than subjective visual observations that involve no actual measurements 
and that will vary from observer to observer. Finally, proposed 
paragraph (b)(2)(ii) would require quarterly monitoring of certain 
metals (if present in discharges from prior underground mines) and any 
other parameters of local significance, as determined by the regulatory 
authority based upon the information collected and the analyses 
conducted under proposed 30 CFR 780.19 through 780.21.
    Proposed paragraph (b)(2)(iii) would not require that point-source 
discharges be monitored for the parameters listed in proposed paragraph 
(b)(2)(ii). Instead, as in existing 30 CFR 780.21(j)(2)(ii), the 
proposed rule would defer to the National Pollutant Discharge 
Elimination System permitting authority's determinations of which 
parameters must be monitored. We invite comment on whether, in the 
final rule, we should require monitoring of some or all of the 
parameters listed in proposed paragraph (b)(2)(ii) in point-source 
discharges to establish a more definitive connection between discharges 
from the minesite and trends observed at downgradient monitoring 
locations.
    To promote coordination of permitting and monitoring requirements 
under SMCRA and the Clean Water Act, proposed paragraph (b)(2)(iv) 
would require that the surface-water monitoring plan be revised to 
include any site-specific monitoring requirements imposed by the 
National Pollutant Discharge Elimination System permitting authority or 
the agency responsible for administration of section 404 of the Clean 
Water Act.\367\ This provision recognizes that this information may not 
be available at the time of application for the SMCRA permit and, thus, 
may need to be added later via a permit revision.
---------------------------------------------------------------------------

    \367\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    Proposed paragraph (b)(3) would require that the regulatory 
authority reconsider the adequacy of the surface-water monitoring plan 
at two points during the permit application review process. The first 
reconsideration would occur after the regulatory authority completes 
the technical review of the application. At that point, the regulatory 
authority may require that the permit applicant revise the plan to 
increase the frequency of monitoring, to require monitoring of 
additional parameters, or to require monitoring at additional 
locations, if the additional requirements would contribute to 
protection of the hydrologic balance. The second reconsideration would 
occur after preparation of the CHIA under proposed 30 CFR 780.21. At 
that point, the regulatory authority would be responsible for ensuring 
that the surface-water monitoring plan requires monitoring of all 
parameters for which the CHIA establishes material damage criteria; 
i.e., all parameters of concern. These reconsiderations are intended to 
ensure that the monitoring plans are designed to provide sufficiently 
comprehensive monitoring data to enable both the permittee and the 
regulatory authority to identify any adverse impacts on surface water 
in time to take corrective action to prevent material damage to the 
hydrologic balance outside the permit area.
Proposed Paragraph (c): Biological Condition Monitoring Plan
    Proposed paragraph (c)(1) would require that each permit 
application include a plan for monitoring the biological condition of 
perennial and intermittent streams within the proposed permit area and 
the adjacent area. The proposed rule would require that the plan be 
adequate to evaluate the impacts of the mining operation on the 
biological condition of those streams and to determine in a timely 
manner whether corrective action is needed to prevent the operation 
from causing material damage to the hydrologic balance outside the 
permit area.
    Proposed paragraph (c)(2)(i) would specify that the plan must 
require use of a multimetric bioassessment protocol that meets the 
requirements of proposed 30 CFR 780.19(e)(2). In essence, this 
provision requires use of a multimetric

[[Page 44507]]

bioassessment protocol approved by the state or tribal agency 
responsible for preparing the water quality inventory report required 
under section 305(b) of the Clean Water Act \368\ or other 
scientifically-valid, multimetric bioassessment protocols used by 
agencies responsible for implementing the Clean Water Act. The 
bioassessment protocol must be based upon the presence or absence, 
population levels, and biomass of an appropriate array of aquatic 
organisms, including benthic macroinvertebrates. It must require 
identification of macroinvertebrates to the genus level because a 
bioassessment protocol that requires identification of aquatic 
organisms only to the family level may not be capable of 
differentiating between pollution-tolerant and pollution-intolerant 
genera within the same family, while a bioassessment protocol that 
identifies organisms to the species level may not be consistent with 
available indices of biological integrity. Finally, the protocol must 
result in the calculation of index values for both habitat and 
macroinvertebrates and provide a correlation of index values to the 
capability of the stream to support designated uses under section 
101(a) or 303(c) of the Clean Water Act.
---------------------------------------------------------------------------

    \368\ 33 U.S.C. 1315(b).
---------------------------------------------------------------------------

    Proposed paragraph (c)(2)(ii) would require that the plan identify 
biological condition monitoring locations in each perennial and 
intermittent stream within the proposed permit and adjacent areas. 
Proposed paragraph (c)(2)(iii) would require that the plan establish a 
sampling frequency that must be no less than annual, but not so 
frequent as to unnecessarily deplete the populations of the species 
being monitored. Proposed paragraph (c)(2)(iv) would provide that the 
plan must require submission of biological condition monitoring data to 
the regulatory authority on an annual basis.
    Proposed paragraph (c)(3) would require that the regulatory 
authority reconsider the adequacy of the biological condition 
monitoring plan after completing preparation of the CHIA under proposed 
30 CFR 780.21. The proposed rule would require that, if necessary, the 
regulatory authority issue an order to the applicant to revise the plan 
to correct any deficiencies.
    The monitoring requirements in proposed paragraph (c) would assist 
in more completely implementing section 515(b)(24) of SMCRA,\369\ which 
requires that surface coal mining and reclamation operations be 
conducted so as to minimize disturbances to and adverse impacts on 
fish, wildlife, and related environmental values to the extent possible 
using the best technology currently available. Proposed paragraph (c) 
also would provide a means of implementing the definition of ``material 
damage to the hydrologic balance outside the permit area'' that we 
propose to adopt in 30 CFR 701.5, which relies in part upon designated 
uses of surface water under section 101(a) or section 303(c) of the 
Clean Water Act. The biological condition of perennial and intermittent 
streams and other surface waters determines whether those waters are 
capable of attaining their designated uses.
---------------------------------------------------------------------------

    \369\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

Proposed Paragraph (d): Exceptions
    Proposed paragraph (d)(1) would allow potential permit applicants 
to request that the regulatory authority modify the groundwater and 
surface-water monitoring plan requirements of proposed paragraphs (b) 
and (c) and modify or waive the biological condition monitoring plan 
requirements of proposed paragraph (c) if the proposed permit area 
includes only lands eligible for remining. The proposed rule would 
allow the regulatory authority to approve the request if it determines 
that an alternative monitoring plan will be adequate to monitor the 
impacts of the proposed operation on groundwater and surface water, 
based upon an evaluation of the quality of groundwater and surface 
water and the biological condition of the receiving stream at the time 
of application. The exception for remining operations would provide an 
incentive to mine and reclaim previously mined areas without the use of 
public funds. Streams in the vicinity of previously mined areas also 
are likely to be of lower quality than streams in unmined watersheds 
because of the adverse impacts of previous mining.
    Proposed paragraph (d)(2) would allow permit applicants to request 
that the regulatory authority waive the biological condition monitoring 
plan requirements of proposed paragraph (c) if the applicant 
demonstrates, and the regulatory authority finds in writing, that the 
proposed operation will not mine through or bury a perennial or 
intermittent stream; create a point-source discharge to any perennial, 
intermittent, or ephemeral stream; or modify the baseflow of any 
perennial or intermittent stream. If the applicant meets all 
requirements except the one concerning a point-source discharge, the 
proposed rule would allow the regulatory authority to approve limiting 
the biological condition monitoring plan requirements to only the 
stream that will receive the point-source discharge.
Proposed Paragraph (e): Coordination With Clean Water Act Agencies
    Proposed paragraph (e) would require that SMCRA regulatory 
authorities consult with the agencies responsible for issuing permits, 
authorizations, and certifications under the Clean Water Act and make 
best efforts to minimize differences in monitoring locations and 
reporting requirements and to share data to the extent practicable and 
consistent with each agency's mission, statutory requirements, and 
implementing regulations. Coordination could reduce both costs and the 
overall regulatory impact to the industry, as well as improving 
regulatory efficiency. In addition, the proposed requirement would be 
consistent with the intent of the regulatory coordination provisions of 
section 713 of SMCRA.\370\
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    \370\ 30 U.S.C. 1303.
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12. Section 780.24: What requirements apply to the postmining land use?
    Proposed 30 CFR 780.24 would consolidate the requirements for 
approval of postmining land uses that appear in existing 30 CFR 
780.23(b), 816.133(b), and 816.133(c). We also propose to add a surface 
mining counterpart to the interpretive rules concerning postmining land 
use changes in existing 30 CFR 784.200(a) and 817.200(d)(1). In 
addition, we propose to revise existing 30 CFR 780.24 to improve 
consistency with SMCRA and its legislative history and to more 
completely implement the environmental protection purposes of SMCRA, 
including the fish and wildlife protection and enhancement requirements 
of section 515(b)(24) of SMCRA,\371\ while remaining mindful of the 
requirement in section 508(a)(3) of SMCRA \372\ to consider the 
comments of the surface owner and state and local governments and 
agencies. Our proposed revisions to the existing requirements also are 
consistent with section 515(b)(23) of SMCRA,\373\ which provides that 
surface coal mining and reclamation operations must ``meet such other 
criteria as are necessary to achieve reclamation in accordance with the 
purposes of this Act, taking into consideration the physical, 
climatological, and other characteristics of the site.''
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    \371\ 30 U.S.C. 1265(b)(24).
    .
    \372\ 30 U.S.C. 1258(a)(3).
    \373\ 30 U.S.C. 1265(b)(23).

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[[Page 44508]]

Proposed Paragraph (a): What postmining land use information must my 
application contain?
    Section 515(b)(2) of SMCRA \374\ requires that surface coal mining 
and reclamation operations ``restore the land affected to a condition 
capable of supporting the uses which it was capable of supporting prior 
to any mining, or higher or better uses of which there is a reasonable 
likelihood.'' Section 508(a)(3) of SMCRA \375\ requires that each 
reclamation plan include a statement of ``the use which is proposed to 
be made of the land following reclamation, including a discussion of 
the utility and capacity of the reclaimed land to support a variety of 
alternative uses.'' Combining these two statutory provisions, proposed 
paragraph (a)(1) would require that each permit application include 
both a description and a map of the proposed postmining land use or 
uses and a discussion of the utility and capability of the reclaimed 
land to support a variety of other uses, including the uses that the 
land was capable of supporting before any mining, as identified in the 
narrative analysis required under 30 CFR 779.22.
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    \374\ 30 U.S.C. 1265(b)(2).
    \375\ 30 U.S.C. 1258(a)(3).
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    Proposed paragraph (a)(2) would require that the land use or uses 
be described in terms of the categories listed in our definition of 
``land use'' in 30 CFR 701.5, which would assist the regulatory 
authority in determining compliance with provisions of our regulations 
that are tied to land use; e.g., alternative postmining land uses, 
revegetation standards, and exceptions from approximate original 
contour restoration requirements, and provide a baseline for 
application of these provisions on a national basis.
    Proposed paragraph (a)(3) would require that the application 
explain how the proposed postmining land use is consistent with 
existing state and local land use policies and plans. Addition of this 
requirement would be consistent with section 508(a)(3) of SMCRA,\376\ 
which requires that the reclamation plan include an explanation of the 
relationship of the proposed postmining land use to existing land use 
policies and plans. That section of SMCRA also requires that the 
application include comments from state and local governments or 
agencies that would have to approve or authorize the proposed land use. 
Furthermore, section 515(b)(2) of SMCRA \377\ prohibits the approval of 
alternative postmining land uses that are ``inconsistent with 
applicable land use policies and plans.'' Therefore, it would be 
reasonable to conclude that Congress intended for all postmining land 
uses to be consistent with state and local land use policies and plans, 
especially since regulation of land use has traditionally been the 
province of state and local governments.
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    \376\ 30 U.S.C. 1258(a)(3).
    \377\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

    Proposed paragraph (a)(4) is substantively identical to the 
corresponding existing rule at 30 CFR 780.23(c). Proposed paragraph 
(a)(5) is substantively identical to the corresponding existing rule at 
30 CFR 780.23(b)(1) with the exception that the proposed rule clarifies 
that the permit applicant must identify any support facilities (not 
just activities as in the existing rule) needed to achieve the 
postmining land use. (Support facilities are equipment repair areas, 
mine offices, parking lots, and other surface areas upon which are 
sited structures, facilities, or other property or material resulting 
from or incident to the activities listed in paragraph (a) of the 
definition of ``surface coal mining operations'' in 30 CFR 700.5.) The 
regulatory authority needs this information when evaluating whether the 
proposed postmining land use can be achieved and in deciding whether to 
allow mining-related structures to be retained as part of the 
postmining land use.
    Proposed paragraph (a)(6)(i) would specify that the application 
must provide the demonstration required under proposed paragraph (b)(1) 
if the applicant proposes to restore the proposed permit area or a 
portion thereof to a condition capable of supporting a higher or better 
use or uses rather than to a condition capable of supporting the use or 
uses that the land supported before any mining. This provision is 
substantively identical to existing 30 CFR 780.23(b)(2) except as 
discussed in the preamble to proposed paragraph (b) below.
    Proposed paragraph (a)(6)(ii) would require that an applicant 
requesting approval of a higher or better alternative postmining land 
use disclose any monetary compensation, item of value, or other 
consideration offered to the landowner by the applicant or the 
applicant's agent in exchange for the landowner's agreement to a 
postmining land use that differs from the premining use. Adoption of 
this provision is supported by section 515(b)(2) of SMCRA, which 
requires that surface coal mining and reclamation operations--

restore the land affected to a condition capable of supporting the 
uses which it was capable of supporting prior to any mining, or 
higher or better uses of which there is reasonable likelihood, so 
long as such use or uses do not present any actual or probably 
hazard to public health or safety or pose any actual or probable 
threat of water diminution or pollution, and the permit applicants' 
declared proposed land use following reclamation is not deemed to be 
impractical or unreasonable, inconsistent with applicable land use 
policies and plans, involves unreasonable delay in implementation, 
or is violative of Federal, State, or local law.

    Disclosure of whether a landowner has been provided with or is 
reasonably expected to be provided with compensation or other 
consideration for any postmining land use changes would allow the 
regulatory authority to better understand whether the proposed 
postmining land use change is one that the landowner genuinely desires 
on its own merits and is reasonably likely to be achieved, or whether 
the landowner agreed to the land use change for short-term financial 
gain or other reasons. This type of short-term land use decision-making 
is contrary to the broader purposes identified in SMCRA, such as 
``protect[ing] society and the environment from the adverse effects of 
surface mining coal operations'' in section 102(a) and assuring that 
``operations are conducted as to protect the environment'' in section 
102(d).
Proposed Paragraph (b): What requirements apply to the approval of 
alternative postmining land uses?
    Existing 30 CFR 780.23(b)(2) provides that the application must 
include all materials needed for approval of an alternative postmining 
land use under 30 CFR 816.133 if the proposed postmining land use 
differs from the premining use. Existing 30 CFR 816.133(b) further 
provides that the ``premining uses of land to which the postmining land 
use is compared shall be those uses which the land previously 
supported, if the land has not been previously mined and has been 
properly managed.'' In new section 780.24, we propose to require 
compliance with the alternative postmining land use approval 
requirements only when the applicant or permittee proposes to restore 
the land to a condition capable of supporting higher or better uses (a 
term that we define in 30 CFR 701.5) rather than to a condition capable 
of supporting the uses that it could support before any mining. The 
proposed language better tracks the underlying statutory provision in 
section 515(b)(2) of SMCRA,\378\ as quoted above. In addition, it is 
consistent with the legislative history of section 508(a) of SMCRA: 
\379\
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    \378\ 30 U.S.C. 1265(b)(2).
    \379\ 30 U.S.C. 1258(a).


[[Page 44509]]


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    The description [of premining land use capability] is to serve 
as a benchmark against which the adequacy of reclamation and the 
degradation resulting from the proposed mining may be measured. It 
is important that the potential utility which the land had for a 
variety of uses be the benchmark rather than any single, possibly 
low value, use which by circumstances may have existed at the time 
mining began.\380\
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    \380\ S. Rept. 95-128, 95th Cong., 1st Sess. 76-77 (1977).

    By requiring approval only when the change is to a higher or better 
use, our proposed rule also would avoid unnecessary paperwork on the 
part of permit applicants and conserve often-scarce regulatory 
authority resources.
    We propose to delete the provision in existing 30 CFR 816.133(b) 
requiring that the land be properly managed before the premining land 
use may be compared with the proposed alternative postmining land use. 
There is no statutory counterpart to this provision of the existing 
rule, nor is it supported by the legislative history of SMCRA. 
Furthermore, the criteria for approval of proposed alternative 
postmining land uses in existing 30 CFR 816.133(c) bear no relationship 
to whether the land was properly managed before mining. In addition, 
proper management is a subjective determination. To the extent that 
this provision could be construed as requiring that the regulatory 
authority reject a proposed higher or better postmining land use that 
involves less intensive management than the premining use, the existing 
rule is inconsistent with the preamble to our definition of ``land 
use'' in 30 CFR 701.5, which states that the land use categories in the 
definition are not hierarchical.\381\ Consistent with that statement, 
the same rulemaking defined ``higher or better uses'' as meaning 
``postmining land uses that have a higher economic value or nonmonetary 
benefit to the landowner or the community than the premining land 
uses.'' We are not proposing any changes to that definition. Therefore, 
the provision in existing 30 CFR 816.133(b) requiring that the land be 
properly managed before the premining land use may be compared with the 
proposed alternative postmining land use has no statutory basis and, in 
any case, is not feasible.
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    \381\ 48 FR 39893 (Sept. 1, 1983).
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    Proposed paragraph (b) combines existing 30 CFR 780.23(b)(2), which 
requires that the permit application include all materials needed for 
approval of an alternative postmining land use under 30 CFR 816.133, 
with the alternative postmining land use approval criteria of 30 CFR 
816.133(c). Proposed paragraph (b)(1) sets forth permit application 
requirements, while proposed paragraph (b)(2) contains requirements 
applicable to the regulatory authority's decision-making process. In 
essence, proposed paragraph (b)(1), like existing 30 CFR 780.23(b)(2), 
requires that the permit applicant submit a demonstration that the 
request for an alternative postmining land use meets the criteria for 
approval, while proposed paragraph (b)(2), like existing 30 CFR 
816.133(c), specifies when the regulatory authority may approve a 
request for an alternative postmining land use.
    Proposed paragraph (b)(1) would retain the criteria in the 
corresponding existing rules at 30 CFR 816.133(c) for approving 
alternative postmining land uses, while requiring that the permit 
applicant demonstrate compliance with both those criteria and several 
new criteria intended to promote environmental protection and 
restoration of fish and wildlife habitat consistent with section 
515(b)(24) of SMCRA \382\ and the purposes in paragraphs (a), (d), and 
(f) of section 102 of SMCRA.\383\ Addition of the new criteria also 
would be consistent with section 515(b)(23) of SMCRA,\384\ which 
requires that surface coal mining and reclamation operations ``meet 
such other criteria as are necessary to achieve reclamation in 
accordance with the purposes of this Act, taking into consideration the 
physical, climatological, and other characteristics of the site.''
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    \382\ 30 U.S.C. 1265(b)(24).
    \383\ 30 U.S.C. 1202(a), (d), and (f).
    \384\ 30 U.S.C. 1265(b)(23).
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    As previously stated, proposed paragraph (b)(1)(i) would retain the 
provision in the corresponding existing rules at 30 CFR 816.133(c)(1) 
that there must be a reasonable likelihood of achievement of the 
proposed higher or better alternative postmining land use. However, we 
propose to expand upon this requirement by adding language that would 
require the applicant to document that a reasonable likelihood of 
achieving the higher or better use exists through submission of, for 
example, real estate and construction contracts, plans for installation 
of any necessary infrastructure, procurement of any necessary zoning 
approvals, landowner commitments, economic forecasts, and studies by 
land use planning agencies, as applicable. The additional language 
would flesh out the requirement in section 515(b)(2) of SMCRA \385\ 
that there be a reasonable likelihood of achievement of the proposed 
land use. In the past, approved alternative postmining land uses have 
not been implemented on some reclaimed minesites, including some sites 
for which the regulatory authority approved a variance from approximate 
original contour restoration requirements for the purpose of achieving 
a particular alternative postmining land use. Our proposed rule changes 
concerning the reasonable likelihood of achievement of the alternative 
postmining land use are intended to prevent recurrences of situations 
in which the regulatory authority approves an alternative postmining 
land use that has little chance of being implemented in the reasonably 
foreseeable future. The proposed rule changes thus would improve 
compliance with the conditions for approval of higher or better uses 
under section 515(b)(2) of SMCRA \386\ and the approximate original 
contour restoration requirements of section 515(b)(3) of SMCRA.\387\
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    \385\ 30 U.S.C. 1265(b)(2).
    \386\ Id.
    \387\ 30 U.S.C. 1265(b)(3).
---------------------------------------------------------------------------

    We propose to add paragraphs (b)(1)(iii)(E) through (G) to better 
implement the environmental protection purposes in paragraphs (a), (d), 
and (f) of section 102 of SMCRA \388\ and the prohibition in section 
510(b)(3) of SMCRA \389\ on the approval of any permit application 
unless the regulatory authority finds that the operation has been 
designed to prevent material damage to the hydrologic balance outside 
the permit area. Specifically, these proposed paragraphs would require 
that the applicant for an alternative postmining land use demonstrate 
that the proposed use would not--
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    \388\ 30 U.S.C. 1202(a), (d), and (f).
    \389\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

     Result in changes in the size or frequency of peak flows 
from the reclaimed area to the extent that the changes would cause an 
increase in damage from flooding compared to the conditions that would 
exist if the land were restored to a condition capable of supporting 
the uses that it was capable of supporting before any mining.
     Cause the total volume of flow from the reclaimed area, 
during every season of the year, to vary in a way that would preclude 
any existing or reasonably foreseeable use of surface water or 
groundwater or any designated use of surface water under section 101(a) 
or 303(c) of the Clean Water Act.\390\
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    \390\ 33 U.S.C. 1251(a) and 1313(c).
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     Cause a change in the temperature or chemical composition 
of the water

[[Page 44510]]

that would preclude any existing or reasonably foreseeable use of 
surface water or any designated use of surface water under section 
101(a) or 303(c) of the Clean Water Act.\391\
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    \391\ Id.
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    Proposed paragraph (b)(2) would allow the regulatory authority to 
approve a request for an alternative postmining land use if it first 
consults with the landowner or the land management agency having 
jurisdiction over the lands to which the use would apply and finds in 
writing that the applicant has made the demonstration required under 
proposed paragraph (b)(1). These proposed provisions are substantively 
identical to the corresponding existing rules at 30 CFR 816.133(c), 
with the exception of the proposed requirement that the finding be in 
writing and the addition of the new and modified criteria in paragraph 
(b)(1) as discussed above.
Proposed Paragraph (c): What requirements apply to permit revision 
applications that propose to change the postmining land use?
    Proposed paragraph (c) would provide that, consistent with the 
decision in PSMRL I, Round II,\392\ permittees may use the permit 
revision process to change the postmining land use after permit 
issuance. The proposed rule would specify that the application for a 
permit revision must be processed as a significant revision if the 
permittee proposes to restore the land to a condition capable of 
supporting higher or better uses rather than to a condition capable of 
supporting the uses that it was capable of supporting before any 
mining.
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    \392\ PSMRL I, Round II, 1980 U.S. Dist. LEXIS 17660 at *20 
(D.D.C. 1980), 19 Env't Rep. Cas. (BNA) 1477.
---------------------------------------------------------------------------

    Proposed paragraph (c) would provide a surface mining counterpart 
to the interpretive rules for underground mines at 30 CFR 784.200 and 
817.200(d)(1), which specify that the requirements for approval of an 
alternative postmining land use may be met via the permit revision 
process rather than as part of the original permit application. We do 
not now interpret our existing surface mining rules as prohibiting 
permittees from submitting permit revision applications to change the 
postmining land use after permit issuance, nor have we interpreted 
those rules as doing so in the past. Therefore, the only effect of 
proposed paragraph (c) would be to require that a proposed change to a 
higher or better postmining land use be processed as a significant 
revision. As provided in 30 CFR 774.13(a)(2), an application for a 
significant permit revision must comply with the public notice and 
public participation requirements that apply to an application for a 
new permit.
    Unlike existing 30 CFR 784.200 and 817.200(d)(1), which classify 
any change in postmining land use as a significant permit revision, we 
propose to apply this requirement only to a proposed change to a higher 
or better use. A change from one postmining land use that the land was 
capable of supporting prior to mining to another postmining land use 
that the land was capable of supporting prior to mining would no longer 
require approval as an alternative postmining land use, nor would a 
request for such a change need to be processed as a significant permit 
revision.
    Our proposed rule would improve consistency with section 515(b)(2) 
of SMCRA,\393\ which requires that surface coal mining and reclamation 
operations ``restore the land affected to a condition capable of 
supporting the uses which it was capable of supporting prior to any 
mining, or higher or better uses of which there is a reasonable 
likelihood.'' The statutory provision distinguishes only between uses 
that the land was capable of supporting before mining and higher or 
better uses; i.e., it establishes criteria for approval of higher or 
better uses, but no criteria for approval of any of the uses that the 
land was capable of supporting before mining.
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    \393\ 30 U.S.C. 1265(b)(2).
---------------------------------------------------------------------------

Proposed Paragraph (d): What restrictions apply to the retention of 
mining-related structures?
    Proposed paragraph (d) would establish new requirements pertinent 
to the retention of mining-related structures in support of the 
postmining land use. First, the applicant or permittee would have to 
demonstrate, and the regulatory authority would have to find in 
writing, that the size and characteristics of mining-related structures 
(other than roads and impoundments) proposed for retention for 
potential use as part of the postmining land use are consistent with 
and proportional to the needs of the postmining land use. For example, 
retention of an entire coal preparation plant building as a storage 
facility for an agriculture or silvicultural postmining land use would 
be disproportionate to the needs for the postmining land use. Second, 
the amount of bond required for the permit must include the cost of 
removing the structure and reclaiming the land to a condition capable 
of supporting the premining uses. Third, the reclamation plan must 
specify that the permittee will remove any structure not in use as part 
of the approved postmining land use by the end of the revegetation 
responsibility period and reclaim the land upon which it was located.
    These measures are intended to ensure that only mining-related 
structures with a bona fide role in supporting the postmining land use 
are retained. These provisions should minimize the number of mining-
related structures that are retained, ostensibly to support the 
postmining land use, but that are abandoned after final bond release 
and become safety hazards, attractive nuisances, or a visual blight on 
the landscape. Thus, proposed paragraph (d) would more fully implement 
section 102(a) of SMCRA,\394\ which provides that one of the purposes 
of SMCRA is to protect society and the environment from the adverse 
effects of surface coal mining operations. In addition, section 
515(b)(2) of SMCRA \395\ allows the approval of higher or better 
postmining land uses only if they do not present any actual of probable 
hazard to public health or safety. Logically, the same requirement 
should apply to retention of mining-related structures that did not 
exist prior to mining.
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    \394\ 30 U.S.C. 1202(a).
    \395\ 30 U.S.C. 1265(b)(2).
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Proposed Paragraph (e): What special provisions apply to previously 
mined areas?
    Proposed paragraph (e) would contain the postmining land use 
requirements for previously mined areas, as that term is defined in 30 
CFR 701.5. They do not differ substantively from the corresponding 
requirements in the last sentence of the existing rules at 30 CFR 
816.133(b) except for the proposed addition of a requirement that the 
revegetation plan require the use of native tree and shrub species for 
revegetation of all portions of the proposed permit area that were 
forested at the time of application or that would revert to forest 
under conditions of natural succession, provided that the planting of 
trees and shrubs on those lands would not be inconsistent with 
achievement of the proposed postmining land use. The added requirement 
would more fully implement section 515(b)(19) of SMCRA,\396\ which 
requires establishment of a diverse, effective, permanent vegetative 
cover of the same seasonal variety native to the area, and the fish and 
wildlife protection and

[[Page 44511]]

enhancement requirements of section 515(b)(24) of SMCRA.\397\
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    \396\ 30 U.S.C. 1265(b)(19).
    \397\ 30 U.S.C. 1265(b)(24).
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13. Section 780.25: What information must I provide for siltation 
structures, impoundments, and refuse piles?
Changes To Conform With the 1983 Revisions to Definitions and 
Performance Standards
    On September 26, 1983 (48 FR 44006), we revised the definitions and 
performance standards in our regulations relating to coal mine waste to 
be more consistent with the terminology used by the Mine Safety and 
Health Administration (MSHA). As we stated at 48 FR 44009, ``[i]t is 
undesirable to have two regulatory programs for the same subject that 
contain conflicting standards or which use fundamentally different 
terminology.''
    Among other things, we adopted definitions of three new terms in 30 
CFR 701.5. Coal mine waste is defined as ``coal processing waste and 
underground development waste.'' Impounding structure is defined as ``a 
dam, embankment, or other structure used to impound water, slurry, or 
other liquid or semi-liquid material.'' Refuse pile is defined as ``a 
surface deposit of coal mine waste that does not impound water, slurry, 
or other liquid or semi-liquid material.'' The latter two terms are 
consistent with the terminology of MSHA's regulations. ``Refuse pile'' 
replaces the term ``coal processing waste bank'' that we used in our 
previous regulations, while the term ``impounding structure'' includes, 
but is not limited to, all structures that our rules previously 
referred to as coal processing waste dams or embankments.
    In concert with the new definition of coal mine waste, we revised 
our performance standards at 30 CFR 817.71 through 817.74 to eliminate 
the language that combined underground development waste with excess 
spoil for purposes of performances standards for underground mines. 
Because the definition of coal mine waste includes underground 
development waste, we revised our regulations to specify that the 
disposal of underground development waste is subject to the performance 
standards for refuse piles at 30 CFR 817.83 rather than the performance 
standards for the disposal of excess spoil that applied under the old 
rules.
    However, we did not revise our permitting requirements in a similar 
fashion at that time. Therefore, we now propose to modify 30 CFR parts 
780 and 784 to harmonize the terminology in those rules with our 1983 
changes to the definitions and performance standards concerning coal 
mine waste. In essence, we propose to (1) replace the term ``coal 
processing waste banks'' with ``refuse piles'' and (2) replace the term 
``coal processing waste dams and embankments'' with references to coal 
mine waste impounding structures.
Proposed Paragraph (a): General Requirements
    In addition to the changes in terminology, we propose to revise 
existing paragraph (a)(1)(iii) to require that the general plan for 
each proposed siltation structure, impoundment, or refuse pile include 
the hydrologic and geologic information needed to assess the hydrologic 
impact of the structure. The existing rule requires submission of only 
``preliminary'' hydrologic and geologic information. We propose to 
remove the word ``preliminary'' because preliminary information 
typically would not be sufficient to assess the hydrologic impact of a 
proposed structure.
    We propose to revise existing paragraph (a)(1)(iv) to require that 
the general plan for each proposed siltation structure, impoundment, or 
refuse pile contain a report describing the results of a geotechnical 
investigation of the potential effect on the structure if subsurface 
strata should subside as a result of past, current, or future 
underground mining operations beneath or within the proposed permit and 
adjacent areas. Geotechnical investigations may include site 
reconnaissance, drilling, or some combination of these with geophysical 
investigations (ground-penetrating radar, seismic investigations, 
etc.). The existing rule requires only a survey describing the 
potential effect of subsidence resulting from past underground mining 
operations. A survey alone would provide insufficient information to 
evaluate the potential effects of subsidence.
    Therefore, to promote long-term structural stability, we propose to 
require a geotechnical investigation instead of a survey and we propose 
to require consideration of the potential effects of subsidence from 
past, existing, and future underground mining operations, beneath or 
within the proposed permit and adjacent areas, not just the potential 
effects of past underground mining operations within an unspecified 
area. The design needs to ensure that the structure will be capable of 
withstanding all potential impacts of any subsidence that may occur 
during the life of the proposed structure. We propose to add the 
reference to the proposed permit and adjacent areas to ensure that the 
investigation includes all underground mining operations that have the 
potential to cause subsidence that may affect the proposed structure, 
not just operations within the proposed permit area.
    Finally, we propose to specify that the investigation report must 
identify design and construction measures that would prevent adverse 
subsidence-related impacts on the structure whenever impacts of that 
nature are a possibility. In short, proposed paragraph (a)(1)(iv) is 
intended to protect against failure of the impoundment embankment or 
other impoundment failures as a result of subsidence. Impoundment 
stability, especially for large impoundments, is important to protect 
the public, private and public property, and the environment from the 
adverse effects of flooding and other consequences of impoundment 
failure, consistent with the purposes of SMCRA in paragraphs (a) and 
(d) of section 102 of the Act.\398\
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    \398\ 30 U.S.C. 1202(a) and (d).
---------------------------------------------------------------------------

    We propose to redesignate existing paragraph (a)(1)(v) as paragraph 
(a)(1)(vi) and add a new paragraph (a)(1)(v) to require that the 
general plan for each impoundment include an analysis of the potential 
for the impoundment to drain into subjacent underground mine workings, 
together with an analysis of the impacts of such drainage. The Martin 
County Slurry Spill incident in Martin County, Kentucky on October 11, 
2000, illustrates the magnitude of environmental damage that can result 
when impounded coal refuse slurry breaks through into adjacent 
underground mine workings that open to the surface. In this case, the 
mine openings discharged 306 million gallons of slurry into two 
tributaries of the Tug Fork River (Coldwater Fork and Wolf Creek). The 
slurry covered nearby residents' yards to a depth of as much as 5 feet, 
visibly polluted more than 100 miles of waterways, including the Big 
Sandy and Ohio Rivers, and devastated aquatic life in 70 miles of 
stream. Six public water intakes were adversely affected and 
alternative water supplies had to be arranged for 27,000 residents. 
Cleanup costs were approximately $59 million.\399\
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    \399\ See http://www.sourcewatch.org/index.php?title=Martin_County_sludge_spill (last accessed February 
4, 2015) and http://www.jackspadaro.com/news_articles/2003/10_12_03/herald-leader10_12_03.html (last accessed February 4, 2015).
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    Proposed paragraph (a)(1)(v) is intended to ensure that all types 
of

[[Page 44512]]

impoundments constructed for coal mining purposes are designed to 
prevent similar breakthroughs. This design requirement would reduce the 
probability of breakthroughs into underground mine workings, thus 
benefiting the public, the environment, and mine operators by avoiding 
the environmental and property damage and cleanup expenses that may 
result from those breakthroughs, consistent with the purposes of SMCRA 
in paragraphs (a) and (d) of section 102 of the Act.\400\
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    \400\ 30 U.S.C. 1202(a) and (d).
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    Paragraph (a)(2) sets forth design requirements for all 
impoundments other than low-hazard impoundments. We propose to revise 
the introductory text of existing paragraph (a)(2) for clarity and 
redesignate that text as paragraph (a)(2)(i). Proposed paragraph 
(a)(2)(i) would specify that the detailed design plan requirements of 
proposed paragraph (a)2)(ii) would apply to all structures meeting the 
MSHA criteria of 30 CFR 77.216(a), as well as to all structures that 
meet the Significant Hazard Class or High Hazard Class criteria for 
dams in NRCS publication Technical Release No. 60, ``Earth Dams and 
Reservoirs,'' regardless of whether those structures meet the MSHA 
criteria of 30 CFR 77.216(a).
    We propose to revise redesignated paragraph (a)(2)(i) to update the 
incorporation by reference of the NRCS publication ``Earth Dams and 
Reservoirs,'' Technical Release No. 60 (210-VI-TR60, October 1985), by 
replacing the reference to the October 1985 edition with a reference to 
the superseding July 2005 edition. Consistent with the terminology in 
the newer edition, we propose to replace references to Class B or C dam 
criteria with references to Significant Hazard Class or High Hazard 
Class dam criteria, respectively. Only the terminology has changed--the 
actual criteria remain the same as before. The newer publication is not 
available from the National Technical Information Service, but is 
available online from the NRCS (the successor to the Soil Conservation 
Service). Consequently, we propose to delete the ordering information 
pertinent to the National Technical Information Service and replace it 
with the Internet address at which the publication may be reviewed and 
from which it may be downloaded without charge. We also propose to 
update the address and location of our administrative record room and 
the Internet address information for the National Archives and Records 
Administration.
    In addition, we propose to redesignate existing paragraphs 
(a)(2)(i) through (iv) as paragraphs (a)(2)(ii)(A) through (D) and add 
introductory text to proposed paragraph (a)(2)(ii). The introductory 
text is a revised version of the last sentence of the introductory text 
of existing paragraph (a)(2), modified to be consistent with proposed 
paragraph (a)(2)(i). As it currently exists, redesignated paragraph 
(a)(2)(ii)(B) requires that the detailed design plan include any 
geotechnical investigation, design, and construction requirements. This 
language is ambiguous because it does not identify the geotechnical 
investigation, design, and construction requirements to which it 
refers. Therefore, we propose to revise redesignated paragraph 
(a)(2)(ii)(B) to require that the detailed design plan for any 
structure that meets the applicability provisions of proposed paragraph 
(a)(2)(i) incorporate any design and construction measures identified 
in the geotechnical investigation report prepared under 30 CFR 
780.25(a)(1)(iv) as necessary to protect against potential adverse 
impacts from subsidence resulting from underground mine workings 
underlying or adjacent to the structure. These measures might include 
grouting or backstowing of mine voids or surface mining of seams within 
the impoundment safety zone. In short, proposed paragraph (a)(2)(ii)(B) 
would operate in conjunction with proposed paragraph (a)(1)(iv) to 
protect against failure of the impoundment embankment or other 
impoundment failures as a result of subsidence. Impoundment stability, 
especially for large impoundments, is important to protect the public, 
private and public property, and the environment from the adverse 
effects of flooding and other consequences of impoundment failure, 
consistent with the purposes of SMCRA in paragraphs (a) and (d) of 
section 102 of the Act.\401\
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    \401\ 30 U.S.C. 1202(a) and (d).
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    We propose to reinstate former paragraph (a)(3), which was 
erroneously removed as part of the codification process for a rule 
published December 12, 2008 (73 FR 75814). This paragraph contains 
detailed design plan requirements for structures not covered under 
paragraph (a)(2).
Proposed Paragraph (c): Permanent and Temporary Impoundments
    Both the existing and proposed versions of paragraph (c) contain 
design requirements that apply to all impoundments. To improve clarity 
and consistency with other regulations, we propose to revise existing 
paragraph (c)(2) by replacing the term ``Mine Safety and Health 
Administration'' with a citation to 30 CFR 77.216(a), which contains 
the MSHA impoundment criteria to which paragraph (c)(2) refers. As 
revised, proposed paragraph (c)(2) would require that plans for 
impoundments meeting MSHA criteria comply with MSHA's impoundment 
design requirements at 30 CFR 77.216-2. We propose to delete the 
requirement that those plans also comply with 30 CFR 77.216-1. The 
requirement that we propose to delete is not germane to permit 
applications and plans because it contains signage requirements that 
apply only to impoundments that already exist or are under 
construction. In the second sentence, we propose to delete an obsolete 
cross-reference to paragraph (a).
    We also propose to revise paragraph (c)(2) to clarify that the 
requirement that the permit application include the plan submitted to 
MSHA applies only to those portions of the plan that are complete at 
the time of submission of the SMCRA permit application. Impoundment 
plans normally are submitted to MSHA in stages; they may not be 
complete or even started at the time that the applicant submits an 
application for the SMCRA permit. SMCRA-related permit application 
information requirements are sufficiently comprehensive that the 
regulatory authority does not need the MSHA plan to process the SMCRA 
permit application or to ensure the stability of proposed structures.
    We propose to redesignate existing paragraph (f) as paragraph 
(c)(4). That paragraph applies only to impoundments that meet certain 
criteria in Technical Release No. 60 or the MSHA criteria of 30 CFR 
77.216(a). It has no relevance to the other structures to which 30 CFR 
780.25 applies (low-hazard impoundments and refuse piles). Therefore, 
it is more appropriate to include the stability analysis requirements 
of existing paragraph (f) as part of proposed paragraph (c), which 
applies only to impoundments, including coal mine waste impoundments. 
We also propose to revise this paragraph to be consistent with the 
terminology in the July 2005 edition of Technical Release No. 60 by 
replacing references to Class B or C dam criteria with references to 
Significant Hazard Class or High Hazard Class dam criteria, 
respectively. Only the terminology would change; the actual criteria 
would remain the same as before. Finally, we propose to revise this 
paragraph to clarify that the stability analyses that it requires must 
address

[[Page 44513]]

static, seismic, and post-earthquake (liquefaction) conditions because 
those conditions are all part of a comprehensive stability analysis.
Proposed Paragraph (d): Coal Mine Waste Impoundments and Refuse Piles
    As discussed in the introductory portion of the preamble to this 
section, we propose to modify 30 CFR parts 780 and 784 to harmonize the 
terminology in those rules with our 1983 changes to the definitions and 
performance standards concerning coal mine waste. In essence, ``refuse 
pile'' would replace the term ``coal processing waste bank'' as used in 
existing parts 780 and 784, while the term ``impounding structure'' 
would include all structures that existing parts 780 and 784 refer to 
as coal processing waste dams or embankments. We also use the term 
``coal mine waste impoundment'' to refer to the impounding structure in 
combination with the basin behind the impounding structure. We propose 
to combine existing paragraph (d), which contains design requirements 
for coal processing waste banks, and existing paragraph (e), which 
contains design requirements for coal processing waste dams and 
embankments, into a revised paragraph (d) that uses the newer 
terminology. Proposed paragraph (d) would apply to any application that 
proposes to place coal mine waste in a refuse pile or impoundment or 
use coal mine waste to construct an impounding structure. We are adding 
the language concerning use of coal mine waste to construct an 
impounding structure because proposed paragraph (d) is the permitting 
counterpart of the performance standards for coal mine waste disposal 
in 30 CFR 816.81 through 816.84. Section 816.84 applies to both 
impounding structures constructed of coal mine waste and impounding 
structures intended to impound coal mine waste. Our proposed revision 
would expand the scope of proposed paragraph (d) to coincide with the 
scope of the corresponding performance standards.
    Proposed paragraph (d)(1) corresponds to existing paragraph (d), 
which requires that coal processing waste banks be designed to comply 
with the requirements of 30 CFR 816.81 through 816.84. Proposed 
paragraph (d)(1) would require that refuse piles (the successor term to 
``coal processing waste banks'') be designed to comply with the 
requirements of 30 CFR 780.28, 816.81, and 816.83. We propose to delete 
the cross-reference to 30 CFR 816.84 found in existing paragraph (d) 
because proposed paragraph (d)(1) would pertain only to refuse piles, 
not to the impounding structures to which 30 CFR 816.84 applies. The 
proposed deletion is not a substantive change because the corresponding 
provision of the existing rules does not pertain to impounding 
structures either, despite the cross-reference. We propose to add the 
cross-reference to 30 CFR 780.28 to emphasize the need for compliance 
with that section whenever a refuse pile would be located in or within 
100 feet of a perennial or intermittent stream.
    Proposed paragraph (d)(2) corresponds to existing paragraph (e), 
which requires that coal processing waste dams and embankments be 
designed to comply with the requirements of 30 CFR 816.81 through 
816.84, among other things. Proposed paragraph (d)(2)(i) would require 
that impounding structures constructed of or intended to impound coal 
mine waste (the successor terminology to ``coal processing waste dams 
and embankments'') be designed to comply with the requirements of 30 
CFR 780.28, 816.81, and 816.84. We propose to delete the cross-
reference to 30 CFR 816.83 found in existing paragraph (e) because 
proposed paragraph (d)(2) would pertain only to impounding structures, 
not to the refuse piles to which 30 CFR 816.83 applies. The proposed 
deletion is not a substantive change because the corresponding 
provision of the existing rules does not pertain to refuse piles 
either, despite the cross-reference. We also propose to add a cross-
reference to the impoundment requirements of 30 CFR 816.49(a) and (c). 
This proposed addition likewise is not a substantive change because 30 
CFR 816.84(b)(1) already includes an identical cross-reference to 30 
CFR 816.49(a) and (c), which would apply by operation of the cross-
reference to 30 CFR 816.84 in proposed paragraph (d)(2)(i). We propose 
to add this cross-reference only as a matter of clarity and ease of 
use.
    Finally, we propose to add the cross-reference to 30 CFR 780.28 to 
emphasize the need for compliance with that section whenever an 
impounding structure constructed of or intended to impound coal mine 
waste would be located in or within 100 feet of a perennial or 
intermittent stream. While coal mine waste impoundments may not be 
retained as permanent impoundments, they typically are converted to 
refuse piles and retained as permanent features, which means that the 
stream segment that they cover is not restored. Hence, proposed 
paragraph (d)(2)(i) and proposed 30 CFR 780.28 would apply the same 
requirements to coal mine waste impoundments as would apply to refuse 
piles with respect to the approval of such structures in perennial or 
intermittent streams.
    Proposed paragraph (d)(2)(ii) would require that the design plan 
for any impounding structure constructed of or intended to impound coal 
mine waste comply with the MSHA requirements of 30 CFR 77.216-2 if the 
structure meets the criteria of 30 CFR 77.216(a). The corresponding 
provision of existing paragraph (e) also required compliance with 30 
CFR 77.216-1. We propose to delete this cross-reference because 30 CFR 
77.216-1 does not include any design requirements. Instead, that rule 
consists solely of MSHA requirements for signage for existing 
impoundments and impoundments under construction. Those requirements 
are not relevant to preparation of plans or permit applications for 
proposed impoundments or impounding structures. Proposed paragraph 
(d)(2)(ii) would retain the requirement that each plan for an 
impounding structure comply with 30 CFR 77.216-2, which contains MSHA 
design requirements for impoundments and impounding structures.
    Proposed paragraph (d)(2)(iii) is substantively identical to the 
corresponding portion of existing paragraph (e), which requires that 
the application include a geotechnical investigation of the foundation 
area and that the investigation be planned and supervised by an 
engineer or engineering geologist. We propose to redesignate existing 
paragraphs (e)(1) through (4), which establish minimum requirements for 
that investigation, as paragraphs (d)(2)(iii)(A) through (D).
    Proposed paragraph (d)(2)(iv) would require that the design ensure 
that at least 90 percent of the water stored in the impoundment during 
the design precipitation event will be removed within a 10-day period. 
This requirement is substantively identical to existing 30 CFR 
816.84(e). We propose to move it to 30 CFR 780.25(d)(2)(iv) as part of 
our ongoing efforts to move permitting requirements currently located 
in subchapter K to subchapter G.
14. Section 780.28: What additional requirements apply to proposed 
activities in, through, or adjacent to streams?
    Proposed 780.28 would establish standards for the review and 
approval of permit applications that propose to conduct surface mining 
activities in or through a perennial, intermittent, or ephemeral stream 
or that would disturb the surface of lands within 100 feet of a 
perennial, intermittent, or ephemeral stream. Consequently, we propose 
to move the permitting aspects of the

[[Page 44514]]

stream buffer zone rule, which is currently codified at 30 CFR 
816.57(a) as part of the performance standards in subchapter K, to 30 
CFR 780.28, which would be part of the permitting requirements of 
subchapter G. Existing 30 CFR 816.57(a) provides that the regulatory 
authority may authorize activities on the surface of lands within 100 
feet of a perennial or intermittent stream only upon finding that (1) 
the activities will not cause or contribute to the violation of 
applicable State or Federal water quality standards and will not 
adversely affect the water quantity and quality or other environmental 
resources of the stream, and (2) if there will be a temporary or 
permanent stream-channel diversion, it will comply with 30 CFR 816.43.
    Part II of this preamble summarizes the impacts of surface coal 
mining operations on streams, as documented by scientific studies. Our 
proposed rule is intended to prevent or minimize the adverse impacts 
documented in those studies.
    The permitting requirements and performance standards in SMCRA 
contain limited direct references to streams, but SMCRA is replete with 
requirements to minimize or prevent adverse impacts on fish, wildlife, 
related environmental values, the quantity and quality of surface water 
and groundwater, and the hydrologic balance. See sections 507(b)(10), 
(11) and (14); 508(a)(9) and (13); 510(b); 515(b)(2), (4), (9), (10), 
(14), (17), and (24); 515(c)(4); 515(e)(3); 516(b)(4); and 516(b)(9) 
through (12).\402\ To the extent that proposed 30 CFR 780.28 pertains 
to the impact of surface coal mining and reclamation operations on 
streams outside the permit area, section 510(b)(3) of SMCRA,\403\ which 
prohibits issuance of a permit unless the applicant demonstrates, and 
the regulatory authority finds, that the proposed operation has been 
designed to prevent material damage to the hydrologic balance outside 
the permit area, provides authority for this proposed rule.
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    \402\ 30 U.S.C. 1257(b)(10), (11), and (14); 1258(a)(9) and 
(13); 1260(b); 1265(b)(2), (4), (9), (10), (14), (17), and (24); 
1265(c)(4) and (e)(3); 1266(b)(4) and (b)(9) through (12).
    \403\ 30 U.S.C. 1260(b)(3).
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    In addition, section 102 of SMCRA \404\ repeatedly identifies 
environmental protection as one of the purposes of SMCRA. In 
particular, section 102(a) \405\ states that one of the purposes of 
SMCRA is to ``establish a nationwide program to protect society and the 
environment from the adverse effects of surface coal mining 
operations.'' Paragraph (c) \406\ provides that another purpose is to 
``assure that surface mining operations are not conducted where 
reclamation as required by this Act is not feasible.'' Paragraph (d) 
\407\ provides that still another purpose is to ``assure that surface 
coal mining operations are so conducted as to protect the 
environment.'' Paragraph (f) \408\ states that one of the Act's 
purposes is to ``strike a balance between protection of the environment 
and agricultural productivity and the Nation's need for coal as an 
essential source of energy.'' Together with section 201(c)(2) of SMCRA 
\409\ and the provisions of title V of SMCRA discussed below, these 
statutory provisions provide adequate authority for the stream 
protection measures that we propose to adopt in 30 CFR 780.28 to remedy 
the environmental problems identified in Part II of this preamble. 
Section 201(c)(2) of SMCRA \410\ provides that the Secretary of the 
Interior, acting through OSMRE, shall ``publish and promulgate such 
rules and regulations as may be necessary to carry out the purposes and 
provisions of the Act.''
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    \404\ 30 U.S.C. 1202.
    \405\ 30 U.S.C. 1202(a).
    \406\ 30 U.S.C. 1202(c).
    \407\ 30 U.S.C. 1202(d).
    \408\ 30 U.S.C. 1202(f).
    \409\ 30 U.S.C. 1211(c)(2).
    \410\ Id.
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    In an en banc ruling, the U.S. Court of Appeals for the District of 
Columbia Circuit upheld the Secretary's authority to promulgate rules 
under the authority of section 201(c) of SMCRA \411\ that impose 
permitting requirements in addition to those set forth in sections 507 
and 508 of SMCRA: \412\ ``We hold that the Act's explicit listings of 
information required of permit applicants are not exhaustive, and do 
not preclude the Secretary from requiring the states to secure 
additional information needed to ensure compliance with the Act.'' 
\413\ The court found that the Secretary's conclusion that additional 
information beyond that explicitly required in the Act was needed to 
effectively implement the Act was entitled to some deference.\414\ 
Furthermore, the U.S. District Court for the District of Columbia has 
held that ``[a] court should sustain regulations when they reasonably 
relate to the purpose of the legislation.'' \415\ The regulations that 
we propose in 30 CFR 780.28 clearly relate to and promote attainment of 
the environmental protection purposes of the Act, as well as the other 
provisions of SMCRA cited above that pertain to protection of fish, 
wildlife, related environmental values, the quantity and quality of 
surface water and groundwater, and the hydrologic balance. The proposed 
regulations also would implement section 515(b)(23) of SMCRA,\416\ 
which provides that surface coal mining and reclamation operations must 
``meet such other criteria as are necessary to achieve reclamation in 
accordance with the purposes of this Act, taking into consideration the 
physical, climatological, and other characteristics of the site.''
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    \411\ 30 U.S.C. 1211(c).
    \412\ 30 U.S.C. 1257 and 1258.
    \413\ In re Permanent Surface Mining Regulation Litig., 653 F.2d 
514, 527 (D.C. Cir. 1981) (en banc).
    \414\ Id. at 522.
    \415\ PSMRL I, Round I, 1980 U.S. Dist. LEXIS 17722 at *85 
(D.D.C. 1980), 14 Env't Rep. Cas. (BNA) 1083, 10 Envtl. L. Rep. 
(Envtl. Law Inst.) 20208 (citing to Mourning v. Family Publ'n Serv., 
411 U.S. 356, 372 (1973)).
    \416\ 30 U.S.C. 1265(b)(23).
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    In addition, the measures that we propose to adopt in 30 CFR 780.28 
receive support from section 515(b)(2) of SMCRA,\417\ which requires 
that surface coal mining and reclamation operations ``restore the land 
affected to a condition capable of supporting the uses which it was 
capable of supporting prior to any mining, or higher or better uses of 
which there is a reasonable likelihood.'' Perennial and intermittent 
streams provide important fish and wildlife habitat, which almost 
always is one of the uses that the land was capable of supporting 
before mining. Section 515(b)(10) of SMCRA \418\ also provides 
statutory authority for proposed 30 CFR 780.28. In relevant part, 
section 515(b)(10) of SMCRA requires that surface coal mining and 
reclamation operations ``minimize the disturbances to the prevailing 
hydrologic balance at the mine-site and in associated offsite areas and 
to the quality and quantity of water in surface and ground water 
systems both during and after surface coal mining operations and during 
reclamation by . . . (G) such other actions as the regulatory authority 
may prescribe.''
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    \417\ 30 U.S.C. 1265(b)(2).
    \418\ 30 U.S.C. 1260(b)(10).
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    Paragraphs (b)(10)(B)(i) and (b)(24) of section 515 of SMCRA \419\ 
provide support for the buffer zone protections that proposed 30 CFR 
780.28 would afford to perennial and intermittent streams. Section 
515(b)(10)(B)(i) of SMCRA,\420\ which, in relevant part, requires that 
surface coal mining operations be conducted ``so as to prevent, to the 
extent possible using the best technology currently available, 
additional contributions of suspended solids to streamflow, or runoff 
outside the permit area,'' provides the primary

[[Page 44515]]

statutory authority for that minimum buffer width. The prohibition on 
disturbing the buffer zone also would implement section 515(b)(24) of 
SMCRA,\421\ which provides that surface coal mining and reclamation 
operations must be conducted to minimize disturbances to and adverse 
impacts on fish, wildlife, and related environmental values to the 
extent possible using the best technology currently available.
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    \419\ 30 U.S.C. 1265(b)(10)(B)(i) and (b)(24).
    \420\ 30 U.S.C. 1265(b)(10)(B)(i).
    \421\ 30 U.S.C. 1265(b)(24).
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Proposed Paragraph (a): Clean Water Act Requirements
    Proposed paragraph (a) would specify that a person may conduct 
surface mining activities in waters of the United States only if that 
person first obtains all necessary authorizations, certifications, and 
permits under the Clean Water Act, 33 U.S.C. 1251 et seq. This proposed 
paragraph is an informational provision that would be consistent with 
section 702(a) of SMCRA,\422\ which provides that ``[n]othing in this 
Act shall be construed as superseding, amending, modifying, or 
repealing'' the Clean Water Act, any rule or regulation adopted under 
the Clean Water Act, or any state laws enacted pursuant to the Clean 
Water Act. Proposed paragraph (a) would operate in tandem with proposed 
30 CFR 773.17(h), which would add a new permit condition requiring that 
the permittee obtain all necessary authorizations, certifications, and 
permits in accordance with Clean Water Act requirements before 
conducting any activities that require approval, authorization, or 
certification under the Clean Water Act. Permit conditions are directly 
enforceable under SMCRA. Therefore, addition of the permit condition in 
proposed 30 CFR 773.17(h) would mean that the SMCRA regulatory 
authority must take enforcement action if the permittee does not obtain 
all necessary Clean Water Act authorizations, certifications, and 
permits before beginning any activity under the SMCRA permit that also 
requires approval or authorization under the Clean Water Act.
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    \422\ 30 U.S.C. 1292(a).
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Proposed Paragraph (b): When must I comply with this section?
    Proposed paragraph (b)(1) would apply 30 CFR 780.28 to permit 
applications to conduct surface mining activities in or through a 
perennial, intermittent, or ephemeral stream or on the surface of lands 
within 100 feet, measured horizontally, of perennial or intermittent 
streams.\423\ The 100-foot distance reflects the 100-foot buffer zone 
that 30 CFR 816.57(a) establishes for perennial and intermittent 
streams. The preamble to proposed 30 CFR 816.57(a) explains the 
rationale for the 100-foot buffer zone width. Activities include, but 
are not limited to, mining through or diverting streams; constructing 
sedimentation ponds, excess spoil fills, and coal mine waste disposal 
facilities in or near streams; and constructing stream crossings for 
roads and utilities, as well as the full range of mining and 
reclamation activities that the application may propose to take place 
outside the stream channel but on the surface of lands within 100 feet 
of the stream.
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    \423\ See the discussion of proposed 30 CFR 780.16(c) in this 
preamble for an explanation of how this distance must be measured.
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    Proposed paragraph (b)(2), in combination with proposed paragraph 
(e)(2) and 30 CFR 816.57, would prohibit mining-related activities in 
or within 100 feet of perennial and intermittent streams unless the 
applicant demonstrates, and the regulatory authority finds in writing, 
that the proposed activity would not (i) preclude any premining use or 
any designated use under the Clean Water Act of the affected stream 
segment following the completion of mining and reclamation; (ii) result 
in the conversion of the affected stream segment from intermittent to 
ephemeral, from perennial to intermittent, or from perennial to 
ephemeral; (iii) cause or contribute to a violation of water quality 
standards under the Clean Water Act; or (iv) cause material damage to 
the hydrologic balance outside the permit area. Proposed paragraph 
(b)(2)(iv) would duplicate the finding required by 30 CFR 773.15(e). 
Proposed paragraphs (b)(2)(i) through (iii) are similar to subsets of 
the definition of material damage to the hydrologic balance outside the 
permit area, but they differ from the definition of that term and 30 
CFR 773.15(e) in that they would apply within the permit area as well 
as outside it. Proposed paragraphs (b)(2)(i) and (ii) would apply to 
stream segments within the permit area only after the completion of 
mining and reclamation, consistent with section 515(b)(10) of 
SMCRA,\424\ which provides for minimization, not prevention, of 
disturbances to the prevailing hydrologic balance at the minesite.
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    \424\ 30 U.S.C. 1265(b)(10).
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    To enhance fish and wildlife habitat, as required by section 
515(b)(24) of SMCRA,\425\ proposed paragraph (b)(3)(i) would require 
that the permit application include plans for establishment of a 
riparian corridor at least 100 feet wide on each side of a perennial, 
intermittent, or ephemeral stream segment \426\ that remains after 
mining or that is restored as part of the reclamation process. The 
preamble to proposed 30 CFR 780.16 explains why we selected the minimum 
100-foot width for the riparian corridor.
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    \425\ 30 U.S.C. 1265(b)(24).
    \426\ See the discussion of proposed 30 CFR 780.16(c) in this 
preamble for an explanation of how this distance must be measured.
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    Proposed paragraph (b)(3)(ii) would require that disturbed areas 
within the corridor be planted with native species, including species 
adapted to and suitable for planting in riparian zones within that 
corridor. It also would require use of native trees and shrubs in 
previously forested areas or in areas that would revert to forest under 
conditions of natural succession. Creation of a riparian corridor 
populated with native species is part of the best technology currently 
available to minimize adverse impacts on fish, wildlife, and related 
environmental values and to achieve enhancement of those resources, as 
required by section 515(b)(24) of SMCRA.\427\ Nothing in proposed 
paragraph (b)(3) would require planting of hydrophilic species in 
riparian corridors or portions of riparian corridors that are incapable 
of providing the necessary moisture or other growing conditions. In 
those situations, proposed paragraph (b)(3)(ii) would require that the 
riparian corridor be planted with native species appropriate to the 
conditions.
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    \427\ 30 U.S.C. 1265(b)(24).
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    Proposed paragraph (b)(3)(iii) would provide that the proposed 
riparian corridor requirement would not apply to prime farmland 
historically used for cropland because 30 CFR 785.17(e)(1) provides 
that the postmining land use of prime farmland historically used for 
cropland must be cropland. The proposed riparian corridor requirement 
also would not apply to situations in which revegetation would be 
incompatible with an approved postmining land use that is implemented 
during the revegetation responsibility period before final bond 
release. Finally, the riparian corridor requirement would not apply to 
stream segments buried beneath an excess spoil fill or a coal mine 
waste disposal facility pursuant to proposed paragraph (d).
Proposed Paragraph (c): What additional requirements apply to an 
application that proposed to mine through or divert a perennial, 
intermittent, or ephemeral stream?
    Proposed paragraph (c)(1) would require that the proposed 
postmining drainage pattern of perennial,

[[Page 44516]]

intermittent, and ephemeral stream channels to be restored after the 
completion of mining be similar to the premining drainage pattern. In 
addition to its ecological benefits, this requirement would better 
implement the requirement in section 515(b)(3) of SMCRA \428\ that the 
permittee ``restore the approximate original contour of the land.'' The 
proposed rule would allow the regulatory authority to approve 
deviations from the premining drainage pattern when necessary to ensure 
stability, to promote enhancement of fish and wildlife habitat 
consistent with sections 515(b)(24) and 516(b)(11) of SMCRA,\429\ or to 
prevent or minimize excessive downcutting (deepening) of reconstructed 
stream channels. For example, additional meanders may be needed to 
minimize channel erosion and downcutting when restoring streams in 
areas with a badlands-type topography that existed prior to mining.
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    \428\ 30 U.S.C. 1265(b)(3).
    \429\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
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    Proposed paragraph (c)(2) would establish additional requirements 
for permit applications that propose to mine through or permanently or 
temporarily divert a perennial or intermittent stream. Proposed 
paragraph (c)(2)(i) would reiterate that the applicant must meet the 
requirements of proposed paragraphs (a) through (c)(1). Proposed 
paragraph (c)(2)(ii) would require that the applicant demonstrate that 
there is no reasonable alternative that would avoid mining through or 
diverting the stream. Proposed paragraph (c)(2)(iii) would require that 
the operation be designed to minimize the extent to which the stream 
will be mined through or diverted. Proposed paragraph (c)(2)(iv) would 
require that the applicant demonstrate that the techniques in the 
reclamation plan will restore the form and ecological function of the 
affected stream segment, as required by 30 CFR 816.57(b).
    Proposed paragraph (c)(2)(iv)(A) would require the selective 
placement of aquitards (barriers to groundwater infiltration) within 
the backfill or fill when necessary to restore perennial and 
intermittent streams. Placement of a layer of lower-permeability spoil 
or other material near the surface but below the root zone for trees 
and shrubs could provide the subsurface flow needed to restore flow in 
perennial and intermittent stream segments. Construction of aquitards 
would have the additional benefit of quickly removing water that 
otherwise would have infiltrated the fill and could have emerged as 
leachate with undesirable concentrations of total dissolved solids or 
other parameters that could degrade downstream waters.
    Proposed paragraph (c)(2)(iv)(B) would require that the permit 
application include a separate bond calculation for the costs of 
restoring the ecological function of the stream. It also would require 
that, before permit issuance, the permit applicant post a surety bond, 
a collateral bond, or a combination of surety and collateral bonds to 
cover that cost. A self-bond is not appropriate to guarantee 
restoration of a stream's ecological function because of the risk that 
the company may cease to exist during the time required to accomplish 
that restoration. In addition, a self-bond does not require that the 
permittee file financial instruments or collateral with the regulatory 
authority, nor is there any third party obligated to complete the 
reclamation or pay the amount of the bond if the permittee defaults on 
reclamation obligations.
    Proposed paragraph (c)(2)(v) would require that the applicant 
comply with the stream restoration and stream-channel diversion design 
requirements in existing 30 CFR 816.43. As part of our effort to 
consolidate permitting requirements in subchapter G of our regulations, 
we propose to move the stream-channel diversion design provisions in 
the last sentence of existing 30 CFR 816.43(a)(3) and in paragraphs 
(b)(2) through (b)(4) of existing 30 CFR 816.43 to 30 CFR 
780.28(c)(2)(v) and (vi).
    We also propose to extend the design requirements of proposed 
paragraph (c)(2)(v)(A) and the design certification requirements of 
proposed paragraph (c)(2)(vi) to perennial and intermittent stream 
channels to be restored after the completion of mining. Our existing 
rules do not address restored stream channels, an oversight that we 
propose to correct because there is no legal or scientific basis for 
the absence of standards for the restoration of stream channels. 
Restored stream channels and permanent stream-channel diversions are 
equally important in terms of their value to the fish, wildlife, and 
related environmental values protected by section 515(b)(24) of 
SMCRA.\430\ In addition, there is no legal, technical, or scientific 
reason why designs for restored stream channels should be subject to 
less rigorous certification standards than designs for stream-channel 
diversions.
---------------------------------------------------------------------------

    \430\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Proposed paragraph (c)(2)(v)(A) would require that designs for 
permanent stream-channel diversions, temporary stream-channel 
diversions that will be in use for 2 or more years, and stream channels 
that are to be restored after the completion of mining replicate or 
approximate the premining characteristics of the original stream 
channel to promote the recovery and enhancement of the aquatic habitat 
and to minimize adverse alteration of stream channels on and off the 
site, including channel deepening or enlargement. This provision is 
similar to the last sentence of existing 30 CFR 816.43(a)(3), with a 
few exceptions.
    First, the existing rule applies only to permanent stream-channel 
diversions. Applying the design requirements of proposed paragraph 
(c)(2)(v)(A) to temporary stream-channel diversions that will be in use 
for 2 or more years would reduce the damage to aquatic resources caused 
by temporary diversions that remain in use for extended periods, 
consistent with the requirement in section 515(b)(24) of SMCRA \431\ to 
minimize adverse impacts on fish, wildlife, and related environmental 
values to the extent possible, using the best technology currently 
available. In recognition of the shorter lifespan of temporary 
diversions, we propose to specify that, for temporary stream-channel 
diversions that will remain in use for 2 or more years, the vegetation 
proposed for planting in the riparian zone need not include species 
that would not reach maturity until after the diversion is removed. In 
other words, faster-growing species like willows, alders, and poplars 
or early successional natural riparian vegetation would be acceptable.
---------------------------------------------------------------------------

    \431\ Id.
---------------------------------------------------------------------------

    Second, proposed paragraph (c)(2)(v)(A) would specify that the 
premining characteristics of the original stream channel include, but 
are not limited to, the baseline stream pattern, profile, dimensions, 
substrate, habitat, and natural vegetation growing in the riparian 
zone. The addition of this clarification is intended to make our 
regulations more consistent with similar requirements under section 404 
of the Clean Water Act and its implementing regulations. It also would 
minimize adverse impacts on fish, wildlife, and related environmental 
values to the extent possible, using the best technology currently 
available, as required by section 515(b)(24) of SMCRA.\432\
---------------------------------------------------------------------------

    \432\ Id.
---------------------------------------------------------------------------

    Third, proposed paragraph (c)(2)(v)(A) would specify that the 
design must minimize adverse alteration of stream channels on and off 
the site, including channel deepening or enlargement. This provision 
would minimize adverse impacts on fish, wildlife, and related

[[Page 44517]]

environmental values to the extent possible, using the best technology 
currently available, as required by section 515(b)(24) of SMCRA,\433\ 
because channel deepening or enlargement can reduce the frequency and 
volume of flows over the flood-plain and contribute sediment to 
streamflow and streambeds through streambank erosion.
---------------------------------------------------------------------------

    \433\ Id.
---------------------------------------------------------------------------

    Proposed paragraph (c)(2)(v)(B) would require that the stream-
channel design ensure that the hydraulic capacity of all temporary and 
permanent stream-channel diversions is at least equal to the hydraulic 
capacity of the unmodified stream channel immediately upstream from the 
diversion and no greater than the hydraulic capacity of the unmodified 
stream channel immediately downstream from the diversion. Existing 30 
CFR 816.43(b)(2) applies the same standard for the hydraulic capacity 
of the diversion both upstream and downstream of the diversion; i.e., 
the designed hydraulic capacity of the diversion must be at least equal 
to the hydraulic capacity of the unmodified stream channel immediately 
upstream and downstream from the diversion. Our proposal to require 
that the designed hydraulic capacity of the diversion be no greater 
than (rather than at least equal to) the hydraulic capacity of the 
unmodified stream channel immediately downstream from the diversion 
would protect against the scouring and other adverse impacts that could 
result from a sudden constriction in channel capacity if the diversion 
was allowed to exceed the capacity of the unmodified stream channel 
downstream of the diversion. Therefore, proposed paragraph (c)(2)(v)(B) 
would be consistent with the requirement in section 515(b)(24) of SMCRA 
\434\ to minimize adverse impacts on fish, wildlife, and related 
environmental values to the extent possible, using the best technology 
currently available.
---------------------------------------------------------------------------

    \434\ Id.
---------------------------------------------------------------------------

    Proposed paragraph (c)(2)(v)(C) would require that all temporary 
and permanent stream-channel diversions be designed so that the 
combination of channel, bank, and flood-plain configuration is adequate 
to pass safely the peak runoff of a 10-year, 6-hour precipitation event 
for a temporary diversion and a 100-year, 6-hour precipitation event 
for a permanent diversion. Proposed paragraph (c)(2)(v)(C) is 
substantively identical to existing 30 CFR 816.43(b)(3). We invite 
comment on whether the design event for a temporary diversion should be 
raised to the 25-year, 6-hour event to provide added safety and 
protection against overtopping.
    Proposed paragraph (c)(2)(vi) would require submission of a 
certification from a qualified registered professional engineer that 
the designs for all stream-channel diversions and all stream channels 
to be restored after the completion of mining meet the design 
requirements of 30 CFR 780.28 and any additional design criteria 
established by the regulatory authority. Our proposed rule differs from 
the design certification elements of existing 30 CFR 816.43(b)(4) in 
that we propose to expand the design certification requirement to apply 
to all stream channels to be restored after the completion of mining, 
not just to stream-channel diversions as in the existing rule. As 
discussed above, there is no legal, technical, or scientific reason to 
apply less rigorous design and certification requirements to restored 
stream channels than to permanent stream-channel diversions. In 
addition, we propose to require that the engineer certify that the 
design meets the design requirements of 30 CFR 780.28, not the 
performance standards as in the existing rule, because performance 
standards do not apply directly to designs. Finally, we propose to 
specify that the certification may be limited to the location, 
dimensions, and physical characteristics of the stream channel; it need 
not include restoration of ecological function, which may be beyond the 
professional competency of an engineer.
Proposed Paragraph (d): What requirements apply to an application to 
construct an excess spoil fill or coal mine waste disposal facility in 
a perennial or intermittent streams?
    Proposed paragraph (d)(1) would apply the requirements of proposed 
paragraph (d)(2) in place of the requirements of proposed paragraph 
(b)(2) if the applicant proposes to construct an excess spoil fill or 
coal mine waste disposal facility that would encroach upon any part of 
a perennial or intermittent stream. We are proposing paragraph (d) 
because we recognize that some of the requirements of proposed 
paragraph (b)(2) that would apply to activities in streams cannot be 
met with respect to a stream segment that is buried underneath an 
excess spoil fill or a coal mine waste disposal facility.
    A permit application that contains a proposal to construct an 
excess spoil fill or a coal mine waste disposal facility that would not 
encroach upon any part of a perennial or intermittent stream would not 
be subject to the requirements of proposed paragraph (d)(2). However, 
if the proposed fill or disposal facility would disturb the surface of 
land within 100 feet of a perennial or intermittent stream,\435\ the 
application would have to comply with the requirements of proposed 
paragraph (b)(2).
---------------------------------------------------------------------------

    \435\ See the discussion of proposed 30 CFR 780.16(c) in this 
preamble for an explanation of how this distance must be measured.
---------------------------------------------------------------------------

    Proposed paragraph (d)(2) would identify the demonstrations that a 
permit application must include if the applicant proposes to construct 
an excess spoil fill or coal mine waste disposal facility in a 
perennial or intermittent stream. The legal authority for the proposed 
demonstration requirements is set forth in detail in the introductory 
paragraphs of the discussion of proposed 30 CFR 780.28 in this preamble 
and will not be repeated here. The demonstrations that we propose to 
require are a combination of other regulatory program and Clean Water 
Act requirements; measures that constitute the best technology 
currently available to minimize any adverse impacts on fish, wildlife, 
and related environmental values, as required by section 515(b)(24) of 
SMCRA; \436\ and fish and wildlife enhancement measures intended to 
offset any unavoidable long-term damage to fish, wildlife, and related 
environmental values.
---------------------------------------------------------------------------

    \436\ Id.
---------------------------------------------------------------------------

    Proposed paragraph (d)(2)(i) would require that the applicant 
demonstrate that the operation has been designed to minimize the amount 
of excess spoil or coal mine waste generated, which would have the 
effect of minimizing the need for or the size of the excess spoil fill 
or coal mine waste disposal facility. This finding corresponds to 
proposed 30 CFR 780.35(b) for excess spoil. For coal mine waste, this 
finding in essence would require a description of the steps taken to 
minimize the amount of coal mine waste generated by the coal 
preparation process, such as the use of filter presses, or an 
explanation of why minimization measures are not practicable.
    Proposed paragraph (d)(2)(ii) would require that the applicant 
demonstrate that, after evaluating all potential upland locations in 
the vicinity of the proposed operation, there is no practicable 
alternative that would avoid placement of excess spoil or coal mine 
waste in a perennial or intermittent stream. Potential upland locations 
that must be considered include, but are not limited to, abandoned mine 
lands and existing fills with excess capacity. The application must 
identify potential locations such as the examples

[[Page 44518]]

mentioned above and explain why those locations are not suitable or 
practicable. We anticipate that, for excess spoil, the permit applicant 
and regulatory authority would conduct this analysis in a manner 
similar to that described in Kentucky Reclamation Advisory Memorandum 
(RAM) 145, which establishes a fill placement optimization process for 
steep-slope mining in Kentucky.\437\ For coal mine waste, the 
application would have to explain why an alternative configuration, 
location, or coal mine waste disposal method is not practicable.
---------------------------------------------------------------------------

    \437\ Kentucky Energy and Environment Cabinet, Department for 
Natural Resources, Reclamation Advisory Memorandum # 145 (December 
16, 2009). Available at http://minepermits.ky.gov/RAMS/RAM145.pdf 
(last accessed June 25, 2015).
---------------------------------------------------------------------------

    Proposed paragraph (d)(2)(iii) would require that the applicant 
demonstrate that, to the extent possible using the best technology 
currently available, the proposed excess spoil fill or coal mine waste 
disposal facility has been designed to minimize both placement of 
excess spoil or coal mine waste in a perennial or intermittent stream 
and adverse impacts on fish, wildlife, and related environmental 
values. This provision corresponds in part to the fill optimization 
requirements of proposed 30 CFR 780.35(c). We anticipate that the RAM 
145 process mentioned above may assist in meeting this requirement. 
Proposed paragraph (d)(2)(iii) would implement, in part, section 
515(b)(24) of SMCRA,\438\ which provides that surface coal mining and 
reclamation operations must be conducted to minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values to 
the extent possible, using the best technology currently available.
---------------------------------------------------------------------------

    \438\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Proposed paragraph (d)(2)(iv) would require that the applicant 
demonstrate that the fish and wildlife enhancement plan for the 
proposed operation includes measures that would fully and permanently 
offset any long-term adverse impacts that the fill, refuse pile, or 
coal mine waste impoundment would have on fish, wildlife, and related 
environmental values within the footprint of the fill, refuse pile, or 
coal mine waste impoundment. The regulatory authority would determine 
the meaning of ``fully and permanently offset'' on a case-by-case 
basis. At a minimum, riparian corridors must be protected by 
conservation easements (dedicated to an appropriate agency or 
organization) or deed restrictions so that the newly planted vegetation 
is not destroyed after bond release. We invite comment on whether the 
final rule could or should include more specific standards or criteria 
for determining the meaning of ``fully and permanently offset.'' We 
also invite comment on whether mitigation required pursuant to section 
404 of the Clean Water Act \439\ may satisfy this requirement and 
whether past Clean Water Act mitigation measures have been successful. 
We encourage submission of data to document the success or failure of 
those measures.
---------------------------------------------------------------------------

    \439\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    Proposed paragraph (d)(2)(v) would require that the applicant 
demonstrate that the excess spoil fill or coal mine waste disposal 
facility has been designed in a manner that will not cause or 
contribute to a violation of water quality standards or result in the 
formation of toxic mine drainage. The demonstration that this paragraph 
would require is intended to ensure the proposed operation will not 
cause material damage to the hydrologic balance outside the permit 
area. In particular, it is intended to ensure that discharges to 
surface water or groundwater from the excess spoil fill or coal mine 
waste disposal facility would not have a substantial adverse impact on 
water quality or aquatic biota in receiving streams. As defined in 30 
CFR 701.5, toxic mine drainage means any discharge that ``contains a 
substance that through chemical or physical effects is likely to kill, 
injure, or impair biota commonly present in that area that might be 
exposed to it.''
    Proposed paragraph (d)(2)(vi) would require that the applicant 
demonstrate that the revegetation plan submitted under proposed 30 CFR 
780.12(g) requires reforestation of a completed excess spoil fill if 
the land is forested at the time of application or if it would revert 
to forest under conditions of natural succession. This measure is 
intended to minimize the adverse impacts of the fill on watershed 
hydrology, especially the quantity and quality of surface runoff, and 
aquatic life in the stream.
    Proposed Paragraph (e): What are the regulatory authority's 
responsibilities?
    Proposed paragraph (e)(1)(i) would require that the regulatory 
authority establish objective standards for determining when the 
ecological function of a restored or permanently-diverted perennial or 
intermittent stream has been restored. Objective standards are 
essential to fair enforcement of the requirement for restoration of the 
ecological function of streams and to enable permit applicants to 
develop appropriate and comprehensive reclamation plans. Proposed 
paragraph (e)(1)(ii) would require that, in establishing these 
standards, the regulatory authority coordinate with the Clean Water Act 
permitting authority to ensure compliance with all Clean Water Act 
requirements.
    Proposed paragraph (e)(1)(iii) would specify that the standards 
established by the regulatory authority must comply with the functional 
restoration requirements of proposed 30 CFR 816.57(b)(2). In relevant 
part, proposed 30 CFR 816.57(b)(2) would require that a stream flowing 
through a restored stream channel or stream-channel diversion have a 
biological condition adequate to support the designated uses of the 
original stream segment under section 101(a) or 303(c) of the Clean 
Water Act \440\ before mining. This provision may allow limited changes 
in the species composition of the array of insects, fish, and other 
aquatic organisms found in a stream flowing through a restored stream 
channel or stream-channel diversion, as long as the changes do not 
preclude existing uses or attainment of designated uses. Proposed 30 
CFR 816.57(b)(2) also would require that the biological condition of 
the restored stream be determined using a protocol that meets the 
requirements of proposed 30 CFR 780.19(e)(2) and that populations of 
organisms used to determine the postmining biological condition of the 
stream segment be self-sustaining within that segment. We propose to 
include this provision because the presence of individual organisms 
that happen to drift into the reconstructed channel from other areas is 
not an indicator of restoration of the ecological function of the 
restored stream segment.
---------------------------------------------------------------------------

    \440\ 33 U.S.C. 1251(a) and 1313(c).
---------------------------------------------------------------------------

    Proposed paragraph (e)(2) specifies that the regulatory authority 
may not approve an application that includes any activities included in 
proposed paragraph (a)(1) unless the regulatory authority first makes a 
written finding that the applicant has fully satisfied all applicable 
requirements of 30 CFR 780.28. It also would require that the finding 
be accompanied by a detailed explanation and rationale for the finding. 
These requirements are appropriate, given the purposes and provisions 
of SMCRA discussed in the introductory paragraphs of the preamble to 30 
CFR 816.57 and the typically high value of perennial and intermittent 
streams to fish and wildlife.

[[Page 44519]]

15. Section 780.29: What information must I include in the surface-
water runoff control plan?
    We propose to revise this section to require that each application 
include a surface-water runoff control plan. We propose to require this 
plan because uncontrolled surface-water runoff can and has been known 
to cause flooding downgradient of the operation, which in turn can 
result in material damage to the hydrologic balance outside the permit 
area, property damage, and loss of human life, as well as adverse 
impacts on fish, wildlife, and related environmental values. Section 
510(b)(3) of SMCRA \441\ provides that the regulatory authority may not 
approve a permit application unless the application affirmatively 
demonstrates and the regulatory authority finds in writing that the 
proposed operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area. Section 515(b)(24) of SMCRA 
\442\ requires that surface coal mining and reclamation operations 
minimize adverse impacts on fish, wildlife, and related environmental 
values.
---------------------------------------------------------------------------

    \441\ 30 U.S.C. 1260(b)(3).
    \442\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Proposed paragraph (a)(1) specifies that the plan must explain how 
surface-water runoff will be handled in a manner that will prevent peak 
discharges from the proposed permit area, both during and after mining 
and reclamation, from exceeding premining peak discharges from the same 
area for the same-size precipitation event. Proposed paragraph (a)(1) 
also requires use of the appropriate regional NRCS synthetic storm 
distribution to estimate peak discharges. Design criteria for hydraulic 
structures intended to handle overland flow from precipitation events 
are based in part on the peak runoff rate and/or runoff volume from the 
area draining to the structure. Actual precipitation records for small 
drainage areas generally are not available, so engineers typically rely 
upon mathematical models instead. The distribution of rainfall 
intensities is one of the primary inputs to those models. We propose to 
require use of the appropriate regional NRCS synthetic storm 
distribution to determine runoff intensities and peak flows because it 
is a widely accepted, prudent engineering design methodology.
    Maximum runoff from a drainage area occurs when the peak intensity 
of the rainfall event coincides with the time of concentration (the 
length of time between the beginning of the rainfall event and the time 
when runoff from the entire drainage area first arrives at the outlet 
for the drainage area). Typically, for precipitation events with the 
same return interval (2 years, 10 years, 100 years, etc.), peak 
intensity is much greater for storms of short duration--the shorter the 
duration, the greater the maximum intensity and the greater the amount 
of peak flow from surface runoff. Traditionally, peak stormwater runoff 
from a drainage area was determined using a storm duration 
approximately 1.7 times greater than the time of concentration. Use of 
the NRCS synthetic storm distribution accomplishes this determination 
automatically. For example, precipitation intensity during the 1-hour 
or 6-hour increment with the highest rainfall amount within the 24-hour 
10-year synthetic distribution (theoretical storm event) is identical 
to precipitation intensity and total rainfall during traditional 1-hour 
and 6-hour 10-year events. Therefore, it is not necessary to select a 
storm duration related to the time of concentration to capture the 
greater intensities of events of shorter duration.
    Proposed paragraph (a)(2) specifies that the explanation in 
paragraph (a)(1) must consider the findings in the PHC determination 
prepared under Sec.  780.20.
    Proposed paragraph (b) would require that the plan include a 
surface-water runoff monitoring and inspection program that would 
provide sufficient precipitation and stormwater discharge data for the 
proposed permit area to evaluate the effectiveness of surface-water 
runoff control practices. The surface-water runoff monitoring and 
inspection program must specify criteria for monitoring, inspection, 
and reporting consistent with 30 CFR 816.34(d), which contains the 
corresponding performance standards. The program must contain a 
monitoring point density that adequately represents the drainage 
pattern and drainage distribution across the entire proposed permit 
area, with a minimum of one monitoring point for each watershed 
discharge point. We invite comment on whether the proposed minimum 
monitoring point density standard is too high or too low.
    Proposed paragraph (c) would require that the permit application 
include descriptions, maps, and cross-sections of all runoff control 
structures, including diversions and other channels used to collect and 
convey surface-water runoff. Existing 30 CFR 780.29 applies this 
requirement only to diversions, which, under 30 CFR 816.43, could be 
construed as excluding channels constructed to collect and convey 
surface runoff from the area to be disturbed by the mining operations. 
Under proposed paragraph (c), all such channels would have to be 
designed in accordance with the standards in 30 CFR 816.43. Proposed 
paragraph (c) is intended to ensure that these channels are safe, 
stable, and of adequate capacity.
16. Section 780.35: What information must I provide concerning the 
minimization and disposal of excess spoil?
    We propose to revise, reorganize, and expand our existing rules 
governing permitting requirements for the disposal of excess spoil.
Background and Rationale for the Proposed Rule Changes
    Disposal of excess spoil and coal mine waste often involves the 
filling of substantial portions of stream valleys, especially in 
central Appalachia. Based upon our regulatory experience, updated 
science, and modern engineering practices, we propose to revise our 
regulations to minimize the creation of excess spoil and to ensure that 
excess spoil fills and coal mine waste disposal facilities are located 
and designed to minimize disturbances and adverse impacts on fish, 
wildlife, and related environmental values to the extent possible, 
using the best technology currently available, as required by sections 
515(b)(24) and 516(b)(11) of SMCRA.\443\
---------------------------------------------------------------------------

    \443\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

    Our existing regulations pertaining to the disposal of excess spoil 
primarily focus on ensuring that fills are safe and stable. We propose 
to add several requirements intended to promote environmental 
protection, including minimization of the adverse environmental impacts 
of fill construction in perennial and intermittent streams. We 
recognize that section 515(b)(22) of SMCRA,\444\ which establishes 
standards for the disposal of excess spoil, does not include any 
requirements specifically oriented toward environmental protection, but 
instead focuses on engineering standards intended to promote stability, 
prevent mass movement, and control infiltration of water. However, 
section 515(b)(24) of SMCRA \445\ does require that surface coal mining 
and reclamation operations be conducted in a manner that minimizes 
disturbances to, and adverse impacts on, fish, wildlife, and related 
environmental values to the extent possible, using the

[[Page 44520]]

best technology currently available. Section 515(b)(24) \446\ applies 
to the disposal of excess spoil both by its own terms (disposal of 
excess spoil is a part of surface coal mining and reclamation 
operations) and through section 515(b)(22)(I),\447\ which requires that 
the placement of excess spoil meet ``all other provisions of this 
Act.'' SMCRA contains numerous environmental protection requirements 
that apply to all surface coal mining and reclamation operations and 
all aspects of those operations, including the disposal of excess 
spoil. The fact that section 515(b)(22) \448\ does not mention 
environmental protection in no way suggests that excess spoil fills 
need not comply with the environmental protection provisions of SMCRA 
or that we lack the authority to adopt regulations establishing 
environmental protection requirements for those structures.
---------------------------------------------------------------------------

    \444\ 30 U.S.C. 1265(b)(22).
    \445\ 30 U.S.C. 1265(b)(24).
    \446\ Id.
    \447\ 30 U.S.C. 1265(b)(22)(I).
    \448\ 30 U.S.C. 1265(b)(22).
---------------------------------------------------------------------------

    The goal of the excess spoil minimization and fill size 
optimization requirements of proposed paragraphs (b) and (c) is to 
minimize fill footprints and thus minimize disturbances of forests, 
perennial and intermittent streams, and riparian vegetation, consistent 
with the requirement in sections 515(b)(24) and 516(b)(11) of SMCRA 
\449\ to minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible using the best 
technology currently available.
---------------------------------------------------------------------------

    \449\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

    As part of our oversight activities, we conducted studies in 1999 
in Kentucky, Virginia, and West Virginia to determine how state 
regulatory authorities were administering SMCRA regulatory programs 
regarding restoration of approximate original contour. From our review 
of permit files and reclaimed mines, we determined that, typically, 
some of the spoil placed in excess spoil fills could have been retained 
on or returned to mined-out areas. See ``An Evaluation of Approximate 
Original Contour and Postmining Land Use in Kentucky'' (OSMRE, 
September 1999); ``An Evaluation of Approximate Original Contour 
Variances and Postmining Land Uses in Virginia'' (OSMRE, September 
1999); and ``Final Report: An Evaluation of Approximate Original 
Contour and Postmining Land Use in West Virginia'' (OSMRE, May 1999).
    In many instances, we found that the permit application 
overestimated the anticipated volume of excess spoil that the operation 
would produce. In addition, fills were designed and constructed larger 
than necessary to accommodate the anticipated excess spoil, which 
resulted in the unnecessary disturbance of additional land. Kentucky, 
Virginia, and West Virginia worked with us to develop enhanced guidance 
on material balance determinations, spoil management, and approximate 
original contour determinations to correct these problems to the extent 
feasible under the existing regulations. The regulatory authorities in 
those states have adopted policies based on that guidance for use in 
reviewing permit applications.\450\ We also developed guidance for use 
under the Tennessee federal regulatory program.\451\
---------------------------------------------------------------------------

    \450\ Kentucky Department of Natural Resources Reclamation 
Advisory Memorandum No. 145 (2009), Virginia Department of Mines, 
Minerals and Energy Guidance Memorandum 4-02 (2002), West Virginia 
Department of Environmental Protection Final Approximate Original 
Contour Document Guidance Policy (``AOC+'') (1999).
    \451\ OSMRE Knoxville Field Office Engineering Procedure 2.1: 
Steep Slope Mining: AOC and Excess Spoil Determination (2001).
---------------------------------------------------------------------------

    If adopted, the rule that we are proposing today would provide 
further authority for the policies in place in Kentucky, Tennessee, 
Virginia, and West Virginia. It would strengthen the enforceability of 
decisions based on those policies and provide national consistency by 
ensuring that certain basic requirements will be applied nationwide, 
including in those states that have not adopted such policies. The 
environment, the public, and the regulated community are best served by 
the adoption of national regulations to clarify environmental 
considerations concerning the generation and disposal of excess spoil.
    Proposed Paragraph (a): Applicability.
    This proposed paragraph would clarify that the provisions of 30 CFR 
780.35 apply only to permit applications that propose to generate 
excess spoil.
Proposed Paragraph (b): Demonstration of Minimization of Excess Spoil
    Proposed paragraph (b)(1) would require a demonstration, with 
supporting calculations and other documentation, that the operation has 
been designed to minimize, to the extent possible, the volume of excess 
spoil that the operation will generate. Designing the operation in this 
fashion should ensure that the maximum amount of overburden is returned 
to the mined-out area. Our goal is to ensure that the volume of 
overburden placed in excess spoil fills is minimized to the maximum 
extent possible. Minimizing the volume of overburden placed in excess 
spoil fills is critical to minimizing the amount of undisturbed land 
affected by fill construction and to ensuring that those fills bury or 
otherwise impact the shortest length of stream possible.
    Proposed paragraph (b)(2) would specify the factors that the permit 
applicant and the regulatory authority must consider in determining 
whether the proposed operation has been designed to minimize the 
creation of excess spoil to the extent possible. It requires 
consideration of safety and stability needs and requirements; 
revegetation and postmining land use needs and requirements; the need 
for drainage structures, access roads, and berms; applicable 
regulations concerning backfilling, compaction, grading, and 
restoration of the approximate original contour; and other relevant 
regulatory requirements, in particular those pertaining to protection 
of water quality and fish, wildlife, and related environmental values. 
Some or all of those factors may limit the amount of spoil that can be 
returned to the mined-out area, especially the requirements related to 
safety, stability, and postmining land use. Also, if the regulatory 
authority does not approve the proposed postmining land use, the 
applicant and the regulatory authority would need to revisit the 
demonstration to determine whether it must be revised to reflect the 
needs and attributes of the postmining land use that is finally 
approved.
    In addition, proposed paragraph (b)(2)(iii) would specify that 
drainage structures, access roads, and berms on the perimeter of the 
backfilled area must not exceed a total width of 20 feet unless the 
permit applicant can demonstrate a need for a greater width. This 
restriction would maximize placement of overburden material on the 
mined-out area and minimize the generation and placement of excess 
spoil. In many cases, construction of access roads or drainage controls 
wider or larger than necessary prevents maximum spoil placement within 
the mined-out area, thus creating larger excess spoil fills and burial 
of a greater length of perennial or intermittent stream segments than 
absolutely necessary. We propose to select 20 feet as the maximum width 
because that is the typical width of a drainage bench on the face of a 
fill or embankment. Twenty feet should provide adequate room for 
drainage and sediment controls during the period between final grading 
and establishment of vegetation. Twenty feet also would afford adequate 
access for equipment in the event that maintenance is required before 
final bond release. We seek comment on

[[Page 44521]]

whether the maximum width should be larger or smaller than 20 feet.
    To attain the goal of minimizing both the amount of land disturbed 
and the length of perennial and intermittent stream segments buried or 
otherwise adversely affected, proposed paragraph (b)(3) would clarify 
that premining elevations do not operate as a cap on the elevation of 
backfilled areas. Instead, the final elevation would be determined on 
the basis of the factors listed in proposed 30 CFR 780.35(b)(2), 
together with the requirement that the final surface configuration be 
compatible with the surrounding terrain and be consistent with natural 
premining landforms. For the same reason, proposed paragraph (b)(4) 
would prohibit the creation of a final-cut impoundment under 30 CFR 
816.49(b) or the placement of coal combustion residues or noncoal 
materials in the mine excavation if doing so would displace spoil 
removed from the excavation to the extent that the displaced mine spoil 
would have to be placed in an excess spoil fill.
Proposed Paragraph (c): Fill Capacity Demonstration
    Proposed paragraph (c) would require that the application include a 
demonstration, with supporting calculations and other documentation, 
that the designed maximum cumulative volume of all proposed excess 
spoil fills within the permit area is no larger than the capacity 
needed to accommodate the anticipated cumulative volume of excess spoil 
that the operation will generate, as calculated under paragraph (b). 
This requirement is intended to prohibit the practice of designing an 
operation with a larger number and greater size of excess spoil fills 
than necessary and then constructing only part of each fill. This 
practice results in the filling of a greater length of stream than 
would be necessary if each fill was used to its maximum capacity, 
especially when using a bottom-up method of fill construction in which 
the entire footprint of the fill is disturbed either before or shortly 
after initial placement of excess spoil in the fill. Adoption of 
proposed paragraph (c) would minimize the adverse impacts of the 
operation on fish, wildlife, and related environmental values, as 
required by section 515(b)(24) of SMCRA,\452\ by minimizing the amount 
of land and water disturbed to construct excess spoil fills.
---------------------------------------------------------------------------

    \452\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

Proposed Paragraph (d): Requirements Related to Perennial and 
Intermittent Streams
    Proposed paragraph (d) would specify that a permit applicant 
proposing to construct an excess spoil fill in or within 100 feet of a 
perennial or intermittent stream \453\ must comply with the 
requirements of proposed 30 CFR 780.28 concerning activities in or near 
perennial or intermittent streams.
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    \453\ See the discussion of proposed 30 CFR 780.16(c) in this 
preamble for an explanation of how this distance must be measured.
---------------------------------------------------------------------------

Proposed Paragraph (e): Location
    Proposed paragraph (e)(1) would require that a permit applicant 
submit maps and cross-section drawings or models showing the location 
and profile of all proposed excess spoil fills. This requirement 
corresponds to the first sentence of existing paragraph (a), which we 
propose to modernize to allow the use of models at the discretion of 
the permit applicant and the regulatory authority. Models can be more 
detailed than either maps or cross-sections. We also propose to require 
that the application include a profile of each excess spoil fill so 
that the regulatory authority is able to determine whether the 
completed fill would meet all applicable surface configuration 
requirements.
    Proposed paragraph (e)(2) would specify that fills must be located 
on the most moderately sloping and naturally stable areas available. It 
also would specify that the regulatory authority will determine which 
areas are available for excess spoil fill construction after 
considering other requirements of the Act and the regulatory program. 
This paragraph corresponds to part of existing 30 CFR 816.71(c), which 
we propose to move to 30 CFR 780.35 because it is a permitting 
requirement, not a performance standard. We propose to add the 
provision specifying that the regulatory authority will determine which 
areas are available for excess spoil fill construction to improve 
consistency with section 515(b)(22)(E) of SMCRA,\454\ which requires 
that excess spoil be placed ``upon the most moderate slope among those 
upon which, in the judgment of the regulatory authority, the spoil 
could be placed in compliance with all the requirements of the Act.'' 
Because one of the requirements of the Act is the provision in section 
515(b)(24) \455\ specifying that surface coal mining and reclamation 
operations must be conducted so as to minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values to the 
extent possible, using the best technology currently available, the 
location with the most moderate slopes in the vicinity of the proposed 
operation may not be available if construction of the fill at that 
location would have greater adverse impact on fish, wildlife, and 
related environmental values than would construction of the fill at a 
different location with steeper slopes. In other words, the requirement 
to place excess spoil on the most moderate slope is subordinate to 
compliance with other requirements of the Act and regulatory program.
---------------------------------------------------------------------------

    \454\ 30 U.S.C. 1265(b)(22)(E).
    \455\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Proposed paragraph (e)(3) provides that, whenever possible, the 
permit applicant must place fills on or above a natural terrace, bench, 
or berm if that location would provide additional stability and prevent 
mass movement. This paragraph corresponds to the remainder of existing 
30 CFR 816.71(c), which we propose to move to 30 CFR 780.35 because it 
is a permitting requirement, not a performance standard. Proposed 
paragraph (e)(3) is consistent with section 515(b)(22)(E) of 
SMCRA,\456\ which requires that excess spoil be placed ``where 
possible, upon, or above, a natural terrace, bench, or berm, if such 
placement provides additional stability and prevents mass movement.'' 
However, spoil placement upon or above a natural terrace, bench, or 
berm may not always be possible because section 515(b)(24) of SMCRA 
\457\ provides that surface coal mining and reclamation operations must 
minimize disturbances and adverse impacts on fish, wildlife, and 
related environmental values to the extent possible, using the best 
technology currently available. Implementation of that requirement may 
entail placement of spoil in a location other than on or above a 
natural terrace, bench, or berm, provided the alternative location is 
stable and would have lesser overall adverse impacts on fish, wildlife, 
and related environmental values.
---------------------------------------------------------------------------

    \456\ 30 U.S.C. 1265(b)(22)(E).
    \457\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

Proposed Paragraph (f): Design Plans
    Proposed paragraph (f) requires that an application for an 
operation that would generate excess spoil include detailed design 
plans for each excess spoil fill, prepared in accordance with the 
requirements of proposed 30 CFR 780.35 and 816.71 through 816.74. 
Proposed paragraph (f) corresponds to the portion of existing 30 CFR 
780.35(a) that requires that the design comply with 30 CFR 816.71 
through 816.74. For

[[Page 44522]]

clarity and completeness, we propose to add language also requiring 
compliance with the requirements of 30 CFR 780.35, although those 
design requirements would apply anyway in the absence of this 
provision. Proposed paragraph (f) also would require that the applicant 
design the fill and appurtenant structures using current prudent 
engineering practices and any additional design criteria established by 
the regulatory authority. That requirement appears in the first 
sentence of existing 30 CFR 816.71(b)(1), which we propose to move to 
30 CFR 780.35 because it is a design requirement, not a performance 
standard.
Proposed Paragraph (g): Geotechnical Investigation
    Proposed paragraph (g) would require that the application include 
the results of a geotechnical investigation, with supporting 
calculations and analyses, of the site of each proposed excess spoil 
fill, with the exception of those sites at which spoil will be placed 
only on a preexisting bench under 30 CFR 816.74. This provision 
corresponds to existing paragraph (b). We propose to add a requirement 
that the applicant submit supporting calculations and analyses with the 
geotechnical investigation of the site of each proposed excess spoil 
fill. The additional data is essential for the permit application 
reviewer to determine the stability of the proposed design.
    Proposed paragraphs (g)(1) through (6) identify information that 
would have to be submitted with the application to document the 
geotechnical investigation and its results.
    Proposed paragraph (g)(1) would require sufficient foundation 
investigations, as well as any necessary laboratory testing of 
foundation material, to determine the design requirements for 
foundation stability for the site of each fill. This requirement 
currently appears in existing 30 CFR 816.71(d)(1). We propose to move 
it to 30 CFR 780.35(g) consistent with our effort to consolidate design 
requirements in the permitting rules rather than splitting them between 
the permitting rules and the performance standards. The foundation 
investigation is an element of the geotechnical investigation that is 
required for approval of a proposed excess spoil fill in a permit 
application.
    Proposed paragraphs (g)(2) through (6) correspond to, and are 
substantively identical to, existing paragraphs (b)(1) through (5), 
except as discussed below.
    We propose to revise paragraph (g)(3) to require that the applicant 
provide the geographic coordinates and a narrative description, rather 
than just a survey, of all springs, seepage, mine discharges, and 
groundwater flow observed or anticipated during wet periods in the area 
of the proposed fill. The added precision will assist the regulatory 
authority in evaluating the adequacy of the excess spoil fill design.
    Proposed paragraph (g)(4) would require that the applicant provide 
an analysis of the potential effects of any underground mine workings 
within the proposed permit and adjacent areas, including the effects of 
any subsidence that may occur as a result of previous, existing, and 
future underground mining operations. The proposed requirement is 
similar to the portion of existing 30 CFR 816.71(d)(1) that requires 
that the analyses of foundation conditions take into consideration the 
effect of underground mine workings, if any, upon the stability of the 
fill and appurtenant structures. Existing 30 CFR 780.35(b)(3) also 
requires a survey of the potential effects of subsidence that may occur 
as a result of past and future underground mining operations. Our 
proposed revisions would require that the analysis also consider the 
potential effects of subsidence from existing underground mining 
operations, not just past and future operations. The design needs to be 
capable of withstanding all potential impacts of any subsidence that 
may occur during the life of the proposed structure. We propose to add 
the reference to the proposed permit and adjacent areas to ensure that 
the analysis includes all operations that have the potential to cause 
subsidence that may affect the proposed fill, not just operations 
within the proposed permit area.
    Proposed paragraph (g)(6) is substantively identical to existing 
paragraph (b)(5), with the exception that we propose to revise this 
paragraph to clarify that the stability analyses that it requires must 
address static, seismic, and post-earthquake (liquefaction) conditions 
because those conditions are all part of a comprehensive stability 
analysis.
Proposed Paragraph (h): Operation and Reclamation Plans
    Proposed paragraph (h) would require that the permit applicant 
submit plans for the construction, operation, maintenance, and 
reclamation of all excess spoil fills in accordance with the 
requirements of Sec. Sec.  816.71 through 816.74. This requirement 
corresponds to a similar provision in existing paragraph (a). However, 
that provision includes a requirement for plans for the ``removal, if 
appropriate, of the site and structures.'' Because excess spoil fills 
are permanent, it is not appropriate to include plans for their removal 
in the application. Consequently, we propose to replace the requirement 
for plans for removal of the fills with a requirement for plans for 
their reclamation, which would consist of final site preparation and 
revegetation consistent with the approved postmining land use.
Proposed Paragraph (i): Additional Requirements for Bench Cuts or Rock-
Toe Buttresses
    Proposed paragraph (i) combines overlapping requirements in 
existing paragraph (c) and 30 CFR 816.71(d)(2) concerning application 
and design requirements for bench cuts or rock-toe buttresses. We 
propose to revise the existing requirements by replacing the term 
``keyway cuts'' with ``bench cuts.'' The term ``keyway cut'' is 
technically a cut beneath a dam that is used to extend low-permeability 
fill material to, but not into, bedrock. The term ``bench cut'' is more 
appropriate here because it refers to cuts into bedrock, not just down 
to bedrock, which is essential in the context of fill construction 
under steep-slope conditions.
Proposed Paragraph (j): Design Certification
    Proposed paragraph (j) would require that the application include a 
certification by a qualified registered professional engineer 
experienced in the design of earth and rock fills that the design of 
all fills and appurtenant structures meets the requirements of 30 CFR 
780.35. This requirement currently appears in the second sentence of 
existing 30 CFR 816.71(b)(1), which we propose to move to 30 CFR 780.35 
consistent with our effort to consolidate design requirements in the 
permitting rules rather than splitting them between the permitting 
rules and the performance standards. We propose no substantive changes 
to this provision.
17. Section 780.37: What information must I provide concerning access 
and haul roads?
    We propose to revise and reorganize existing paragraphs (a)(1), 
(2), (3), and (5) into proposed paragraphs (a)(1) and (2) to improve 
clarity and to eliminate redundancies and unnecessary cross-references. 
Proposed paragraph (a)(3) would require that the applicant demonstrate 
how all proposed roads will comply with the applicable requirements of 
30 CFR 780.28 (activities in, through, or near streams), 816.150 
(general performance standards for roads), and 816.151 (performance 
standards for primary roads). Section

[[Page 44523]]

780.28 is an element of the rule that we are proposing today, while 30 
CFR 816.150 and 816.151 are existing rules.
    We propose to add paragraph (a)(4) to require that the application 
identify each road that would be located in or within 100 feet of the 
channel of a perennial or intermittent stream,\458\ each proposed ford 
of a perennial or intermittent stream that would be used as a temporary 
route during road construction, any plans to alter or relocate a 
natural stream channel, and each proposed low-water crossing of a 
perennial or intermittent stream channel. The regulatory authority 
would need this information to determine compliance with the applicable 
requirements of proposed 30 CFR 780.28 and existing 30 CFR 816.150, and 
816.151.
---------------------------------------------------------------------------

    \458\ See the discussion of proposed 30 CFR 780.16(c) in this 
preamble for an explanation of how this distance must be measured.
---------------------------------------------------------------------------

    We also propose to add paragraph (a)(5) to require that the 
applicant explain why any proposed fords, alterations or relocations of 
natural stream channels, or low-water crossings are necessary and how 
they comply with the applicable requirements of proposed 30 CFR 780.28 
and section 515(b)(18) of the Act.\459\ Section 515(b)(18) of SMCRA 
\460\ provides that surface coal mining and reclamation operations must 
``refrain from the construction of roads or other access ways up a 
stream bed or drainage channel or in such proximity to such channel so 
as to seriously alter the normal flow of water.''
---------------------------------------------------------------------------

    \459\ 30 U.S.C. 1265(b)(18).
    \460\ Id.
---------------------------------------------------------------------------

    The proposed revisions are needed to ensure that the stream 
protection requirements of proposed 30 CFR 780.28 are applied to roads, 
which can have very damaging environmental impacts on streams.

H. Part 783: Underground Mining Permit Applications--Minimum 
Requirements for Information on Environmental Resources and Conditions

    Part 783 contains the minimum requirements for information on 
environmental resources and environmental conditions when preparing 
applications for underground mining operations. It is the counterpart 
to part 779 for applications for surface mining operations. In general, 
part 783 is substantively identical to part 779, except for the 
substitution of ``underground mining activities'' for ``surface mining 
activities,'' the replacement of references to surface mining 
regulations with references to the corresponding underground mining 
regulations, and changes of a similar nature. Our proposed revisions to 
part 783 are similarly substantively identical to the corresponding 
revision that we propose in part 779. Therefore, this portion of the 
preamble discusses only those proposed revisions to part 783 that 
differ from the proposed revisions to the corresponding provisions of 
part 779. Otherwise, the rationale that we provide for the proposed 
revisions to part 779 applies with equal effect to our proposed 
revisions to part 783.
    We also call attention to our proposed revisions to the definition 
of ``adjacent area'' in 30 CFR 701.5, which clarifies the size and 
extent of the area to which certain of the information requirements of 
part 783 would apply. As revised, the definition would include all 
areas that could experience adverse impacts from either a surface coal 
mining operation or underground mining activities, including potential 
impacts from any subsidence that may occur as a result of underground 
mining activities. The existing definition is limited to areas that 
either would be adversely impacted or could reasonably be expected to 
be adversely impacted. If adopted as proposed, the revised definition 
would ensure the collection of baseline and other data from all areas 
where adverse impacts are possible, not just from those areas where 
adverse impacts are probable. In other words, our proposed definition 
of ``adjacent area'' would include, at a minimum, the entire area 
overlying the proposed underground workings plus the area within a 
reasonable angle of draw from the perimeter of those workings.
1. Section 783.24: What maps, plans, and cross-sections must I submit 
with my permit application?
    We propose to apply the requirements of 30 CFR 783.24(a)(5) to 
include the location of surface and subsurface man-made features 
within, passing through, or passing over the proposed permit and 
adjacent areas, rather than just the proposed permit area as in the 
corresponding proposed surface mining rules at 30 CFR 779.24(a)(5). The 
regulatory authority would need this information when evaluating the 
potential impacts of both the proposed underground mining operation and 
subsidence resulting from that operation on those features.
    Proposed 30 CFR 783.24(a)(11) would be the underground mining 
counterpart to proposed 30 CFR 779.24(a)(11), which, as previously 
discussed, would add a new provision requiring mapping of all wellhead 
protection zones \461\ located within one-half mile of the proposed 
permit area for surface mining operations. Proposed 30 CFR 
783.24(a)(11) would expand that requirement to include all wellhead 
protection zones located within one-half mile of either the proposed 
permit area of an underground mine or the area overlying the proposed 
underground workings. This expansion is warranted to ensure that the 
permit application review process includes consideration of the 
potential impact of underground mining activities, and subsidence 
resulting from those activities, on these important zones and the water 
supplies that they protect. However, this provision is not intended to 
prohibit underground mining operations within wellhead protection zones 
when those operations can be conducted in a manner that will not 
endanger public water supplies or when the permit applicant can 
identify suitable alternative sources of water capable of providing 
water of equivalent quantity and quality.
---------------------------------------------------------------------------

    \461\ A wellhead protection zone or area is a surface and 
subsurface land area regulated under the Safe Drinking Water Act (42 
U.S.C. 330f-300j) to prevent contamination of a well or well-field 
supplying a public water system.
---------------------------------------------------------------------------

    Proposed 30 CFR 783.24(a)(13) also would require that the map 
include the location of any discharge into or from an active, inactive, 
or abandoned underground or surface mine when the discharge is located 
within one-half mile of the area overlying the proposed underground 
workings, rather than just when the discharge is located within one-
half mile of the proposed permit area as in our proposed surface mining 
rules at 30 CFR 779.24(a)(13). The larger area is appropriate because 
the permit area for an underground mine does not include the area 
overlying the underground workings unless the mine disturbs the surface 
of those lands. However, the regulatory authority needs the discharge 
information from the expanded area to fully evaluate the potential 
impacts of the proposed underground mining operation on the hydrologic 
balance and to prepare the CHIA.
    We propose to lift the suspension of existing 30 CFR 783.25(a)(3), 
(a)(8), and (a)(9) and remove those provisions from our rules. Our 
proposed actions are consistent with PSMRL I, Round II, in which the 
court remanded those provisions, which were then located at 30 CFR 
783.25(c), (h), and (i), for further rulemaking proceedings because the 
preamble provided insufficient justification of the need for or 
usefulness of that information for

[[Page 44524]]

proposed underground mining operations.\462\ As discussed below in the 
context of 30 CFR 783.24(a)(21), (25), and (26), we are re-proposing 
those elements of the suspended rules that are relevant to underground 
mining operations and necessary or useful in the review of permit 
applications for underground mining operations.
---------------------------------------------------------------------------

    \462\ PSMRL I, Round II, 1980 U.S. Dist. LEXIS 17660 at *23-24 
(D.D.C. 1980), 19 ERC (BNA) 1477.
---------------------------------------------------------------------------

    Proposed 30 CFR 783.24(a)(21) would require that the application 
include information concerning the nature, depth, thickness, and 
commonly used names of the coal seams to be mined. Except for the names 
of the coal seams, this information currently is part of suspended 30 
CFR 783.25(a)(3). Information concerning the depth and thickness of the 
coal seam would assist the regulatory authority in reviewing the 
subsidence control plan. Chemical characteristics of the coal seam play 
an important role in determining whether acid mine drainage may be a 
problem. The name of the coal seam would allow the regulatory authority 
to compare reported data with data representative of that seam. The 
remaining information required by suspended 30 CFR 783.25(a)(3) either 
is not relevant to underground mining or is covered by the geologic 
information requirements in proposed 30 CFR 784.19(f), which 
corresponds to existing 30 CFR 784.22.
    Proposed 30 CFR 783.24(a)(23) would require that the application 
include a map and cross-sections showing the location and extent of 
known workings of active, inactive, or abandoned underground mines 
located either within the proposed permit area or within a 2,000-foot 
radius in any direction of the proposed underground workings. Existing 
30 CFR 783.25(a)(5) applies this requirement to the permit and adjacent 
areas. The additional specificity in our proposed rule would ensure 
that the application contains location information for all other 
underground mine workings that could either impact or be impacted by 
the proposed operation.
    Proposed 30 CFR 783.24(a)(25), like suspended 30 CFR 783.25(a)(8), 
would require that the application include maps identifying the 
location and extent of existing or previously surface-mined areas 
within the proposed permit area. This information is important in 
determining which postmining surface configuration and revegetation 
success standards apply, as well as evaluating eligibility for the 
remining provisions of 30 CFR 785.25.
    Proposed 30 CFR 783.24(a)(26) closely resembles suspended 30 CFR 
783.24(a)(9). It would require that the application include a map with 
the location and dimensions of existing areas of spoil, coal mine 
waste, noncoal waste disposal sites, dams, embankments, other 
impoundments, and water treatment facilities within the proposed permit 
area. Those features would affect the reclamation plan, and possibly 
the operations plan, for the mine, so they should be included on the 
permit application maps. The proposed rule differs from the suspended 
rule in that the proposed rule does not include ``waste,'' which is an 
undefined term of uncertain meaning. The proposed rule uses updated 
terminology concerning coal mine waste and, for the reasons discussed 
in the part of this preamble that explains our proposed removal of 
existing 30 CFR 780.15, it does not include air pollution control 
facilities.
    Finally, proposed 30 CFR 783.24(a)(27), which corresponds to 
existing 30 CFR 783.25(a)(10), would expand the scope of the existing 
rule to include conventional gas and oil wells within both the proposed 
permit and adjacent areas, rather than just within the proposed permit 
area. As in the proposed surface mining counterpart rule at 30 CFR 
779.24(a)(27), we also propose to require that the map include the 
extent of any directional or horizontal drilling for hydrocarbon 
extraction operations within both the proposed permit and adjacent 
areas. The permit area for an underground mine does not include the 
area overlying the underground workings or other areas where subsidence 
may occur. Therefore, the regulatory authority needs the information in 
proposed 30 CFR 783.24(a)(27) for both the proposed permit area and the 
adjacent area, not just the proposed permit area, when evaluating what 
impacts the proposed underground mining operation and any potential 
subsidence resulting from that operation may have on oil and gas 
operations.

I. Part 784: Underground Mining Permit Applications--Minimum 
Requirements for Reclamation and Operation Plans

    Part 784 contains the minimum requirements for operation and 
reclamation plans when preparing applications for underground mining 
operations. It is the counterpart to part 780 for applications for 
surface mining operations. In general, part 784 is substantively 
identical to part 780, except for the substitution of ``underground 
mining activities'' for ``surface mining activities,'' the replacement 
of references to surface mining regulations with references to the 
corresponding underground mining regulations, and changes of a similar 
nature. Our proposed revisions to part 784 are similarly substantively 
identical to the corresponding revisions that we propose in part 780. 
Therefore, this portion of the preamble discusses only those proposed 
revisions to part 784 that differ from the proposed revisions to the 
corresponding provisions of part 780. Otherwise, the rationale that we 
provide for the proposed revisions to part 780 applies with equal 
effect to our proposed revisions to part 784.
    We also call attention to our proposed revisions to the definition 
of ``adjacent area'' in 30 CFR 701.5, which could significantly affect 
the scope of some of the plans that part 784 requires. As revised, the 
definition would include all areas that could experience adverse 
impacts from either a surface coal mining operation or underground 
mining activities, including potential impacts from any subsidence that 
may occur as a result of underground mining activities. At a minimum, 
this area would include the entire area overlying proposed underground 
workings plus the area encompassed by an appropriate angle of draw from 
the perimeter of those workings. It also would include all areas with 
underground mine pools that could be affected as well as areas that 
could be affected by any mine pool that forms after closure of the 
underground mine and any areas that could be affected by landslides or 
blowouts resulting from the formation of that mine pool.
    The existing definition is limited to areas that either would be 
adversely impacted or could reasonably be expected to be adversely 
impacted. If adopted as proposed, the revised definition would require 
that the reclamation plan address all areas where adverse impacts are 
possible, not just those areas where adverse impacts are probable.
1. Section 784.11: What must I include in the general description of my 
proposed operation?
    We propose to add language in paragraph (b)(5) to clarify that the 
narrative required by paragraph (b) must address underground mine 
ventilation boreholes, fans, and access roads.
2. Section 784.13: What additional maps and plans must I include in the 
reclamation plan?
    Proposed 30 CFR 784.13(a)(4), which would combine existing 30 CFR 
784.23(b)(1) and (13), would require that the application include a map 
showing the location of all buildings, utility corridors, and other 
facilities to be used or constructed within the proposed

[[Page 44525]]

permit area, together with identification of each facility that will 
remain as a permanent feature after the completion of underground 
mining activities.
    We also propose to remove existing 30 CFR 784.23(b)(11), which 
requires a cross-section profile of the anticipated final surface 
configuration of the affected area, because this requirement duplicates 
part of proposed 30 CFR 784.12(d).
    The preamble to 30 CFR 780.13 includes a discussion of the proposed 
removal of existing 30 CFR 780.13(b)(7) concerning air pollution. There 
is no counterpart to existing 30 CFR 780.13(b)(7) in the underground 
mining regulations at 30 CFR 784.23, so the discussion of our proposed 
removal of that paragraph does not pertain to proposed 30 CFR 784.13. 
Paragraph numbering adjustments need to be made accordingly when 
applying the discussion in this preamble concerning 30 CFR 780.13 to 30 
CFR 784.13.
3. Section 784.19: What baseline information on hydrology, geology, and 
aquatic biology must I provide?
    Proposed paragraph (a) differs from its counterpart in proposed 30 
CFR 780.19(a) only in that it contains an additional requirement in 
paragraph (a)(5) that the baseline information collected be in 
sufficient detail to assist in preparing the subsidence control plan 
under 30 CFR 784.30. In the existing rules, this requirement appears in 
30 CFR 784.22(a)(4) and applies only to geologic information.
    Proposed paragraph (c) is substantively identical to its 
counterpart in proposed 30 CFR 780.19(c) with the exception that we 
propose to add paragraph (c)(3)(D) to the surface-water quantity 
description. This new paragraph would require that the description 
include seepage-run sampling determinations, if the application 
proposes to deploy a longwall panel beneath a perennial or intermittent 
stream or employ other types of full-extraction mining methods beneath 
a perennial or intermittent stream. Seepage runs are a series of in-
stream flow measurements taken to determine the discharge rate of the 
stream at various points. The measurement begins upstream of any 
probable impacts from the proposed underground mine, proceeds through 
the reach of the stream that lies above the proposed mine workings, and 
continues to a point in the stream downgradient of any probable impacts 
from the proposed mine. At each measurement point, the stream width is 
divided into segments and an average velocity is measured for each 
segment. The average velocity is determined by either a single 
measurement taken at a point located six-tenths of the distance from 
the surface of the stream to the bottom of the stream or an average of 
two measurements taken at two-tenths and eight-tenths of the distance 
from the surface of the stream to the bottom of the stream. The 
discharge rate of each stream segment then is calculated based on the 
cross-sectional area and the average velocity. The sum of the discharge 
rates for all stream segments is the total streamflow at that point.
    Subsidence resulting from longwall mining can cause a loss of part 
or all of the streamflow. Where the overburden is sufficiently thick 
(>100 to 150 meters), streamflow may be diverted into dilated fractures 
in the rocks immediately underlying the stream. This is especially true 
for sandstone units which, when fractured, tend to remain open, 
allowing significant transmission of streamflow to groundwater. 
Groundwater flow through fractures behaves in a cubic-root function in 
that doubling of the size of a fracture aperture enables the fracture 
to transmit approximately eight times the original flow.\463\ The 
dilation of fractures caused by subsidence resulting from longwall 
mining can and frequently does result in diversion of surface 
streamflow into the groundwater via these fractures. Where this 
happens, the loss may be spatially limited; i.e., once the stream 
passes beyond the impact footprint of the mine, the flow generally 
returns to the surface at a level expected at that point based on area-
normalized flow criteria (e.g., liters per minute per hectare drained).
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    \463\ Witherspoon, P.A., J.S.K. Wang, K. Iwai, and J.E. Gale, 
1979. Validity of Cubic Law for Fluid Flow in a Deformable Rock 
Fracture, Water Resources Research, Vol. 16, No. 6, pp. 1016-1024.
---------------------------------------------------------------------------

    Seepage-run determinations are necessary to accurately determine 
the impacts of longwall mining on streamflow. Minor to moderate loss of 
streamflow often is not noticeable by visual observation. So, seepage 
run determinations are needed to quantify the impacts. Seepage run 
determinations also are needed to quantify streamflow should it return 
in reaches that are beyond the impact of mining.
    Proposed paragraph (e) sets forth the baseline information on the 
biological condition of streams that the application must include. The 
proposed requirements are substantively identical for both surface and 
underground mining operations, with the exception that applicants for 
underground mining operations must submit the required information for 
all perennial and intermittent streams within the adjacent area that 
might possibly be impacted by subsidence resulting from the proposed 
operation. As discussed in the preamble to our proposed definition of 
material damage to the hydrologic balance outside the permit area in 30 
CFR 701.5, the regulatory authority may not approve any proposed 
operation that is predicted to cause subsidence that would result in 
the dewatering of perennial or intermittent streams or that is 
predicted to result in other adverse impacts that would cause the 
stream to no longer be capable of supporting existing or reasonably 
foreseeable uses or that would preclude attainment of designated uses 
under section 101(a) or 303(c) of the Clean Water Act.\464\ However, 
the regulatory authority still would need the information that this 
paragraph would require for both the area overlying the proposed 
underground workings and the area within a reasonable angle of draw 
from the perimeter of those workings to determine whether the operation 
has created material damage to the hydrologic balance outside the 
permit area as a result of unanticipated subsidence. This information 
also would provide a standard for determining when any material damage 
to the stream has been corrected under 30 CFR 817.121(a).
---------------------------------------------------------------------------

    \464\ 33 U.S.C. 1251(a) and 1313(c).
---------------------------------------------------------------------------

    We propose to add paragraph (f)(1)(iv) to the requirements for 
baseline geologic information for proposed underground mining 
operations. The new paragraph would require a description of the 
composition of the base of each perennial and intermittent stream 
within the proposed permit and adjacent areas, together with a 
prediction of how that base would be affected by subsidence and how 
subsidence of the streambed would impact streamflow. This information 
would be of value in preparation of the PHC determination under 
proposed 30 CFR 784.20 and the CHIA under proposed 30 CFR 784.21 and in 
determining whether the proposed operation may result in material 
damage to the hydrologic balance outside the permit area.
    Proposed paragraph (h) establishes conditions under which the 
regulatory authority may grant an exception from the requirement to 
provide baseline information on the biological condition of streams. It 
is substantively identical to proposed 30 CFR 780.19(h)(2), except that 
it includes a provision clarifying that the exception is not available 
if the proposed operation could cause

[[Page 44526]]

subsidence resulting in changes in the base flow of perennial or 
intermittent streams or in pooling of those streams.
    Unlike proposed 30 CFR 780.19(h), proposed 30 CFR 784.19(h) does 
not include an exception for proposed operations for which the area 
from which coal is to be extracted includes only lands eligible for 
remining. The purpose of this exception for surface mining operations 
under proposed 30 CFR 780.19(h)(1) is to provide an incentive to remine 
previously mined areas by surface mining methods and then reclaim the 
redisturbed acreage with no expenditure of public funds. However, 
underground mining operations do not involve surface mining, apart from 
preparation of the face-up for the underground mine entries. Therefore, 
underground mining operations are unlikely to result in the remining 
and reclamation of previously mined areas to any significant extent. 
Thus, an exception intended to promote the remining and reclamation of 
previously mined areas would serve little purpose in rules that apply 
only to underground mining operations.
4. Section 784.20: How must I prepare the determination of the probable 
hydrologic consequences of my proposed operation (PHC determination)?
    Proposed section 784.20, which appears at 30 CFR 784.14(e) in the 
existing rules, is substantively identical to the corresponding 
proposed rule concerning surface mining at 30 CFR 780.20, with the 
exception of paragraphs (a)(3), (a)(6), and (a)(7). Proposed paragraph 
(a)(3), like the existing rule at 30 CFR 784.14(e)(3)(iv), includes 
provisions consistent with the water replacement requirements of 
section 720 of SMCRA \465\ for underground operations rather than the 
water replacement requirements of section 717(b) of SMCRA,\466\ which 
apply only to surface mines. We propose to add paragraph (a)(6) to 
require that the PHC determination include a finding on what impact 
subsidence resulting from the proposed operation may have on perennial 
and intermittent streams. This finding is critical to a determination 
of whether the proposed operation would cause material damage to the 
hydrologic balance outside the permit area, as required by 30 CFR 
773.15(e) and section 510(b)(3) of SMCRA.\467\
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    \465\ 30 U.S.C. 1309a.
    \466\ 30 U.S.C. 1307(b).
    \467\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    In addition, we propose to add paragraph (a)(7), which would 
require that the PHC determination include a finding on whether the 
proposed underground workings would flood after mine closure and, if 
so, a statement and explanation of the highest anticipated 
potentiometric surface of the mine pool after closure; whether, where, 
and when the mine pool is likely to result in a surface discharge; and 
the predicted quality of any discharge from the mine pool. The 
regulatory authority would use this information, in combination with 
models and calculations of void space and adjacent mine barrier 
seepage, to predict the probability of a blowout, where and when 
blowouts might occur, and the likelihood that water discharged as a 
result of the blowout will require treatment to meet water quality 
standards or any applicable effluent limitations.
    The biggest environmental threat from an underground mine is the 
formation of a post-closure point-source discharge or baseflow 
discharge that is acidic in character (and thus usually high in metal 
concentrations) or that contains high total dissolved solids, which 
result in elevated electrical conductivity in receiving streams. Either 
characteristic can substantially degrade water quality and the 
biological condition of streams. Our proposed requirement that the PHC 
determination include information and a finding on mine pools should 
enable the applicant to make a business decision as to whether revenue 
from the proposed operation would be sufficient to justify the cost of 
preventing future noncompliant discharges of a perpetual nature. It 
also would enable the regulatory authority to prepare a better CHIA and 
require the applicant to take discharge prevention measures or change 
the mining plan to avoid creating a post-closure discharge that would 
cause material damage to the hydrologic balance outside the permit area 
in violation of section 510(b)(3) of SMCRA.\468\
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    \468\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    Proposed paragraph (a)(7) also would require that the PHC 
determination include a statement and explanation of the predicted 
impact of the mine pool on the hydrologic balance of the proposed 
permit and adjacent areas after the mine pool reaches equilibrium, the 
potential for a mine pool blowout or other hydrologic disturbances, the 
potential for the mine pool to destabilize surface features, and the 
potential impact of roof collapses on mine pool behavior and 
equilibrium. Both the permit applicant and the regulatory authority 
need this information to determine whether any preventive or remedial 
measures are necessary to address adverse impacts related to mine 
pools.
5. Section 784.21: What requirements apply to preparation and review of 
the cumulative hydrologic impact assessment (CHIA)?
    Proposed 30 CFR 784.21 is substantively identical to the CHIA 
requirements for surface mine permits in proposed 30 CFR 780.21, with 
one exception: Our proposed CHIA requirements for a permit for an 
underground mine do not contain a counterpart to the requirement in 
proposed 30 CFR 780.21(b)(8)(iv) that the regulatory authority find 
that the proposed operation has been designed to protect the quantity 
and quality of water in any aquifer that significantly ensures the 
prevailing hydrologic balance. That provision does not apply to 
underground mines because section 516(b)(9) of SMCRA,\469\ which is the 
underground mining counterpart to section 515(b)(10),\470\ does not 
include a counterpart to section 515(b)(10)(D), which requires 
restoration of the recharge capacity of the mined area to approximate 
premining conditions. As Congress further recognized in adopting 
section 720 of SMCRA,\471\ underground mining operations will 
necessarily dewater some aquifers. In those situations, section 720 
specifies what actions the permittee must take to replace water 
supplies protected under that section of the law.
---------------------------------------------------------------------------

    \469\ 30 U.S.C. 1266(b)(9).
    \470\ 30 U.S.C. 1265(b)(10).
    \471\ 30 U.S.C. 1309a.
---------------------------------------------------------------------------

6. Section 784.22: What information must I include in the hydrologic 
reclamation plan and what information must I provide on alternative 
water resources?
    Proposed 30 CFR 780.22(a) is substantively identical to the 
corresponding requirements for surface mine permit applications in 
proposed 30 CFR 780.22(a), with one exception: Our proposed hydrologic 
reclamation plan requirements for a permit application for an 
underground mine do not contain a counterpart to the requirement in 
proposed 30 CFR 780.22(a)(2)(ix) that the plan demonstrate how the 
operation will restore the approximate premining recharge capacity. Not 
including a counterpart to this provision in the underground mining 
rules is consistent with the difference between sections 515 and 516 of 
SMCRA,\472\ as discussed above in the preamble to proposed 30

[[Page 44527]]

CFR 784.21. Section 515(b)(10)(D) of SMCRA \473\ requires that surface 
coal mining operations restore the recharge capacity of the mined area 
to approximate premining conditions. However, this requirement does not 
appear in the corresponding provision for underground coal mining 
operations in section 516(b)(9) of SMCRA.\474\
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    \472\ 30 U.S.C. 1265 and 1266.
    \473\ 30 U.S.C. 1265(b)(10)(D).
    \474\ 30 U.S.C. 1266(b)(9).
---------------------------------------------------------------------------

    We also propose to add paragraph (b) to require that an underground 
mining permit application contain information on alternative water 
sources. The existing rules concerning underground mining permit 
applications do not include a similar provision. However, the addition 
of this requirement would enhance the ability of both the permittee and 
the regulatory authority to ensure that the water supply replacement 
requirements of 30 CFR 817.40 and section 720 of SMCRA \475\ are 
properly implemented. Proposed paragraph (b) is substantively identical 
to the corresponding proposed surface mining requirement at 30 CFR 
780.22(b), with the exception that paragraph (b)(1) of section 784.22 
reflects the different scope of water supply replacement requirements 
for underground mining operations, as specified in 30 CFR 817.40 and 
section 720 of SMCRA.\476\
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    \475\ 30 U.S.C. 1309a.
    \476\ Id.
---------------------------------------------------------------------------

7. Section 784.23: What information must I include in my plans for the 
monitoring of groundwater, surface water, and the biological condition 
of streams during and after mining?
    Proposed 30 CFR 784.23 is substantively identical to the 
corresponding monitoring plan requirements for surface mine permit 
applications in proposed 30 CFR 780.23, except as discussed below.
    Proposed 30 CFR 784.23(a)(1)(iii) does not include a requirement 
that the groundwater monitoring plan provide for monitoring wells to be 
placed in backfilled portions of the permit area. We did not include 
this requirement because surface excavations associated with 
underground mining operations typically are small in size relative to 
surface mines and do not involve ongoing backfilling and grading 
activities. Any changes in water quality detected by wells placed in 
backfilled areas would not be useful in planning changes in future 
phases of the operation, because there would be no future phases. 
Instead, we propose to require that the groundwater monitoring plan 
include at least one monitoring well to be located in the mine pool 
after mine closure. This requirement would allow both the permittee and 
the regulatory authority to monitor changes in mine pool elevation and 
to evaluate the accuracy of the PHC determination's prediction of 
whether the mine pool ultimately will rise to the level that a surface 
discharge will result. This information is important because water 
quality in mine pools is often poor,\477\ which means that any surface 
discharge would need to be treated, potentially in perpetuity.
---------------------------------------------------------------------------

    \477\ Donovan, J. J., B. Leavitt, E. Werner, E. Perry, and K. 
McCoy, 2000, Long-term Hydrogeological and Geochemical Response to 
Flooding of an Abandoned Below-drainage Pittsburgh Coal Mine, in the 
Proceedings of the Twenty-First West Virginia Surface Mine Drainage 
Task Force Symposium, Morgantown, WV, pp. 139-160.
---------------------------------------------------------------------------

    Proposed paragraphs (a)(1)(iii) and (b)(1)(iv) would require that 
upgradient and downgradient monitoring points for groundwater and 
surface water be located at a distance sufficiently close to the 
underground mine workings to detect changes as the mining operation 
progresses. The plan must include a schedule and map for moving these 
sites as the underground workings advance. Without this provision, the 
upgradient and downgradient monitoring points could be located so far 
away from the active underground workings that they would provide no 
meaningful data for purposes of analyzing impacts of current operations 
on groundwater or surface water.
    Proposed paragraph (d) establishes conditions under which the 
regulatory authority may grant an exception from the requirement to 
monitor the biological condition of streams. It is substantively 
identical to proposed 30 CFR 780.23(d)(2), except that it includes a 
provision clarifying that the exception is not available if the 
proposed operation could cause subsidence resulting in changes in the 
base flow of a perennial or an intermittent stream or in pooling of a 
perennial or an intermittent stream.
    Unlike proposed 30 CFR 780.23(d) for permit applications for 
surface mines, proposed 30 CFR 784.23(d) does not include an exception 
for proposed underground mining operations for which the area from 
which coal is to be extracted includes only lands eligible for 
remining. The purpose of this exception for surface mining operations 
under proposed 30 CFR 780.23(d)(1) is to provide an incentive to remine 
previously mined areas by surface mining methods and then reclaim the 
redisturbed acreage with no expenditure of public funds. However, 
underground mining operations do not involve surface mining, apart from 
preparation of the face-up or mine entries, which means that any 
redisturbance-and hence reclamation--of previously mined areas would be 
comparatively minimal. Therefore, an exception intended to promote the 
surface mining and reclamation of previously mined areas would serve no 
purpose in rules that apply only to underground mining operations.
8. Section 784.24: What requirements apply to the postmining land use?
    Proposed section 784.24 is substantively identical to its proposed 
surface mining counterpart in 30 CFR 780.24. Both proposed 30 CFR 
780.24 and 784.24 would include a modified version of the interpretive 
rules concerning postmining land use changes for underground mines at 
30 CFR 784.200 and 817.200(d)(1), which we propose to remove in concert 
with this rule change. Please refer to the preamble to proposed 30 CFR 
780.24(c) for a discussion of this proposed rule change.
9. Why are we proposing to remove existing 30 CFR 784.26?
    We propose to remove existing 30 CFR 784.26 because the references 
to fugitive dust and cross-references to 30 CFR 817.95 in the existing 
rule refer to provisions that we removed in 1983 in response to a court 
decision striking down our authority to regulate air pollution under 
SMCRA, except for air pollution attendant to erosion. The court held 
that ``the legislative history indicates that Congress only intended to 
regulate air pollution related to erosion'' \478\ and that ``the 
Secretary's authority to regulate [air] pollution is limited to 
activities related to erosion.'' \479\ The court remanded former 30 CFR 
816.95 and 817.95 (1979), which contained performance standards for 
fugitive dust control, for revision. However, the court did not address 
the parallel permitting requirements at 30 CFR 780.15 and 784.26.
---------------------------------------------------------------------------

    \478\ PSMRL I, Round II, 1980 U.S. Dist. LEXIS 17660 at *43-44, 
19 Env't Rep. Cas. (BNA) 1477.
    \479\ Id. at *42.
---------------------------------------------------------------------------

    The 1983 rulemaking removed all requirements in 30 CFR 817.95 for 
fugitive dust control practices, including requirements for monitoring 
of fugitive dust to determine compliance with federal and state air 
quality standards. That rulemaking also changed the section heading of 
30 CFR 817.95 from ``Air resources protection'' to ``Stabilization of 
surface areas'' and replaced the air quality performance standards 
formerly located in 30 CFR 817.95 with soil stabilization

[[Page 44528]]

requirements that contain no mention of fugitive dust or air quality 
monitoring. See 48 FR 1160-1163 (Jan. 10, 1983).
    However, the 1983 rulemaking did not remove the parallel permitting 
requirements in 30 CFR 784.26. Instead, we stated in the preamble to 
that rulemaking that we agreed with a commenter that we also needed to 
amend the permit application rules at 30 CFR 780.15 and 784.26 for 
consistency with the revisions to 30 CFR 816.95 and 817.95, and that we 
would do so in a subsequent independent rulemaking.\480\ Adoption of 
this proposed rule would fulfill that long-delayed commitment.
---------------------------------------------------------------------------

    \480\ 48 FR 1161 (Jan. 10, 1983).
---------------------------------------------------------------------------

    With respect to air pollution attendant to erosion, proposed 30 CFR 
784.12(f) would add a permitting counterpart to the existing 
performance standard at 30 CFR 817.95(a), which provides that all 
exposed surface areas must be protected and stabilized to effectively 
control erosion and air pollution attendant to erosion. We also propose 
to add cross-references to the dust control performance standards for 
roads in 30 CFR 817.150 and 817.151.
    We also propose to redesignate existing 30 CFR 784.25, which 
contains requirements pertaining to the return of coal processing waste 
to abandoned underground mine workings, as new 30 CFR 784.26.
10. Section 784.26: What information must I provide if I plan to return 
coal processing waste to abandoned underground workings?
    We propose to redesignate existing 30 CFR 784.25 as 30 CFR 784.26. 
We propose to revise redesignated 30 CFR 784.26 by replacing the word 
``backfill'' and its variants with ``backstow'' or equivalent 
terminology to avoid any confusion with the process of backfilling open 
pits or our proposed definition of ``backfill'' in 30 CFR 701.5. 
Proposed paragraph (b)(2) would add a requirement for a description of 
all chemicals used to process the coal, the quantity of those chemicals 
remaining in the coal processing waste, and the likely impact of those 
chemicals on groundwater and any persons, aquatic life, or wildlife 
using or exposed to that groundwater. We propose to revise paragraph 
(c) to require that the backstowing plan include plans for monitoring 
the chemicals contained in the coal processing waste and a description 
of the anticipated effect on biological communities. The regulatory 
authority needs the information described above to determine whether 
the proposed backstowing operation would cause material damage to the 
hydrologic balance outside the permit area in violation of section 
510(b)(3) of SMCRA.\481\
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    \481\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    We propose to add paragraph (c)(6), which would require that the 
backstowing plan submitted to the regulatory authority include the 
measures to be taken to comply with the underground mine discharge 
requirements of 30 CFR 817.41, when applicable. The inclusion of this 
provision would serve as a reminder that the permitting requirements of 
30 CFR 784.26 are not the only regulations that may apply to review of 
applications of this nature.
    We also propose to revise paragraph (d) to clarify that the 
surface-water and groundwater monitoring plans for the proposed 
backstowing operation must comply with the requirements of 30 CFR 
784.23, which apply to all operations subject to part 784.
    Finally, we propose to revise paragraph (e) to specify that the 
regulatory authority may exempt pneumatic backstowing operations from 
compliance with these requirements if the applicant demonstrates, and 
the regulatory authority finds in writing, that the proposed pneumatic 
backstowing operation will not adversely impact surface water, 
groundwater, or water supplies. The corresponding existing rule at 30 
CFR 784.25(e) lacks any requirement for a demonstration by the 
applicant and it has no criteria for determining when the regulatory 
authority may grant an exception. Such an open-ended provision is not 
consistent with the environmental protection purposes and provisions of 
SMCRA. We invite comment on whether any of the requirements of 
paragraphs (a) through (d) should apply to all pneumatic backstowing 
operations, either because the regulatory authority needs that 
information to decide whether to grant an exemption or because those 
requirements are needed to ensure that the operation is conducted in an 
environmentally sound manner.
    We also invite comment on whether we should adopt similar 
requirements that would apply to backstowing of coal processing waste 
in abandoned underground mines when that activity occurs in connection 
with either a surface coal mine or a coal preparation plant regulated 
under 30 CFR 785.21.
11. Section 784.28: What additional requirements apply to proposed 
surface activities in, through, or adjacent to streams?
    Proposed 30 CFR 784.28 is substantively identical to its surface 
mining counterpart at proposed 30 CFR 780.28, except that proposed 30 
CFR 784.28 includes language clarifying that it applies to activities 
conducted on the land surface. Like existing 30 CFR 784.28, proposed 30 
CFR 784.28 would not apply to activities conducted underground or to 
surface impacts resulting from subsidence caused by underground 
workings.
12. Section 784.30: When must I prepare a subsidence control plan and 
what information must that plan include?
    We propose to redesignate existing 30 CFR 784.20 as 30 CFR 784.30. 
Proposed 30 CFR 784.30 is substantively identical to existing 30 CFR 
784.20. However, existing 30 CFR 784.20(a)(3) contains language that we 
suspended on December 22, 1999 (64 FR 71652-71653), in response to a 
court order vacating those provisions.\482\ We propose to lift the 
suspension and then remove the previously suspended language. 
Specifically, we propose to delete the language in existing 30 CFR 
784.20(a)(3) that requires a pre-subsidence survey of the condition of 
all noncommercial buildings or occupied residential dwellings and 
related structures that might be materially damaged by subsidence, or 
have their reasonably foreseeable value diminished by subsidence, 
within the area encompassed by the angle of draw. Proposed 30 CFR 
784.30(a)(3) would retain the requirement in existing 30 CFR 
784.20(a)(3) for a pre-subsidence survey of the condition of the 
quantity and quality of all drinking, domestic, and residential water 
supplies within the proposed permit area and the adjacent area.
---------------------------------------------------------------------------

    \482\ Nat'l Mining Ass'n v. Babbitt, 173 F.3d 906 (D.C. Cir. 
1999).
---------------------------------------------------------------------------

13. Section 784.35: What information must I provide concerning the 
minimization and disposal of excess spoil?
    Proposed 30 CFR 784.35 is substantively identical to its proposed 
surface mining counterpart at 30 CFR 780.35. Existing 30 CFR 784.19, 
which is the current underground mining counterpart to 30 CFR 780.35, 
contains an ambiguous cross-reference to the requirements of 30 CFR 
780.35, ``if appropriate.'' We propose to replace this cross-reference 
with actual regulatory text and thus eliminate the ambiguity.

[[Page 44529]]

    Proposed 30 CFR 784.35 also contains revisions to provide 
consistency with the definition of coal mine waste in 30 CFR 701.5, 
which we adopted on September 26, 1983 (48 FR 44006). Among other 
things, that definition reclassified underground development waste as 
coal mine waste, which means that fills constructed of underground 
development waste must adhere to the requirements for refuse piles 
instead of the requirements applicable to excess spoil fills. At the 
same time that we adopted the definition of coal mine waste in 1983, we 
revised our performance standards at 30 CFR 817.71 through 817.74 to 
eliminate the language that combined underground development waste with 
excess spoil for purposes of performance standards for underground 
mines. Because the definition of coal mine waste includes underground 
development waste, the disposal of underground development waste is 
subject to the performance standards for refuse piles at 30 CFR 817.83 
rather than the performance standards for the disposal of excess spoil 
that applied under the pre-1983 rules.
    The design requirements for fills in existing 30 CFR 784.19 apply 
to both underground development waste and excess spoil, which means 
that those permitting requirements are inconsistent with the 1983 
changes to the corresponding performance standards. Proposed 30 CFR 
784.35 would apply only to the disposal of excess spoil, consistent 
with the 1983 changes to our definitions and performance standards 
regarding coal mine waste. For the same reason, we propose to remove 
all references to underground development waste in existing 30 CFR 
784.19 and to revise the section heading accordingly in concert with 
our proposed redesignation of existing 30 CFR 784.19 as 30 CFR 784.35. 
Under proposed 30 CFR 784.35, the permitting requirements for refuse 
piles in proposed 30 CFR 784.25, not the excess spoil requirements of 
proposed 30 CFR 784.35, would govern the disposal of underground 
development waste.
    Proposed 30 CFR 784.35 parallels proposed 30 CFR 780.35, which 
contains the permit application requirements for the disposal of excess 
spoil generated by surface mining activities. As noted above, the 
existing rule at 30 CFR 784.19 includes those requirements by cross-
reference in a somewhat ambiguous fashion. Adding specific language in 
place of the cross-reference to 30 CFR 780.35 in the existing rule 
would be consistent with the pattern established in most of our other 
rules for surface and underground mines, in which separately codified 
provisions for surface and underground mines are nearly identical 
except for cross-references and the type of operation to which they 
apply. In addition, adding specific language in place of the cross-
reference to 30 CFR 780.35 will allow the inclusion of cross-references 
to the appropriate underground mining performance standards in part 817 
rather than having to use the cross-references in 30 CFR 780.35 to the 
surface mining performance standards in part 816.
14. Why are we proposing to remove existing 30 CFR 784.200?
    Existing 30 CFR 784.200 contains only one interpretive rule, which 
addresses the use of the permit revision process for postmining land 
use changes for underground mines. We propose to include this 
interpretive rule in 30 CFR 784.24 in revised form to the extent that 
it contains unique provisions not already present in other regulations. 
Specifically, proposed 30 CFR 784.24(c) would require that any proposed 
change to a higher or better postmining land use must be processed as a 
significant permit revision. Please refer to the preamble to proposed 
30 CFR 780.24(c) for a discussion of this proposed rule change. We will 
remove 30 CFR 784.200 if we adopt proposed 30 CFR 784.24(c).

J. Part 785: Requirements for Permits for Special Categories of Mining

1. Section 785.14: What special provisions apply to proposed 
mountaintop removal mining operations?
    We propose to revise and reorganize 30 CFR 785.14 in accordance 
with plain language principles. However, we will not discuss those 
changes here because they are nonsubstantive in nature.
    With regard to substantive changes, we propose to move existing 
paragraph (b) to 30 CFR 701.5 as part of our proposed definition of 
mountaintop removal mining. In proposed paragraph (b)(1), which 
corresponds to existing paragraph (c)(1), we propose to replace ``land 
to be affected'' with ``land to be disturbed'' to be consistent with 
the definitions of ``affected area'' and ``disturbed area'' in 30 CFR 
701.5. This change also would reflect the fact that only lands to be 
disturbed by the mining operation would have a proposed postmining land 
use.
    We propose to remove existing 30 CFR 785.14(c)(3), which provides 
that the requirements of 30 CFR part 824 must be made a specific 
condition of the permit. This provision is redundant and unnecessary 
because the performance standards of 30 CFR part 824 are independently 
enforceable. Making those performance standards a specific condition of 
the permit condition adds nothing of value. Furthermore, nothing in 
SMCRA requires this permit condition. Proposed 30 CFR 785.14(b)(8), 
like existing 30 CFR 785.14(c)(2), would continue to require that the 
applicant demonstrate, and the regulatory authority find, that the 
proposed operation has been designed to comply with the requirements of 
30 CFR part 824.
    Proposed paragraph (b)(9) would replace existing 30 CFR 
824.11(a)(9), which prohibits damage to natural watercourses below the 
lowest coal seam to be mined. We propose to delete the clause limiting 
the scope of that prohibition to watercourses below the lowest coal 
seam to be mined because that clause does not appear in the underlying 
statutory provision. Instead, section 515(c)(4)(D) of SMCRA \483\ 
provides that ``no damage will be done to natural watercourses.'' 
However, SMCRA does not define either ``damage'' or ``natural 
watercourses.''
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    \483\ 30 U.S.C. 1265(c)(4)(D).
---------------------------------------------------------------------------

    Proposed paragraph (b)(9) would specify that we will consider no 
damage to have occurred to other natural watercourses if the applicant 
demonstrates and the regulatory authority finds in writing that all the 
following conditions exist:
     The proposed operation will not increase the amount or 
concentration of parameters of concern in discharges to groundwater and 
surface water from the proposed permit area, when compared to the 
discharges that would occur if the operation were designed to adhere to 
approximate original contour restoration requirements.
     The proposed operation will not result in changes in the 
size or frequency of peak flows from the proposed permit area that 
would cause an increase in damage from flooding, when compared to the 
impacts that would occur if the operation were designed to adhere to 
approximate original contour restoration requirements.
     The total volume of flow from the proposed permit area, 
during every season of the year, will not vary in a way that would 
adversely affect any existing or reasonably foreseeable use of surface 
water or groundwater or any designated use of surface water under 
section 101(a) or 303(c) of the Clean Water Act.\484\
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    \484\ 33 U.S.C. 1251(a) and 1313(c), respectively.

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[[Page 44530]]

    These requirements are intended to ensure that the proposed 
operation is designed to prevent material damage to the hydrologic 
balance outside the permit area, as required by 30 CFR 773.15(e) and 
section 510(b)(3) of SMCRA,\485\ and as we propose to define that term 
in 30 CFR 701.5.
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    \485\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    We invite comment on whether we can or should instead adopt a rule 
that would allow the approval of mountaintop removal mining operations 
that would damage natural watercourses within the permit area if the 
applicant can demonstrate that the damage will be fully offset by 
implementation of the fish and wildlife enhancement measures proposed 
under 30 CFR 780.16.
    Under proposed paragraph (b)(10), the revegetation plan proposed 
under 30 CFR 780.12(g) for the operation would have to require that 
those portions of the proposed permit area that are forested at the 
time of application or that would revert to forest under conditions of 
natural succession be revegetated using native tree and understory 
species to the extent that this requirement is not inconsistent with 
attainment of the proposed postmining land use. Addition of this 
requirement would improve implementation of the revegetation 
requirements of section 515(b)(19) of SMCRA.\486\ It also would be 
consistent with section 515(b)(24) of SMCRA,\487\ which provides that, 
to the extent possible, surface coal mining and reclamation operations 
must minimize disturbances to and adverse impacts on fish, wildlife, 
and related environmental values and enhance those resources where 
practicable, using the best technology currently available.
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    \486\ 30 U.S.C. 1265(b)(19).
    \487\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Proposed paragraph (b)(11) would require that the bond posted for 
the permit under part 800 of this chapter include an amount equal to 
the cost of regrading the site to its approximate original contour and 
revegetating the regraded land in the event that the approved 
postmining land use is not implemented before expiration of the 
revegetation responsibility period under Sec.  816.115. As an 
alternative to requiring posting of this bond amount at the time of 
permit issuance, we are considering adopting a rule that would prohibit 
release of any bond amount for the entire permit until the approved 
postmining land use has been implemented. We invite comment on which 
alternative would be more effective in preventing abuse of this 
exception from the AOC restoration requirements of SMCRA.
    Proposed paragraph (b)(13) would require that the permit clearly 
identify the acreage and location of mountaintop removal mining areas. 
Many permits include several types of mining, so the permittee, the 
regulatory authority, and other interested persons need this 
information to determine which portions of the permit area are subject 
to the mountaintop removal mining provisions.
    Finally, in proposed paragraph (c), we propose to replace the 
permit review requirements of existing paragraphs (d)(1) and (2) with a 
cross-reference to the permit review requirements of proposed 30 CFR 
774.10(a)(2). Existing paragraph (d)(1) requires a permit review within 
the sixth month preceding the third year from the date of permit 
issuance, before each permit renewal, and not later than the middle of 
each permit term. Proposed 30 CFR 774.10(a)(2) would replace both this 
provision and a corresponding provision in existing 30 CFR 774.10(a)(3) 
with language that is consistent with the underlying statutory 
provision in section 515(c)(6) of SMCRA,\488\ which requires that 
permits of this type be reviewed not more than 3 years from the date of 
permit issuance, unless the permittee affirmatively demonstrates that 
the proposed development is proceeding in accordance with the terms of 
the approved schedule and reclamation plan. This review is a one-time 
requirement, not a recurring event.
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    \488\ 30 U.S.C. 1265(c)(6).
---------------------------------------------------------------------------

2. Section 785.16: What special requirements apply to proposed 
variances from approximate original contour restoration requirements 
for steep-slope mining?
Proposed Paragraph (a): Application and Approval Requirements
    We propose to revise 30 CFR 785.16(a) to clarify that a variance 
approved under this section may apply to only a portion of the permit 
area rather than to the entire permit area. This change would emphasize 
that a variance should be limited to the smallest area necessary to 
accommodate the proposed postmining land use for which the variance is 
granted.
    We propose to include the criteria in existing 30 CFR 816.133(d) 
and 817.133(d) for approval of a variance from approximate original 
contour requirements in 30 CFR 785.16 because those variances may be 
granted only for steep-slope mining operations. Consolidation of all 
steep-slope variance provisions into 30 CFR 785.16 would make our 
regulations easier to understand and more user-friendly.
    Proposed paragraph (a)(8) would allow approval of a variance only 
if the variance will not result in the construction of a fill in a 
perennial or an intermittent stream. Sacrificing perennial or 
intermittent stream segments for the purpose of creating a different 
postmining land use is neither appropriate nor warranted in view of 
paragraphs (a) and (d) of section 102 of SMCRA.\489\ Those paragraphs 
provide that two of the purposes of SMCRA are to establish a nationwide 
program to protect society and the environment from the adverse effects 
of surface coal mining operations and to assure that those operations 
are conducted in a manner that protects the environment.
---------------------------------------------------------------------------

    \489\ 30 U.S.C. 1202(a) and (d).
---------------------------------------------------------------------------

    Proposed paragraph (a)(8) is consistent with section 515(b)(23) of 
SMCRA,\490\ which requires that surface coal mining and reclamation 
operations ``meet such other criteria as are necessary to achieve 
reclamation in accordance with the purposes of this Act, taking into 
consideration the physical, climatological, and other characteristics 
of the site.'' Addition of this provision also would be consistent with 
sections 515(b)(24) and 516(b)(11) of SMCRA,\491\ which require that 
surface coal mining and reclamation operations be conducted so as to 
minimize disturbances and adverse impacts on fish, wildlife, and 
related environmental values to the extent possible, using the best 
technology currently available.
---------------------------------------------------------------------------

    \490\ 30 U.S.C. 1265(b)(23).
    \491\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

    Proposed paragraph (a)(9) would revise the criteria in existing 30 
CFR 785.16(a)(3) for determining when the watershed of the proposed 
permit area and the adjacent area will be deemed improved by the 
proposed operation. The proposed revisions, which we summarize and 
discuss below, would promote environmental protection in keeping with 
the purposes of SMCRA in paragraphs (a), (d), and (f) of section 102 of 
the Act.\492\ They also would be consistent with our proposed 
definition of ``material damage to the hydrologic balance outside the 
permit area'' in 30 CFR 701.5.
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    \492\ 30 U.S.C. 1202(a), (d), and (f).
---------------------------------------------------------------------------

    Proposed paragraph (a)(9)(i) would require a demonstration that the 
proposed operation would reduce the amount or concentration of total 
suspended solids or other parameters of concern in discharges to 
groundwater or surface water. The proposed rule corresponds to the 
first part of existing

[[Page 44531]]

30 CFR 785.16(a)(3)(i), which does not mention concentration. We 
propose to add a reference to concentration because the concentration 
of parameters of concern in discharges may be more ecologically 
important than actual amounts under certain conditions. In addition, 
the existing rule refers to pollutants rather than parameters of 
concern. We propose to replace ``pollutants'' with ``parameters of 
concern'' because the latter term potentially encompasses a broader 
range of ecologically important discharge characteristics than would 
the term ``pollutants.'' We also propose to delete the somewhat 
ambiguous language in the existing rule that refers to improvement of 
public or private uses or the ecology of the water. The language 
proposed for deletion is not necessary because the critical factor is 
whether the proposed operation would reduce the amount or concentration 
of parameters of concern.
    We propose to revise paragraph (a)(9)(ii), which corresponds to the 
last part of existing 30 CFR 785.16(a)(3)(i), by adding a reference to 
the ``size or frequency'' of peak-flow discharges. Both size and 
frequency factor into damage from floods, so the applicant and the 
regulatory authority should consider both factors.
    Proposed paragraph (a)(9)(iv) would add a requirement for a 
demonstration that the proposed operation would result in a lesser 
adverse impact on the aquatic ecology of the cumulative impact area 
than would occur if the area were to be mined and restored to its 
approximate original contour.
    Proposed paragraph (a)(9)(v) would add a requirement for a 
demonstration that the proposed operation would result in less impact 
on perennial and intermittent streams than would occur if the land were 
to be mined and restored to its approximate original contour. The 
proposed rule would allow the regulatory authority to consider fish and 
wildlife enhancement measures approved under proposed 30 CFR 780.16 and 
784.16 in making this determination. However, fish and wildlife 
enhancement measures approved under proposed 30 CFR 780.16 and 784.16 
may not be used to avoid the prohibition on excess spoil fills in 
proposed paragraph (a)(8).
    Proposed paragraphs (a)(10)(i) and (ii) contain the same surface 
owner consent provisions as existing 30 CFR 785.16(a)(4). We propose to 
add paragraph (a)(10)(iii), which would specify that the surface owner 
has not and will not receive any monetary compensation, item of value, 
or other consideration in exchange for requesting the variance. 
Proposed paragraph (a)(10)(iii) is consistent with section 102(b) of 
SMCRA,\493\ which provides that one of the purposes of the Act is to 
assure that the rights of surface landowners are fully protected from 
surface coal mining operations. It also is consistent with section 
102(a) of SMCRA,\494\ which seeks to ``protect society and the 
environment from the adverse effects of surface mining,'' by ensuring 
that variances are requested because they are necessary and appropriate 
to achieve the approved postmining land use and not due to coercion, 
deception, or monetary compensation.
---------------------------------------------------------------------------

    \493\ 30 U.S.C. 1202(b).
    \494\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

    Proposed paragraph (a)(11) would require a demonstration that the 
proposed deviations from the premining surface configuration are 
necessary and appropriate to achieve the approved postmining land use. 
The intent of this provision is to ensure that variances are granted 
only for the area necessary to accommodate legitimate postmining land 
use needs.
    Proposed paragraph (a)(12) would require the use of native tree and 
understory species to revegetate all portions of the permit area that 
are forested at the time of the application or that would revert to 
forest under conditions of natural succession. This requirement would 
not apply to permanent impoundments, roads and other impervious 
surfaces to be retained following the completion of mining and 
reclamation. It also would not apply to those portions of the permit 
area covered by the variance if compliance with this requirement would 
be inconsistent with the attainment of the postmining land use. The 
intent of this provision is to encourage reforestation of reclaimed 
lands, where appropriate, and to minimize adverse impacts on fish, 
wildlife, and related environmental values, as required by sections 
515(b)(24) and 516(b)(11) of SMCRA.\495\
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    \495\ 30 U.S.C. 1265(b)(24) and 1266(b)(11).
---------------------------------------------------------------------------

    Proposed paragraph (a)(13) would require that the performance bond 
posted for the permit include an amount equal to the cost of regrading 
the site to its approximate original contour and revegetating the 
regraded land in the event that the approved postmining land use is not 
implemented before expiration of the revegetation responsibility period 
under 30 CFR 816.115 or 817.115. The intent of this proposed provision 
is to ensure that variances are granted only for legitimate immediate 
postmining land use needs. If the postmining land use is not 
implemented before expiration of the revegetation responsibility 
period, the proposed rule would require that the regulatory authority 
order the permittee to restore the variance area to approximate 
original contour and plant it with the vegetation that would have been 
required had no variance been granted. The bond that this proposed 
paragraph would require would ensure that the regulatory authority has 
sufficient funds to complete the reclamation in the event that the 
permittee fails to do so.
    As an alternative to requiring posting of this bond amount at the 
time of permit issuance, we are considering adopting a rule that would 
prohibit release of any bond amount for the entire permit area until 
the postmining land use for which the variance was granted has been 
implemented. We invite comment on which alternative would be more 
effective in preventing abuse of this exception from the AOC 
restoration requirements of SMCRA.
Proposed Paragraph (b): Regulatory Authority Responsibilities
    We propose to remove existing paragraph (b)(1), which provides that 
the requirements of 30 CFR 816.133(d) or 817.133(d) must be included as 
a specific permit condition. There is no counterpart in SMCRA for this 
provision. Performance standards are just as enforceable as permit 
conditions, so there is no reason why these particular performance 
standards should be made a permit condition.
    Proposed paragraph (b)(2) would replace the permit review 
requirements of existing paragraphs (c) and (d) with a cross-reference 
to the corresponding permit review requirements of 30 CFR 774.10(a), 
which we propose to revise to be consistent with the underlying 
statutory provisions in section 515(e)(6) of SMCRA.\496\
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    \496\ 30 U.S.C. 1265(e)(6).
---------------------------------------------------------------------------

    Proposed paragraphs (b)(3) and (4) would include existing 
paragraphs (e) and (f), respectively, in substantively identical form.
    Proposed paragraph (b)(5) would require that, before approving a 
steep-slope variance from approximate original contour, the regulatory 
authority find and document in writing that the surface-owner consent 
requirements of proposed paragraph (a)(10) have been met. Proposed 
paragraph (b)(5) is consistent with section 102(b) of SMCRA,\497\ which 
provides that one of the purposes of the Act is to assure that the 
rights of surface landowners are fully protected from

[[Page 44532]]

surface coal mining operations. It also is consistent with section 
102(a) of SMCRA,\498\ which seeks to ``protect society and the 
environment from the adverse effects of surface mining,'' by ensuring 
that variances are requested because they are necessary and appropriate 
to achieve the approved postmining land use and not due to coercion, 
deception, or monetary compensation.
---------------------------------------------------------------------------

    \497\ 30 U.S.C. 1202(b).
    \498\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

3. Section 785.25: What special provisions apply to proposed operations 
on lands eligible for remining?
    We propose to revise 30 CFR 785.25 to improve clarity and to 
specify that the potential environmental and safety problems that could 
reasonably be anticipated to occur must be the result of prior mining 
activities within the proposed permit area. In addition, we propose to 
specify that the identification of these anticipated problems may be 
based upon, among other things, a record review of operations near the 
site and any relevant available information, including data from prior 
mining activities and remining operations on similar sites.
    Finally, we propose to delete the term ``mitigative'' when 
referring to the measures that will be taken to ensure that reclamation 
requirements will be met. Mitigation refers to measures to be taken to 
compensate for the inability to meet reclamation requirements. Hence, 
the term is not appropriate in the context in which it is used in 
existing 30 CFR 785.25.

K. Part 800: Bond, Financial Assurance, and Liability Insurance 
Requirements for Surface Coal Mining and Reclamation Operations.

    We propose to revise part 800 by adding provisions for the use of 
financial assurances to guarantee treatment of long-term discharges, 
modifying the provisions governing alternative bonding systems, and 
adding more specific criteria and procedures to the provisions 
governing bond release. In the latter case, we propose to split 
existing 30 CFR 800.40 into five separate sections (30 CFR 800.40 
through 800.44) that address various aspects of the bond release 
process in greater detail. We also propose to adopt other changes and 
clarifications, which we discuss below on a section-by-section basis. 
In addition, for the reasons explained in Part VIII of this preamble, 
we propose to revise elements of part 800 in accordance with plain 
language principles.
1. How do we propose to guarantee treatment of long-term discharges?
    We propose to add 30 CFR 800.18 and revise other sections of part 
800 as appropriate to require that permittees post suitable financial 
instruments (known as ``financial assurances'') to guarantee that 
sufficient funds will be available for the treatment of long-term or 
perpetual discharges for which a surface or underground coal mine or 
other facility regulated under SMCRA is responsible. We also propose to 
add a definition of financial assurance in 30 CFR 800.5 and include 
necessary and appropriate references to, and provisions for, financial 
assurances in proposed 30 CFR 800.1, 800.4, 800.13, 800.15, 800.30, and 
800.42.
    Under 30 CFR 773.15(e) and section 510(b)(3) of SMCRA,\499\ the 
regulatory authority may not issue a permit unless the application 
demonstrates, and the regulatory authority finds, that the proposed 
operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area. In addition, under 30 CFR 
773.15(b) and section 510(b)(2) of SMCRA,\500\ the regulatory authority 
may not issue a permit unless the application demonstrates, and the 
regulatory authority finds, that reclamation as required by the Act and 
the applicable regulatory program can be accomplished under the 
reclamation plan approved in the permit. Further, the policy entitled 
``Hydrologic Balance Protection: Policy Goals and Objectives on 
Correcting, Preventing, and Controlling Acid/Toxic Mine Drainage'' 
\501\ that we issued on March 31, 1997, states, ``[i]n no case should a 
permit be approved if the determination of probable hydrologic 
consequences or other reliable hydrologic analysis predicts the 
formation of a postmining pollutional discharge that would require 
continuing long-term treatment without a defined endpoint.'' \502\
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    \499\ 30 U.S.C. 1260(b)(3).
    \500\ 30 U.S.C. 1260(b)(2).
    \501\ See www.osmre.gov/lrg/docs/amdpolicy033197.pdf (last 
accessed August 6, 2014).
    \502\ Id., p. 5.
---------------------------------------------------------------------------

    Improved permitting practices and advances in predictive techniques 
have almost eliminated acid mine drainage with respect to surface 
mining permits issued in the last three decades. For example, in 
Pennsylvania, a state in which acid mine drainage has historically been 
a widespread and significant problem, a 1999 study \503\ found that 
only 17 (one percent) of the 1,699 surface mining permits issued in 
Pennsylvania between1987 and1996 had long-term postmining discharges 
that required treatment. In contrast, long-term postmining discharges 
that required treatment developed on an average of 17 percent of 
permits issued between1977 and 1983 before the introduction of a 
science-based permit review program in 1984.
---------------------------------------------------------------------------

    \503\ Pennsylvania Department of Environmental Protection, 
``Evaluation of Mining Permits Resulting in Acid Mine Drainage 1987-
1996: A Post Mortem Study'' (March 1999).
---------------------------------------------------------------------------

    However, legacy discharges from older mines remain a concern, as do 
potential discharges from underground mines after closure. Long-term 
discharges vary in quality and rate of attenuation. According to one 
study and literature review, ``surface mines and below-drainage 
underground mines improve in discharge quality relatively rapidly (20-
40 years), [but] above-drainage underground mines are not as easily 
predicted.'' \504\ The researchers examined discharges from 44 
underground mines in the Pittsburgh and Upper Freeport coal seams in 
1968 and again in 1999-2000. During the intervening 30+ years, there 
were no significant changes in pH, but iron decreased an average of 80 
percent, sulfate decreased between 50 percent and 75 percent on 
average, and total acidity decreased between 56 percent and 79 percent 
on average.\505\ While 34 of the 44 mines showed significant 
improvement in total acidity, 10 showed no change, and 3 became much 
worse.\506\ This variability supports our proposal to require that 
financial assurances for long-term discharges be calculated using a 
worst-case scenario (treatment in perpetuity) to ensure that sufficient 
funds will be available for treatment at all times. In addition, there 
are few studies evaluating the length of time treatment may be needed 
for other parameters of concern.
---------------------------------------------------------------------------

    \504\ Demchak, J.; J. Skousen; and L. M. McDonald. Longevity of 
Acid Discharges from Underground Mines Located above the Regional 
Water Table, J. Environ. Qual. 33:656-668 (2004), p. 656.
    \505\ Id.
    \506\ Id.
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    Section 509(e) of SMCRA \507\ requires that the regulatory 
authority adjust the amount of bond or deposit required and the terms 
of acceptance of the bond ``where the cost of future reclamation 
changes.'' This requirement applies whenever an unanticipated discharge 
requiring long-term treatment develops. However, conventional bond 
instruments (surety bonds, collateral bonds, and self-bonds) are not 
optimal for this purpose because, under conditions of forfeiture, they 
provide a one-time lump sum payout rather than the income stream needed 
to fund

[[Page 44533]]

treatment of long-term discharges. Surety bonds and self-bonds are 
especially ill-suited for this purpose because (1) the need for 
discharge treatment may outlast the surety or the permittee and (2) 
neither a surety bond nor a self-bond requires that funds or other 
assets be physically placed with the regulatory authority or in an 
account dedicated solely to the regulatory authority, which means that 
funds would not necessarily be available to continue treatment if the 
surety and the permittee go out of business before the need for 
treatment ends. Furthermore, surety companies normally do not 
underwrite a bond when there is no expectation of release of liability, 
as would be the case with almost all long-term discharges because there 
is no reliable prospect of fully abating the source of the discharge.
---------------------------------------------------------------------------

    \507\ 30 U.S.C. 1259(e).
---------------------------------------------------------------------------

    Section 509(c) of SMCRA \508\ provides that ``the Secretary may 
approve as part of a State or Federal program an alternative system 
that will achieve the objectives and purposes of the bonding program 
pursuant to this section.'' This provision affords statutory authority 
for our proposal in 30 CFR 800.18 to allow the use of financial 
assurances in place of conventional bonds when a continuing income 
stream is needed to meet ongoing treatment requirements for long-term 
discharges. Existing 30 CFR 800.11(e), which we propose to redesignate 
as 30 CFR 800.9, provides that, to meet the objectives and purposes of 
the bonding program, the alternative system (1) ``must assure that the 
regulatory authority will have available sufficient money to complete 
the reclamation plan for any areas which may be in default at any 
time;'' and (2) ``must provide a substantial economic incentive for the 
permittee to comply with all reclamation provisions.'' Establishment of 
a financial assurance in the form of a trust fund or annuity would 
satisfy the first criterion, while the permittee's provision of the 
moneys needed to establish the trust fund or annuity and the express 
terms of the trust would satisfy the second criterion.
---------------------------------------------------------------------------

    \508\ 30 U.S.C. 1259(c).
---------------------------------------------------------------------------

    We relied upon this statutory authority to adopt similar financial 
assurance provisions at 30 CFR 942.800 as part of the Tennessee federal 
regulatory program.\509\ As we did in the Tennessee rulemaking, we 
propose to elaborate upon and incorporate into regulation pertinent 
elements of the policy entitled ``Hydrologic Balance Protection: Policy 
Goals and Objectives on Correcting, Preventing, and Controlling Acid/
Toxic Mine Drainage'' \510\ that we adopted on March 31, 1997. 
Specifically, Objective 2 under the ``Environmental Protection'' policy 
goal includes the following strategies:
---------------------------------------------------------------------------

    \509\ 72 FR 9616 (Mar. 2, 2007).
    \510\ See www.osmre.gov/lrg/docs/amdpolicy033197.pdf (last 
accessed August 6, 2014).

    Strategy 2.2--If, subsequent to permit issuance, monitoring 
identifies acid- or toxic-forming conditions which were not 
anticipated in the mining and operation plan, the regulatory 
authority should require the operator to adjust the financial 
assurance.
    Strategy 2.3--Where inspections conducted in response to bond 
release requests identify surface or subsurface water pollution, 
bond in an amount adequate to abate the pollution should be held as 
long as water treatment is required, unless a financial guarantee or 
some other enforceable contract or mechanism to ensure continued 
treatment exists.\511\
---------------------------------------------------------------------------

    \511\ Id., p. 6.

    The policy acknowledges that ``the required financial assurance may 
take a form other than those associated with a traditional performance 
bond.'' \512\ In 2002, we published an advance notice of proposed 
rulemaking entitled ``Bonding and Other Financial Assurance Mechanisms 
for Treatment of Long-Term Pollutional Discharges and Acid/Toxic Mine 
Drainage (AMD) Related Issues.'' See 67 FR 35070 (May 17, 2002). In 
that notice, we sought comments on, among other things, the form and 
amount of financial assurance that should be required to guarantee 
treatment of postmining discharges. Commenters disagreed as to whether 
financial assurance should be required, but they largely agreed that, 
if it was, surety bonds are not the best means--or even an appropriate 
means--of accomplishing that purpose because a surety bond is not 
designed to provide the income stream needed to fund ongoing treatment.
---------------------------------------------------------------------------

    \512\ Id., p. 15 (response to comment 16).
---------------------------------------------------------------------------

    We provided the following explanation of the statutory basis for 
the requirement that permittees post financial guarantees for treatment 
of long-term discharges.

    Section 509(a) of the Act requires that each permittee post a 
performance bond conditioned upon faithful performance of all the 
requirements of the Act and the permit. Paragraph (b) of this 
Section of the Act specifies that ``[t]he amount of the bond shall 
be sufficient to assure the completion of the reclamation plan if 
the work had to be performed by the regulatory authority in the 
event of forfeiture.'' The hydrologic reclamation plan is part of 
the reclamation plan to which this section refers. Section 519(c) of 
SMCRA authorizes release of this bond only when the regulatory 
authority is satisfied that the reclamation required by the bond has 
been accomplished, and paragraph (c)(3) specifies that ``no bond 
shall be fully released until all reclamation requirements of this 
Act are fully met.'' Furthermore, section 519(b) of the Act provides 
that whenever a bond release is requested, the regulatory authority 
must conduct an inspection to evaluate the reclamation work 
performed, including ``whether pollution of surface or subsurface 
water is occurring, the probability of continuance of future 
occurrence of such pollution, and the estimated cost of abating such 
pollution.'' Therefore, there is no doubt that, under SMCRA, the 
permittee must provide a financial guarantee to cover treatment of 
postmining discharges when such discharges develop and require 
treatment.\513\
---------------------------------------------------------------------------

    \513\ Id., pp. 14-15 (response to comment 16).

    The financial assurance elements of this proposed rule rely upon 
the same rationale. In addition, our financial assurance requirements 
in proposed 30 CFR 800.18 derive support from the following discussion 
in a Federal district court decision affirming our disapproval of a 
West Virginia regulatory program amendment that would have authorized 
final bond release upon installation of a passive treatment system for 
---------------------------------------------------------------------------
long-term discharges:

    SMCRA and its accompanying regulations comprise an intricate and 
complicated scheme, which contains a wealth of Congressional 
policies and purposes. See, e.g., 30 U.S.C. 1201, 1202. Further, the 
overriding policies of SMCRA, minimization of environmental damage 
and maximization of coal production, necessarily are in tension with 
each other. It is within this delicate framework that OSM regulates.
* * * * *
    The balance in the Director's approach, consistent with 
congressional direction, is readily ascertainable. The Director 
begins with the proposition that complete prevention of AMD [acid 
mine drainage] during mining and reclamation may not be possible and 
the associated environmental burden, with treatment, is judged 
tolerable resulting in a permit being issued. At this interim 
juncture, then, environmental considerations give way to the goal of 
maximizing coal production for the nation's energy requirements. 
Once an operator decides to close up shop and leave, however, it 
then would be inconsistent to allow the treatment guarantee to 
lapse, potentially saddling the taxpayers and adjoining landowners 
with a perpetual financial and environmental problem that should 
have been internalized by the operator. At this final stage, 
environmental considerations and cost internalization assume 
ultimate priority over the goal of maximization of production to 
require the total abatement of AMD.
    The Director has thus struck a reasonable balance in the face of 
Congressional ambiguity and difficult, conflicting policy 
considerations. Given satisfaction of the

[[Page 44534]]

Chevron inquiry, the Court is bound to defer to that 
interpretation.\514\
---------------------------------------------------------------------------

    \514\ West Virginia Mining and Reclamation Ass'n et al. v. 
Babbitt, 970 F. Supp. 506, 517, 518 (S.D. W.Va. 1997).

    The court noted that ``a bedrock principle of SMCRA is the 
obligation of the mine operator to bear the costs associated with 
surface mining, from the permitting of a mining operation through to 
the conclusion of the reclamation process.'' \515\ In a footnote, the 
court observed that--
---------------------------------------------------------------------------

    \515\ Id. at 512 (citing Cat Run Coal Co. v. Babbitt, 932 
F.Supp. 772, 780-81 (S.D.W.V 1996)).

    Even were treatment acceptable for bond release, the lingering 
difficulty with the proposed amendment is its hands-off approach to 
passive treatment. An operator conceivably could erect a passive 
treatment system, gain release and the system could later fail, 
leaving the taxpayers and adjoining landowners with a burden 
contrary to the policy of cost internalization. Such a burden could 
not have been intended by Congress.\516\
---------------------------------------------------------------------------

    \516\ Id. at 517, n. 12.

    Proposed 30 CFR 800.18 seeks to avoid precisely this burden and 
result.
    Finally, finding 1.b.(2) in the preamble to the document announcing 
our decision on another West Virginia program amendment provision 
contains the following rationale for requiring that permittees post 
performance bonds adequate to guarantee ongoing treatment of 
discharges:

    For conventional bonds, 30 CFR 800.14(b) provides that ``the 
amount of the bond shall be sufficient to assure the completion of 
the reclamation plan if the work had to be performed by the 
regulatory authority in the event of forfeiture.'' Under 30 CFR 
780.18(b)(9), 780.21(h), 784.13(b)(9), and 784.14(g), the 
reclamation plan must include the steps to be taken to comply with 
all applicable effluent limitations and State and Federal water 
quality laws and regulations. These steps include treatment. 
Therefore, when the mining and reclamation plan indicates that 
treatment will be needed on a temporary basis during mining and the 
early stages of reclamation, the bond must be calculated to include 
an amount adequate to provide for continued temporary treatment in 
the event forfeiture occurs within the timeframe during which 
treatment is needed. Also, under 30 CFR 800.15(a), the regulatory 
authority is required to adjust the amount and terms of a 
conventional bond whenever the cost of future reclamation changes. 
Therefore, if an unanticipated treatment need arises, the regulatory 
authority has an obligation to order an increase in the minimum bond 
required for the site. This amount must be adequate to cover all 
foreseeable treatment costs. This interpretation is consistent with 
the preamble to 30 CFR 800.17, which under the heading ``Section 
800.17(c)'' states that:
    ``Performance bonding continues to be required at Sec.  
800.17(a) for surface disturbances incident to underground mining to 
ensure that the reclamation plan is completed for those areas. 
Completion of the reclamation plan as it relates to mine drainage 
and protection of the hydrologic balance would continue to be 
covered by the bond with respect to requirements included in Sec.  
784.14. 48 FR 32948, July 19, 1983.''
    Sections 780.21(h) and 784.14(g) require a hydrologic 
reclamation plan showing how surface and underground mining 
operations will comply with applicable State and Federal water 
quality laws and regulations. Furthermore, section 519(b) of SMCRA 
requires the regulatory authority, when evaluating bond release 
requests, to consider whether pollution of surface and ground water 
is occurring, the probability of any continuing pollution, and the 
estimated cost of abating such pollution. Section 519(c)(3) of SMCRA 
and the implementing regulations at 30 CFR 800.40(c)(3) provide that 
no bond shall be fully released until all the reclamation 
requirements of the Act, the regulatory program, and the permit have 
been met. These requirements include abatement of surface and ground 
water pollution resulting from the operation.\517\
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    \517\ 60 FR 51902 (Oct. 4, 1995).

    While proposed 30 CFR 800.18 focuses on financial assurance 
instruments (trust funds and annuities) to provide the necessary income 
stream, it also recognizes that collateral bonds can, under certain 
circumstances, be a satisfactory means of guaranteeing treatment of 
long-term discharges because collateral bonds require the posting of 
cash, securities, or other collateral. Specifically, proposed 30 CFR 
800.18(b)(2) would allow the use of collateral bonds provided that the 
amount of the collateral bond posted includes the cost of treating the 
discharge during the time required to collect and liquidate the bond 
and convert the proceeds to a financial instrument that will generate 
interest in an amount sufficient to cover future treatment costs and 
associated administrative expenses.
2. How do we propose to revise the definitions in 30 CFR 800.5?
    We propose to revise existing 30 CFR 800.5(b)(6), which is part of 
the definition of ``collateral bond,'' to delete the reference to 
``investment-grade rated securities having a rating of AAA, AA, or A or 
an equivalent rating issued by a nationally recognized securities 
rating service.'' According to the Department of the Treasury 
regulations at 12 CFR 16.2, a security is considered investment grade 
if it is rated in one of the top four rating categories by each 
nationally recognized statistical rating organization that has rated 
the security. Our rules include only those securities with ratings in 
the top three categories. In addition, unlike the Treasury regulations, 
we do not require that the security receive these ratings from all 
organizations that have rated the security. Therefore, we propose to 
revise 30 CFR 800.5(b)(6) to eliminate the reference to ``investment-
grade'' securities and to instead use language consistent with a 
similar provision in 30 CFR 800.23(b)(3)(i). We also propose to replace 
the term ``nationally recognized securities ratings service'' with the 
term found in the Credit Rating Agency Reform Act of 2006 (Pub. L. 109-
291) and used by the Securities and Exchange Commission: ``Nationally 
recognized statistical rating organization.'' As revised, our proposed 
rule would include securities with a rating of ``A'' or higher from 
either Moody's Investors Service or Standard and Poor's or an 
equivalent rating issued by any other nationally recognized statistical 
rating organization registered with the Securities and Exchange 
Commission.
    In existing paragraph (d), we propose to define ``financial 
assurance'' as ``a trust fund, an annuity, or a combination thereof.'' 
We invite comment on whether there are other investment vehicles that 
could provide the income stream needed to guarantee treatment of long-
term discharges and therefore should be included in this definition.
3. Section 800.9: What requirements apply to alternative bonding 
systems?
    We propose to redesignate the provisions for alternative bonding 
systems in existing 30 CFR 800.11(e) as new 30 CFR 800.9(a). Proposed 
30 CFR 800.9(b) would clarify that the alternative bonding system will 
apply in lieu of the performance bond requirements of part 800 to the 
extent specified in the regulatory program and the document in which we 
approve the alternative bonding system as part of a state or federal 
program. Proposed paragraph (b) also would specify that all alternative 
bonding systems must include provisions analogous to the bond release 
provisions of proposed 30 CFR 800.40 through 800.44 and the bond 
forfeiture provisions of 30 CFR 800.50. This provision is necessary to 
ensure that the regulatory program, including the alternative bonding 
system, remains consistent with section 519 of SMCRA,\518\ which 
governs bond release, which in turn determines when the regulatory 
authority may terminate jurisdiction over the operation in accordance 
with 30 CFR 700.11(d). Proposed 30 CFR 800.9(c) would clarify that an 
alternative bonding system may be structured to include only certain

[[Page 44535]]

phases of reclamation under proposed 30 CFR 800.42, provided that the 
other phases are covered by one of the forms of bond listed in 30 CFR 
800.12. This provision would ensure that the entire operation has bond 
coverage, as required by section 509 of SMCRA.\519\
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    \518\ 30 U.S.C. 1269.
    \519\ 30 U.S.C. 1259.
---------------------------------------------------------------------------

    Proposed 30 CFR 800.9(d)(1) would prohibit an alternative bonding 
system from covering restoration of the ecological function of a stream 
under 30 CFR 780.28, 784.28, 816.57, and 817.57. Alternative bonding 
systems are not appropriate or reliable mechanisms to guarantee 
restoration of the ecological function of a stream, given the length of 
time that we anticipate will be required to restore that function. 
Furthermore, restoration should be the responsibility of the 
individual, company, or other mining entity that makes the decision to 
mine through a stream. Existing alternative bonding systems were not 
established with the expectation that they might have to cover the 
costs of restoring the ecological function of a stream. Exposing those 
systems to these unanticipated costs could compromise their fiscal 
integrity.
    Proposed 30 CFR 800.9(d)(2)(i) would prohibit an alternative 
bonding system from covering treatment of long-term discharges that 
come into existence after the effective date of paragraph (d), unless, 
upon discovery of the discharge, the permittee contributes an amount 
sufficient to cover all costs that the alternative bonding system will 
incur to treat the discharge in perpetuity and the alternative bonding 
system sets that money aside in a separate account dedicated solely to 
treatment of that discharge. Otherwise, consistent with proposed 30 CFR 
800.18, the permittee would be required to post a financial assurance, 
a collateral bond, or a combination thereof to cover this obligation. 
Financial assurances are preferred because they produce an income 
stream, but the permittee has the option of posting a sufficiently 
large collateral bond to cover all foreseeable treatment and 
reclamation costs.
    Self-bonds are neither appropriate nor reliable for this purpose 
because they do not require the deposit of any funds with the 
regulatory authority or under the control of the regulatory authority. 
Therefore, the regulatory authority may not be able to recover the 
necessary funds if the permittee goes out of business. In that case, 
there would be no dedicated funding set aside to ensure continued 
treatment of the discharge, which means either that treatment would 
cease, resulting in environmental damage, or that a governmental entity 
would assume treatment, meaning that the public would bear the cost of 
avoiding environmental damage.
    Under proposed 30 CFR 800.9(d)(2)(ii), long-term discharges that 
came into existence before the effective date of paragraph (d) would 
continue to be covered by any applicable state alternative bonding 
system unless the regulatory authority amends its program to 
specifically establish an earlier effective date. The proposed rule 
would require that the permittee of a site with a discharge subject to 
paragraph (d)(2)(ii) contribute to the alternative bonding system an 
amount sufficient to cover all costs that the regulatory authority 
estimates that the alternative bonding system will incur to treat the 
discharge for as long as the discharge requires active or passive 
treatment to meet Clean Water Act standards or pertinent SMCRA-related 
requirements. The proposed rule would require that the alternative 
bonding system place that amount in a separate account available only 
for treatment of the discharge for which the contribution is made. The 
proposed rule further provides that a permittee unable to make this 
contribution must post a financial assurance, a collateral bond, or a 
combination thereof to cover this obligation.
4. Section 800.11: When and how must I file a bond?
    We propose to redesignate existing 30 CFR 800.11(e) as 30 CFR 
800.9. We propose to streamline the remaining provisions of existing 30 
CFR 800.11 and improve the wording and structure to clarify their 
meaning. We also propose to add a requirement that the bond be filed in 
the amount that the regulatory authority determines necessary under 30 
CFR 800.14.
    In addition, we propose to delete a mostly obsolete provision in 
existing 30 CFR 800.11(c) specifying that an operator ``may not extend 
any underground shafts, tunnels or operations'' before the regulatory 
authority accepts the performance bond required for that area. This 
provision is inconsistent with section 509(a) of SMCRA,\520\ which 
requires a performance bond only for that area of land within the 
permit area upon which the operator will conduct surface coal mining 
and reclamation operations. Paragraphs (27) and (28) of section 701 of 
SMCRA \521\ define surface coal mining and reclamation operations, in 
relevant part, as ``activities conducted on the surface of lands'' and 
``the areas upon which such activities occur or where such activities 
disturb the natural land surface.'' Therefore, SMCRA does not require 
posting of performance bond for underground workings.
---------------------------------------------------------------------------

    \520\ 30 U.S.C. 1259(a).
    \521\ 30 U.S.C. 1291(27) and (28).
---------------------------------------------------------------------------

    Proposed paragraph (d) would replace the mostly obsolete provision 
in existing paragraph (c) with a prohibition on disturbing any surface 
area (by any type of surface coal mining operation) or extending any 
vertical underground mine shaft or other vertical underground mine 
opening for which a performance bond is required before the regulatory 
authority accepts the performance bond required for that area or 
extension. A performance bond is required for extension of vertical 
underground mine shafts and other vertical underground mine openings 
because those openings must be filled upon the completion of mining and 
the depth of the opening will affect the cost of reclamation.
5. Section 800.12: What form of bond is acceptable?
    The first sentence of existing 30 CFR 800.12 provides that the 
regulatory authority must prescribe the form of the bond. We propose to 
redesignate this sentence as paragraph (a). The remainder of existing 
30 CFR 800.12 provides that the regulatory authority may allow the 
permittee to post a surety bond, a collateral bond, a self-bond, or a 
combination of these forms of bond. We propose to redesignate this 
provision as paragraph (b) and add paragraphs (c) through (e) to 
identify exceptions and special requirements. Proposed paragraph (c) 
would clarify that an alternative bonding system approved under 
proposed 30 CFR 800.9 is not subject to 30 CFR 800.12. Proposed 
paragraph (d) reflects the fact that proposed 30 CFR 800.18 would 
require that a permittee post either a financial assurance or a 
collateral bond to guarantee treatment of a long-term discharge.
    Consistent with proposed 30 CFR 780.28(c), 784.28(c), 816.57(b), 
and 817.57(b), proposed paragraph (e) would require that the permittee 
post a surety bond, a collateral bond, or a combination thereof to 
guarantee restoration of the ecological function of a stream segment. A 
self-bond is not an appropriate mechanism to guarantee restoration of a 
stream's ecological function because of the risk that the company may 
cease to exist during the time required to accomplish that restoration. 
In addition, a self-bond does not require that the permittee file 
financial instruments or collateral with the regulatory authority, nor 
is there any third party obligated to complete the

[[Page 44536]]

reclamation or pay the amount of the bond if the permittee defaults on 
reclamation obligations.
6. Section 800.13: What is the liability period for a bond?
    Existing 30 CFR 800.13(b) allows separate bonding of isolated and 
clearly defined portions of the permit area that require extended 
liability. We propose to revise this paragraph to allow those 
provisions to apply to the bond posted to guarantee restoration of a 
stream's ecological function under proposed 30 CFR 780.28, 784.28, 
816.57, and 817.57. The proposed addition would recognize that 
restoring the premining ecological function of a stream segment is a 
lengthy process. We also propose to revise paragraph (b) to require 
that access routes to any separately bonded areas be included within 
those areas. Under the existing rule, bonding of these routes is 
discretionary on the part of the regulatory authority. However, we see 
no basis under section 509 of SMCRA to exclude any disturbed areas from 
bonding requirements unless those areas are fully reclaimed and are no 
longer used for any activity related to mining and reclamation.
    Existing paragraph (d) provides that the permittee is responsible 
under the bond for restoring the disturbed area to a condition capable 
of supporting the approved postmining land use. It further provides 
that the permittee's responsibility does not extend to actual 
implementation of the approved use. We propose to revise this paragraph 
to reflect the proposed revisions to 30 CFR 785.16(a)(13), which would 
impose alternative reclamation requirements on the permittee if the 
postmining land use forming the basis for a variance from the 
approximate original contour restoration requirements is not 
implemented by the end of the revegetation responsibility period. We 
also propose to add a provision clarifying that proposed 30 CFR 800.18 
would govern the liability period for long-term treatment of 
discharges.
7. Section 800.14: How will the regulatory authority determine the 
amount of bond required?
    We propose to revise existing 30 CFR 800.14(a) by adding the 
biological condition of perennial and intermittent streams within the 
permit area to the list of factors that the regulatory authority must 
consider in establishing bond amounts. This revision is consistent with 
our proposal to require restoration of the ecological function of 
perennial and intermittent streams under 30 CFR 780.28, 784.28, 816.57, 
and 817.57. Streams with a more pristine biological condition may be 
more difficult to restore and thus may require a higher bond amount.
    We propose to revise existing 30 CFR 800.14(b) by adding paragraph 
(b)(2) to require that the calculations used to determine the bond 
amount specifically identify the amount of bond needed to restore 
stream function. Under proposed paragraph (b)(2), the permittee then 
would have the option of either posting a separate bond for that amount 
or incorporating it into the bond posted for the entire permit or 
increment.
    We propose to redesignate existing 30 CFR 800.14(c) as paragraph 
(f) and add a new paragraph (c) to reflect the proposed revisions to 30 
CFR 785.16(a)(13), which would impose alternative reclamation 
requirements on the permittee if the postmining land use forming the 
basis for a variance from approximate original contour restoration 
requirements is not implemented by the end of the revegetation 
responsibility period. Specifically, we propose to require that the 
amount of the bond be sufficient to restore the variance area to its 
approximate original contour if the approved postmining land use is not 
implemented by the end of the applicable revegetation responsibility 
period. This proposed requirement is intended to minimize any potential 
abuse of the steep-slope variance provision.
    Proposed 30 CFR 800.14(d) would clarify that proposed 30 CFR 800.18 
would govern the amount of the financial assurance required to 
guarantee long-term treatment of discharges.
    Proposed 30 CFR 800.14(e) is substantively identical to the 
provision in existing paragraph (b) establishing that the total bond 
posted for the entire area under one permit may not be less than 
$10,000, as required by the last clause of section 509(a) of 
SMCRA.\522\
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    \522\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

8. Section 800.15: When must the regulatory authority adjust the bond 
amount and when may I request adjustment of the bond amount?
    We propose to revise existing 30 CFR 800.15(a) to more clearly 
distinguish between bond adjustments under section 509(e) of SMCRA 
\523\ and bond releases under section 519 of SMCRA.\524\ Specifically, 
as discussed below, we propose to incorporate into regulation our 
interpretation of section 509(e) of SMCRA,\525\ which we explain in the 
preamble to the existing rules and in Directive TSR-1, ``Handbook for 
Calculation of Reclamation Bond Amounts.'' \526\ Section 509(e) of 
SMCRA provides that ``[t]he amount of the bond or deposit required and 
the terms of each acceptance of the applicant's bond shall be adjusted 
by the regulatory authority from time to time as affected land acreages 
are increased or decreased or where the cost of future reclamation 
changes.'' The preamble to existing 30 CFR 800.15(c) states that 
``reduction of bond is considered a bond adjustment if the reduction is 
based on a change in method of operation or other circumstances which 
reduces the estimated cost for the regulatory authority to reclaim.'' 
\527\ It further states that ``any reduction in bond amount for 
reclamation work performed on disturbed areas'' does not qualify as a 
bond adjustment because ``bond for disturbed areas can only be released 
or reduced through formal release procedures of Sec.  800.40.'' \528\
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    \523\ 30 U.S.C. 1259(e).
    \524\ 30 U.S.C. 1269.
    \525\ 30 U.S.C. 1259(e).
    \526\ http://www.osmre.gov/LRG/docs/directive882.pdf (last 
accessed October 28, 2014).
    \527\ 48 FR 32944 (Jul. 19, 1983).
    \528\ Id. at 32945.
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    Proposed 30 CFR 800.15(a) would clarify that, consistent with 
existing policy, the changes in the cost of reclamation to which 
section 509(e) of SMCRA \529\ refers are limited to decreases in the 
cost of future reclamation as a result of (1) the approval of revisions 
to the operation and reclamation plan in the permit or (2) changes in 
the unit costs of future reclamation; e.g., the cost of moving a cubic 
yard of spoil x number of feet, the cost of planting x number of trees, 
or the hourly cost to operate a specified piece of equipment. 
Situations that qualify for bond reduction through the bond adjustment 
process on this basis would include technological advances that would 
reduce the unit costs of reclamation, approved revisions to the 
operation plan (such as a decision not to remove the lowest coal seam) 
that would result in an operation of more limited extent than 
originally approved and bonded, and approved revisions to the 
reclamation plan (such as an alteration in the postmining land use) 
that would reduce reclamation costs.
---------------------------------------------------------------------------

    \529\ 30 U.S.C. 1259(e).
---------------------------------------------------------------------------

    A bond reduction under 30 CFR 800.15 on the basis of a change in 
the cost of reclamation must be justified solely upon a demonstration 
that the reclamation cost estimates that form the basis for the 
existing bond amount are no longer valid for reasons other than 
completion of elements of the reclamation process. We propose to add 
language specifying that the bond

[[Page 44537]]

adjustment provisions may not be used to reduce the amount of the 
performance bond to reflect decreases in the cost of future reclamation 
as a result of completion of activities required under the reclamation 
plan approved in the permit. Bond reduction for completed reclamation 
activities such as backfilling or topsoil replacement may be 
accomplished only in accordance with the bond release requirements and 
procedures of proposed 30 CFR 800.40 through 800.44. Any bond reduction 
requested as a result of reclamation work performed must be submitted 
and processed as an application for bond release under proposed 30 CFR 
800.40 through 800.44.
    Under proposed 30 CFR 800.15(e), the regulatory authority would 
have to require that appropriate bond or financial assurance be posted 
in accordance with proposed 30 CFR 800.18 whenever a discharge that 
will require long-term treatment is identified.
    Proposed 30 CFR 800.15(f) would prohibit reduction of the bond 
amount to reflect the failure of the permittee to restore the 
approximate original contour or when the reclamation plan was 
improperly modified to reflect the level of reclamation completed 
rather than the level of reclamation required under the regulatory 
program.
9. Section 800.16: What are the general terms and conditions of the 
bond?
    Existing 30 CFR 800.16(e) states that the bond must provide a 
mechanism for banks and sureties to give prompt notice to the 
regulatory authority and the permittee of any action filed alleging the 
insolvency or bankruptcy of the permittee, bank, or surety or alleging 
any violations that would result in suspension or revocation of the 
bank's or surety's license or charter to do business. We propose to 
revise this paragraph so that it would apply not just to banks and 
sureties, but also to any other responsible financial entity that 
issues bonds. We see no logical or legal reason to limit the scope of 
this requirement to banks and sureties.
    We also propose to move existing 30 CFR 800.16(e)(2), which sets 
forth the actions that the permittee and regulatory authority must take 
in the event of incapacity of a bank or surety, to 30 CFR 800.30(b). 
This provision is not a term or condition of the bond. Therefore, it is 
more appropriately located in 30 CFR 800.30, which is the section that 
contains requirements for replacement of bonds.
10. Why are we proposing to remove existing 30 CFR 800.17?
    Existing 30 CFR 800.17 contains bond requirements for underground 
coal mines and long-term coal-related surface facilities and 
structures. We propose to remove this section because it largely 
duplicates provisions of other sections of part 800. The only unique 
provision authorizes the posting of bond instruments with defined 
expiration dates, provided the bond is conditioned upon extension, 
replacement, or payment in full 30 days before the expiration date. The 
rule also requires that the regulatory authority initiate bond 
forfeiture proceedings if the permittee has not filed a term extension 
or a replacement bond 30 days before the expiration date.
    This provision was originally adopted under the authority of 
section 516(d) of SMCRA,\530\ which requires consideration of ``the 
distinct difference between surface and underground coal mining'' in 
developing regulations applying the bond requirements of section 509 of 
SMCRA \531\ to underground mines. Specifically, section 800.17 provides 
a limited exception to the following provision in section 509(b) of 
SMCRA: ``Liability under the bond shall be for the duration of the 
surface coal mining and reclamation operation and for a period 
coincident with [the] operator's responsibility for revegetation 
requirements in section 515.'' This exception is no longer necessary 
because underground mines can obtain letters of credit and other bonds 
just as other surface coal mining operations do.
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    \530\ 30 U.S.C. 1266(d).
    \531\ 30 U.S.C. 1259.
---------------------------------------------------------------------------

11. Section 800.18: What special provisions apply to financial 
guarantees for treatment of long-term discharges?
    Proposed 30 CFR 800.18 would establish performance bond and 
financial assurance requirements that would apply whenever any 
discharge from a surface or underground coal mine or other facility 
regulated under SMCRA requires treatment and continues or may 
reasonably be expected to continue after the completion of mining, 
backfilling, grading, and the establishment of revegetation. Part 
IX.K.1. of this preamble explains the rationale for requiring a bond or 
financial assurance to guarantee treatment of long-term discharges and 
for the use of financial assurances in place of conventional bond 
instruments.
    We also propose to apply these requirements to situations in which 
the regulatory authority finds that a discharge requiring long-term 
treatment will develop in the future, provided that the quantity and 
quality of the future discharge can be determined with reasonable 
probability. In these situations, it would be prudent to require that 
the permittee establish a trust fund or annuity during the mining phase 
when revenues are available. If the regulatory authority does not 
require establishment of a trust fund or annuity until the discharge 
actually develops, the permittee may no longer be in business or may 
lack the resources to establish a trust fund or annuity. One example of 
an operation that would meet these criteria is an underground mine that 
creates a mine pool that will reach surface elevations and begin to 
discharge at some point after mine closure.
    Proposed paragraph (b) would specify that only financial assurances 
and collateral bonds are acceptable forms of bond to guarantee 
treatment of long-term discharges. As discussed in Part IX.K.1. of this 
preamble, surety bonds and self-bonds are not appropriate instruments 
because neither would produce the income stream needed to cover 
treatment expenses and because there is a distinct possibility that the 
discharge would outlast both the permittee and the surety. If the 
permittee elects to post a collateral bond rather than a financial 
assurance, the rule would require that the amount of the collateral 
bond include the cost of treating the discharge during the time needed 
to collect and liquidate the bond and convert the proceeds to a 
financial instrument that will generate interest in an amount 
sufficient to cover future treatment costs and associated 
administrative expenses. To minimize threats to the solvency of 
alternative bonding systems, we propose to prohibit those systems from 
covering treatment of long-term discharges unless the permittee posts 
an amount equal to the cost of treating the discharge in perpetuity and 
the alternative bonding system places that money in a separate account 
dedicated solely to treatment of that discharge. However, the proposed 
rule would grandfather in operations with discharges covered by an 
alternative bonding system on the effective date of this new provision.
    Proposed paragraph (c) would specify that the amount of financial 
assurance or collateral bond required must include the cost of treating 
the discharge to meet all applicable numerical standards or limits that 
are in effect at the time that the regulatory authority issues an order 
requiring posting of a financial assurance or bond. The numerical

[[Page 44538]]

standards or limits may be established in a SMCRA permit (the criteria 
for material damage to the hydrologic balance outside the permit area), 
in a permit or authorization issued under the Clean Water Act (an NPDES 
permit, a section 404 dredge or fill permit or authorization, or a 
section 401 water quality certification), or in regulations 
implementing the Clean Water Act.
    Proposed paragraph (d) would establish requirements for the 
financial assurance instrument itself. We based these provisions on the 
experience of the Pennsylvania and Tennessee regulatory authorities in 
establishing and managing trust funds and annuities to guarantee long-
term treatment of discharges. Proposed paragraph (d) would require that 
the trust fund or annuity be in a form approved by the regulatory 
authority and contain all terms and conditions required by the 
regulatory authority. The trust fund or annuity would have to be 
established in a manner that guarantees that sufficient moneys will be 
available when needed to pay for treatment costs in perpetuity (unless 
the permittee demonstrates, and the regulatory authority finds, based 
on scientifically proven facts, that treatment will be needed for a 
lesser time, either because the discharge will attenuate or because its 
quality will improve); periodic maintenance, renovation, and 
replacement of treatment and support facilities; final reclamation of 
the sites upon which treatment facilities are located and areas used in 
support of those facilities; and administrative costs incurred by the 
regulatory authority or trustee. Calculations of the amount required 
for the trust fund or annuity would have to be based on a conservative 
anticipated rate of return on the proposed investments that is 
consistent with long-term historical rates of return for similar 
investments. The regulatory authority would be required to specify the 
investment objectives of the trust fund or annuity to ensure that those 
objectives are consistent with production of an income stream adequate 
to meet ongoing treatment needs. The trust fund or annuity must 
irrevocably establish the regulatory authority as the beneficiary of 
the trust fund or of the proceeds from the annuity for the purpose of 
treating mine drainage or other mining-related discharges to protect 
the environment and users of surface water.
    Proposed paragraph (d)(1)(i) would allow permittees a reasonable 
time to fully fund trust funds and annuities rather than requiring a 
lump-sum deposit as would be required for collateral bonds. Under the 
proposed rule, the regulatory authority could accept an arrangement by 
which the permittee builds the amount of the trust fund or annuity over 
time, provided that the permittee continues to treat the discharge 
during that time; and the regulatory authority retains all performance 
bonds posted for the permit until the trust fund or annuity reaches a 
self-sustaining level as determined by the regulatory authority. This 
provision is needed because some permittees may require additional time 
to obtain the financing needed to establish a trust fund or annuity for 
treatment of unanticipated discharges. Insisting on immediate funding 
of the full cost of a trust fund or annuity could force the permittee 
into a default on reclamation or other obligations, which could be 
counterproductive if it results in the permittee ceasing treatment or 
if it disrupts or precludes the allocation of funds for treatment or 
other reclamation activities.
    Proposed paragraph (d)(6) would require that the trust fund or 
annuity provide that disbursement of money from the trust fund or 
annuity may be made only upon written authorization of the regulatory 
authority or according to a schedule established in the agreement 
accompanying the trust fund or annuity. We anticipate that a fully 
funded trust or annuity may include provisions for disbursements to the 
permittee as a mechanism to cover the cost of water treatment, 
especially for those permittees no longer generating income from the 
mining of coal. Disbursements from the income stream of a fully funded 
trust fund or annuity would not be considered a bond release or a bond 
forfeiture because we propose to adopt these financial assurance 
provisions as an alternative bonding system for the specific purpose of 
producing the income stream needed to pay for treatment and related 
costs.
    Proposed paragraph (d)(7) would provide that the financial 
institution or company serving as a trustee or issuing an annuity must 
be one of the following:
     A national bank chartered by the Office of the Comptroller 
of the Currency.
     An operating subsidiary of a national bank chartered by 
the Office of the Comptroller of the Currency.
     A bank or trust company chartered by the state in which 
the operation is located.
     An insurance company licensed or authorized to do business 
in the state in which the operation is located or designated by the 
pertinent regulatory body of that state as an eligible surplus lines 
insurer.
     Any other financial institution or company with trust 
powers and with offices located in the state in which the operation is 
located, provided that the institution's or company's activities are 
examined or regulated by a state or federal agency.
    This proposed restriction is intended to ensure that only 
competent, reliable, and properly capitalized and insured companies are 
eligible for selection as trustees. We invite comment on whether the 
proposed list is too inclusive or exclusive.
    Proposed paragraph (e) would allow termination of a trust fund or 
annuity only upon the demise of the trustee or the company issuing the 
annuity or as specified by the regulatory authority upon a 
determination that one of the following situations exists:
     No further treatment or other reclamation measures are 
necessary.
     A satisfactory replacement bond or financial assurance has 
been posted.
     The terms of the trust fund or annuity establish 
conditions for termination and those conditions have been met.
     The trustee's administration of the trust fund or annuity 
is unsatisfactory to the regulatory authority, in which case the 
permittee or the regulatory authority must procure a new trustee.
    We invite comment on whether there are any other situations in 
which termination should be allowed or required.
    Proposed paragraph (f) would require that the regulatory authority 
establish a schedule for reviewing the performance of the trustee, the 
adequacy of the trust fund or annuity, and the accuracy of the 
assumptions upon which the trust fund or annuity is based. We propose 
to require that these reviews occur on at least an annual basis, but we 
invite comment on whether a different review frequency would be more 
appropriate and why. The rule would require that the regulatory 
authority order the permittee to provide additional resources to the 
trust fund or annuity whenever the review or any other information 
available to the regulatory authority at any time demonstrates that the 
financial assurance is no longer adequate to meet the purpose for which 
it was established.
    Proposed paragraph (g) provides that the bond replacement 
provisions of 30 CFR 800.30(a) would govern the replacement of any 
financial assurance.
    Proposed paragraph (h) specifies that release of reclamation 
liabilities and obligations under financial assurances would be subject 
to the applicable bond release provisions of proposed 30 CFR 800.40 
through 800.44.

[[Page 44539]]

    Proposed paragraph (i) provides that the permittee may apply for, 
and the regulatory authority may approve, release of any bonds posted 
for the permit or permit increment for which the regulatory authority 
has approved a financial assurance, provided that the permittee and the 
regulatory authority comply with the bond release requirements and 
procedures in proposed Sec. Sec.  800.40 through 800.44. This provision 
would apply only if the financial assurance is in place and fully 
funded, the permit or permit increment fully meets all applicable 
reclamation requirements (with the exception of the discharge and the 
presence of associated treatment and support facilities), and the 
financial assurance will serve as the bond for reclamation of the 
portion of the permit area required for postmining water treatment 
facilities and access to those facilities. Release of all other bonds 
for the site would be appropriate under these conditions because the 
fully funded trust fund or annuity would be available to fund treatment 
and reclamation activities in the event of a permittee's bankruptcy or 
dissolution.
12. Section 800.21: What additional requirements apply to collateral 
bonds?
    We propose to revise existing 30 CFR 800.21(a)(3) to allow the 
acceptance of certificates of deposit issued by financial institutions 
other than banks. We also propose to revise existing 30 CFR 
800.21(a)(4) and (d)(4) to eliminate references to the now-defunct 
Federal Savings and Loan Insurance Corporation and references to the 
obsolete $100,000 maximum on the amount insured by the Federal Deposit 
Insurance Corporation. The proposed revisions would make this section 
consistent with the current structure and nomenclature of the financial 
industry and its regulators.
13. Section 800.23: What additional requirements apply to self-bonds?
    We propose to revise existing 30 CFR 800.23(b)(3)(i) to allow the 
use of any nationally recognized statistical rating organization 
(NRSRO) registered with the Securities and Exchange Commission in 
determining whether a corporation is eligible to self-bond. The 
existing rule allows use of only Moody's Investors Service and Standard 
and Poor's. The proposed revision is consistent with the Credit Rating 
Agency Reform Act of 2006 (Pub. L. 109-291), which facilitated the 
entry of new credit rating organizations into the market by abolishing 
the authority of the Securities and Exchange Commission (SEC) to 
designate NRSROs by no-action letters and replacing that process with a 
provision that, to be recognized as an NRSRO, a rating agency must 
register with the SEC. As stated in section 2(5) of the Credit Rating 
Agency Reform Act of 2006, ``the 2 largest credit rating agencies serve 
the vast majority of the market, and additional competition is in the 
public interest.'' Therefore, our existing rule requiring use of either 
Moody's or Standard and Poor's in determining self-bonding eligibility 
is no longer appropriate.
14. Section 800.30: When may I replace a bond or financial assurance 
instrument and when must I do so?
    We propose to revise this section by combining existing 30 CFR 
800.30(a) and (b) into paragraph (a) and by deleting an unnecessary 
sentence in existing 30 CFR 800.30(b) stating that replacement of a 
performance bond does not constitute bond release. We also propose to 
extend the applicability of this section to financial assurances under 
proposed 30 CFR 800.18, and to redesignate the mandatory bond 
replacement provisions of existing 30 CFR 800.16(e)(2) as 30 CFR 
800.30(b).
    Proposed paragraph (a) would allow the regulatory authority to 
decline to accept a proffered replacement surety bond if, in the 
judgment of the regulatory authority, the new surety does not have 
adequate reinsurance or other resources sufficient to cover the default 
of one or more mining companies for which the surety has provided bond 
coverage. This proposed provision is intended to avoid a repeat of the 
situation involving Frontier Insurance Company in the 1980s in which 
the surety could not meet its obligations.
    Proposed paragraph (b) would extend the applicability of existing 
30 CFR 800.16(e)(2) to include other responsible financial entities 
issuing bonds. The existing language in 30 CFR 800.16(e)(2) applies 
only to banks and sureties, but we see no logical reason to exclude 
other bond-issuing entities from the scope of this paragraph. We also 
propose to revise this paragraph to clarify that failure to replace a 
bond within the specified time is a violation for which the regulatory 
authority must issue a notice of violation. Operating without bond 
coverage would be a violation of the permit condition required under 30 
CFR 773.17(a).
15. Section 800.40: How do I apply for release of all or part of a 
bond?
    We propose to redesignate existing 30 CFR 800.40(a) as new section 
800.40, with two substantive revisions. First, we propose to require 
that the applicant submit a certified copy of the required newspaper 
advertisement. Addition of the certification requirement would provide 
independent documentation that the newspaper advertisement has indeed 
been published for the required 4 weeks. Second, we propose to require 
that the description of the results achieved under the approved 
reclamation plan include an analysis of the results of the monitoring 
of groundwater, surface water, and the biological condition of 
perennial and intermittent streams under 30 CFR 816.35 through 816.37 
or 817.35 through 817.37. This analysis is critical to a determination 
of whether reclamation requirements relating to protection of the 
hydrologic balance have been met.
16. Section 800.41: How will the regulatory authority process my 
application for bond release?
    We propose to redesignate existing 30 CFR 800.40(b)(1) as section 
800.41 and restructure the existing rule as paragraphs (a) and (b) of 
section 800.41. We also propose two substantive revisions. First, 
proposed paragraph (a)(1) would specify that the regulatory authority's 
clock for processing the application begins only upon submittal of a 
complete application rather than upon receipt of any application. 
Second, proposed paragraph (a)(2) would clarify that a complete 
application for bond release is one that includes all items required 
under 30 CFR 800.40. The proposed additions would benefit both the 
applicant and the regulatory authority by ensuring that an application 
is complete before the review process begins, which would have the 
additional benefit of promoting the efficient use of resources.
17. Section 800.42: What are the criteria for bond release?
    We propose to redesignate existing 30 CFR 800.40(c) as 30 CFR 
800.42, with a number of substantive revisions. Proposed paragraph (a) 
sets forth the general requirements that would have to be met before 
the regulatory authority may approve an application for bond release 
and release all or part of the bond in accordance with the other 
paragraphs of 30 CFR 800.42. Proposed paragraph (a) would apply to all 
types of bond release applications (Phase I through Phase III). In 
general, sections 509(a) and 519(b) of SMCRA \532\ provide authority 
for the proposed revisions. Section 509(a) \533\ provides, in relevant 
part, that the amount of bond in place for a surface coal mining and

[[Page 44540]]

reclamation operation ``shall be sufficient to assure the completion of 
the reclamation plan if the work had to be performed by the regulatory 
authority in the event of forfeiture.'' The new requirements in 
proposed paragraphs (a)(2) through (a)(6) are intended to ensure that 
the regulatory authority retains sufficient bond to complete the 
reclamation plan if the work has to be performed by the regulatory 
authority in the event of forfeiture. Section 519(b) of SMCRA \534\ 
provides that the regulatory authority's evaluation of a bond release 
application must ``consider, among other things, the degree of 
difficulty to complete any remaining reclamation, whether pollution of 
surface and subsurface water is occurring, the probability of 
continuance of future occurrence of such pollution, and the estimated 
cost of abating such pollution.'' Proposed paragraphs (a)(2) through 
(a)(6) are intended to ensure that the regulatory authority takes these 
factors into consideration.
---------------------------------------------------------------------------

    \532\ 30 U.S.C. 1259(a) and 1269(b).
    \533\ 30 U.S.C. 1259(a).
    \534\ 30 U.S.C. 1269(b).
---------------------------------------------------------------------------

    Proposed paragraph (a)(2) would not allow the regulatory authority 
to release any bond if, after an evaluation of the monitoring data for 
groundwater, surface water, and the biological condition of perennial 
and intermittent streams submitted under proposed 30 CFR 816.35 through 
816.37 or 817.35 through 817.37, it determines that adverse trends 
exist that may result in material damage to the hydrologic balance 
outside the permit area. This provision is intended to prevent 
premature release of bond that may be needed to correct potentially 
expensive damage to the hydrologic balance. This proposed requirement 
is consistent with section 515(b)(23) of SMCRA,\535\ which requires 
that surface coal mining and reclamation operations ``meet such other 
criteria as are necessary to achieve reclamation in accordance with the 
purposes of this Act, taking into consideration the physical, 
climatological, and other characteristics of the site.''
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    \535\ 30 U.S.C. 1265(b)(23).
---------------------------------------------------------------------------

    Proposed paragraph (a)(3) would prohibit the release of any portion 
of the bond unless and until the permittee posts a financial assurance 
or collateral bond under proposed 30 CFR 800.18 if a discharge 
requiring long-term treatment exists either on the permit area or at a 
point that is hydrologically connected to the permit area. Adoption of 
this proposed paragraph would incorporate into regulation one of the 
strategies in the policy entitled ``Hydrologic Balance Protection: 
Policy Goals and Objectives on Correcting, Preventing, and Controlling 
Acid/Toxic Mine Drainage'' that we issued on March 31, 1997. 
Specifically, Strategy 2.3 of Objective 2 under the ``Environmental 
Protection'' goal provides that--

    Strategy 2.3--Where inspections conducted in response to bond 
release requests identify surface or subsurface water pollution, 
bond in an amount adequate to abate the pollution should be held as 
long as water treatment is required, unless a financial guarantee or 
some other enforceable contract or mechanism to ensure continued 
treatment exists.\536\
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    \536\ ``Policy Goals and Objectives on Correcting, Preventing 
and Controlling Acid/Toxic Mine Drainage,'' OSMRE, March 31, 1997. 
Available at www.osmre.gov/lrg/docs/amdpolicy033197.pdf (last 
accessed August 27, 2014), p. 6.

    Proposed paragraph (a)(4) would apply whenever the permit area or 
increment includes a variance under 30 CFR 785.16 from restoration of 
the approximate original contour. In that case, the proposed rule would 
prohibit release of the portion of the bond described in proposed 30 
CFR 785.16(a)(13), in whole or in part, until the approved postmining 
land use is implemented or until the site is restored to the 
approximate original contour and revegetated in accordance with 30 CFR 
816.111 and 816.116 or 817.111 and 817.116. This provision is intended 
to prevent abuse of the steep-slope variance provision and to ensure 
that variances are requested and granted only when there is a 
reasonable likelihood of achieving the alternative postmining land use, 
as provided in the requirements for approval of higher or better land 
uses under section 515(b)(2) of SMCRA.\537\ Authority for this 
provision derives in part from section 515(e)(5) of SMCRA,\538\ which 
provides that the regulatory authority ``shall promulgate specific 
regulations to govern the granting of variances in accord with the 
provision of this subsection, and may impose such additional 
requirements as he deems to be necessary.''
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    \537\ 30 U.S.C. 1265(b)(2).
    \538\ 30 U.S.C. 1265(e)(5).
---------------------------------------------------------------------------

    Proposed paragraph (a)(5) pertains to buildings and structures to 
be retained as part of the approved postmining land use. It would 
prohibit release of the bond amount described in proposed 30 CFR 
780.24(d)(2) or 784.24(d)(2) either until the structure is in use as 
part of the postmining land use or until the structure is removed and 
the site upon which it was located is reclaimed in accordance with part 
816 or part 817. This provision is intended to ensure that only 
structures with actual utility for the postmining land use are 
retained. Unused and unmaintained mine buildings can become dangerous 
attractive nuisances and a visual blight on the landscape. There would 
be no funds available to remove structures retained as part of the 
postmining land use at the time of bond release if they subsequently 
deteriorate.
    Proposed 30 CFR 800.42(a)(6) would require that the regulatory 
authority consider the results of the evaluation required under 
proposed 30 CFR 816.41(a)(3) when determining the amount of bond to 
release. Proposed 30 CFR 816.41(a)(3) requires that the evaluation 
consider, among other factors, the degree of difficulty to complete any 
remaining reclamation, whether pollution of surface and subsurface 
water is occurring, the probability of future occurrence of such 
pollution, and the estimated cost of abating such pollution. The 
factors listed in the proposed rule are identical to the factors listed 
in section 519(b) of SMCRA.\539\
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    \539\ 30 U.S.C. 1269(b).
---------------------------------------------------------------------------

    Proposed paragraph (b) would include the criteria for Phase I bond 
release in existing 30 CFR 800.40(c)(1). We propose to revise the 
existing criteria by adding a provision clarifying that restoration of 
the form of perennial and intermittent stream segments mined through 
under 30 CFR 816.57 or 817.57 is part of the backfilling and grading 
process and therefore must be accomplished before the area is eligible 
for Phase I bond release. We also propose to add a provision stating 
that the amount of bond that the regulatory authority retains after 
Phase I release must be adequate to ensure that the regulatory 
authority will have sufficient funds for a third party to complete the 
remaining portion of the reclamation plan, including restoration of the 
ecological function of perennial and intermittent streams under 30 CFR 
816.57 or 817.57 and completion of any fish and wildlife enhancement 
measures required in the permit in accordance with 30 CFR 780.16 or 
784.16, in the event of forfeiture. The proposed additional 
requirements are necessary and appropriate to ensure compliance with 
section 509(a) of SMCRA,\540\ which provides, in relevant part, that 
the amount of bond in place for a surface coal mining and reclamation 
operation ``shall be sufficient to assure the completion of the 
reclamation plan if the work had to be performed by the regulatory 
authority in the event of forfeiture.''
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    \540\ 30 U.S.C. 1259(a).

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[[Page 44541]]

    Section 519(c)(1) of SMCRA \541\ authorizes ``release of 60 per 
centum of the bond or collateral for the applicable permit area'' upon 
the completion of backfilling, grading, and drainage control. Proposed 
paragraph (b) would clarify that section 519(c)(1) of SMCRA \542\ does 
not stand alone; i.e., that release of the entire 60 percent is neither 
required nor allowed if releasing that amount of money would result in 
retention of insufficient bond to cover remaining reclamation costs, as 
required by section 509(a) of SMCRA.\543\
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    \541\ 30 U.S.C. 1269(c)(1).
    \542\ 30 U.S.C. 1269(c)(1).
    \543\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

    Proposed paragraph (c) would include the criteria for Phase II bond 
release in existing 30 CFR 800.40(c)(2). Proposed paragraph (c)(1) 
would revise the existing criteria by adding a requirement that the 
regulatory authority establish standards for determining when 
revegetation has been successfully established for purposes of this 
paragraph. Establishment connotes an element of permanence. However, 
except for prime farmland, revegetation need not meet the entire suite 
of revegetation success standards under 30 CFR 816.116 or 817.116 to 
qualify for Phase II bond release. Otherwise, there would be little 
practical difference between the criteria for Phase II and Phase III 
bond release if the revegetation responsibility period must expire 
before a site is eligible for Phase II bond release. We invite comment 
on whether we should provide national standards for establishment of 
revegetation for purposes of Phase II bond release or whether this 
decision is best left to the judgment of the regulatory authority, 
based on local conditions.
    We also propose to add a provision in proposed paragraph (c)(2) 
stating that the amount of bond that the regulatory authority retains 
after Phase II release must be adequate to ensure that the regulatory 
authority will have sufficient funds for a third party to complete the 
remaining portion of the reclamation plan, including restoration of the 
ecological function of perennial and intermittent streams under 30 CFR 
816.57 or 817.57 and completion of any fish and wildlife enhancement 
measures required in the permit in accordance with 30 CFR 780.16 or 
784.16, in the event of forfeiture. The proposed additional 
requirements are necessary and appropriate to ensure compliance with 
section 509(a) of SMCRA,\544\ which provides, in relevant part, that 
the amount of bond in place for a surface coal mining and reclamation 
operation ``shall be sufficient to assure the completion of the 
reclamation plan if the work had to be performed by the regulatory 
authority in the event of forfeiture.''
---------------------------------------------------------------------------

    \544\ 30 U.S.C. 1259(a).
---------------------------------------------------------------------------

    Proposed paragraph (c)(5) would replace the reference to 
``subchapter K of this chapter'' in existing 30 CFR 800.40(c)(2) with 
more specific cross-references to the regulations pertaining to 
permanent impoundments; i.e., 30 CFR 816.49(b) and 816.56 or 817.49(b) 
and 817.56. We invite comment on the meaning of ``silt dam'' as used in 
proposed paragraph (c)(5) and in section 519(c)(2) of SMCRA.\545\
---------------------------------------------------------------------------

    \545\ 30 U.S.C. 1269(c)(2).
---------------------------------------------------------------------------

    Proposed paragraph (d) would include the criteria for Phase III 
(final) bond release in existing 30 CFR 800.40(c)(3). We propose to add 
language in proposed paragraph (d)(2) emphasizing that Phase III 
reclamation is not completed until the permittee restores the 
ecological function of perennial and intermittent streams under 30 CFR 
816.57 or 817.57 and completes any fish and wildlife enhancement 
measures required in the permit in accordance with 30 CFR 780.16 or 
784.16.
18. Section 800.43: When and how must the regulatory authority provide 
notification of its decision on a bond release application?
    Proposed 30 CFR 800.43(a) is substantively identical to existing 30 
CFR 800.40(b)(2). Proposed 30 CFR 800.43(b) and (c) are substantively 
identical to existing 30 CFR 800.40(d) and (e), respectively.
19. Section 800.44: Who may file an objection to a bond release 
application and how must the regulatory authority respond to an 
objection?
    Proposed 30 CFR 800.44 is comprised of paragraphs (a) through (c), 
which are substantively identical to existing 30 CFR 800.40(f) through 
(h), respectively.

L. Part 816: Permanent Program Performance Standards--Surface Mining 
Activities

    In this preamble, we typically discuss only those sections and 
paragraphs for which we propose substantive revisions. For the reasons 
explained in Part VIII of this preamble, we propose to revise other 
sections and paragraphs within this part in accordance with plain 
language principles, to update cross-references, and to improve 
consistency. In general, we do not discuss those proposed changes 
because no substantive change in meaning is intended.
1. Section 816.1: What does this part do?
    Existing 30 CFR 816.1 provides that part 816 sets forth the minimum 
environmental protection performance standards to be adopted and 
implemented under regulatory programs for surface mining activities. 
However, the content requirements and approval criteria for state 
regulatory programs are located at 30 CFR parts 730 through 732. 
Therefore, we propose to revise this section to simply state that it 
sets forth the environmental protection performance standards for 
surface mining activities under the Act.
2. Section 816.2: What is the objective of this part?
    Existing 30 CFR 816.2 provides that the objective of part 816 is to 
ensure that all surface mining activities are conducted in a manner 
that preserves and enhances environmental and other values in 
accordance with the Act. However, SMCRA does not require preservation 
and enhancement of all values in all cases. Instead, as stated in 
section 102(f) of the Act,\546\ one of the purposes of the Act is to 
``strike a balance between protection of the environment and 
agricultural productivity and the Nation's need for coal as an 
essential source of energy.'' Therefore, we propose to revise 30 CFR 
816.2 to state that the objective of part 816 is to ensure that surface 
mining activities are conducted in an environmentally sound manner in 
accordance with the Act.
---------------------------------------------------------------------------

    \546\ 30 U.S.C. 1202(f).
---------------------------------------------------------------------------

3. Section 816.11: What signs and markers must I post?
    The existing rules contain four requirements to mark buffer zones 
for perennial and intermittent streams--one in the stream buffer zone 
rule for surface mining operations at 30 CFR 816.57(b), one in the 
stream buffer zone rule for underground mining operations at 30 CFR 
817.57(b), one in the requirements for signs and markers for surface 
mining operations at 30 CFR 816.11(e), and one in the requirements for 
signs and markers for underground mining operations at 30 CFR 
817.11(e). We propose to consolidate those requirements into 30 CFR 
816.11(e) and 817.11(e). Proposed 30 CFR 816.11(e) would provide that 
the boundaries of any buffer to be maintained between surface mining 
activities and perennial or intermittent streams in accordance with 
proposed 30 CFR 780.28 and 816.57 must be clearly marked to avoid 
disturbance by surface mining activities.

[[Page 44542]]

4. Section 816.22: How must I handle topsoil, subsoil, and other plant 
growth media?
General Discussion of Basis for Proposed Revisions
    In general, our proposed revisions to this section would improve 
implementation of section 515(b)(6) of SMCRA,\547\ which requires that 
surface coal mining operations ``restore the topsoil or the best 
available subsoil which is best able to support vegetation,'' and 
section 515(b)(5) of SMCRA,\548\ which states that surface coal mining 
operations must--
---------------------------------------------------------------------------

    \547\ 30 U.S.C. 1265(b)(6).
    \548\ 30 U.S.C. 1265(b)(5).

remove the topsoil from the land in a separate layer, replace it on 
the backfill area, or if not utilized immediately, segregate it in a 
separate pile from other spoil and when the topsoil is not replaced 
on a backfill area within a time short enough to avoid deterioration 
of the topsoil, maintain a successful cover by quick growing plant 
or other means thereafter so that the topsoil is preserved from wind 
and water erosion, remains free of any contamination by other acid 
or toxic material, and is in a usable condition for sustaining 
vegetation when restored during reclamation, except if topsoil is of 
insufficient quantity or of poor quality for sustaining vegetation, 
or if other strata can be shown to be more suitable for vegetation 
requirements, then the operator shall remove, segregate, and 
preserve in a like manner such other strata which is best able to 
---------------------------------------------------------------------------
support vegetation.

    Existing 30 CFR 816.22 focuses primarily on topsoil handling. We 
propose to revise this section and its permitting counterpart at 30 CFR 
780.12(e) to require salvage, protection, and redistribution of soil 
materials in addition to the topsoil to ensure that the reconstructed 
soil on the reclaimed minesite provides a root zone of sufficient depth 
and comprised of appropriate soil and overburden materials that will 
create a plant growth medium suitable for the vegetation to be planted. 
The existing regulations are either unclear on this point (see existing 
paragraphs (a)(1)(ii) and (2), which sometimes have been interpreted as 
meaning that soil materials other than topsoil need be salvaged, 
stored, and redistributed only if the topsoil is less than 6 inches 
thick or is of poor quality) or, in the case of existing paragraph (e), 
make salvage of soil materials other than topsoil discretionary on the 
part of the regulatory authority.
    The revised performance standards in proposed paragraphs (a), (b), 
and (e) of 30 CFR 816.22 and the soil-handling plan required by 
proposed 30 CFR 780.12(e) would require salvage, protection, storage, 
and redistribution of whatever soil materials are necessary to ensure 
that the site will be restored ``to a condition capable of supporting 
the uses which it was capable of supporting prior to any mining, or 
higher or better uses of which there is reasonable likelihood,'' as 
required by section 515(b)(2) of SMCRA,\549\ and to ensure that the 
site will be able to meet the revegetation requirements of paragraphs 
(b)(19) and (20) of section 515 of the Act.\550\ The preamble 
discussion of proposed 30 CFR 780.12(e), to which we are proposing to 
move paragraphs (b) and (e) of existing 30 CFR 816.22 in revised form, 
provides additional background on the basis and purpose for the 
proposed revisions. In addition, Forest Reclamation Advisory No. 8 (one 
of the publications implementing and supporting the Forestry 
Reclamation Approach) states that deep soil is required for productive 
tree growth and that ``[s]alvaging and re-spreading only the upper few 
inches or horizons of soil is unlikely to restore premining capability 
unless additional materials suitable for reforestation are added.'' 
\551\
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    \549\ 30 U.S.C. 1265(b)(2).
    \550\ 30 U.S.C. 1265(b)(19) and (20).
    \551\ Skousen, J., C. Zipper, J. Burger, C. Barton, and P. 
Angel. ``Forest Reclamation Advisory No. 8: Selecting Materials for 
Mine Soil Construction when Establishing Forests on Appalachian Mine 
Sites.'' (July 2011), p. 2. Available at http://arri.osmre.gov/FRA/Advisories/FRA_No.8%20Soil%20Materials.pdf (last accessed November 
19, 2014).
---------------------------------------------------------------------------

    Furthermore, the following excerpt from a U.S. District Court for 
the District of Columbia decision in PSMRL I, Round I concerning the 
1979 version of our regulations at 30 CFR 816.22(d), which required 
segregation of the B horizon and portions of the C horizon if the 
regulatory authority determined that those materials were necessary or 
desirable to ensure soil productivity, provides support for our 
proposed revisions:
Section 515(b)(5) [of SMCRA] authorizes segregation [of materials 
other than topsoil] if the topsoil cannot sustain vegetation or if 
other strata enhance post-mining vegetation. This is essentially 
what the regulations command. They focus on ``soil productivity,'' 
and grant the regulatory authority power to require segregation if 
necessary to improve such productivity.\552\
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    \552\ PSMRL I, Round I, Mem. Op. at 54.
---------------------------------------------------------------------------

Proposed Paragraph (a): Removal and Salvage
    Proposed paragraph (a) would require that the permittee separately 
remove and salvage all topsoil and other soil materials identified for 
salvage and use as postmining plant growth media in the soil-handling 
plan approved in the permit under Sec.  780.12(e). The rule would 
require completion of removal and salvage of these materials from the 
area to be disturbed before any drilling, blasting, mining, or other 
surface disturbance takes place on that area. Like the existing rule, 
it provides an exemption for minor disturbances.
    The proposed rule differs from the existing rule primarily in that 
it requires removal and salvage of all topsoil and other soil and 
overburden materials needed to reconstruct a suitable postmining plant 
growth medium throughout the root zone required to support the 
vegetation to be planted after the completion of mining. The existing 
rule requires removal and salvage of only topsoil, topsoil substitutes, 
or the top 6 inches of material when the topsoil is less than 6 inches 
in depth. As discussed above, in most cases, that material would result 
in a postmining plant growth medium of insufficient depth to support 
all land uses that the land was capable of supporting before any 
mining, which would be inconsistent with section 515(b)(2) of 
SMCRA.\553\
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    \553\ 30 U.S.C. 1265(b)(2).
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Proposed Paragraph (b): Storage
    The stockpiling requirements and temporary distribution provisions 
of proposed paragraph (b) are substantively identical to those of 
existing paragraph (c), with the exception that we propose to add a 
requirement that any species used to establish a vegetative cover on 
stockpiles be non-invasive to avoid endangering the success of efforts 
to revegetate the site with plants native to the area.
Proposed Paragraph (c): Soil Substitutes and Supplements
    Proposed paragraph (c) provides that when the soil handling plan 
approved in the permit in accordance with Sec.  780.12(e) provides for 
the use of substitutes for or supplements to the existing topsoil or 
subsoil, the permittee must salvage, store, and redistribute the 
overburden materials selected and approved for that purpose in a manner 
consistent with paragraphs (a), (b), and (e) of section 816.22. It is 
the counterpart to existing paragraph (a)(1)(ii), but differs in that 
it applies to all soil substitutes and supplements, not just to topsoil 
substitutes and supplements. We propose to move the approval standards 
for soil substitutes and supplements from existing paragraph (b) to 30 
CFR 780.12(e) as part of our effort to consolidate permitting 
requirements in subchapter G rather than having them split between

[[Page 44543]]

the permitting requirements of subchapter G and the performance 
standards of subchapter K.
Proposed Paragraph (d): Site Preparation
    Proposed paragraph (d)(1) would require that the permittee minimize 
grading of backfilled areas to avoid compaction of the reconstructed 
root zone, as specified in the soil-handling plan approved in the 
permit in accordance with Sec.  780.12(e). The rule would allow 
compaction only to the extent necessary to ensure stability and to 
comply with water-quality standards.
    Loosely graded soil materials have less compaction, greater water 
infiltration, and less erosion than more intensely graded soil 
materials.\554\ Greater infiltration generally makes more water 
available for plant growth and less erosion may result in a reduced 
frequency for cleanouts of sedimentation ponds.\555\ As stated in one 
research report:

    \554\ Sweigard, R., J. Burger, C. Zipper, J. Skousen, C. Barton, 
and P. Angel. ``Forest Reclamation Advisory No. 3: Low Compaction 
Grading to Enhance Reforestation Success on Coal Surface Mines'' 
(July 2007), pp. 1 and 6. Available at http://arri.osmre.gov/FRA/Advisories/FRA_No.3.pdf (last accessed November 19, 2014).
    \555\ Id.
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Third-year results show that intensive grading did not result in 
better ground cover establishment or erosion control. In fact, 
erosion was highest on the intensively graded plots.\556\
---------------------------------------------------------------------------

    \556\ Torbert, J. L. and J. A. Burger, Influence of Grading 
Intensity on Ground Cover Establishment, Erosion, and Tree 
Establishment on Steep Slopes, Virginia Polytechnic Institute and 
State University, in ``Proceedings of the International Land 
Reclamation and Mine Drainage Conference and the Third International 
Conference on the Abatement of Acidic Drainage,'' 1994, p. 230.
---------------------------------------------------------------------------

    Limited compaction is also more favorable to tree root growth, 
which will increase survival and growth rates and promote the 
establishment of productive forest land on reclaimed minesites.\557\
---------------------------------------------------------------------------

    \557\ Sweigard, op. cit.
---------------------------------------------------------------------------

    Proposed paragraph (d)(2) would require that, if necessary, the 
permittee rip, chisel-plow, or otherwise mechanically treat backfilled 
and graded areas before topsoil redistribution to reduce potential 
slippage of redistributed material placed on slopes and to promote root 
penetration. This provision is substantively identical to existing 
paragraph (d)(2) except that we propose to specify that the treatment 
must be mechanical in nature (ripping and chisel-plowing are the two 
most common methods) because we are not aware of any other effective 
type of treatment.
Proposed Paragraph (e): Redistribution
    Proposed paragraph (e) includes soil redistribution requirements 
analogous to those of existing paragraph (d)(1). The proposed rule 
differs from the redistribution requirements in the existing rule 
primarily in that the proposed rule would apply to all salvaged soil 
and soil substitute materials, not just to topsoil and topsoil 
substitutes and supplements, as in the existing rule. In addition, the 
proposed rule not only would require minimization of compaction to the 
extent possible (a requirement that is similar to the existing rule's 
ban on excess compaction); it would require that the permittee take 
measures to alleviate any excess compaction that does occur, which 
would minimize adverse impacts on site productivity and plant growth.
    We propose to remove existing paragraph (d)(4), which requires 
application of nutrients and soil amendments to initially-redistributed 
soil material when necessary to reestablish vegetative cover. The 
revegetation component of the reclamation plan required under proposed 
30 CFR 780.12 governs the use of nutrients and soil amendments.
    Finally, proposed paragraph (e) would require use of a 
statistically-valid sampling technique to document that soil materials 
have been redistributed in the locations and to the depths required by 
the soil-handling plan approved in the permit in accordance with Sec.  
780.12(e). We encourage use of EPA's Data Quality Objectives 
model,\558\ which is a seven-step method to assist in assuring that the 
appropriate type, quantity, and quality of data are collected for 
decision-making purposes. Site-specific variability should be taken 
into account when designing a sampling program and caution is 
recommended in the selection of composite versus discrete sampling 
methods for certain soil constituents. We invite comment on whether use 
of the EPA Data Quality Objectives model or its equivalent should be 
mandatory.
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    \558\ ``Guidance on Systematic Planning Using the Data Quality 
Objectives Process,'' (EPA QA/G-4), EPA/240/B-06/001, February 2006; 
available at http://www.epa.gov/quality/qa_docs.html (last accessed 
August 7, 2014).
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Proposed Paragraph (f): Organic Matter
    Proposed paragraph (f) would require the salvage of organic matter 
found on the site, including duff, other organic litter, and vegetative 
materials such as tree tops, small logs, and root balls. We propose to 
prohibit the burning or burying of these materials. Instead, for the 
reasons discussed at slightly greater length in the preamble to 
proposed 30 CFR 780.12(e), proposed paragraph (f) would require that 
the permittee redistribute the salvaged materials across the regraded 
surface or incorporate them into the soil to control erosion, promote 
growth of vegetation, serve as a source of native plant seeds and 
inoculants such as mycorrhizae, speed restoration of the soil's 
ecological community and ecosystem processes, and increase the moisture 
retention capability of the soil. Proposed paragraph (f) is consistent 
with Forest Reclamation Advisory No. 8, which states that ``[w]hen soil 
is obtained from forested areas prior to mining, the salvage operation 
should take stumps, roots, and woody debris left on the site, transport 
them to the reclaimed area, and re-spread them with the soil.'' \559\ 
The rule also would allow the use of woody debris for stream 
restoration purposes and to construct fish and wildlife habitat 
enhancement features.
---------------------------------------------------------------------------

    \559\ Skousen, et al. (2011), op. cit. at 3.
---------------------------------------------------------------------------

    Proposed paragraph (f) would enhance implementation of section 
515(b)(19) of SMCRA,\560\ which requires that surface coal mining and 
reclamation operations establish ``a diverse, effective, and permanent 
vegetative cover of the same seasonal variety native to the area of 
land to be affected and capable of self-regeneration and plant 
succession.'' It also would improve implementation of section 
515(b)(24) of SMCRA,\561\ which requires that surface coal mining and 
reclamation operations, ``to the extent possible using the best 
technology currently available, minimize disturbances and adverse 
impacts of the operation on fish, wildlife, and related environmental 
values, and achieve enhancement of such resources where practicable.''
---------------------------------------------------------------------------

    \560\ 30 U.S.C. 1265(b)(19).
    \561\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

5. Section 816.34: How must I protect the hydrologic balance?
    This new section would incorporate, reorganize, and consolidate 
paragraphs (a), (b), and (d) of existing 30 CFR 816.41. Those 
paragraphs contain general requirements for protection of the 
hydrologic balance as well as provisions specific to protection of 
groundwater and surface water.
Proposed Paragraph (a)
    Proposed paragraph (a) is primarily comprised of existing 30 CFR 
816.41(a). However, proposed paragraph (a)(3) would add a requirement 
to protect streams within the permit area, unless

[[Page 44544]]

otherwise approved in the permit in accordance with proposed 30 CFR 
780.28 and 816.57. This provision would enhance implementation of 
section 515(b)(24) of SMCRA,\562\ which requires that surface coal 
mining and reclamation operations be conducted to minimize adverse 
impacts on fish, wildlife, and related environmental values to the 
extent possible using the best technology currently available.
---------------------------------------------------------------------------

    \562\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    In addition, proposed paragraphs (a)(4) and (5) would clarify and 
refine the scope of existing 30 CFR 816.41(a), which requires the 
``protection or replacement of water rights.'' Proposed paragraph 
(a)(4) would require that the permittee assure the protection or 
replacement of water supplies to the extent required by 30 CFR 816.40. 
Proposed paragraph (a)(5) would require that the permittee protect 
existing water rights under state law. (Water rights are determined by 
state law.) Proposed paragraphs (a)(4) and (5) better reflect the 
provisions of section 717 of SMCRA,\563\ which contains the water 
rights and water supply replacement requirements applicable to surface 
mines. With respect to water rights, section 717(a) \564\ provides that 
nothing in SMCRA ``shall be construed as affecting in any way the right 
of any person to enforce or protect, under applicable law, his interest 
in water resources affected by a surface coal mining operation.'' With 
respect to water supply replacement, section 717(b) \565\ provides 
that--
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    \563\ 30 U.S.C. 1307.
    \564\ 30 U.S.C. 1307(a).
    \565\ 30 U.S.C. 1307(b).

    The operator of a surface coal mine 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 such surface coal mine 
---------------------------------------------------------------------------
operation.

    Proposed paragraph (a)(4) relates to section 717(b) of SMCRA,\566\ 
while proposed paragraph (a)(5) relates to section 717(a) of 
SMCRA.\567\
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    \566\ 30 U.S.C. 1307(b).
    \567\ 30 U.S.C. 1307(a).
---------------------------------------------------------------------------

    Proposed paragraphs (a)(8) and (10) correspond to existing 30 CFR 
816.41(b)(1) and (d)(1), respectively. We propose to revise the 
existing rules by adopting language that more closely follows the 
language of section 515(b)(10)(A) of SMCRA.\568\ Specifically, we 
propose to replace requirements in the existing rules to minimize 
acidic or toxic drainage with requirements to avoid acid or toxic mine 
drainage. In addition, we propose to add a requirement for use of the 
best technology currently available. Section 515(b)(10) of SMCRA \569\ 
uses this phrase only in paragraph (B)(i), which pertains to suspended 
solids. However, proposed paragraphs (a)(8) and (10) of this rule would 
require use of the best technology currently available to meet the 
requirements of section 515(b)(10)(A) \570\ as well. Application of 
this standard to all surface-water and groundwater protection 
activities is appropriate because section 515(b)(24) of SMCRA \571\ 
requires use of the best technology currently available to minimize 
adverse impacts on fish, wildlife, and related environmental values. 
Surface water and groundwater quality are related environmental values 
in this context.
---------------------------------------------------------------------------

    \568\ 30 U.S.C. 1265(b)(10)(A).
    \569\ 30 U.S.C. 1265(b)(10).
    \570\ 30 U.S.C. 1265(b)(10)(A).
    \571\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    In proposed paragraph (a)(11), which is the counterpart to existing 
30 CFR 816.41(d)(2), we propose to add a cross-reference to the 
surface-water runoff control plan that would be required by proposed 30 
CFR 780.29.
Proposed Paragraph (b)
    Proposed paragraph (b)(1) is substantively identical to the last 
sentence in existing 30 CFR 816.41(a) except that we propose to expand 
its scope to include a requirement that the permittee use mining and 
reclamation practices that minimize adverse impacts on stream biota 
rather than relying upon water treatment to minimize those impacts. The 
existing rule applies only to water pollution and changes in flow. We 
also propose to revise the existing rule to clarify that this 
requirement is not absolute and that it applies only to the maximum 
extent practicable.
    The addition of a reference to streams and their biota recognizes 
the importance of those features to the hydrologic balance, watershed 
ecology, and environmental values related to fish and wildlife. This 
requirement also would benefit the permittee because using mining and 
reclamation practices that avoid the creation of discharges requiring 
treatment is economically advantageous, especially for selenium where 
recent settlement agreements and court orders have resulted in the 
construction of treatment plants and implementation of treatment plans 
that will cost tens of millions of dollars.
    Proposed paragraph (b)(2) is substantively identical to the last 
sentence of existing 30 CFR 816.41(d)(1).
Proposed Paragraph (c)
    Proposed paragraph (c) is substantively identical to the middle 
sentence of existing 30 CFR 816.41(a).
Proposed Paragraph (d)
    Proposed paragraph (d) would establish examination and reporting 
requirements for the surface-runoff control structures identified in 
the surface-water runoff control plan approved in the permit under 
proposed 30 CFR 780.29. Section 515(b)(10)(B)(i) of SMCRA,\572\ which 
requires that surface coal mining operations be conducted ``so as to 
prevent, to the extent possible using the best technology currently 
available, additional contributions of suspended solids to streamflow, 
or runoff outside the permit area,'' provides legal authority for 
adoption of these requirements.
---------------------------------------------------------------------------

    \572\ 30 U.S.C. 1265(b)(10)(B)(i).
---------------------------------------------------------------------------

    In general, hydraulic structures for sediment control are designed 
to retain surface runoff from the 10-year, 24-hour precipitation event 
within the permit area and then discharge the retained runoff at a rate 
that does not exacerbate downstream and off-permit impacts. In other 
words, by retaining surface runoff on the minesite, peak flow, stream 
scour, and sediment deposition in receiving streams does not increase 
beyond the level that would occur in the absence of mining. The 
structures act as ``flow equalization chambers.''
    Proposed paragraph (d)(1) would require that the permittee examine 
the entire surface-water control system promptly after the cessation of 
each precipitation event of a specified size. The size of the 
precipitation event generating the examination would differ depending 
on average annual precipitation amounts. For consistency, we propose to 
use the same average annual precipitation amounts as section 515(b)(20) 
of SMCRA \573\ uses to determine the length of revegetation 
responsibility periods; i.e., our proposed examination requirements 
would differ depending on whether the permit lies in an area with 
average annual precipitation of 26.0 inches or less.
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    \573\ 30 U.S.C. 1265(b)(20).
---------------------------------------------------------------------------

    Bankfull flow in a stream in an area with an average annual 
precipitation of more than 26.0 inches generally occurs in response to 
a precipitation event with a recurrence interval between 1.5 and 2 
years. Bankfull flow is the stage at which water in the stream just 
fills the stream channel to the top of its banks;

[[Page 44545]]

i.e., it is the point at which any further increase in the elevation of 
streamflow would cause water to begin to flow onto the flood plain. 
Under natural conditions, any precipitation event greater than the 2-
year event would be expected to result in some flooding--and possibly 
flood-related damage. However, the more modest flows from smaller, more 
frequent events often transport the greatest quantity of sediment 
material over time.\574\
---------------------------------------------------------------------------

    \574\ Rosgen, Dave. ``Applied River Morphology.'' Wildland 
Hydrology (1996).
---------------------------------------------------------------------------

    Hydraulic structures for surface coal mining and reclamation 
operations are typically designed with a combination of sediment and 
stormwater runoff storage capacity well in excess of the estimated 
surface runoff from the 2-year event. Failure to maintain these 
structures by removing accumulated sediment can result in a reduction 
of stormwater storage capacity, which in turn may result in a discharge 
that causes property damage or material damage to the hydrologic 
balance outside the permit area.
    Therefore, for areas with an average annual precipitation of more 
than 26.0 inches, proposed paragraph (d)(1)(i) would apply the 
examination and reporting requirements to all precipitation events that 
equal or exceed the 2-year recurrence interval. We invite comment on 
whether a precipitation event with a 2-year recurrence interval is an 
appropriate threshold for requiring examination of sediment control 
systems in mesic regions or whether we should allow variations based 
upon differences in terrain, storm frequency, the nature of 
sedimentation control structures, and the frequency with which 
discharges from sedimentation control structures occur.
    In contrast, our experience indicates that discharges from 
sedimentation ponds are extremely rare in areas with an average annual 
precipitation of 26.0 inches or less. A review of representative mines 
in the West determined that approximately one percent of all 
impoundments discharge in any single year. Another survey indicated 
that discharges occurred in only one of the past 10 years. Therefore, 
for areas with an average annual precipitation of 26.0 inches or less, 
proposed paragraph (d)(1)(ii) would apply the examination and reporting 
requirements only to significant precipitation events. The regulatory 
authority would be responsible for establishing that threshold, either 
as part of the regulatory program or in the permit. We invite comment 
on whether we should establish more specific criteria for examination 
of hydraulic structures in arid and semiarid regions.
    Proposed paragraph (d)(2) would require that the permittee prepare 
a report after the occurrence of each precipitation event that equals 
or exceeds the applicable threshold. The proposed rule would require 
that the report discuss the performance of the hydraulic structures, 
identify and describe any material damage to the hydrologic balance 
outside the permit area that occurred, and identify and describe the 
remedial measures taken in response to that damage. The proposed rule 
also would require that the report be certified by a registered 
professional engineer and be submitted to the regulatory authority 
within 48 hours of cessation of the applicable precipitation event to 
ensure that the regulatory authority has the ability to take prompt 
action to correct any deficiencies.
6. Section 816.35: How must I monitor groundwater?
    Proposed 30 CFR 816.35 is substantively identical to existing 30 
CFR 816.41(c), except as discussed below.
Proposed Paragraph (a)
    Proposed paragraph (a)(1)(i) is substantively identical to the 
first sentence of existing 30 CFR 816.41(c)(1). Proposed paragraph 
(a)(1)(ii) would require adherence to the data collection, analysis, 
and reporting requirements of proposed 30 CFR 777.13(a) and (b) when 
conducting groundwater monitoring. This provision would be consistent 
with section 517(b)(2) of SMCRA, which requires that monitoring data 
collection and analysis ``be conducted according to standards and 
procedures set forth by the regulatory authority in order to assure 
their reliability and validity.''
    Proposed paragraph (a)(2) includes the requirement in existing 30 
CFR 816.41(c)(3) that groundwater monitoring proceed through mining and 
continue during reclamation until bond release. However, we propose to 
revise the existing language to clarify that monitoring must continue 
until the entire bond amount for the monitored area has been fully 
released under proposed 30 CFR 800.42(d), not just partial or Phase I 
or II bond release. This change is appropriate because the time 
required to achieve saturation of backfilled areas or underground mine 
voids typically is measured in years, which means that mining-related 
impacts on groundwater outside the permit area may not occur until 
years after completion of mining and land reclamation. Even after 
complete saturation, groundwater migration rates typically are measured 
in only feet per day.
    Therefore, proposed paragraph (a)(2) would require that groundwater 
monitoring continue through mining and during reclamation until the 
entire bond amount for the monitored area has been fully released under 
proposed 30 CFR 800.42(d), which generally will not occur until 
expiration of the revegetation responsibility period. In addition, 
proposed 30 CFR 800.42(a) would provide that the regulatory authority 
may not release any portion of the bond if an evaluation of monitoring 
data indicates that adverse trends exist that could result in material 
damage to the hydrologic balance outside the permit area. Any shorter 
time could result in a failure to detect impacts, given the combination 
of slow saturation and migration rates.
Proposed Paragraphs (b) and (c)
    Proposed paragraphs (b) and (c) are substantively identical to 
existing 30 CFR 816.41(c)(2).
Proposed Paragraph (d)
    Proposed paragraph (d) is the counterpart to those elements of 
existing 30 CFR 816.41(c)(3) that pertain to modification of the 
groundwater monitoring plan. We propose to remove existing 30 CFR 
816.41(c)(3)(ii) because it provides that the regulatory authority may 
approve a permit revision that would allow the cessation of groundwater 
monitoring based on a finding that monitoring is no longer necessary to 
achieve the purposes of the monitoring plan. As discussed in the 
preamble to proposed paragraph (a) above, cessation of monitoring 
before the entire bond amount for the monitored area has been fully 
released under proposed 30 CFR 800.42(d) is inappropriate, based on the 
time required for saturation of the backfill and slow groundwater 
migration rates. Proposed paragraph (d) would continue to allow the 
regulatory authority to approve a permit revision to otherwise modify 
the parameters monitored and the sampling frequency under certain 
conditions. We invite comment on whether we should establish a minimum 
sampling frequency or place other restrictions on the regulatory 
authority's ability to modify monitoring requirements.
    However, to supplement the demonstrations required by existing 30 
CFR 816.41(c)(3)(i) before the regulatory authority may approve a 
permit revision of this nature, we propose to add requirements that the 
permittee demonstrate that future changes in

[[Page 44546]]

groundwater quantity or quality are unlikely and that the operation has 
preserved or restored the biological condition of perennial and 
intermittent streams with base flows originating in whole or in part 
from groundwater within the permit or adjacent areas. See proposed 
paragraphs (d)(1) and (2)(iii). The additional criteria are intended to 
ensure that groundwater monitoring requirements are not reduced or 
modified prematurely.
    In addition, we propose to replace the requirement in existing 30 
CFR 816.41(c)(3)(i) for a demonstration that the water quantity and 
quality are suitable to support approved postmining land uses with a 
requirement for a demonstration that the operation has maintained the 
availability and quality of groundwater in a manner that can support 
existing and reasonably foreseeable uses. Our proposed replacement 
language parallels the terminology in our proposed definition of 
``material damage to the hydrologic balance outside the permit area'' 
in 30 CFR 701.5.
Proposed Paragraph (e)
    Proposed paragraph (e) corresponds to the second sentence of 
existing 30 CFR 816.41(c)(1), which provides that the regulatory 
authority may require additional monitoring when necessary. We propose 
to modify the existing language to specify that the regulatory 
authority must require additional monitoring when information available 
to the regulatory authority indicates that additional monitoring is 
necessary to protect the hydrologic balance, detect hydrologic changes, 
or meet other requirements of the regulatory program. We also propose 
to specify that the regulatory authority must issue a permit revision 
order under Sec.  774.10(b) when requiring changes to the monitoring 
plan approved in the permit.
Proposed Paragraph (f)
    Like existing 30 CFR 816.41(c)(4), proposed paragraph (f) would 
require that the permittee install, maintain, operate, and, when no 
longer needed, remove all equipment, structures, and other devices used 
in conjunction with monitoring groundwater. We propose to add cross-
references to 30 CFR 816.13 and 816.39, which also contain requirements 
pertinent to the closure or disposition of monitoring wells.
7. Section 816.36: How must I monitor surface water?
    Proposed 30 CFR 816.36 is substantively identical to existing 30 
CFR 816.41(e), except as discussed below.
Proposed Paragraph (a)
    Proposed paragraph (a)(1)(I) is substantively identical to the 
first sentence of existing 30 CFR 816.41(e)(1). Proposed paragraph 
(a)(1)(ii) would require adherence to the data collection, analysis, 
and reporting requirements of proposed 30 CFR 777.13(a) and (b) when 
conducting groundwater monitoring. This provision would be consistent 
with section 517(b)(2) of SMCRA, which requires that monitoring data 
collection and analysis ``be conducted according to standards and 
procedures set forth by the regulatory authority in order to assure 
their reliability and validity.''
    Proposed paragraph (a)(2) includes the requirement in existing 30 
CFR 816.41(e)(3) that surface-water monitoring proceed through mining 
and continue during reclamation until bond release. However, we propose 
to revise the existing language to remove any ambiguity concerning the 
meaning of ``bond release'' and clarify that monitoring must continue 
until the entire bond amount posted for the monitored area has been 
fully released under proposed 30 CFR 800.42(d), not just partial or 
Phase I or II bond release. As discussed above in the portion of the 
preamble concerning proposed 30 CFR 816.35(a), this change is 
appropriate because the time required to achieve saturation of 
backfilled areas or underground mine voids typically is measured in 
years, which means that mining-related impacts on groundwater, and 
hence surface water fed by groundwater, outside the permit area may not 
occur until years after the completion of mining and land reclamation. 
Even after complete saturation, groundwater migration rates typically 
are measured in only feet per day.
    Therefore, proposed paragraph (a)(2) would require that surface-
water monitoring continue through mining and during reclamation until 
the entire bond amount posted for the monitored area has been fully 
released under proposed 30 CFR 800.42(d), which generally will not 
occur until expiration of the revegetation responsibility period. In 
addition, proposed 30 CFR 800.42(a) would provide that the regulatory 
authority may not release any portion of the bond if an evaluation of 
monitoring data indicates that adverse trends exist that could result 
in material damage to the hydrologic balance outside the permit area. 
Any shorter time could result in a failure to detect impacts on surface 
water fed by groundwater, given the combination of slow saturation and 
migration rates for groundwater.
Proposed Paragraphs (b) and (c)
    Proposed paragraphs (b) and (c) are substantively identical to 
existing 30 CFR 816.41(e)(2).
Proposed Paragraph (d)
    Proposed paragraph (d) would be the counterpart to those elements 
of existing 30 CFR 816.41(e)(3) that pertain to modification of the 
surface-water monitoring plan. We propose to remove existing 30 CFR 
816.41(e)(3)(ii) because it provides that the regulatory authority may 
approve a permit revision that would allow the cessation of surface-
water monitoring based on a finding that monitoring is no longer 
necessary to achieve the purposes of the monitoring plan. As discussed 
in the preamble to paragraph (a) above, cessation of monitoring before 
the entire bond amount for the monitored area has been fully released 
under proposed 30 CFR 800.42(d) is inappropriate, based on the time 
required for saturation of the backfill and slow groundwater migration 
rates. Proposed paragraph (d) would continue to allow the regulatory 
authority to approve a permit revision to otherwise modify the 
parameters monitored and the sampling frequency under certain 
conditions. We invite comment on whether we should establish a minimum 
sampling frequency or place other restrictions on the regulatory 
authority's ability to modify monitoring requirements.
    However, as in the similar provision in proposed 30 CFR 816.35 
relating to groundwater monitoring, we propose to add requirements that 
the permittee demonstrate that future changes in surface-water quantity 
or quality are unlikely and that the operation has preserved or 
restored the biological condition of perennial and intermittent streams 
within the permit and adjacent areas. See proposed paragraphs (d)(1) 
and (2)(iii). The additional criteria are intended to ensure that 
surface-water monitoring requirements are not reduced or modified 
prematurely.
    In addition, we propose to replace the requirement in existing 30 
CFR 816.41(e)(3)(i) for a demonstration that the water quantity and 
quality are suitable to support approved postmining land uses with a 
requirement for a demonstration that the operation has maintained the 
availability and quality of surface water in a manner that can support 
existing and reasonably foreseeable uses and that does not preclude 
attainment of designated uses under section 101(a) or 303(c) of the 
Clean Water Act.\575\ Our

[[Page 44547]]

proposed replacement language parallels the terminology of our proposed 
definition of material damage to the hydrologic balance outside the 
permit area in 30 CFR 701.5, which also relies upon existing, 
reasonably foreseeable, and designated uses under section 101(a) or 
303(c) of the Clean Water Act. We propose to retain the requirement in 
the last clause of existing 30 CFR 816.41(e)(3)(i) for a demonstration 
that the water rights of other users have been protected or replaced.
---------------------------------------------------------------------------

    \575\ 33 U.S.C. 1251(a) and 1313(c), respectively.
---------------------------------------------------------------------------

Proposed Paragraph (e)
    Proposed paragraph (e) corresponds to the second sentence of 
existing 30 CFR 816.41(e)(1), which provides that the regulatory 
authority may require additional monitoring when necessary. We propose 
to modify the existing language to specify that the regulatory 
authority must require additional monitoring when information available 
to the regulatory authority indicates that additional monitoring is 
necessary to protect the hydrologic balance, detect hydrologic changes, 
or meet other requirements of the regulatory program. We also propose 
to specify that the regulatory authority must issue a permit revision 
order under Sec.  774.10(b) when requiring changes to the monitoring 
plan approved in the permit.
Proposed Paragraph (f)
    Like existing 30 CFR 816.41(e)(4), proposed paragraph (f) would 
require that the permittee install, maintain, operate, and, when no 
longer needed, remove all equipment, structures, and other devices used 
in conjunction with monitoring surface water.
8. Section 816.37: How must I monitor the biological condition of 
streams?
    We propose to add this section to require monitoring of the 
biological condition of perennial and intermittent streams, consistent 
with the monitoring plan approved in the permit in accordance with 
proposed 30 CFR 780.23(c). The proposed rule would require annual 
monitoring during mining and reclamation until the entire bond amount 
for the monitored area has been fully released under proposed 30 CFR 
800.42(d). The annual frequency is intended to provide sufficient data 
to evaluate the impacts of mining and reclamation without depleting the 
stream segment of aquatic life, as more frequent sampling might do. 
Monitoring would enable the permittee and the regulatory authority to 
determine whether the predictions in the permit application are 
accurate and to take timely corrective measures if the predictions turn 
out to be inaccurate. The proposed monitoring requirements generally 
parallel the requirements for water monitoring under 30 CFR 816.35 and 
8816.36, but in simplified form.
9. Section 816.38: How must I handle acid-forming and toxic-forming 
materials?
    Proposed section 816.38 would replace and revise existing 30 CFR 
816.41(f), which requires that drainage from acid-forming and toxic-
forming materials into surface water and groundwater be avoided by 
appropriate storage, burial, and treatment practices. We propose to 
flesh out the existing rule to more completely implement section 
515(b)(14) of SMCRA,\576\ which requires that all acid-forming 
materials and toxic materials be ``treated or buried and compacted or 
otherwise disposed of in a manner designed to prevent contamination of 
ground or surface waters,'' and section 515(b)(3) of SMCRA,\577\ which 
provides that ``overburden or spoil shall be shaped and graded in such 
a way as to prevent slides, erosion, and water pollution.'' Proposed 30 
CFR 816.38 also would more completely implement section 515(b)(10) of 
SMCRA,\578\ which provides that surface coal mining and reclamation 
operations must be conducted to ``minimize the disturbances to the 
prevailing hydrologic balance at the mine-site and in associated 
offsite areas and to the quality and quantity of water in surface and 
ground water systems both during and after surface coal mining 
operations and during reclamation by *** avoiding acid or other toxic 
mine drainage.''
---------------------------------------------------------------------------

    \576\ 30 U.S.C. 1265(b)(14).
    \577\ 30 U.S.C. 1265(b)(3).
    \578\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

    We propose to revise the introductory text of 30 CFR 816.38 to 
require that the permittee use the best technology currently available 
to handle acid-forming and toxic-forming materials in a manner that 
will avoid the creation of acid or toxic mine drainage into surface 
water and groundwater. The phrase ``best technology currently 
available'' does not appear in the sections of SMCRA mentioned above. 
However, application of this standard to the handling of acid-forming 
and toxic-forming materials is appropriate because section 515(b)(24) 
of SMCRA \579\ requires use of the best technology currently available 
to minimize adverse impacts on fish, wildlife, and related 
environmental values. The handling of acid-forming and toxic-forming 
materials would affect surface-water and groundwater quality, which are 
related environmental values in the context of fish and wildlife.
---------------------------------------------------------------------------

    \579\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Proposed paragraphs (a) through (f) contain more specific 
provisions on how the permittee must implement this requirement.
    Proposed paragraph (a) would require that the permittee identify 
potential acid-forming and toxic-forming materials in overburden strata 
and the stratum immediately below the lowest coal seam to be mined. We 
invite comment on whether there are generally-accepted tests for 
potential acid-forming and toxic-forming materials in overburden strata 
that the final rule should require.
    Proposed paragraph (a) also would require that the permittee cover 
exposed coal seams and the stratum immediately beneath the lowest coal 
seam mined with a layer of compacted material with a hydraulic 
conductivity at least two orders of magnitude lower than the hydraulic 
conductivity of the adjacent less-compacted spoil to minimize contact 
and interaction with water. Covering the coal seam and the underlying 
stratum with material that has a lower permeability than the adjacent 
spoil would reduce the amount of water that could either reach or leave 
the coal seam and underlying stratum. Reduced water transmission will 
inhibit both the creation and migration of acid or toxic mine drainage. 
Use of materials with such a great difference in permeability should 
result in the low-permeability material behaving as an aquitard. The 
groundwater and infiltrating surface water should preferentially flow 
through the surrounding high-permeability material and not through the 
low-permeability material encapsulating the acid-forming or toxic-
forming materials.
    Proposed paragraph (b) would require that the permittee identify 
the anticipated postmining groundwater level for all locations at which 
acid-forming or toxic-forming materials are to be placed. This 
information is critical to a determination of whether the materials 
will remain in an environment that will prevent formation or migration 
of acid or toxic mine drainage.
    Proposed paragraph (c) would require that the permittee selectively 
handle and place acid-forming and toxic-forming materials within the 
backfill in accordance with the plan approved in the permit, unless the 
permit allows placement of those materials in an excess spoil fill or a 
coal mine waste refuse pile. Proposed paragraph (c) identifies three 
acceptable handling techniques for acid-forming and toxic-forming 
materials to be placed in the

[[Page 44548]]

backfill: (1) Complete isolation of acid-forming and toxic-forming 
materials from contact or interaction with surface water or groundwater 
by surrounding those materials with compacted material with a hydraulic 
conductivity at least two orders of magnitude lower than the hydraulic 
conductivity of the adjacent less-compacted spoil; (2) placement of 
acid-forming and toxic-forming materials in a location below the water 
table where they will remain fully saturated at all times, provided 
that the permittee demonstrates, and the regulatory authority finds in 
writing in the permit, that complete saturation will prevent the 
formation of acid or toxic leachate; and (3) treatment to neutralize 
the acid-forming and toxic-forming potential of those materials. The 
last technique may be used in combination with either of the first two 
methods. Under the proposed rule, the permittee must use the technique 
or combination of techniques approved in the permit in accordance with 
proposed 30 CFR 780.12(d)(4). The permittee must demonstrate and the 
regulatory authority must confirm that the selected technique will be 
effective for each parameter of concern. For example, a technique that 
may be effective in preventing the formation of acid drainage might not 
be effective in preventing leaching of selenium. The regulatory 
authority may require that the permittee or permit applicant submit 
additional information, including fate and transport modeling, if 
deemed necessary.
    Isolation of acid-forming and toxic-forming materials from contact 
with groundwater or surface water can be accomplished by completely 
surrounding those materials with compacted material with a hydraulic 
conductivity at least two orders of magnitude lower than the hydraulic 
conductivity of the adjacent less-compacted spoil to minimize 
interaction with water. Situations requiring saturation rather than 
isolation arise most frequently in the relatively flat terrain of 
coalfields in the Midwest and the West. Saturation may not be suitable 
for materials with the potential for forming toxic compounds through 
processes other than pyritic oxidation.
    Proposed paragraph (d) would allow placement of acid-forming and 
toxic-forming materials in an excess spoil fill or a coal mine waste 
refuse pile when approved in the permit. The proposed rule would 
require the use of isolation or treatment or a combination of those 
techniques whenever the permittee places acid-forming or toxic-forming 
materials in an excess spoil fill or a coal mine waste refuse pile. The 
proposed rule would not authorize use of the saturation technique 
because saturation could jeopardize the stability of the fill or refuse 
pile. Saturation also could result in discharges with high levels of 
total dissolved solids, which in turn could adversely impact the 
biological condition of streams and cause material damage to the 
hydrologic balance outside the permit area.
    Alternatively, prohibition of placement of acid-forming or toxic-
forming materials in an excess spoil fill would provide an additional 
layer of protection against the development of seeps containing acid or 
toxic mine drainage. We invite comment on whether we should revise our 
rule to include such a prohibition.
    Proposed paragraph (e) would modify the requirements in existing 30 
CFR 816.41(f)(1)(ii) for temporary storage of acid-forming and toxic-
forming materials to emphasize that storage may be used only when the 
regulatory authority specifically approves temporary storage as 
necessary and finds in writing in the permit that the proposed storage 
method will protect surface water and groundwater by preventing 
erosion, the formation of polluted runoff, and the infiltration of 
polluted water into aquifers. The proposed rule would require that the 
regulatory authority specify a maximum time for temporary storage, 
which may not exceed the period until burial first becomes feasible. We 
also propose to add a provision prohibiting temporary storage if doing 
so would result in a risk of adverse impacts to the biological 
condition of perennial or intermittent streams. Minimizing the need 
for, and duration of, temporary storage is critical because the 
oxidation of pyritic materials continues while the material is exposed. 
Precipitation may infiltrate and percolate through the pile, which can 
result in an increase in the concentration of total dissolved solids 
leaving the site. The weathering products of pyrite oxidation 
essentially become ``stored acidity,'' which presents a greater risk to 
the hydrologic balance if the permanent placement technique ultimately 
is not successful. Our proposed revisions to the temporary storage 
requirements for acid-forming and toxic-forming materials would improve 
implementation of section 515(b)(10) of SMCRA.\580\
---------------------------------------------------------------------------

    \580\ 30 U.S.C. 1265(b)(10). This provision of SMCRA specifies 
that surface coal mining and reclamation operations must be 
conducted to--
    minimize the disturbances to the prevailing hydrologic balance 
at the mine-site and in associated offsite areas and to the quality 
and quantity of water in surface and ground water systems both 
during and after surface coal mining operations and during 
reclamation by--
    (A) avoiding acid or other toxic mine drainage by such measures 
as, but not limited to--
    (i) preventing or removing water from contact with toxic 
producing deposits[.]
---------------------------------------------------------------------------

    Proposed paragraph (f) would require that disposal, treatment, and 
storage practices for acid-forming and toxic-forming materials be 
consistent with other material handling and disposal provisions of the 
regulatory program. This paragraph is substantively identical to 
existing 30 CFR 816.41(f)(2).
10. Section 816.40: What responsibility do I have to replace water 
supplies?
    Proposed 30 CFR 816.40 would replace and revise existing 30 CFR 
816.41(h), which contains performance standards to implement section 
717(b) of SMCRA.\581\ That paragraph of SMCRA provides that--
---------------------------------------------------------------------------

    \581\ 30 U.S.C. 1307(b).

The operator of a surface coal mine 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 such surface coal mine 
---------------------------------------------------------------------------
operation.

    Proposed 30 CFR 816.40 would further flesh out the requirements of 
this statutory provision by incorporating paragraphs (a) and (b) of the 
existing definition of ``replacement of water supply'' in 30 CFR 701.5. 
We propose to move those paragraphs to 30 CFR 816.40(a)(2) through (4) 
because they effectively function as performance standards and are not 
definitional in nature. We also propose to require adherence to the 
water supply replacement provisions of proposed 30 CFR 780.22(b) when 
the permit anticipates that damage to water supplies will occur. 
Finally, we propose to add the following provisions that would apply 
when unanticipated damage to a protected water supply occurs:
     The permittee would have to provide an emergency temporary 
water supply within 24 hours of notification of unanticipated damage to 
a protected water supply. The temporary supply must be adequate in 
quantity and quality to meet normal household needs.
     The permittee would have to develop and submit a plan for 
a permanent replacement supply to the regulatory authority within 30 
days of receiving notice of unanticipated damage.

[[Page 44549]]

     The permittee would have to provide a permanent 
replacement water supply within 2 years of receiving notice of 
unanticipated damage.
    The proposed timeframes for replacement of water supplies for which 
damage is unanticipated differ somewhat from those set forth in the 
preamble to the existing definition of ``replacement of water supply'' 
in 30 CFR 701.5. That preamble defines prompt replacement as providing 
an emergency drinking water supply within 48 hours of notification, a 
temporary water supply hookup within 2 weeks of notification, and a 
permanent replacement supply within 2 years of notification.\582\ We 
propose to replace the timeframes in that preamble with the times set 
forth in proposed 30 CFR 816.40 as discussed above. The proposed 
timeframes would better protect society and the environment from the 
adverse effects of surface coal mining operations, in keeping with the 
purpose of SMCRA set forth in section 102(a) of the Act.\583\
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    \582\ 60 FR 16727 (Mar. 31, 1995).
    \583\ 30 U.S.C. 1202(a).
---------------------------------------------------------------------------

11. Section 816.41: Under what conditions may I discharge to an 
underground mine?
    Proposed section 816.41 would inlude existing 30 CFR 816.41(i) and 
add four new requirements that must be met before the regulatory 
authority may approve a proposed discharge to any type of underground 
mine. First, proposed paragraph (a)(1)(ii) would require a 
demonstration that the discharge will be made in a manner that will 
prevent material damage to the hydrologic balance of the area in which 
the underground mine receiving the discharge is located. Second, 
proposed paragraph (a)(1)(iii) would require a demonstration that the 
discharge will be made in a manner that will not adversely impact the 
biological condition of perennial or intermittent streams. Third, 
proposed paragraph (a)(3)(ii) would allow the regulatory authority to 
approve discharges of water that exceed the effluent limitations for pH 
and total suspended solids only if available evidence indicates that 
there is no direct hydrologic connection between the underground mine 
and other waters and that the discharge would not cause material damage 
to the hydrologic balance outside the permit area. All three of the 
proposed revisions discussed above are intended to more fully implement 
section 510(b)(3) of SMCRA,\584\ which prohibits approval of a permit 
application unless the applicant demonstrates, and the regulatory 
authority finds, that the proposed operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area.
---------------------------------------------------------------------------

    \584\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    The fourth proposed revision would add paragraph (a)(5), which 
would require that the permit applicant obtain written permission from 
the owner of the mine into which the discharge is to be made and 
provide a copy of that authorization to the regulatory authority.
12. Section 816.42: What are my responsibilities to comply with water 
quality standards and effluent limitations?
    We propose to redesignate existing 30 CFR 816.42 as paragraph (a) 
of this section. We also propose to revise this paragraph by replacing 
the reference to the effluent limitations in 40 CFR part 434 with a 
reference to the effluent limitations established in the NPDES permit 
for the operation. This change would make our regulations consistent 
with the policy and practice of the EPA, which recognizes only the 
effluent limitations in the NPDES permit as being enforceable.
    Proposed paragraph (b) would require that discharges of overburden 
(including excess spoil), coal mine waste, and other materials into 
waters of the United States be made in compliance with section 404 of 
the Clean Water Act \585\ and its implementing regulations. While the 
language would be new, the requirement would not--SMCRA permittees 
always have been required to comply with the Clean Water Act, as 
emphasized in section 702(a) of SMCRA,\586\ which provides that 
``[n]othing in this Act shall be construed as superseding, amending, 
modifying, or repealing'' the Clean Water Act (33 U.S.C. 1251 et seq.), 
any rule or regulation adopted under the Clean Water Act, any state 
laws enacted pursuant to the Clean Water Act, ``or other Federal laws 
relating to preservation of water quality.'' We invite comment on 
whether the provisions of proposed paragraph (b) should be considered 
informational in nature like the provisions of section 702(a) of SMCRA 
\587\ or whether they should be directly enforceable under SMCRA.
---------------------------------------------------------------------------

    \585\ 33 U.S.C. 1344.
    \586\ 30 U.S.C. 1292(a).
    \587\ Id.
---------------------------------------------------------------------------

    Proposed paragraphs (c) through (e) would establish enforceable 
performance standards requiring proper operation and maintenance of 
water treatment facilities and environmentally appropriate disposition 
of precipitates from those facilities. They are intended to improve 
implementation of section 515(b)(10)(A)(ii) of SMCRA,\588\ which 
requires that surface coal mining and reclamation operations avoid acid 
or other toxic mine drainage by ``treating drainage to reduce toxic 
content which adversely affects downstream water upon being released to 
water courses.''
---------------------------------------------------------------------------

    \588\ 30 U.S.C. 1265(b)(10)(A)(ii).
---------------------------------------------------------------------------

    Specifically, proposed paragraph (c) would require the permittee to 
construct water treatment facilities for discharges from the operation 
as soon as the need for those facilities becomes evident. Proposed 
paragraph (d) would require that the permittee remove precipitates and 
otherwise maintain all water treatment facilities involving the use of 
settling ponds or lagoons as necessary to maintain the functionality of 
the ponds or lagoons. The permittee would be required to dispose of the 
precipitates removed either in an approved solid waste landfill or in a 
location within the permit area. Proposed paragraph (e) would require 
that the permittee operate and maintain water treatment facilities 
until the regulatory authority authorizes their removal based upon 
monitoring data demonstrating that influent to the facilities meets all 
applicable water quality standards and effluent limits without 
treatment.
13. Section 816.43: How must I construct and maintain diversions and 
other channels to convey water?
    We propose to revise this section to reflect plain language 
principles. In addition, we propose several substantive changes. First, 
proposed paragraph (a)(3) would require the construction of channels 
that meet temporary diversion design criteria to convey surface runoff 
to siltation structures whenever the sedimentation control plan 
approved in the permit pursuant to 30 CFR 816.45 involves the use of 
siltation structures. This requirement would not apply if the entire 
disturbed area would naturally drain to the siltation structure without 
the construction of channels. Requiring that these channels meet 
temporary diversion design criteria would minimize the potential for 
failure and the resulting possibility of offsite impacts. Diversion 
failures have resulted in subsequent failures of larger structures. For 
example, in West Virginia in 2003, the failure of a diversion ditch 
caused erosion and the breaching of a reclaimed impoundment, resulting 
in a flow of water, slurry, and coarse refuse downstream. This event

[[Page 44550]]

isolated residents along Ned's Branch, blocked roads and a major 
railroad, and contaminated the Guyandotte River.
    Existing 30 CFR 816.43(a) requires that diversions be designed to 
minimize adverse impacts to the hydrologic balance within the permit 
and adjacent areas. Proposed paragraph (a)(4)(ii) would clarify that 
this provision includes a requirement to minimize adverse impacts to 
perennial and intermittent streams within that area.
    Existing 30 CFR 816.43(a) requires that diversions be designed to 
``prevent material damage outside the permit area.'' Proposed paragraph 
(a)(4)(iii) would revise this language to require that diversions be 
designed to prevent material damage to the hydrologic balance outside 
the permit area. The revised language would make this provision 
consistent with the terminology of 30 CFR 773.15(e) and section 
510(b)(3) of SMCRA,\589\ which require that surface coal mining and 
reclamation operations be designed to prevent material damage to the 
hydrologic balance outside the permit area.
---------------------------------------------------------------------------

    \589\ 30 U.S.C. 1260(b)(3).
---------------------------------------------------------------------------

    We propose to combine existing 30 CFR 816.43(a)(2)(ii) and (c)(3) 
into a new paragraph (a)(5)(ii). Existing paragraph (a)(2)(ii) provides 
that each diversion and its appurtenant structures must be designed, 
located, constructed, maintained, and used to provide protection 
against flooding and resultant damage to life and property. Existing 
paragraph (c)(3) states that this requirement will be deemed met when 
the combination of channel, bank, and floodplain configuration is 
adequate to safely pass the peak runoff of a 2-year, 6-hour 
precipitation event for a temporary diversion and a 10-year, 6-hour 
precipitation event for a permanent diversion. Proposed paragraph 
(a)(5)(ii) would replace existing paragraph (a)(2)(ii) with a slightly 
modified version of existing paragraph (c)(3) because existing 
paragraph (c)(3) effectively negates existing paragraph (a)(2)(ii). 
Proposed paragraph (a)(5)(ii) would not contain the reference to 
floodplain configuration in existing paragraph (c)(3) because use of a 
floodplain to convey flows from storm runoff is appropriate in 
naturally-functioning streams and in restored streams, but not with 
temporary or permanent diversions.
    Proposed paragraph (a)(5)(ii) also would require that each 
diversion be designed using the appropriate regional NRCS synthetic 
storm distribution to determine peak flows. The preamble to proposed 30 
CFR 780.29 explains the rationale for this proposed requirement.
    Proposed paragraph (a)(5)(iii) would include existing paragraph 
(a)(2)(iii). We propose to add a reference to runoff outside the permit 
area to be consistent with the underlying statutory provision in 
section 515(b)(10)(B)(i) of SMCRA,\590\ which requires that surface 
coal mining operations be conducted ``so as to prevent, to the extent 
possible using the best technology currently available, additional 
contributions of suspended solids to streamflow, or runoff outside the 
permit area.''
---------------------------------------------------------------------------

    \590\ 30 U.S.C. 1265(b)(10)(B)(i).
---------------------------------------------------------------------------

    The last sentence of existing paragraph (a)(3) and the entirety of 
existing paragraph (b) contain approval, design, and construction 
requirements for temporary and permanent diversions of perennial, 
intermittent, and ephemeral streams. We propose to move the approval 
and design provisions to 30 CFR 780.28(c) and the construction 
requirements to 30 CFR 816.57(b) to consolidate requirements concerning 
activities in, through, or adjacent to streams in those sections. 
Proposed paragraph (b) would specify that 30 CFR 780.28 and 816.57 
contain additional requirements applicable to diversions of perennial 
and intermittent streams.
    Lastly, we propose to revise paragraph (c)(1) of the existing rules 
to limit the scope of paragraph (c), which applies to diversions of 
miscellaneous flows, to surface-water flows other than perennial and 
intermittent streams. The existing rule is internally inconsistent in 
that it specifically includes groundwater discharges, but expressly 
excludes perennial and intermittent streams. However, any flow 
resulting from a groundwater discharge would be a perennial or 
intermittent stream under both the existing and proposed definitions of 
those terms in 30 CFR 701.5. Therefore, diversions of groundwater 
discharges would be subject to the stream-channel diversion 
requirements referenced in proposed paragraph (b) rather than standards 
for miscellaneous flows under paragraph (c).
    We invite comment on whether we should revise paragraph (c) to 
apply the same design events for temporary and permanent diversions of 
miscellaneous flows as apply to temporary and permanent diversions of 
perennial and intermittent streams because there is no readily apparent 
hydrologic reason to apply different standards based on the flow regime 
of the stream. Instead, it may be more logical to prescribe design 
events based upon the length of time that the diversion is expected to 
remain in existence; i.e., whether it is temporary or permanent. Under 
this approach, temporary diversions of miscellaneous flows would have 
to be designed and constructed to safely pass the peak runoff from the 
10-year, 6-hour precipitation event rather than the 2-year, 6-hour 
event. Similarly, permanent diversions of miscellaneous flows would 
have to be designed and constructed to safely pass the peak runoff from 
the 100-year, 6-hour precipitation event rather than the 10-year, 6-
hour event. We also invite comment on whether we should raise the 
design event for temporary diversions to the 25-year, 6-hour event to 
provide an added margin of safety.
14. Section 816.45: What sediment control measures must I use?
    We propose to remove the second sentence of 30 CFR 816.45(b), which 
reads as follows: ``The sedimentation storage capacity of practices in 
and downstream from the disturbed areas shall reflect the degree to 
which successful mining and reclamation techniques are applied to 
reduce erosion and control sediment.'' The meaning of this sentence is 
unclear, but it appears to be predicated on the assumption that all 
mines will have a sedimentation pond or other siltation structure 
located downstream of the disturbed area. That assumption is 
inconsistent with the court decision remanding former 30 CFR 
816.46(b)(2) (1983).\591\ Furthermore, not all sediment control 
practices include sedimentation storage capacity. Therefore, we propose 
to remove this sentence to avoid any conflict with either the court 
decision or current technology.
---------------------------------------------------------------------------

    \591\ PSMRL II, Round III, 620 F. Supp. 1519, 1566-1568 (D.D.C. 
1985), as discussed at 73 FR 75854 (Dec. 12, 2008). See also 51 FR 
41961 (Nov. 20, 1986).
---------------------------------------------------------------------------

15. Section 816.46: What requirements apply to siltation structures?
    We propose to remove existing paragraph (b)(1) of this section 
because it duplicates 30 CFR 816.45(a)(1), both of which require use of 
the best technology currently available to prevent additional 
contributions of suspended solids to streamflow or runoff outside the 
permit area to the extent possible. Section 816.45 is the more 
appropriate location for this provision because section 816.46 covers 
only siltation structures, whereas section 816.45 encompasses all 
methods of sediment control. Section 816.45 sets forth various measures 
and techniques that may constitute the best technology currently 
available for sediment control,

[[Page 44551]]

although applicants and regulatory authorities are not limited to those 
measures and techniques.
    Paragraph (b)(2) of 30 CFR 816.46 and 817.46 (1983) required that 
all surface drainage from the disturbed area be passed through a 
siltation structure before leaving the permit area. In essence, that 
paragraph prescribed siltation structures (sedimentation ponds and 
other treatment facilities with point-source discharges) as the best 
technology currently available for sediment control. However, paragraph 
(b)(2) was struck down upon judicial review because the court found 
that the preamble to the rulemaking in which it was adopted did not 
articulate a sufficient basis for the rule under the Administrative 
Procedure Act. The court stated that the preamble did not adequately 
discuss the benefits and drawbacks of siltation structures and 
alternative sediment control methods and did not enable the court ``to 
discern the path taken by [the Secretary] in responding to commenters' 
concerns'' that siltation structures in the West are not the best 
technology currently available. See In re: Permanent Surface Mining 
Regulation Litigation II, Round III, 620 F. Supp. 1519, 1566-1568 
(D.D.C. July 15, 1985).
    On November 20, 1986 (51 FR 41961), we suspended the rules struck 
down by the court. In a technical rule that corrected various errors in 
citations, cross-references, and other inadvertent errors, we lifted 
that suspension and removed paragraph (b)(2) from our regulations on 
September 29, 2010 (75 FR 60272, 60275). However, on February 14, 2014, 
the court's decision in NPCA reinstated the version of 30 CFR 816.46(b) 
in effect before adoption of the stream buffer zone rule on December 
12, 2008. This action had the effect of reinstating the suspension, 
which we codified in a final rule published on December 22, 2014. See 
79 FR 76227-76233. We now propose to lift this suspension, remove 
paragraph (b)(2) of sections 816.46 and 817.46, and redesignate the 
remaining paragraphs of those sections accordingly.
    In addition, we propose to redesignate as paragraph (b)(1) the 
provision in existing paragraph (b)(3) requiring that the permittee 
construct siltation structures for an area before initiating any 
surface mining activities in the area. We also propose to revise this 
paragraph to clarify that the requirement to construct siltation 
structures applies only when the approved permit requires the use of 
siltation structures to achieve the sediment control requirements of 30 
CFR 816.45. This revision is needed because, as the courts have 
recognized, siltation structures are not always the best technology 
currently available for sediment control.\592\ Proposed paragraph 
(b)(2) would retain only the requirement in existing paragraph (b)(3) 
that the construction of siltation structures be certified by a 
qualified registered professional engineer or a qualified registered 
professional land surveyor.
---------------------------------------------------------------------------

    \592\ PSMRL II, Round III, 620 F. Supp. 1519, 1566-1568 (D.D.C. 
1985), as discussed at 73 FR 75854 (Dec. 12, 2008).
---------------------------------------------------------------------------

    Finally, we propose to--
     Revise existing paragraph (b)(5), which we propose to 
redesignate as paragraph (b)(4), to remove the prohibition on removing 
siltation structures sooner than 2 years after the last augmented 
seeding. The standard is too inflexible and it is arguably inconsistent 
with the decision in PSMRL II, Round III discussed above, in which the 
court held that we had not demonstrated that siltation structures are 
always the best technology currently available to control sediment in 
runoff from the minesite. Applying that rationale, the permittee should 
have the option of using other methods of sediment control in lieu of 
retaining the siltation structures for 2 years after the last augmented 
seeding. In addition, the remaining standard in the rule, which 
prohibits removal of siltation structures until the disturbed area is 
stabilized and revegetated, is sufficient to ensure an appropriate 
level of environmental protection.
     Revise existing paragraph (b)(6), which we propose to 
redesignate as paragraph (b)(5), to clarify that the exemption for 
sedimentation ponds approved by the regulatory authority for retention 
as permanent impoundments under 30 CFR 816.49(b) is contingent upon 
meeting the maintenance requirements of 30 CFR 800.42(c)(5). The latter 
rule implements the statutory provision in section 519(c)(2) of SMCRA 
\593\ establishing bond release requirements for silt dams to be 
retained as permanent impoundments.
---------------------------------------------------------------------------

    \593\ 30 U.S.C. 1269(c)(2).
---------------------------------------------------------------------------

     Remove existing paragraph (c)(1)(i), which provides that 
sedimentation ponds must be used individually or in series. This 
provision adds nothing meaningful to our regulations because there is 
no other way in which sedimentation ponds could be used.
     Revise existing paragraph (c)(1)(ii), which we propose to 
redesignate as paragraph (c)(1)(i), to provide that the prohibition on 
locating sedimentation ponds in stream channels applies to both 
perennial and intermittent stream channels, not just to perennial 
stream channels as in the existing rule. In addition, we propose to 
clarify that any exceptions to this prohibition must comply with 30 CFR 
780.28, which contains the permitting requirements for activities in, 
through, or adjacent to perennial and intermittent streams, and the 
performance standards concerning sedimentation control structures in 
streams in 30 CFR 816.57(c). The statutory basis for these proposed 
changes is the same as the statutory basis for the stream protection 
measures proposed in 30 CFR 780.28.
     Revise existing paragraph (c)(1)(iii)(H), which we propose 
to redesignate as paragraph (c)(1)(ii)(H), to replace the prohibition 
on the use of acid-forming or toxic-forming coal processing waste in 
the construction of sedimentation ponds with a prohibition on the use 
of any acid-forming or toxic-forming materials in the construction of 
sedimentation ponds. This change is both appropriate and necessary 
because coal processing waste is not the only form of acid-forming or 
toxic-forming materials that could conceivably be used in the 
construction of sedimentation ponds. The proposed change also would 
better implement section 515(b)(10)(A)(i) of SMCRA,\594\ which requires 
the avoidance of acid or other toxic mine drainage by ``preventing or 
removing water from contact with toxic producing deposits.''
---------------------------------------------------------------------------

    \594\ 30 U.S.C. 1265(b)(10)(A)(i).
---------------------------------------------------------------------------

16. Section 816.47: What requirements apply to discharge structures for 
impoundments?
    We propose to revise this section by updating the terminology to 
reflect our 1983 rulemaking in which we introduced the term ``coal mine 
waste'' and replaced the term ``coal processing waste dams and 
embankments'' with coal mine waste impounding structures. See 48 FR 
44006 (Sept. 26, 1983).
17. Section 816.49: What requirements apply to impoundments?
    We propose to update the hazard classifications and incorporations 
by reference in existing paragraph (a)(1) of this section to be 
consistent with those in 30 CFR 780.25, which contains the permitting 
requirements for impoundments. Specifically we propose to update the 
incorporation by reference of the NRCS publication ``Earth Dams and 
Reservoirs,'' Technical Release No. 60 (210-VI-TR60, October 1985), by 
replacing the reference to the October 1985 edition with a reference to 
the superseding July 2005 edition. Consistent with the terminology in 
the newer edition, we proposed to replace

[[Page 44552]]

references to Class B or C dam criteria throughout section 816.49 with 
references to Significant Hazard Class or High Hazard Class dam 
criteria, respectively. Only the terminology has changed--the actual 
criteria remain the same as before. The newer publication is not 
available from the National Technical Information Service, but is 
available online from the NRCS. Consequently, we propose to delete the 
ordering information pertinent to the National Technical Information 
Service and replace it with the URL (Internet address) at which the 
publication may be reviewed and from which it may be downloaded without 
charge.
    We propose to revise our permanent impoundment requirements in 
paragraph (b) by adding three new criteria for approval of permanent 
impoundments. Proposed paragraph (b)(7) would require a demonstration 
that approval of the impoundment would not result in retention of spoil 
piles or ridges that are inconsistent with the definition of 
approximate original contour. Proposed paragraph (b)(8) would require a 
demonstration that approval of the impoundment would not result in the 
creation of an excess spoil fill elsewhere within the permit area. 
These two proposed changes are intended to provide a safeguard against 
the retention of final-cut impoundments and associated spoil ridges 
that are inconsistent with the requirement in section 515(b)(3) of 
SMCRA \595\ to ``restore the approximate original contour of the land 
with all highwalls, spoil piles, and depressions eliminated.''
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    \595\ 30 U.S.C. 1265(b)(3).
---------------------------------------------------------------------------

    Proposed paragraph (b)(9) would require a demonstration that the 
impoundment has been designed with dimensions and other characteristics 
that would enhance fish and wildlife habitat to the extent that doing 
so is not inconsistent with the intended use of the impoundment. This 
provision would improve implementation of section 515(b)(24) of 
SMCRA,\596\ which requires use of the best technology currently 
available to the extent possible to enhance fish, wildlife, and related 
environmental values where practicable.
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    \596\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

18. Section 816.57: What additional performance standards apply to 
activities in, through, or adjacent to a perennial or intermittent 
stream?
General Discussion of Basis for Proposed Changes
    We propose to replace existing 30 CFR 816.57 with provisions that 
would better protect perennial and intermittent streams, consistent 
with the June 11, 2009, MOU discussed in Part VI of this preamble. Part 
II of this preamble summarizes both the terrestrial impacts of surface 
coal mining operations and the impacts of those operations on streams, 
as documented by scientific studies. Among other things, our proposed 
rule is intended to prevent or minimize the adverse impacts on fish, 
wildlife, and related environmental values, including streams, 
documented in those studies. The authority for our proposed revisions 
to 30 CFR 816.57 is identical to our authority for the corresponding 
permitting requirements in proposed 30 CFR 780.28 and is discussed at 
length in the introductory portion of the preamble to that proposed 
rule.
Proposed Paragraph (a)
    Existing paragraph (a) provides that ``[n]o land within 100 feet of 
a perennial or intermittent stream shall be disturbed by surface mining 
activities, unless the regulatory authority specifically authorizes 
surface mining activities closer to, or through, such a stream.'' The 
rule further specifies that the regulatory authority may provide that 
authorization only upon finding that the activities will not cause or 
contribute to the violation of applicable state or federal water 
quality standards and that they will not adversely affect the water 
quantity and quality or other environmental resources of the stream. 
The regulatory authority also must find that if there will be a 
temporary or permanent stream-channel diversion, it will comply with 30 
CFR 816.43, which contains the performance standards for diversions.
    As described in more detail in Part VI of this preamble, existing 
paragraph (a) has been subject to differing interpretations over the 
years. In an effort to provide greater clarity, proposed paragraph 
(a)(1) would retain only the provision that prohibits disturbance of 
land within 100 feet of a perennial or intermittent stream without 
regulatory authority approval. We propose to replace the criteria for 
regulatory authority approval in the existing rule with new permit 
application requirements and approval criteria and requirements in 30 
CFR 780.28. We also propose to expand protections for perennial and 
intermittent streams, as discussed below.
    Proposed paragraph (a)(1) would prohibit the conduct of surface 
mining activities in or through a perennial or intermittent stream, or 
that would disturb the surface of land within 100 feet, measured 
horizontally,\597\ of a perennial or intermittent stream, unless the 
regulatory authority authorizes those activities in the permit after 
making the findings that would be required by proposed 30 CFR 780.28. 
Part VI of this preamble discusses the history of stream buffer zone 
rules under SMCRA, all of which have established a minimum buffer zone 
width of 100 feet on either side of the stream. The preamble to our 
1979 rules explains the rationale for that width. See 44 FR 15176-15177 
(Mar. 13, 1979). A more recent literature review documents that a 
vegetative filter strip width of 100 feet generally will attenuate 
sediment in runoff from disturbed areas.\598\
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    \597\ See the discussion of proposed 30 CFR 780.16(c) in this 
preamble for an explanation of how this distance must be measured.
    \598\ Wenger, S. ``A Review of the Scientific Literature of 
Riparian Buffer Width, Extent and Vegetation.'' Institute of 
Ecology, University of Georgia, Athens, GA, 1999.
---------------------------------------------------------------------------

    Section 515(b)(10)(B)(i) of SMCRA,\599\ which, in relevant part, 
requires that surface coal mining operations be conducted ``so as to 
prevent, to the extent possible using the best technology currently 
available, additional contributions of suspended solids to streamflow, 
or runoff outside the permit area,'' provides the primary statutory 
authority for the minimum buffer width that we propose to establish in 
paragraph (a)(1). The prohibition on disturbing the buffer zone also 
would implement section 515(b)(24) of SMCRA,\600\ which provides that 
surface coal mining and reclamation operations must be conducted to 
minimize disturbances to and adverse impacts on fish, wildlife, and 
related environmental values to the extent possible using the best 
technology currently available.
---------------------------------------------------------------------------

    \599\ 30 U.S.C. 1265(b)(10)(B)(i).
    \600\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Proposed paragraph (a)(2) would reiterate that surface mining 
activities may be conducted in waters of the United States only if the 
permittee first obtains all necessary authorizations, certifications, 
and permits under the Clean Water Act, 33 U.S.C. 1251 et seq. This 
proposed paragraph is an informational provision that would be 
consistent with section 702(a) of SMCRA,\601\ which provides that 
``[n]othing in this Act shall be construed as superseding, amending, 
modifying, or repealing'' the Clean Water Act, any rule or regulation 
adopted under the Clean Water Act, or any state laws enacted pursuant 
to the Clean Water Act. Proposed paragraph (a)(2) would operate in 
tandem with proposed 30

[[Page 44553]]

CFR 773.17(h), which would add a new permit condition requiring that 
the permittee obtain all necessary authorizations, certifications, and 
permits in accordance with Clean Water Act requirements before 
conducting any activities that require approval or authorization under 
the Clean Water Act. Permit conditions are directly enforceable under 
SMCRA. Therefore, addition of the permit condition in proposed 30 CFR 
773.17(h) would mean that the SMCRA regulatory authority must take 
enforcement action if the permittee does not obtain all necessary Clean 
Water Act authorizations, certifications, and permits before beginning 
any activity under the SMCRA permit that also requires approval, 
authorization, or certification under the Clean Water Act.
---------------------------------------------------------------------------

    \601\ 30 U.S.C. 1292(a).
---------------------------------------------------------------------------

Proposed Paragraph (b)
    Existing paragraph (b) requires that the permittee mark the buffer 
zone that is not to be disturbed. We propose to move this provision to 
30 CFR 816.11(e), which contains a similar requirement, to consolidate 
the marking requirement in the signs and markers section.
    Proposed paragraph (b) would establish requirements specific to 
mining through or diverting perennial or intermittent streams. Proposed 
paragraph (b)(1) would require compliance with the design and 
construction and maintenance plans approved in the permit. Proposed 
paragraph (b)(2) would require that the permittee restore the 
hydrological form and ecological function of the stream segment as 
expeditiously as practicable. In essence, this provision would require 
that the permittee take timely steps to restore the stream, first by 
constructing an appropriate channel as soon as surface mining is 
completed in the area in which the channel is to be located, then by 
planting appropriate vegetation in the riparian corridor in the first 
appropriate season following channel construction, followed by whatever 
other action may be needed to restore the stream's ecological function.
    Proposed paragraph (b)(2) does not mean that we anticipate rapid 
restoration of the ecological function of the stream. We recognize that 
a considerable amount of time may be needed to accomplish that 
requirement, particularly if restoration of the ecological function 
requires establishment of substantial canopy cover. Appendix B of a 
2012 EPA publication describes a scenario in which high-gradient stream 
channels devoid of aquatic life on an abandoned minesite in West 
Virginia may be restored to biological health in an estimated 10 
years.\602\ This time is roughly consistent with the time required for 
restoration of low-gradient streams in Illinois and Indiana, as 
discussed in Part II of this preamble. Other studies suggest that a 
much longer, as-yet-undetermined length of time may be needed to 
restore formerly high-quality Appalachian streams to a biological 
condition comparable to their premining biological condition.\603\ 
However, as discussed in connection with proposed paragraph (b)(2)(ii), 
re-establishment of the premining biological condition is not 
necessarily required to restore the ecological function of the stream.
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    \602\ Harman, W., R. Starr, M. Carter, K. Tweedy, M. Clemmons, 
K. Suggs, C. Miller. 2012. A Function-Based Framework for Stream 
Assessment and Restoration Projects. U.S. Environmental Protection 
Agency, Office of Wetlands, Oceans, and Watersheds, Washington, DC 
EPA 843-K-12-006, pp. 336-339.
    \603\ See, e.g., Pond, G.J., M.E. Passmore, N.D. Pointon, J.K. 
Felbinger, C.A. Walker, K.J.G. Krock, G.B. Fulton, and W.L. Nash. 
2014. Long-Term Impacts on Macroinvertebrates Downstream of 
Reclaimed Mountaintop Mining Valley Fills in Central Appalachia. 
Environmental Management 54(4), 919-933.
---------------------------------------------------------------------------

    Proposed paragraph (b)(2)(i) would provide that a restored stream 
channel or a stream-channel diversion need not exactly replicate the 
channel morphology that existed before mining, but it must have a 
channel morphology comparable to the premining form of the affected 
stream segment in terms of baseline stream pattern, profile, and 
dimensions, including channel slope, sinuosity, water depth, bankfull 
depth, bankfull width, width of the flood-prone area, and dominant in-
stream substrate. These characteristics are critical to restoration of 
the premining hydrological form or the ecological function of the 
stream or both. The proposed paragraph also would use terminology that 
would improve consistency with corresponding requirements under section 
404 of the Clean Water Act. Finally, proposed paragraph (b)(2)(i) would 
include a clause specifying that, for degraded streams, the enhancement 
provisions of proposed paragraph (b)(4) would apply in place of the 
requirement in proposed paragraph (b)(2)(i) for restoration of streams 
to their premining form. This clause is necessary to ensure that the 
proposed rule would not require restoration of a degraded stream to its 
degraded premining form and condition.
    Proposed paragraph (b)(2)(ii)(A) would specify that a stream 
flowing through a restored stream channel or a stream-channel diversion 
must meet the functional restoration criteria established by the 
regulatory authority in consultation with the Clean Water Act agency 
under proposed 30 CFR 780.28(e)(1). Proposed paragraph (b)(2)(ii)(B) 
would clarify that a stream flowing through a restored stream channel 
or a stream-channel diversion need not contain precisely the same biota 
or have the same biological condition as the original stream segment 
did before mining, but it must have a biological condition that is 
adequate to support the uses that existed before mining and that would 
not preclude attainment of the designated uses of the original stream 
segment under section 101(a) or 303(c) of the Clean Water Act \604\ 
before mining. This provision is intended to allow some change in the 
species composition of the array of insects, fish, and other aquatic 
organisms found in a stream flowing through a restored stream channel 
or stream-channel diversion, provided that the change in species 
composition would preclude neither any use that existed before mining 
nor attainment of any designated use before mining.
---------------------------------------------------------------------------

    \604\ 33 U.S.C. 1251(a) and 1313(c).
---------------------------------------------------------------------------

    Proposed paragraph (b)(2)(ii)(C) would require that the biological 
condition of the restored stream be determined using a protocol that 
meets the requirements of proposed 30 CFR 780.19(e)(2). In effect, it 
would require use of a scientifically-valid multimetric bioassessment 
protocol used by agencies responsible for implementing the Clean Water 
Act, with modifications to meet SMCRA-related needs. At a minimum, the 
protocol must be based upon the measurement of an appropriate array of 
aquatic organisms, including benthic macroinvertebrates. It must 
require identification of benthic macroinvertebrates to the genus 
level; result in the calculation of index values for both habitat and 
macroinvertebrates; and provide a correlation of index values to the 
capability of the stream to support designated uses under section 
101(a) or 303(c) of the Clean Water Act, as well as any other existing 
or reasonably foreseeable uses. We seek comment on the effectiveness of 
using index scores from bioassessment protocols to ascertain impacts on 
existing, reasonably foreseeable, or designated uses. We also invite 
commenters to suggest other approaches that may be equally or more 
effective.
    Finally, proposed paragraph (b)(2)(ii)(D) would specify that 
populations of organisms used to determine the postmining biological 
condition of the stream segment must be self-sustaining within that 
segment. We

[[Page 44554]]

propose to include this provision because the presence of individual 
organisms that happen to drift into the reconstructed channel from 
other areas is not an indicator of restoration of the ecological 
function of the restored stream segment.
    Our proposed performance standards in paragraph (b) would 
complement our proposed permitting requirements at 30 CFR 780.12(b)(3) 
(one of the steps in the reclamation timetable is restoration of the 
form of perennial and intermittent stream segments), 780.12(b)(7) (one 
of the steps in the reclamation timetable is restoration of the 
ecological function of perennial and intermittent stream segments), 
780.12(h) (the reclamation plan must include a detailed stream 
restoration plan), 780.28(c) (detailed permit application requirements 
for mining through or diverting a perennial or intermittent stream 
segment), and 780.28(e)(2) (the regulatory authority must make a 
specific written finding before approving mining through or diversion 
of a perennial or intermittent stream segment).
    Proposed paragraph (b)(2)(iii)(A) would require that performance 
bond calculations for the operation include a specific line item for 
restoration of the ecological function of the stream segment. See also 
proposed 30 CFR 800.14(b)(2). In addition, proposed paragraph 
(b)(2)(iii)(B) would require that the permittee post a surety bond, a 
collateral bond, or a combination of surety and collateral bonds to 
cover the cost of restoration of the ecological function of the stream 
segment. A self-bond is not an appropriate mechanism to guarantee 
restoration of a stream's ecological function because of the risk that 
the company may cease to exist during the time required to accomplish 
that restoration. In addition, a self-bond does not require that the 
permittee file financial instruments or collateral with the regulatory 
authority, nor is there any third party obligated to complete the 
reclamation or pay the amount of the bond if the permittee defaults on 
reclamation obligations.
    Proposed paragraph (b)(2)(iii)(C) would require that the permittee 
demonstrate full restoration of the physical form of the restored 
stream segment before the site would qualify for final bond release 
under proposed 30 CFR 800.42(d). Proposed 30 CFR 800.42(b)(1) would 
define Phase I reclamation as including restoration of the form of 
perennial and intermittent streams, which means that no bond could be 
released until the permittee restores the hydrological form of any 
stream segment within the area to which the bond release application 
applies.
    Proposed paragraph (b)(2)(iii)(D) would require that the permittee 
demonstrate full restoration of the ecological function of the restored 
stream segment before the site would qualify for final bond release 
under proposed 30 CFR 800.42(d). Under proposed 30 CFR 800.42(b)(2) and 
(c)(2), the amount of bond retained following Phase I and II 
reclamation, respectively, must be sufficient to restore the ecological 
function of the stream segments that were restored in form as part of 
Phase I reclamation.
    Proposed paragraph (b)(3) would specify that, upon completion of 
construction of a stream-channel diversion or restored stream channel, 
the permittee must obtain a certification from a qualified registered 
professional engineer that the stream-channel diversion or restored 
stream channel meets all construction requirements of this section 
(except those pertaining to restoration of the ecological function) and 
is in accordance with the design approved in the permit. A similar 
requirement appears in existing 30 CFR 816.43(b)(4). We propose to move 
it to 30 CFR 816.57 to consolidate performance standards for the 
diversion and restoration of perennial and intermittent streams. We 
also propose to expand its scope to include restored stream channels 
because proper construction of those channels is no less important in 
terms of stability, hydraulic capacity, and ecological restoration than 
is construction of stream-channel diversions. This certification 
requirement applies only to the construction of the channel; it does 
not extend to restoration of ecological function or biological 
requirements, which may lie beyond the engineer's sphere of 
professional competence.
    Finally, proposed paragraph (b)(4) would provide that if the stream 
segment to be mined through or diverted is in a degraded condition 
before mining, the permittee must implement measures to enhance the 
form and ecological function of the segment as part of the restoration 
or diversion process. This provision is intended to ensure that stream 
segments degraded by prior mining or other human activities are 
improved to the fullest extent possible, not just restored to the 
condition that existed before the current mining operation. It also 
would implement section 515(b)(24) of SMCRA,\605\ which provides that 
surface coal mining and reclamation operations must ``achieve 
enhancement'' of fish, wildlife, and related environmental values where 
practicable, to the extent possible using the best technology currently 
available.
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    \605\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Nothing in our proposed stream restoration requirements would 
exempt the permittee from meeting any additional onsite or offsite 
mitigation requirements that the U.S. Army Corps of Engineers may 
require under section 404 of the Clean Water Act.\606\
---------------------------------------------------------------------------

    \606\ 33 U.S.C. 1344.
---------------------------------------------------------------------------

    We invite commenters to--
     Identify studies pertinent to restoration of the functions 
of perennial and intermittent streams, particularly headwaters streams, 
after mining or similar disturbances.
     Weigh in on whether our rule should differentiate between 
low-gradient and high-gradient streams on the theory that high-gradient 
streams are more difficult to restore in backfilled areas because of 
the lack of a competent substrate and the removal of perched aquifers.
Proposed Paragraph (c)
    Proposed paragraph (c)(1) would prohibit the use of perennial or 
intermittent streams as waste treatment systems to convey surface 
runoff from the disturbed area to a sedimentation pond. It also would 
prohibit construction of a sedimentation pond in a perennial or an 
intermittent stream. Almost all perennial and intermittent streams are 
of high value to fish and wildlife. Therefore, prohibiting the use of 
those streams for sedimentation control purposes is consistent with 
section 515(b)(24) of SMCRA,\607\ which provides that to the extent 
possible, surface coal mining and reclamation operations must use the 
best technology currently available to minimize disturbances to and 
adverse impacts on fish, wildlife, and related environmental values. 
Our experience indicates that there are almost always reasonable 
alternatives to using perennial and intermittent streams as waste 
treatment systems.
---------------------------------------------------------------------------

    \607\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    However, in steep-slope areas, those alternatives may not have the 
least overall adverse impact on fish, wildlife, and related 
environmental values because of the extensive disturbance and 
excavation that would be needed to construct diversions and 
sedimentation ponds outside streams in that topography. Therefore, 
proposed paragraph (c)(2) would exempt excess spoil fills or coal mine 
waste disposal facilities in steep-slope areas from this prohibition 
when use of a perennial or intermittent stream segment as a waste 
treatment system for sediment control and construction of a 
sedimentation

[[Page 44555]]

pond in a perennial or an intermittent stream would have less overall 
adverse impact on fish, wildlife, and related environmental values than 
construction of diversions and sedimentation ponds on slopes above the 
stream.
    Proposed paragraph (c)(3) would require that the adverse impacts of 
using a stream segment as a waste treatment system on fish, wildlife, 
and related environmental values be minimized by keeping the length of 
the stream segment used as a waste treatment system as short as 
possible and, when practicable, maintaining an undisturbed buffer at 
least 100 feet in width along that segment. The proposed rule would 
require placement of the sedimentation pond as close to the toe of the 
excess spoil fill or coal mine waste disposal structure as possible. We 
also propose to require that the permittee remove the sedimentation 
pond and restore the hydrological form and ecological function of the 
stream segment in accordance with proposed paragraph (b)(2) following 
the completion of construction and revegetation of the fill or coal 
mine waste disposal structure.
    Both the 1979 and 1983 versions of our permanent regulatory program 
regulations prohibit the placement of sedimentation ponds in perennial 
streams unless approved by the regulatory authority. See 30 CFR 
816.46(a)(2) (1979) and 816.46(c)(1)(ii) (1983). However, the preamble 
to the 1979 rules explains that construction of sedimentation ponds in 
streams typically is a necessity in steep-slope mining conditions:

    Sedimentation ponds must be constructed prior to any disturbance 
of the area to be drained into the pond and as near as possible to 
the area to be disturbed. [Citation omitted.] Generally, such 
structures should be located out of perennial streams to facilitate 
the clearing, removal and abandonment of the pond. Further, locating 
ponds out of perennial streams avoids the potential that flooding 
will wash away the pond. However, under design conditions, ponds may 
be constructed in perennial streams without harm to public safety or 
the environment. Therefore, the final regulations authorize the 
regulatory authority to approve construction of ponds in perennial 
streams on a site-specific basis to take into account topographic 
factors.
* * * * *
    Commenters suggested allowing construction of sedimentation 
ponds in intermittent and perennial streams. Because of the 
physical, topographic, or geographical constraints in steep slope 
mining areas, the valley floor is often the only possible location 
for a sediment pond. Since the valleys are steep and quite narrow, 
dams must be high and must be continuous across the entire valley in 
order to secure the necessary storage.
* * * * *
    The Office recognizes that mining and other forms of 
construction are presently undertaken in very small perennial 
streams. Many Soil Conservation Service (SCS) [now the Natural 
Resources Conservation Service] structures are also located in 
perennial streams. Accordingly, OSM believes these cases require 
thorough examination. Therefore, the regulations have been modified 
to permit construction of sedimentation ponds in perennial streams 
only with approval by the regulatory authority.

44 FR 15159-15160 (Mar. 13, 1979) (citations omitted).
    In short, what was true in 1979 remains true today; i.e., 
sedimentation ponds must be constructed where there is sufficient 
storage capacity, which, in narrow valleys lacking natural terraces, 
typically means in the stream.
    Our proposed rule is consistent with a March 1, 2006, letter from 
Benjamin Grumbles, Assistant Administrator of the EPA, to John Paul 
Woodley, Assistant Secretary of the Army (Civil Works). Among other 
things, that letter states that the sedimentation pond must be 
constructed as close to the toe of the fill as practicable to minimize 
temporary adverse environmental impacts associated with construction 
and operation of the waste treatment system.
19. Section 816.71: How must I dispose of excess spoil?
    We propose to revise our excess spoil rules to minimize the extent 
to which excess spoil fills adversely impact perennial and intermittent 
streams, to improve fill stability, and to enhance fill aesthetics and 
compatibility with surrounding landforms. As previously discussed in 
the portions of this preamble concerning 30 CFR 780.35, we propose to 
move paragraphs (b)(1) (design certification), (c) (location), and 
(d)(1) (foundation investigations) of the existing version of 30 CFR 
816.71 to 30 CFR 780.35 as part of our effort to place provisions that 
are solely design considerations and requirements in our permitting 
regulations in subchapter G rather than in the performance standards in 
subchapter K.
Proposed Paragraph (a): General Requirements
    Both the existing and proposed versions of paragraph (a) require 
that excess spoil be placed in a controlled manner. However, we propose 
to revise the introductory language of this paragraph to specifically 
require that excess spoil be transported and placed by mechanical 
means. The added language is intended to more fully implement 
515(b)(22)(A) of SMCRA,\608\ which requires that excess spoil be 
``transported and placed in a controlled manner in position for 
concurrent compaction and in such a way to assure mass stability and to 
prevent mass movement.'' Our existing rules at 30 CFR 816.73 allow end-
dumping of excess spoil down steep slopes into a valley. This practice 
relies upon gravity transport, rather than mechanical transport, of 
spoil to its final location. We no longer consider gravity transport of 
spoil to its final location to be controlled placement under section 
515(b)(22)(A) of SMCRA.\609\ The preamble to our proposed removal of 30 
CFR 816.73 explains the shortcomings of end-dumping and durable rock 
fills in greater detail. However, nothing in the proposed revisions to 
our excess spoil requirements would prohibit the construction of valley 
fills, head-of-hollow fills, sidehill fills, or any type of fill other 
than durable rock fills.
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    \608\ 30 U.S.C. 1265(b)(22)(A).
    \609\ Id.
---------------------------------------------------------------------------

    We propose to revise existing paragraphs (a)(1) through (3) and add 
paragraphs (a)(4) through (7) as follows:
     Proposed paragraph (a)(1) is substantively identical to 
existing paragraph (a)(1) except that we propose to add a requirement 
that excess spoil placement will minimize adverse effects of leachate 
and surface-water runoff on the biological condition of perennial and 
intermittent streams within the permit area, not just adverse effects 
on surface water and groundwater as in the existing rule. The new 
requirement would implement section 515(b)(24) of SMCRA \610\ more 
fully by minimizing adverse impacts of the operation on fish, wildlife, 
and related environmental values.
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    \610\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

     Proposed paragraph (a)(2) is substantively identical to 
existing paragraph (a)(2).
     We propose to revise paragraph (a)(3) to be more 
consistent with the underlying requirement in section 515(b)(22)(G) of 
SMCRA,\611\ which provides that excess spoil must be placed in a manner 
that will ensure that ``the final configuration is compatible with the 
natural drainage pattern and surroundings and suitable for intended 
uses.'' As revised, proposed paragraph (a)(3) would require that the 
final surface configuration of the fill be suitable for revegetation 
and the postmining land use or uses and be compatible with the natural 
drainage pattern and surroundings. The existing

[[Page 44556]]

rule does not mention the final configuration of the fill or the 
natural drainage pattern. Our proposed revisions would correct those 
omissions.
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    \611\ 30 U.S.C. 1265(b)(22)(G).
---------------------------------------------------------------------------

     Proposed paragraph (a)(4) would add a requirement that 
excess spoil be placed in a manner that would minimize disturbances to 
and adverse impacts on fish, wildlife, and related environmental values 
to the extent possible, using the best technology currently available. 
This provision parallels the language of section 515(b)(24) of 
SMCRA,\612\ which applies to all aspects of surface coal mining and 
reclamation operations, including the disposal of excess spoil.
---------------------------------------------------------------------------

    \612\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

     Proposed paragraph (a)(5) would require that excess spoil 
be placed in a manner that would ensure that the fill will not change 
the size or frequency of peak flows from precipitation events or thaws 
in a way that would result in an increase in damage from flooding when 
compared with the impacts of premining peak flows.
     Proposed paragraph (a)(6) would require that excess spoil 
be placed in a manner that would ensure that the fill will not preclude 
any existing or reasonably foreseeable use of surface water or 
groundwater or, for surface water downstream of the fill, preclude 
attainment of any designated use under section 101(a) or 303(c) of the 
Clean Water Act.\613\ The proposed language parallels the terminology 
in our proposed definition of ``material damage to the hydrologic 
balance outside the permit area'' in 30 CFR 701.5, which relies in 
large measure upon the status of existing, reasonably foreseeable, and 
designated uses of water.
---------------------------------------------------------------------------

    \613\ 33 U.S.C. 1251(a) and 1313(c), respectively.
---------------------------------------------------------------------------

     Proposed paragraph (a)(7) would require that excess spoil 
be placed in a manner that would ensure that the fill will not cause or 
contribute to an exceedance of any applicable federal, state, or tribal 
water quality standards.
    Proposed paragraphs (a)(5) through (7) would more fully implement 
sections 510(b)(3) and 515(b)(10) of SMCRA.\614\ Section 510(b)(3) 
\615\ prohibits approval of a permit application unless the applicant 
demonstrates and the regulatory authority finds that the proposed 
operation ``has been designed to prevent material damage to the 
hydrologic balance outside the permit area.'' Section 515(b)(10) \616\ 
requires that surface coal mining and reclamation operations be 
conducted so as to ``minimize disturbances to the prevailing hydrologic 
balance at the mine-site and in associated offsite areas and to the 
quality and quantity of water in surface and ground water systems both 
during and after surface coal mining operations and during 
reclamation.'' The proposed revisions also are consistent with our 
proposed definition of ``material damage to the hydrologic balance 
outside the permit area'' in 30 CFR 701.5, which focuses on mining-
related impacts to uses of groundwater and surface water.
---------------------------------------------------------------------------

    \614\ 30 U.S.C. 1265(b)(3) and (10).
    \615\ 30 U.S.C. 1265(b)(3).
    \616\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

Proposed Paragraph (b): Stability Requirements
    We propose to move existing paragraph (b))(1), which pertains to 
certification of the design for the excess spoil fill and appurtenant 
structures, to 30 CFR 780.35 as part of our effort to move permitting 
requirements from the performance standards of subchapter K to the 
permitting provisions of subchapter G. We propose to redesignate 
existing paragraph (b)(2) as paragraph (b)(1) and revise it to require 
that the fill not only be designed to attain a minimum static safety 
factor of 1.5 as required by the existing rules, but that the fill 
actually be constructed to attain that safety factor. This change is 
consistent with section 515(b)(22)(A) of the Act,\617\ which requires 
that all excess spoil be placed in a way that ensures mass stability 
and prevents mass movement.
---------------------------------------------------------------------------

    \617\ 30 U.S.C. 1265(b)(22)(A).
---------------------------------------------------------------------------

    We also propose to redesignate existing paragraph (d)(2), which 
requires keyway cuts for excess spoil fills built on steep slopes, as 
paragraph (b)(2). In addition, we propose to replace the term ``keyway 
cuts'' with ``bench cuts.'' The term ``keyway cut'' is technically a 
cut beneath a dam that is used to extend low-permeability fill material 
to, but not into, bedrock. The term ``bench cut'' is more appropriate 
here because it refers to cuts into bedrock, not just down to bedrock. 
Fill construction under steep-slope conditions requires that cuts be 
made into bedrock, not just down to bedrock, to ensure stability. 
Therefore, our proposed revisions would provide greater fill stability 
than the existing regulations.
Proposed Paragraph (c): Compliance With Permit
    We propose to move the fill location requirements of existing 
paragraph (c) to 30 CFR 780.35 because those requirements pertain 
primarily to the fill design and thus are more appropriately codified 
as part of the permitting provisions of subchapter G. We propose to 
replace those requirements with a performance standard reminding the 
permittee that the fill must be constructed in accordance with the 
design and plans approved in the permit. Proposed paragraph (c) would 
require that fills be built on the sites selected under section 780.35 
in a manner consistent with the designs submitted under those sections 
and approved as part of the permit.
Proposed Paragraph (d): Requirements for Handling of Organic Matter and 
Soil Materials
    We propose to move the foundation investigation requirements of 
existing paragraph (d)(1) to 30 CFR 780.35 to consolidate those 
provisions with a similar and overlapping foundation investigation 
requirement in that section. We also propose to redesignate existing 
paragraph (d)(2) as paragraph (b)(2) as discussed above.
    We propose to redesignate existing paragraph (e)(1) as new 
paragraph (d). Proposed paragraph (d) would require that soil and 
organic matter, including vegetative materials, in the footprint of 
excess spoil fills be salvaged, stored, and redistributed or otherwise 
used in a manner consistent with our proposed revisions to 30 CFR 
780.12(e) and 816.22.
Proposed Paragraph (e): Surface Runoff Control Requirements
    As discussed above, we propose to redesignate existing paragraph 
(e)(1) as new paragraph (d). In addition, we propose to redesignate 
existing paragraphs (e)(2) through (5) as paragraphs (g)(1), (h), (i), 
and (g)(3), respectively.
    We propose to redesignate existing 30 CFR 816.72(a) as 30 CFR 
816.71(e) and revise it to apply to all fills because control of 
surface-water runoff from the fill and adjacent areas is critical to 
the stability of all types of fills, not just valley and head-of-hollow 
fills. Proposed paragraph (e)(1), like existing 30 CFR 816.72(a), would 
require that runoff from areas above the fill and runoff from the 
surface of the fill be directed into stabilized channels designed to 
meet the requirements of 30 CFR 816.43 and to safely pass the runoff 
from a 100-year, 6-hour precipitation event. We do not consider surface 
runoff diversions constructed under proposed 30 CFR 816.71(e)(1) to be 
stream-channel diversions or restored streams, nor would they qualify 
as offsetting fish and wildlife enhancement measures under proposed 30 
CFR 780.28(d)(2).
    In proposed paragraph (e)(1)(ii), we propose to add a requirement 
that those

[[Page 44557]]

channels be designed using the appropriate regional NRCS synthetic 
storm distribution. The preamble to proposed 30 CFR 780.29 explains the 
rationale for this proposed requirement.
    Like its counterpart in existing 30 CFR 816.72(a), proposed 
paragraph (e)(2) would prohibit directing uncontrolled surface runoff 
over the outslope of the fill. Like the existing rule, it also would 
require that the permittee grade the top surface of a completed fill 
such that the final slope after settlement will be toward properly 
designed drainage channels.
Proposed Paragraph (f): Control of Water Within the Footprint of the 
Fill
    Our proposed revisions to this paragraph focus on underdrain 
requirements, with particular emphasis on ensuring the use of hard, 
weather-resistant materials and construction techniques that will 
promote long-term stability. We propose to require that the underdrain 
system be designed to carry the anticipated infiltration of water due 
to precipitation, snowmelt, and water from seeps and springs in the 
foundation of the disposal area away from the excess spoil fill. This 
requirement would minimize the phreatic level within the fill. We also 
propose to require that the underdrain system be protected from 
material piping, clogging, and contamination by an adequate filter 
system designed and constructed using current, prudent engineering 
practices to ensure the long-term functioning of the underdrain system. 
A long-term functioning filter using natural materials generally 
requires multiple lifts of material specifically sized, graded, and 
placed so that the overlying lift is progressively smaller in diameter. 
Geotextile material may be used for filter construction. Filter 
construction is vital to providing a long-term functioning underdrain.
    We propose to prohibit the use of perforated pipe as an alternative 
to hard, weather-resistant rock for two reasons. First, minor shifts 
within a fill mass can result in a broken and consequently 
dysfunctional pipe underdrain, but a rock underdrain of sufficient size 
is likely to be flexible enough to retain sufficient continuity to 
transport infiltrated water from the fill. Second, a pipe with small 
perforations and limited to a single flow-through orifice is more 
likely to clog than a porous rock underdrain with multiple alternative 
pathways for water transport.
    Future changes in local surface-water and groundwater hydrology may 
result in water infiltration into the fill in excess of what is 
anticipated. Therefore, we propose to allow the use of perforated pipe 
in an underdrain system only for the purpose of enhancing the 
capability of the underdrain to pass water in excess of the anticipated 
maximum infiltration. However, the rock underdrain must be capable of 
transporting the anticipated maximum water infiltration out of the fill 
independent of the presence of the perforated pipe. In addition, the 
perforated pipe must be made of materials that are not susceptible to 
corrosion (not just corrosion-resistant materials as in the existing 
rules) and sufficiently crush-resistant to withstand pressures at the 
depth at which the pipe will be buried.
    Finally, we propose to specify that only hard rock that is 
resistant to weathering, for example, well-cemented sandstone and 
massive limestone, and that is not acid-forming or toxic-forming may be 
used to construct durable rock underdrains. The proposed rule would 
require that the underdrain be free of both soil and fine-grained, 
clastic rocks such as siltstone, shale, mudstone, and claystone. All 
rock used to construct underdrains would have to meet the criteria in 
the following table:

----------------------------------------------------------------------------------------------------------------
               Test                     ASTM standard            AASHTO standard           Acceptable results
----------------------------------------------------------------------------------------------------------------
Los Angeles Abrasion..............  C 131 or C 535.......  T 96......................  Loss of no more than 50
                                                                                        percent of test sample
                                                                                        by weight.
Sulfate Soundness.................  C 88 or C 5240.......  T 104.....................  Sodium sulfate test: Loss
                                                                                        of no more than 12
                                                                                        percent of test sample
                                                                                        by weight.
                                                                                       Magnesium sulfate test:
                                                                                        Loss of no more than 18
                                                                                        percent of test sample
                                                                                        by weight.
----------------------------------------------------------------------------------------------------------------

    Section 515(b)(22) of SMCRA \618\ and most of the rules 
implementing that statutory provision focus on the long-term stability 
of excess spoil fills. Long-term stability is of great importance 
because the industry does not provide maintenance for fills following 
final bond release, nor does the regulatory authority monitor fills 
after final bond release. An effective underdrain system is a critical 
factor in ensuring fill stability.
---------------------------------------------------------------------------

    \618\ 30 U.S.C. 1265(b)(22).
---------------------------------------------------------------------------

    A functional underdrain system allows water from surface-water 
infiltration into the fill mass and from seeps and springs in the 
fill's foundation to freely pass from the fill. The absence of an 
effective underdrain can result in the formation of a phreatic surface 
and the associated potential for destabilization because of increased 
pore-water pressures within the fill mass. The effectiveness of an 
underdrain depends on whether the material is sufficiently permeable or 
hydraulically conductive to convey all subsurface water from the fill. 
This in turn depends on the presence of large and interconnected pores 
or voids between the material particles. For this reason, it is 
important that the underdrains be composed of large, blocky rock. For 
an underdrain to function well over the long term, the rock must be 
resistant to weathering and hard enough to withstand the effects of 
blasting and conveyance from the blast site to the site at which the 
underdrain system is being constructed. Rock that is not resistant to 
weathering effects, i.e., rock that is not ``sound,'' will disintegrate 
into fragments too small to act as an effective filter and consequently 
make the underdrain much less permeable.
    Historically, the criterion governing whether rock is suitable as 
underdrain material has been its ``durability.'' Existing 30 CFR 
816.71(f)(3) requires that the rock underdrains of excess spoil fills 
``be constructed of durable, nonacid-, nontoxic-forming rock (e.g., 
natural sand and gravel, sandstone, limestone, or other durable rock) 
that does not slake in water or degrade to soil material, and which is 
free of coal, clay or other nondurable material.'' Similar language 
appears in existing 30 CFR 816.73(b) for durable rock fills. The 
durable rock fill construction technique has been the predominant 
construction method for the last 30 years. Unlike other construction 
methods, it does not require underdrain construction prior to spoil 
placement or bottom-to-top spoil placement in thin lifts. Instead, 
spoil is end-dumped into valleys in a single lift or multiple lifts, 
during which gravity segregation theoretically forms a free-draining 
zone of large-sized rock in the lower one-third of the fill.
    The existing regulations do not specify how the durability of rock 
is to

[[Page 44558]]

be determined. In general, both the mining industry and regulatory 
authorities have relied upon the slake durability index (SDI) for this 
purpose. This test involves the placement of oven-dried rock samples in 
2 mm wire mesh drums 1/3 immersed in water, which are then rotated at 
20 rpm for 10 minutes for two cycles. The weight of the sample 
remaining in the drum is divided by the weight of the original sample 
and multiplied by 100 to obtain a percentage. SDI values of 90 percent 
or more are generally considered durable.
    OSMRE studies and inspection reports indicated that some of the 
rock material being used in durable rock fill construction was weak and 
non-durable despite documentation in the permit that the materials 
being used were considered durable based on SDI tests. The apparent 
failure of the SDI tests to adequately distinguish between durable and 
nondurable rock was attributed to the nature of the test and the 
behavior of shale and other mudstones as they slake or disintegrate 
into soil. Frequently, samples with those geologic compositions would 
turn into loose flakes or mud balls that would not pass through the 
wire mesh during the test. State and federal regulatory authorities 
have developed a broad consensus that the SDI test is not adequate for 
surface coal mining and excess spoil fill construction purposes.
    In response, we developed and tested an alternative testing 
protocol and classification system called the ``Strength Durability 
Classification'' (Welsh et al., 1991).\619\ The initial phase of the 
Strength Durability Classification protocol, the jar-slake test, 
consists of soaking oven-dried rock samples in water for 24 hours to 
identify very low-durability rock by its short-term slaking behavior. 
Samples with minimal breakdown are then subjected to a second phase of 
free-swell and point-load tests. The free-swell test entails measuring 
the swell of an oven-dried sample immersed in water for 4 hours. The 
degree of swell reflects the amount of water absorbed into the void 
spaces of the rock. Rocks that absorb more water generally weather more 
rapidly. The point-load strength test involves placing samples between 
opposite conical platens that are pressed or ``loaded'' against the 
sample until it fails. The amount of load needed to generate failure is 
the point-load strength of the sample. The test is performed on at 
least 20 samples for statistical validity. After plotting the point-
load strength and swell-test data on a graph, the points are compared 
to two ``zones'' on the same graph representing the acceptable value 
ranges for durable rock fill underdrains and more conventional, 
selectively placed rock underdrains. The Strength Durability 
Classification protocol has proven to be more discriminating than the 
SDI, but some critics claim that its durability standards are 
unrealistically stringent.
---------------------------------------------------------------------------

    \619\ Welsh, R.A., Jr., Vallejo, L.E., Lovell, L.W., and 
Robinson, M.K., 1991, The U.S. Office of Surface Mining (OSM) 
Proposed Strength-Durability Classification System, in ``Proceedings 
of Symposium on Detection of and Construction at the Soil/Rock 
Interface'' (W.F. Kane and B. Amadei, eds.), ASCE Geotechnical 
Special Publication No. 28, American Society of Civil Engineers, New 
York, NY, pp. 19-24.
---------------------------------------------------------------------------

    In 2002, we conducted a study in which we visually estimated the 
percent of durable rock in 44 durable rock fills under construction and 
judged whether a discernible underdrain was forming by gravity 
segregation. Of 44 fills under construction, 28 appeared to have less 
than 80 percent durable rock and 5 fills showed no visual evidence of 
having a functioning underdrain. The study found that excess spoil 
fills in Appalachia generally have been stable, but it recommended 
improvement in the design, construction, and regulation of fills to 
ensure long-term stability. One recommendation urged continued work on 
the development of a more discriminating method for determining rock 
durability. The study suggested that the amount of sandstone available 
at a minesite should be one criterion for approving a proposed durable 
rock fill. It also stated that it might be feasible to develop a 
quantitative method of assessing gravity-segregated underdrain 
formation.\620\
---------------------------------------------------------------------------

    \620\ Office of Surface Mining, ``Long-Term Stability of Valley 
Fills'' (2002) in Appendices A, B, and C of ``Draft Programmatic 
Environmental Impact Statement--Mountaintop Mining/Valley Fills in 
Appalachia,'' U.S. Environmental Protection Agency, 2003, EPA 9-03-
R-00013, EPA Region 3, Philadelphia, PA, available at http://www.epa.gov/region3/mtntop/eis2003.htm.
---------------------------------------------------------------------------

    In a 2006 special study, we and the Kentucky Department of Surface 
Mine Reclamation and Enforcement found that 4 of 29 durable rock fills 
evaluated had ``questionable'' underdrains.\621\
---------------------------------------------------------------------------

    \621\ Kentucky Department of Natural Resources and U.S. Office 
of Surface Mining, ``Excess Spoil Fill Stability,'' Evaluation Year 
2006 Special Study, OSM open file report, Lexington, KY, 2006.
---------------------------------------------------------------------------

    Given the problems with rock durability determination discussed 
above, application of the SDI or other tests of comparable rigor will 
not ensure a functioning underdrain in any type of fill. While the SDI 
can distinguish rocks that will quickly slake or disintegrate into soil 
material, it does not adequately assess whether they can withstand 
crushing or weakening from blasting and handling in a mine operation or 
resist the long-term effects of weathering. Although the Strength 
Durability Classification protocol is somewhat more discriminatory than 
the SDI, it also is not sufficiently representative of the short-term 
and long-term dynamics of a surface mine site. The jar-slake and free-
swell tests in particular do not adequately assess the long-term 
weathering resistance of the rock and the point-load test may not be 
sufficiently representative of the dynamic effects of blasting, 
collision, and abrasion.
    Although there are other classification systems relating to rock 
durability in the literature, many are designed for rocks unlike those 
encountered in coal mining. Other protocols apply only to shale, 
include SDI in addition to other tests or indices, or measure the 
properties of in-place rock slopes.
    Therefore, we propose to base the acceptability of rock for use in 
underdrains on the rock's hardness and resistance to weathering. 
Underdrains in a fill constructed in lifts occupy narrow corridors 
within the fill mass even when properly sized to handle anticipated 
maximum drainage discharge. Any clogging within these limited zones 
will quickly engender fill instability. Consequently, criteria for 
underdrain materials must be selected with the goal of ensuring that 
the underdrain system will remain effective on a long-term basis, not 
just until final bond release.
    Our proposed rule would establish criteria based on rock lithology 
and the results of two methods that measure the rock's hardness and 
soundness via laboratory tests. First, materials used to construct 
underdrains must consist of hard rock that is resistant to weathering, 
such as well-cemented sandstone and massive limestone, and that is not 
acid-forming or toxic-forming (and thus would not result in acid or 
toxic mine drainage). In addition, materials used to construct 
underdrains must be free of both soil and fine-grained, clastic rocks 
such as siltstone, shale, mudstone, and claystone, which generally are 
weaker and more prone to rapid weathering than sandstones and 
limestone. Fine-grained rocks also are problematic in that they produce 
a fine-grained, impermeable soil when highly weathered. From field 
observations of durable rock fills under construction, we know that the 
appearance of shale boulders can be deceptive. Large shale particles 
that appear competent soon after being end-dumped often quickly 
disintegrate from natural weathering processes, the stress resulting 
from being buried at depth, and abrasion

[[Page 44559]]

from handling. Even if tests find some shale to be hard and sound 
enough for underdrain material, the certifying engineer would have 
difficulty ensuring that all rock placed in the underdrain was 
correctly selected.
    Second, the materials must meet certain threshold criteria as 
determined by the Los Angeles abrasion test and either the sodium 
sulfate or magnesium sulfate soundness test.\622\ Highway departments 
frequently use both tests to assess the suitability of rock for the 
construction of roads and riprap-lined drainage channels. The Los 
Angeles abrasion test focuses on rock hardness. It consists of 
placement of the rock sample in a steel drum containing a prescribed 
number of steel spheres. After rotating the drum 1,000 times, the 
sample is removed and sieved. The amount of degradation of the sample 
is reported as the percent (by weight) of the sample lost through the 
sieve. The shocks, collisions, and abrasions that the sample 
experiences are reasonably representative of the dynamics and handling 
of materials at a minesite.
---------------------------------------------------------------------------

    \622\ See http://www.pavementinteractive.org/index.php?title=Sulfate_Soundness_Test (last accessed January 19, 
2015).
---------------------------------------------------------------------------

    The sodium sulfate and magnesium sulfate soundness tests measure 
the susceptibility of rock to weathering. In these tests, the rock 
sample is immersed in a saturated solution of sodium sulfate or 
magnesium sulfate, after which the sample is placed in an oven to 
dehydrate the salts, which precipitate in the voids between the rock 
particles. The process is then repeated on the sample for a specified 
number of cycles to simulate freezing and thawing. The external 
expansive force of the salt crystals during the immersion phase of each 
cycle simulates the expansion of water upon freezing. We acknowledge 
that freezing of water in rocks and soil does not occur in all 
climates. Furthermore, its occurrence is limited to a relatively 
shallow depth below the surface and consequently is not a process that 
would affect most of the buried underdrain. However, an underdrain is 
only as good as its weakest point and, like the natural weathering 
process, this test exploits openings and weaknesses in rock such as 
fractures and the porous zones of weakly cemented grains. The sulfate 
soundness tests measure the rock's ability to withstand repeated 
freeze-thaw cycles and thus facilitate identification of those rock 
materials most likely to remain competent on a long-term basis.
Proposed Paragraph (g): Placement of Excess Spoil
    Proposed paragraph (g)(1) is the counterpart to existing paragraph 
(e)(2). We propose to move the provision of existing paragraph (e)(2) 
requiring that the fill be covered with topsoil or other suitable 
materials to proposed paragraph (d), which contains all requirements 
related to soils. We also propose to eliminate the provision in 
existing paragraph (e)(2) that would allow the regulatory authority to 
approve an exception to the requirement that excess spoil be placed in 
horizontal lifts of no more than 4 feet in thickness. Placement in 
lifts exceeding 4 feet in thickness will not uniformly result in the 
concurrent compaction necessary to minimize the volume of void spaces 
in the fill. Minimization of the volume of void spaces is critical to 
minimizing the adverse impact on fish and wildlife because the volume 
of void spaces correlates directly with the amount of dissolved solids 
that migrate from the fill into the receiving stream. An increase in 
dissolved solids can have a substantial adverse impact on aquatic life.
    Proposed paragraph (g)(1) would require the use of mechanized 
equipment to transport and place excess spoil. Similarly, proposed 
paragraph (g)(2) would prohibit the use of any excess spoil transport 
and placement technique that involves end-dumping, wing-dumping, cast-
blasting, gravity placement, or casting spoil downslope, all of which 
are not conducive to concurrent compaction or placement in lifts no 
greater than 4 feet in thickness. As noted above, section 515(b)(22)(A) 
of SMCRA \623\ provides that all excess spoil material resulting from 
surface coal mining operations must be ``transported and placed in a 
controlled manner in position for concurrent compaction and in such a 
way to assure mass stability and to prevent mass movement.'' Our 
proposed prohibition on the placement of excess spoil in horizontal 
lifts greater than 4 feet in thickness would improve implementation of 
this provision of SMCRA, especially the requirements for controlled 
placement and concurrent compaction. As explained in our discussion of 
proposed paragraph (a), our existing rules at 30 CFR 816.73 allow end-
dumping of excess spoil down steep slopes into a valley. This practice 
relies upon gravity transport of spoil to its final location. We no 
longer consider gravity transport of spoil to its final location to be 
controlled placement under section 515(b)(22)(A) of SMCRA.\624\ Only 
mechanical transport meets that statutory requirement. The preamble to 
our proposed removal of 30 CFR 816.73 explains the shortcomings of end-
dumping and durable rock fills in greater detail.
---------------------------------------------------------------------------

    \623\ 30 U.S.C. 1265(b)(22)(A).
    \624\ Id.
---------------------------------------------------------------------------

    Furthermore, we have found that gravity placement in single or 
large lifts has resulted in elevated suspended solids during storm 
events because of the flushing of fine material from the loose-dumped 
excess spoil and from the typically large unvegetated active free face 
associated with this construction method. Placement in smaller lifts 
with concurrent compaction would decrease the permeability of the fill, 
inhibiting infiltration, allowing revegetation of the fill face 
concurrent with construction of the fill, and reducing discharges of 
both suspended and dissolved solids.
    Proposed paragraph (g)(3) is the counterpart to existing paragraph 
(e)(5). Proposed paragraph (g)(3)(i) would require that acid-forming 
and toxic-forming materials be handled and placed in accordance with 30 
CFR 816.38 and in a manner that will minimize adverse effects on plant 
growth and the approved postmining land use. Under proposed 30 CFR 
816.38(d), the only acceptable techniques for the placement of acid-
forming and toxic-forming materials would be isolation and treatment. 
The proposed rule would not authorize use of saturation techniques 
because of the stability risk that saturation poses for fills and 
because of the possibility that use of saturation techniques would 
increase discharges of total dissolved solids, which could have adverse 
impacts on aquatic life in streams that receive those discharges. 
Proposed paragraph (g)(3)(ii) would require that the permittee cover 
combustible materials with noncombustible materials in a manner that 
will prevent sustained combustion and minimize adverse effects on plant 
growth and the approved postmining land use.
    Proposed paragraph (g)(3) is consistent with section 515(b)(14) of 
SMCRA,\625\ which requires that all acid-forming materials and toxic 
materials be ``treated or buried and compacted or otherwise disposed of 
in a manner designed to prevent contamination of ground or surface 
waters'' and which requires that materials constituting a fire hazard 
be treated or buried to prevent sustained combustion. Section 
515(b)(22)(I) of SMCRA,\626\ which provides that excess spoil must be 
placed in a manner that meets ``all other

[[Page 44560]]

requirements of this Act,'' provides additional authorization for 
proposed paragraph (g)(3).
---------------------------------------------------------------------------

    \625\ 30 U.S.C. 1265(b)(14).
    \626\ 30 U.S.C. 1265(b)(22)(I).
---------------------------------------------------------------------------

Proposed Paragraph (h): Final Configuration
    Proposed paragraph (h) is the counterpart to existing paragraph 
(e)(3), which requires that the final configuration of the fill be 
suitable for the approved postmining land use. Proposed paragraph 
(h)(1) would add requirements that the final configuration of the fill 
be compatible with the natural drainage pattern and the surrounding 
terrain and, to the extent practicable, consistent with natural 
landforms. The added provisions would better implement section 
515(b)(22)(G) of SMCRA,\627\ which requires that the final 
configuration be ``compatible with the natural drainage pattern and 
surroundings and suitable for intended uses.''
---------------------------------------------------------------------------

    \627\ 30 U.S.C. 1265(b)(22)(G).
---------------------------------------------------------------------------

    Proposed paragraph (h)(2) is substantively identical to the 
provisions of existing paragraph (e)(3) concerning terracing.
    Proposed paragraph (h)(3)(i) would add a new requirement for the 
use of geomorphic reclamation principles for the final surface 
configuration of the fill. Specifically, it would require that the top 
surface of the fill be graded to create a topography that includes 
ridgelines and valleys with varied hillslope configurations when 
practicable, compatible with stability and postmining land use 
considerations, and generally consistent with the premining topography. 
Geomorphic reclamation principles are intended to produce a final 
surface configuration with greater erosional stability and more 
ecological benefits than other techniques. Proposed paragraph 
(h)(3)(ii) would allow the final surface elevation of the fill to 
exceed the elevation of the surrounding terrain when necessary to 
minimize placement of excess spoil in perennial and intermittent 
streams, provided the final configuration complies with the 
compatibility and postmining land use requirements of proposed 
paragraphs (a)(3) and (h)(1).
    Sections 515(b)(10)(B)(i) and 515(b)(24) of SMCRA provide the 
primary statutory authority for proposed paragraphs (h)(3)(i) and (ii). 
Section 515(b)(10)(B)(i) of SMCRA \628\ requires that surface coal 
mining operations be conducted to prevent, to the extent possible using 
the best technology currently available, additional contributions of 
suspended solids to streamflow or runoff outside the permit area. 
Section 515(b)(24) of SMCRA \629\ requires that, to the extent possible 
using the best technology currently available, surface coal mining and 
reclamation operations be conducted so as to minimize disturbances and 
adverse impacts of the operation on fish, wildlife, and related 
environmental values and to achieve enhancement of those resources 
where practicable.
---------------------------------------------------------------------------

    \628\ 30 U.S.C. 1265(b)(10)(B)(i).
    \629\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    Finally, we propose to add paragraph (h)(3)(iii), which would 
provide that the geomorphic reclamation requirements of paragraph 
(h)(3)(i) do not apply in situations in which they would result in 
burial of a greater length of perennial or intermittent streams than 
traditional fill design and construction techniques. Allowing use of 
reclamation techniques that would bury a greater length of stream than 
other techniques would not be consistent with section 515(b)(24) of 
SMCRA as discussed above.
Proposed Paragraph (i): Impoundments and Depressions
    Proposed paragraph (i) is the counterpart to existing paragraph 
(e)(4), which prohibits the construction of permanent impoundments on 
the completed fill and establishes criteria for the construction of 
small depressions on the surface of the fill. The proposed rule is 
substantively identical to the existing rule with the exception that we 
propose to further restrict the conditions under which small 
depressions may be constructed or retained on the completed fill. 
Specifically, we propose to allow small depressions only when they are 
consistent with the hydrologic reclamation plan approved in the permit 
in accordance with 30 CFR 780.22 and when infiltration resulting from 
those depressions would not result in elevated levels of parameters of 
concern (especially sulfate and other ions that increase specific 
conductance and electrical conductivity in streams) in discharges from 
the fill. The proposed revisions would assist in ensuring that 
discharges from the fill will not cause material damage to the 
hydrologic balance outside the permit area, in compliance with section 
510(b)(3) of SMCRA.\630\ It also would minimize ``disturbances to the 
prevailing hydrologic balance at the mine-site and in associated 
offsite areas and to the quality and quantity of water in surface and 
ground water systems'' as required by section 515(b)(10) of SMCRA.\631\
---------------------------------------------------------------------------

    \630\ 30 U.S.C. 1260(b)(3).
    \631\ 30 U.S.C. 1265(b)(10).
---------------------------------------------------------------------------

Proposed Paragraph (j): Surface Area Stabilization
    Proposed paragraph (j) is substantively identical to existing 
paragraph (g).
Proposed Paragraph (k): Inspections and Examinations
    Proposed paragraph (k) is the counterpart to existing paragraph 
(h), which establishes inspection requirements for excess spoil fills. 
We propose to revise the professional inspection requirements for 
excess spoil fills by specifying that the engineer or other specialist 
must conduct additional complete inspections during critical 
construction periods to ensure that the fill is constructed properly. 
Proposed paragraphs (k)(2)(i) and (ii) would require that the engineer 
or specialist conduct daily examinations during placement and 
compaction of fill materials and maintain a log of those examinations. 
Proposed paragraph (k)(3)(iii) would require that the certified report 
that the engineer or specialist submits for each complete inspection 
include a review and summary of the daily examination logs. If the 
report identifies any evidence of instability, structural weakness, or 
other hazardous conditions, proposed paragraph (k)(3)(ii) would require 
that the permittee submit an application for a permit revision that 
includes appropriate remedial design specifications. The proposed 
revisions are intended to ensure that excess spoil fills are 
constructed in compliance with the stability requirements of section 
515(b)(22) of SMCRA.\632\
---------------------------------------------------------------------------

    \632\ 30 U.S.C. 1265(b)(22).
---------------------------------------------------------------------------

    Placement of the underdrain and the placement of the filter are 
each considered critical construction phases. Therefore, two separate 
inspections are required if the underdrain is constructed first and the 
filter system is constructed later. However, these two phases can be 
concurrent, in which case one inspection may suffice for both phases. 
We invite comment on whether the rule should require additional 
specific oversight by the engineer when segregated, graded, natural 
material is used to construct the filter system.
    Finally, we propose to remove existing paragraph (h)(3)(ii), which 
pertains to durable rock fills constructed under 30 CFR 816.73, 
consistent with our proposal to prohibit that method of fill 
construction. The preamble concerning our proposed removal of 30 CFR 
816.73 explains our rationale for that proposed action.

[[Page 44561]]

Proposed Paragraph (l): Coal Mine Waste
    Proposed paragraph (l) would establish requirements for the 
disposal of coal mine waste in excess spoil fills. Proposed paragraph 
(l) is substantively identical to existing paragraph (i) except that we 
propose to add proposed paragraph (l)(1), which would allow disposal of 
coal mine waste in excess spoil fills only if the permittee 
demonstrates, and the regulatory authority finds in writing, that there 
is no credible evidence that the disposal of coal mine waste in the 
excess spoil fill will cause or contribute to a violation of applicable 
water quality standards or effluent limitations or result in material 
damage to the hydrologic balance outside the permit area. The proposed 
addition would assist in ensuring that the hydrologic balance 
protection requirements of sections 510(b)(3) and 515(b)(10) of SMCRA 
are met.\633\ In addition, we propose to add a cross-reference to 30 
CFR 816.81 to clarify that the coal mine waste must be placed in 
accordance with the general coal mine waste disposal requirements of 30 
CFR 816.81, not just the refuse pile requirements of 30 CFR 816.83.
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    \633\ 30 U.S.C. 1260(b)(3) and 1265(b)(10).
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Proposed Paragraph (m): Underground Disposal
    Proposed paragraph (m) is substantively identical to existing 
paragraph (j).
20. Why are we proposing to remove the provisions for rock-core chimney 
drains in existing 30 CFR 816.72(b)?
    We propose to remove existing 30 CFR 816.72(b) because mine 
operators are no longer constructing fills with rock-core chimney 
drains. A rock-core chimney drain is a vertical column of durable rock 
extending 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 few small fills 
constructed decades ago included rock-core chimney drains, but, to the 
best of our knowledge, the technique has not been used recently or on 
large fills.
    Our proposed removal of 30 CFR 816.72(b) would not prohibit the 
construction of head-of-hollow or valley fills without rock-core 
chimney drains. However, all proposed head-of-hollow and valley fills 
would have to meet the permitting requirements of proposed 30 CFR 
780.28 and 780.35. If approved, these fills would have to comply with 
the performance standards of proposed 30 CFR 816.71.
21. Why are we proposing to remove the provisions for durable rock 
fills in existing 30 CFR 816.73?
    Existing 30 CFR 816.73 allows excess spoil fills to be constructed 
by end-dumping, in which overburden is pushed or dumped over the side 
of the mountain to cascade into the valley below. In theory, the larger 
rocks roll to the bottom of the valley to form an underdrain by gravity 
segregation. We propose to remove this section for four reasons. First, 
further scrutiny of the statutory provisions governing disposal of 
excess spoil indicates that this method of fill construction does not 
comply fully with section 515(b)(22)(A) of SMCRA.\634\ That provision 
of SMCRA requires that surface coal mining and reclamation operations 
place all excess spoil material in such a manner that the ``spoil is 
transported and placed in a controlled manner in position for 
concurrent compaction and in such a way [as] to assure mass stability 
and to prevent mass movement.'' End-dumping of excess spoil relies upon 
gravity both for transport after dumping and to determine final 
placement, which does not comport well with the statutory requirement 
for transport and placement in a controlled manner.
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    \634\ 30 U.S.C. 1265(b)(22)(A).
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    Second, as discussed in the preamble to proposed 30 CFR 816.71(f), 
we have observed inconsistent formation of underdrains in durable rock 
fills. Non-functional underdrains may compromise the stability of the 
fill by raising the moisture content of the fill material, which 
increases the ability of that material to move. Saturated fills are 
prone to buckling and landslides.
    Third, as discussed in detail below, durable rock fills may 
increase the risk of flooding and associated damage because of the 
large size of the fill face and the length of time that the face 
remains unvegetated.
    Fourth, the lack of compaction during the construction of durable 
rock fills creates the potential for increased levels of total 
dissolved solids in discharges from those fills because of the greater 
amount of pore space and reactive surface compared with other types of 
fills. Higher levels of total dissolved solids in discharges from the 
fill translate to elevated electrical conductivity in streams 
downgradient of the fill. As summarized in Part II of this preamble, 
elevated electrical conductivity can adversely impact the capability of 
the stream to support certain species of benthic macroinvertebrates, 
which in turn reduces the capability of the stream to support species 
of fish dependent upon those macroinvertebrates as a food source.
    Therefore, we propose to refine our existing regulations by 
removing 30 CFR 816.73, which allows construction of durable rock fills 
by gravity transport and placement. With respect to other types of 
excess spoil fills, proposed 30 CFR 816.71(g) would require use of 
mechanized equipment to transport and place the excess spoil in lifts 
no greater than 4 feet, which would greatly increase both control and 
compaction. Increased compaction of the spoil placed in the fill would 
increase the density of each unit of excess spoil and thus decrease the 
amount of space that it occupies. The resulting reduction in the amount 
of spoil storage space needed would (or at least could) reduce the 
footprint of the fill, which should reduce the number and length of 
stream segments buried by the fill.
    Increased compaction also should reduce discharges of total 
dissolved solids and other parameters of concern, thus minimizing the 
adverse impacts on fish, wildlife, and related environmental values as 
required by section 515(b)(24) of the Act.\635\ Finally, construction 
of fills using mechanized methods of transport and placement would 
facilitate the special handling of acid-forming and toxic-forming 
materials, which should result in a reduction in the concentration and 
volume of toxic materials, such as selenium, in water discharged from 
the fill, which would further minimize adverse impacts on fish, 
wildlife, and related environmental values.
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    \635\ 30 U.S.C. 1265(b)(24).
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    As mentioned above, some durable rock fills have exacerbated 
flooding during and after precipitation events. Flooding may threaten 
public safety and cause property damage downstream of the fill. The 
following case studies describe how durable rock fills may contribute 
to flooding and damage from flooding.
Snap Creek, West Virginia
    On June 13, 2010, an area near the town of Man in Logan County, 
West Virginia, received approximately 4.8 inches of rain within 24 
hours. Flood-related damage occurred downstream from an end-dumped 
durable rock fill on the Snap Creek minesite (Permit S-5013-96) south 
of Man. Stormwater runoff flowing down the face of the fill completely 
filled the sedimentation pond near the toe of the fill. The sediment-
laden runoff then scoured the flood plain of the Left Fork of Rich 
Creek down to bedrock for a distance of

[[Page 44562]]

approximately 0.25 mile. The scoured material, along with spoil from 
the face of the fill, was deposited on the flood plain and along the 
stream channel for an additional 0.25 mile to its confluence with Rich 
Creek. Sedimentation continued along Rich Creek approximately 0.25 mile 
further to the stream's confluence with the Guyandotte River. No one 
was injured and little property damage occurred because most of the 
affected areas were uninhabited.
    The fill was being graded to its final configuration when the 
rainfall event occurred. The finer fractions of the soil exposed on the 
face of an end-dumped fill during final grading are very susceptible to 
erosion, particularly during heavy rainfall events. Protecting 
downstream areas from this type of mudflow at this stage of fill 
construction is nearly impossible, which provides additional 
justification for prohibiting the construction of durable rock fills.
Kayford South, West Virginia
    On June 13, 2010, a significant rainfall event occurred near the 
town of Dorothy in Raleigh County, West Virginia, resulting in 
flooding, erosion, and deposition of eroded mine spoil downstream from 
a durable rock fill associated with a surface mine (Permit S-3008-00). 
The event eroded the face of the fill, which was being graded for 
reclamation, with the sediment completely filling the sedimentation 
pond below the toe of the fill. After filling the pond, water and 
mobilized sediment flowed down Gardner Branch approximately 0.5 mile to 
the confluence with the Clear Fork of the Coal River. The flow scoured 
the stream channel and deposited sediment along the length of Gardner 
Branch. In this case, no one was injured and little property damage 
occurred because the affected areas were uninhabited.
    The fill was being graded to its final configuration when the 
rainfall event occurred. A primary issue at this site and other durable 
rock fills is the time lag between completion of excess spoil placement 
and final grading because of the top-down construction method. In this 
case, the lag was more than 2 years. During this time, the face of the 
fill was completely exposed and susceptible to erosion.
Lyburn, West Virginia
    On July 19, 2002, a flood event on Winding Shoals Branch in Lyburn, 
Logan County, West Virginia, destroyed ten residences and damaged 
vehicles and property. Stormwater runoff, rock, mud, and debris from a 
surface mine (Permit S-5023-93) flooded the narrow stream valley. The 
primary cause of the significant damage at Lyburn was the condition of 
the durable rock fill and its proximity to structures. At the time of 
the storm, the company was reclaiming this end-dumped fill. As is 
typical of an end-dumped durable rock fill during reclamation, soil and 
small rock particles on the face of the fill were exposed and highly 
susceptible to erosion.
    Our proposal to remove 30 CFR 816.73 and the authority that it 
provides to construct durable rock fills using end-dumping and gravity 
segregation is intended to prevent the recurrence of events like those 
discussed above. Fills constructed from the bottom up in accordance 
with 30 CFR 816.71 are much less susceptible to erosion and much less 
likely to contribute to flooding than are durable rock fills, which are 
constructed from the top down. The faces of fills constructed in 
accordance with 30 CFR 816.71 can be reclaimed and revegetated in 
stages, which reduces surface runoff and susceptibility to erosion, 
while the faces of durable rock fills cannot be reclaimed and 
revegetated until the fill is completed.
22. Section 816.74: What special requirements apply to the disposal of 
excess spoil on a preexisting bench?
    We propose to revise 30 CFR 816.74(a) to clarify that the term 
``preexisting bench'' applies only to features located on previously 
mined areas or on bond forfeiture sites. This term does not apply to 
benches created as part of an earlier phase of the mining operation 
that generated the excess spoil to be disposed of under this provision.
    We propose to revise 30 CFR 816.74(b) for consistency with our 
proposed changes to 30 CFR 780.12(e) and 816.22 concerning the removal, 
salvage, storage, and redistribution of soil and organic matter. We 
propose to revise 30 CFR 816.74(c) by adding a requirement that 
underdrains comply with proposed 30 CFR 816.71(f)(3). In addition, 
proposed 30 CFR 816.74(e)(2), which is the counterpart to existing 30 
CFR 816.74(d)(2), would require the use of all reasonably available 
spoil to eliminate all preexisting highwalls, consistent with the 
regulations governing backfilling and grading of previously mined areas 
under 30 CFR 816.106.
    Finally, we propose to remove the gravity-transport provisions in 
30 CFR 816.74(h) because this method of transporting spoil from one 
bench to another is not fully consistent with section 515(b)(22)(A) of 
SMCRA,\636\ which provides that all excess spoil material resulting 
from surface coal mining operations must be ``transported and placed in 
a controlled manner in position for concurrent compaction and in such a 
way to assure mass stability and to prevent mass movement.'' Gravity 
transport is not transport in a controlled manner.
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    \636\ 30 U.S.C. 1265(b)(22)(A).
---------------------------------------------------------------------------

23. Section 816.81: How must I dispose of coal mine waste?
Proposed Paragraph (a): General Requirements
    Proposed paragraph (a) is substantively identical to the first 
sentence of existing paragraph (a), except that we propose to add 
language requiring compliance with the refuse pile requirements of 30 
CFR 816.83 and the coal mine waste impounding structure requirements of 
30 CFR 816.84 when applicable.
Proposed Paragraph (b): Basic Performance Standards
    Proposed paragraph (b) would include the remaining provisions of 
existing paragraph (a). Proposed paragraph (b)(1) would revise existing 
paragraph (a)(1) to require that the coal mine waste disposal facility 
minimize adverse effects not only on the quality and quantity of 
surface water and groundwater as in the existing rule, but also on the 
biological condition of perennial and intermittent streams within the 
permit area to the extent possible, using the best technology currently 
available. Our proposed revisions are consistent with section 
515(b)(24) of SMCRA,\637\ which requires that, to the extent possible 
using the best technology currently available, surface coal mining and 
reclamation operations be conducted so as to minimize disturbances and 
adverse impacts of the operation on fish, wildlife, and related 
environmental values and to achieve enhancement of those resources 
where practicable.
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    \637\ 30 U.S.C. 1265(b)(24).
---------------------------------------------------------------------------

    We propose to add paragraph (b)(6), which would require that the 
coal mine waste disposal facility not change the size or frequency of 
peak flows from precipitation events or thaws in a way that would 
result in increased damage from flooding when compared with the impacts 
of premining peak flows. We also propose to add paragraph (b)(7), which 
would require that the coal mine waste disposal facility not preclude 
any existing or reasonably foreseeable use of surface water or 
groundwater or, for surface wates downstream of the

[[Page 44563]]

facility, preclude attainment of any designated use under section 
101(a) or 303(c) of the Clean Water Act.\638\ The proposed language 
parallels the terminology in our proposed definition of ``material 
damage to the hydrologic balance outside the permit area'' in 30 CFR 
701.5, which relies in large measure upon the status of existing, 
reasonably foreseeable, and designated uses of water. In addition, we 
propose to add paragraph (b)(8), which would require that the coal mine 
waste disposal facility not cause or contribute to an exceedance of any 
applicable water quality standards. Finally, we propose to add 
paragraph (b)(9), which would require that the disposal facility not 
discharge acid or toxic mine drainage.
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    \638\ 33 U.S.C. 1251(a) and 1313(c), respectively.
---------------------------------------------------------------------------

    The proposed addition of paragraphs (b)(6) through (9) is intended 
to improve implementation of sections 510(b)(3) and 515(b)(10) of 
SMCRA. Section 510(b)(3) \639\ prohibits approval of a permit 
application unless the applicant demonstrates and the regulatory 
authority finds that the proposed operation ``has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area.'' Section 515(b)(10) \640\ requires that surface coal mining and 
reclamation operations be conducted so as to ``minimize disturbances to 
the prevailing hydrologic balance at the mine-site and in associated 
offsite areas and to the quality and quantity of water in surface and 
ground water systems both during and after surface coal mining 
operations and during reclamation.'' The proposed revisions also are 
consistent with our proposed definition of ``material damage to the 
hydrologic balance outside the permit area'' in 30 CFR 701.5, which 
focuses on mining-related impacts to uses of groundwater and surface 
water. Finally, the proposed revisions are consistent with section 
702(a) of SMCRA,\641\ which provides that nothing in SMCRA may be 
construed as superseding, amending, modifying, or repealing the Clean 
Water Act or state laws enacted pursuant to the Clean Water Act.
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    \639\ 30 U.S.C. 1260(b)(3).
    \640\ 30 U.S.C. 1265(b)(10).
    \641\ 30 U.S.C. 1292(a).
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Proposed Paragraph (c): Coal Mine Waste From Outside the Permit Area
    Proposed paragraph (c) is substantively identical to existing 
paragraph (b).
Proposed Paragraph (d): Design and Construction Requirements
    Proposed paragraph (d) would include existing paragraph (c) in 
revised form. Proposed paragraph (d)((1)(i) would require that coal 
mine waste disposal facilities be constructed in accordance with 
current, prudent engineering practices and any criteria established by 
the regulatory authority. The existing regulations require that the 
design of the facility meet those requirements, but they do not address 
the construction process, which also is important in ensuring that the 
structure is stable and performs as intended.
    Proposed paragraph (d)(1)(ii) would require that, as part of the 
design certification, the engineer specifically certify that any 
existing and planned underground mine workings in the vicinity of the 
disposal facility will not adversely impact the stability of the 
structure. The Martin County Slurry Spill incident in Martin County, 
Kentucky on October 11, 2000, illustrates the magnitude of 
environmental damage that can result when impounded coal refuse slurry 
breaks through into adjacent underground mine workings that open to the 
surface. In this case, the mine openings discharged 306 million gallons 
of slurry into two tributaries of the Tug Fork River (Coldwater Fork 
and Wolf Creek). The slurry covered nearby residents' yards to a depth 
of as much as 5 feet, visibly polluted more than 100 miles of 
waterways, including the Big Sandy and Ohio Rivers, and devastated 
aquatic life in 70 miles of stream. Six public water intakes were 
adversely affected and alternative water supplies had to be arranged 
for 27,000 residents. Cleanup costs were approximately $59 
million.\642\
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    \642\ See http://www.sourcewatch.org/index.php?title=Martin_County_sludge_spill (last accessed February 
4, 2015) and http://www.jackspadaro.com/news_articles/2003/10_12_03/herald-leader10_12_03.html (last accessed February 4, 2015).
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    Proposed paragraph (d)(1)(ii) is intended to ensure that each coal 
mine waste disposal facility is designed to prevent similar events. 
This design requirement would benefit the public, the environment, and 
mine operators by reducing the probability of breakthroughs into 
underground mine workings and the environmental and property damage and 
cleanup expenses that may result from those breakthroughs.
    Proposed paragraph (d)(1)(iii) would require that the coal mine 
waste disposal facility be constructed in accordance with the design 
and plans submitted under 30 CFR 780.25 and approved in the permit and 
that a qualified registered professional engineer experienced in the 
design and construction of similar earth and waste structures certify 
that the facility has been constructed in accordance with the approved 
design. Proposed paragraph (d)(1)(iii) would provide additional 
safeguards for protection of the environment, public health and safety, 
and property. Thus, it would better implement section 102(a) of 
SMCRA,\643\ which states that one of the purposes of SMCRA is to 
``establish a nationwide program to protect society and the environment 
from the adverse effects of surface coal mining operations.'' To the 
extent that proposed paragraph (d)(1)(iii) would improve stability, it 
also would improve implementation of section 515(b)(11) of SMCRA,\644\ 
which requires that all waste piles be stabilized in designated areas, 
and sections 515(b)(13) and 515(f) of SMCRA,\645\ which include 
provisions intended to ensure that coal mine waste impoundments are 
constructed in a manner that would protect public safety and public and 
private property. And the proposed revisions would be consistent with 
section 515(b)(23) of SMCRA,\646\ which requires surface coal mining 
and reclamation operations to ``meet such other criteria as are 
necessary to achieve reclamation in accordance with the purposes of 
this Act, taking into consideration the physical, climatological, and 
other characteristics of the site.''
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    \643\ 30 U.S.C. 1202(a).
    \644\ 30 U.S.C. 1265(b)(11).
    \645\ 30 U.S.C. 1265(b)(13) and (f).
    \646\ 30 U.S.C. 1265(b)(23).
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Proposed Paragraph (e): Foundation Investigations
    Proposed paragraph (e) is substantively identical to existing 
paragraph (d), except that we propose to add language requiring that 
the analysis of foundation conditions for the coal mine waste disposal 
facility take into consideration the effect of any underground mine 
workings located in either the permit area or the adjacent area. The 
rationale for this proposed change is the same as the rationale for 
proposed paragraph (d), as discussed above.
Proposed Paragraph (f): Soil Handling Requirements
    Proposed paragraph (f) would require that vegetation, organic 
matter, and soil materials be salvaged, stored, and redistributed or 
otherwise handled in accordance with proposed 30 CFR

[[Page 44564]]

816.22. While 30 CFR 816.22 would apply in the absence of this rule, 
the addition of this paragraph would reaffirm the applicability of that 
rule to coal mine waste disposal facilities.
Proposed paragraphs (g) and (h): Emergency Procedures and Underground 
Disposal
    Proposed paragraphs (g) and (h) are substantively identical to 
existing paragraphs (e) and (f), respectively.
24. Section 816.83: What special performance standards apply to coal 
mine waste refuse piles?
    Proposed 30 CFR 816.83 is substantively identical to existing 30 
CFR 816.83 except as discussed below. We propose to revise paragraph 
(b), which includes existing paragraph (a), to specify that the refuse 
pile must be constructed with the diversions and underdrains included 
in the approved design.
    In proposed paragraph (b)(3), which corresponds to part of existing 
paragraph (a)(2), we propose to add a requirement that diversion 
channels be designed using the appropriate regional NRCS synthetic 
storm distribution to determine the peak flow from surface runoff from 
a 100-year, 6-hour precipitation event. The preamble to proposed 30 CFR 
780.29 explains the rationale for this proposed requirement.
    We propose to remove existing paragraph (c)(1) because it 
duplicates the soil handling requirements of proposed 30 CFR 816.81, 
which 30 CFR 816.83(a) cross-references.
    In proposed paragraph (d)(2), which corresponds to existing 
paragraph (c)(3), we propose to delete language in the existing rule 
that allows the creation and retention of small depressions on the 
completed refuse pile. Removal of this provision is justified because 
depressions promote infiltration and because discharges filtered 
through coal mine waste typically contain higher levels of total 
dissolved solids, metals, and other parameters of concern than 
discharges filtered through mine spoil. The proposed revision would 
improve implementation of sections 510(b)(3) and 515(b)(10) of 
SMCRA.\647\ Section 510(b)(3) \648\ prohibits approval of a permit 
application unless the applicant demonstrates and the regulatory 
authority finds that the proposed operation ``has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area.'' Section 515(b)(10) \649\ requires that surface coal mining and 
reclamation operations be conducted so as to ``minimize disturbances to 
the prevailing hydrologic balance at the mine-site and in associated 
offsite areas and to the quality and quantity of water in surface and 
ground water systems both during and after surface coal mining 
operations and during reclamation.''
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    \647\ 30 U.S.C. 1260(b)(3) and 1265(b)(10).
    \648\ 30 U.S.C. 1260(b)(3).
    \649\ 30 U.S.C. 1265(b)(10).
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    In proposed paragraph (e), which corresponds to existing paragraph 
(d), we propose to delete the existing inspection standards and 
requirements and replace them with a cross-reference to the 
corresponding inspection and examination requirements for excess spoil 
fills that we propose to adopt as part of 30 CFR 816.71. Excess spoil 
fills and coal mine waste refuse piles are similar structures in terms 
of engineering needs and requirements. Therefore, they should have 
identical inspection and examination requirements.
25. Section 816.84: What special requirements apply to coal mine waste 
impounding structures?
    Proposed 30 CFR 816.84 is substantively identical to existing 30 
CFR 816.84 except as discussed below. Proposed paragraph (b), which is 
the counterpart to existing paragraph (a), would clarify that coal mine 
waste may not be used to construct impounding structures unless the use 
of coal mine waste will not result acid drainage or toxic seepage 
through the impounding structure. The existing rule only refers to acid 
seepage. Our proposed revision of the scope of this rule to include 
toxic seepage is appropriate because section 515(b)(10)(A) of SMCRA 
\650\ requires avoidance of ``acid or other toxic mine drainage.'' We 
also propose to replace the term ``acid seepage'' in the existing rule 
with ``acid drainage'' because that is the term that we define in 30 
CFR 701.5. However, we propose to use the term toxic seepage in 
recognition of the mechanism by which we anticipate that any toxic mine 
drainage might develop.
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    \650\ 30 U.S.C. 1265(b)(10)(A).
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    Proposed paragraph (e), which is the counterpart to existing 
paragraph (d), would specify that diversions must be both designed and 
constructed to meet the requirements of 30 CFR 816.43. The existing 
rule contains only the design requirement. The performance standards of 
30 CFR 816.43 apply to all diversions subject to regulation under SMCRA 
and our proposed revision would reiterate that principle. We also 
propose to specify that the diversions must be designed using the 
appropriate regional NRCS synthetic storm distribution to determine the 
peak flow from surface runoff from a 100-year, 6-hour precipitation 
event. The preamble to proposed 30 CFR 780.29 explains the rationale 
for this proposed requirement.
    Finally, we propose to move existing paragraph (e) to 30 CFR 
780.25(d) because it is a permitting requirement rather than a 
performance standard. Our goal is to move permitting requirements now 
located in the performance standards of subchapter K to the permitting 
provisions of subchapter G whenever feasible.
26. Section 816.95: How must I protect surface areas from wind and 
water erosion?
    We propose to revise 30 CFR 816.95(b) to replace the references to 
topsoil with references to soil and soil substitutes to be consistent 
with 30 CFR 780.12(e) and 816.22(c), which allow the use of topsoil and 
subsoil substitutes and supplements under certain conditions.
27. Section 816.97: How must I protect and enhance fish, wildlife, and 
related environmental values?
    Unless otherwise noted, our proposed substantive revisions to 30 
CFR 816.97, as discussed below, are intended to more fully implement 
section 515(b)(24) of SMCRA,\651\ which provides that ``to the extent 
possible using the best technology currently available'' surface coal 
mining and reclamation operations must be conducted so as to ``minimize 
disturbances and adverse impacts of the operation on fish, wildlife, 
and related environmental values, and achieve enhancement of such 
resources where practicable.'' A few of the proposed revisions also 
would provide more detail on the measures and procedures needed to 
ensure compliance with the Endangered Species Act. Proposed 
requirements for the use of native species and reforestation would more 
completely implement section 515(b)(19) of SMCRA,\652\ which requires 
establishment of a ``permanent vegetative cover of the same seasonal 
variety native to the area of land to be affected and capable of self-
regeneration and plant succession.''
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    \651\ 30 U.S.C. 1265(b)(24).
    \652\ 30 U.S.C. 1265(b)(19).
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Proposed Paragraph (a): General Requirements
    Proposed paragraph (a) would require that the permittee, to the 
extent possible using the best technology currently available, minimize 
disturbances and adverse impacts on fish, wildlife, and related 
environmental values and

[[Page 44565]]

achieve enhancement of those resources where practicable, as described 
in detail in the fish and wildlife protection and enhancement plan 
approved in the permit in accordance with 30 CFR 780.16. Proposed 
paragraph (a) is substantively identical to both section 515(b)(24) of 
SMCRA \653\ and to existing paragraph (a), with the exception that we 
propose to add a reminder that the permittee must comply with the fish 
and wildlife protection and enhancement plan approved in the permit.
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    \653\ 30 U.S.C. 1265(b)(24).
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Proposed Paragraph (b): Species Listed or Proposed for Listing as 
Threatened or Endangered
    Existing 30 CFR 816.97(b) and (d) contain provisions that pertain 
to threatened and endangered species. We propose to consolidate those 
provisions in proposed paragraph (b). Proposed paragraph (b)(1) would 
set forth requirements concerning species that the U.S. Fish and 
Wildlife Service has listed or proposed for listing under the 
Endangered Species Act.
    Proposed paragraphs (b)(1)(i) through (iii) are substantively 
identical to the requirements of existing 30 CFR 816.97(b) with respect 
to federally-listed species, with four exceptions. First, we propose to 
replace the terms ``consult'' and ``consultation'' in the existing 
regulations with ``contact and coordinate'' and ``in coordination 
with'' to clarify that, in this context, these regulations do not refer 
to consultation under section 7(a)(2) of the Endangered Species Act.
    Second, we propose to expand the scope of paragraph (b)(1)(i) to 
include species proposed for listing as threatened or endangered under 
the Endangered Species Act, not just species actually listed under that 
law. We are proposing this change in response to discussions with the 
U.S. Fish and Wildlife Service. The proposed change is consistent with 
section 7(a)(4) of the Endangered Species Act, which provides that 
``[e]ach Federal agency shall confer with the Secretary on any agency 
action which is likely to jeopardize the continued existence of any 
species proposed to be listed under section 4 or result in the 
destruction or adverse modification of critical habitat proposed to be 
designated for such species.'' It also would assist in implementing the 
fish and wildlife protection provisions of sections 515(b)(24) and 
516(b)(11) of SMCRA. The conferencing requirement of section 7(a)(4) of 
the Endangered Species Act is not the same as the consultation 
requirement for threatened and endangered species under section 7(a)(2) 
of the Endangered Species Act.
    Third, in proposed paragraph (b)(1)(ii), we propose to add a 
sentence clarifying that the requirement that the permittee report to 
the regulatory authority the presence of any federally-listed 
threatened or endangered species within the permit area applies 
regardless of whether the species was listed before or after permit 
issuance. We also propose to expand this notification requirement to 
apply to both the permit area and the adjacent area, not just the 
permit area as under the existing rule. We are proposing this change in 
response to discussions with the U.S. Fish and Wildlife Service 
concerning compliance with the Endangered Species Act.
    We are considering whether to limit the notification requirement of 
proposed paragraph (b)(1)(ii) to the active mining phase of the 
operation; i.e., whether the final rule should specify that the 
notification requirement expires at the time of Phase II bond release 
because of the typical lack of activity on the site after that stage of 
reclamation. We invite comment on this question.
    Fourth, in proposed paragraph (b)(1)(iii)(A), we propose to add a 
requirement that the regulatory authority issue a permit revision order 
under 30 CFR 774.10(b) when necessary to implement the results of the 
coordination process with state and federal fish and wildlife agencies 
following receipt of notification under proposed paragraphs (b)(1)(ii) 
and (iii). This requirement would apply only when revision of the 
operation and reclamation plan approved in the permit is necessary to 
ensure protection of federally-listed threatened and endangered 
species.
    Proposed paragraph (b)(1)(iv) would expressly require compliance 
with any species-specific protective measures required by the 
regulatory authority in coordination with the U.S. Fish and Wildlife 
Service. While proposed paragraph (b)(1)(iv) would be a new regulation, 
the requirement itself is a longstanding component of the result of a 
formal section 7(a)(2) consultation under the Endangered Species Act 
with respect to the continuation and approval of surface coal mining 
and reclamation operations under a SMCRA regulatory program.
    Proposed paragraph (b)(1)(v) is substantively identical to those 
elements of existing paragraph (d) that pertain to the Endangered 
Species Act; i.e., it would provide that nothing in our regulations 
authorizes the taking of a threatened or endangered species in 
violation of the Endangered Species Act. Only the U.S. Fish and 
Wildlife Service may quantify allowable take of species listed as 
threatened or endangered.
    Proposed paragraph (b)(2) would set forth requirements pertaining 
to species listed as threatened or endangered under state statutes 
similar to the Endangered Species Act. It would include reporting and 
related requirements analogous to those of proposed paragraphs 
(b)(1)(ii) and (iii).
Proposed Paragraph (c): Bald and Golden Eagles
    Existing paragraphs (c) and (d) both contain provisions that 
pertain to bald and golden eagles. We propose to consolidate those 
provisions in proposed paragraph (c). Proposed paragraphs (c)(1) 
through (3) are substantively identical to existing paragraph (c). 
Proposed paragraph (c)(4) would consist of those elements of existing 
paragraph (d) that pertain to the Bald and Golden Eagle Protection Act; 
i.e., it would provide that nothing in our regulations authorizes the 
taking of a bald or golden eagle, its nest, or its eggs in violation of 
the Bald and Golden Eagle Protection Act.
Proposed Paragraph (d): Miscellaneous Protective Measures for Other 
Species of Fish and Wildlife
    We propose to redesignate existing paragraph (e), which contains 
miscellaneous provisions relating to protection of fish and wildlife in 
general, as paragraph (d). Proposed paragraph (d)(1) is substantively 
identical to existing paragraph (e)(1) with one exception. We propose 
to remove the clause allowing the regulatory authority to determine 
that is unnecessary to ensure that electric power transmission lines 
and other transmission facilities used for, or incidental to, surface 
mining activities on the permit area are designed and constructed to 
minimize electrocution hazards to raptors. We are not aware of any 
situations in which these precautions are not necessary or appropriate. 
We also propose to expand the scope of this paragraph to include all 
avian species with large wingspans, not just raptors, consistent with 
recommendations of the Avian Power Line Interaction Committee in a 2006 
publication,\654\ which found that non-raptor avian species with large 
wingspans including, but not limited to,

[[Page 44566]]

ravens, magpies, storks, and cranes, are subject to electrocution by 
power lines.
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    \654\ Avian Power Line Interaction Committee (APLIC). 2006. 
Suggested Practices for Avian Protection on Power Lines: The State 
of the Art in 2006. Edison Electric Institute, APLIC, and the 
California Energy Commission. Washington, DC and Sacramento, CA.
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    Proposed paragraph (d)(2) would require that the permittee locate, 
construct, operate, and maintain haul and access roads and 
sedimentation control structures in a manner that avoids or minimizes 
impacts on important fish and wildlife species or other species 
protected by state or federal law. It is substantively identical to 
existing paragraph (e)(2), except that we propose to add the words 
``construct'' and ``maintain'' to be more consistent with the language 
of section 515(b)(17) of SMCRA,\655\ which requires that surface coal 
mining and reclamation operations be conducted so as to ``insure that 
the construction, maintenance, and postmining conditions of access 
roads into and across the site of operations will control or prevent 
erosion and siltation, pollution of water, damage to fish or wildlife 
or their habitat, or public or private property.'' We also propose to 
apply the requirements of proposed paragraph (d)(2) to sedimentation 
control structures to more effectively implement the fish and wildlife 
protection requirements of section 515(b)(24)