DEPARTMENT OF THE INTERIOR (DOI) Office of Surface Mining Reclamation and Enforcement (OSMRE)

Surface Coal Mining and Reclamation Operations, Permanent Regulatory Program; [4310-05-M] Title 30 Mineral Resources CHAPTER VII; INTRODUCTION

CITE: 44 Fed. Reg. 14,902
DATE: March 13, 1979
AGENCY: Office of Surface Mining Reclamation and Enforcement
ACTION: Permanent Program Final Preamble (Introduction) -- Final Rule

SUMMARY: The Office of Surface Mining Reclamation and Enforcement of the U.S. Department of the Interior ("OSM'' or "the Office'') adopts final regulations in this Chapter to implement a nationwide permanent program for the regulation of coal exploration and surface coal mining and reclamation operations and the surface effects of underground coal mining by the States and the Federal Government, as required by Title V of the Surface Mining Control and Reclamation Act of 1977 ("SMCRA'' or "the Act'').

EFFECTIVE DATE: April 12, 1979, except as stated below in Paragraph 8 under discussion of "Approval of Other Agencies.

SUPPLEMENTARY INFORMATION: ADDRESSES: (1) Director, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, South Building, 1951 Constitution Avenue, N.W., Washington, D.C. 20240; (2) Administrative Record Office, Room 120, South Building, 1951 Constitution Avenue, N.W., Washington, D.C. 20240; telephone number 202 343 4728.

FOR FURTHER INFORMATION CONTACT:
Mr. Richard M. Hall, Assistant Director, Inspection and Enforcement (Subchapters A and L); Mr. Carl Close, Assistant Director, State and Federal Programs (Subchapters C, D, and F); Dr. David R. Maneval, Assistant Director, Technical Services and Research (Subchapters G, J, K, and M), Office of Surface Mining, U.S. Department of the Interior, South Building, 1951 Constitution Avenue, N.W., Washington, D.C. 20240. Telephone numbers: Hall, 202 343 4217, Close, 202 343 4225, and Maneval, 202 343 4264.

SUPPLEMENTARY INFORMATION: This document contains the final rules promulgated by the Office which implement the permanent regulatory program under SMCRA. Also included are the rationale, supporting technical references, and discussion of the alternatives used or considered by the Office in the formulation of final rules.

The final rules are issued to fulfill the Act's Congressional directive that the Secretary promulgate regulations implementing a permanent regulatory program for surface coal mining and reclamation operations. The permanent regulatory program is the second stage of the phased implementation of the Act as intended by Congress. Major categories included in the final rules are regulations specifying performance standards and design criteria, procedures and requirements for the submission of State programs, procedures governing the implementation of a Federal program for States without an approved State program, and procedures and the requirements for the regulation of surface coal mining and reclamation operations on Federal lands. In addition, these final rules contain provisions regarding applications for and issuance of coal exploration approvals and surface and underground coal mining and reclamation operations permits, blasting procedures, standards for performance bonds, and provisions for inspection, enforcement, and assessment of civil penalties.

Table of Contents

This table of contents is presented here as a reader aid. It is designed to give the reader a comprehensive view of the contents of this document. ***

{14907}Background

Throughout the implementation of the initial program (42 FR 62639 62716, December 13, 1977) and the promulgation of final rules to implement a permanent regulatory program, the Office has been guided by the intent of Congress that the States assume the lead in achieving the

purposes of the Act. Section 503(a) of the Act requires States to submit permanent program applications by February 3, 1979. However, under Section 504(a), the Secretary may extend the date for State permanent program applications up to an additional 6 months, if submission of the application requires an act of the State legislature. This extension has been granted to all States where coal is currently mined. Thus, States have until August 3, 1979, to submit programs to the Secretary for approval. In addition, under Section 503 of the Act, a total of 10 months (6 months for initial review and 4 months for resubmission and reconsideration) may elapse before final Secretarial approval or denial of a State program. Thus, by June 3, 1980, a State program must be approved, or a Federal program implemented, in each State.

Under the permanent regulatory program all requirements of the Act are implemented and apply to all surface coal mining and reclamation operations in the Nation except those exempted by the Act. The full complement of permit and bond requirements and performance standards will apply to surface coal mining and reclamation operations upon issuance of a permit under a State or Federal program. The Act provides that 2 months after approval of a State program or implementation of a Federal program, each operator who wishes to continue to mine must apply for a new permit. Six months thereafter the regulatory authority is required to act on the application. However, an operator who has timely applied for a permit under the permanent program can operate under his or her initial program permit beyond the deadline until the State acts on his or her application, if the requirements of 30 CFR 771.13 are met. This means that for non-Federal and non-Indian lands, the coal mining and reclamation operations must have new permits and bonds and be in compliance with the full range of performance standards no later than February 3, 1981. If State programs are approved before June 3, 1980, or a Federal program is implemented before that date, the application of the full requirements of the Act to surface coal mining and reclamation operations will occur earlier than February 3, 1981.

On Federal lands, performance standards will apply to existing operations 6 months after the effective date of the regulations, or approximately mid-September 1979. If mine plan revisions are required, compliance with those performance standards which make the mine plan revisions necessary and such revisions must occur within 1 year following the effective date of the regulations. Permanent program permits for existing mines on Federal lands are required 8 months after approval of a State program or implementation of a Federal program for the State in which the Federal lands are located. Following the effective date of regulations, new mines on Federal lands must obtain a permit under the permanent regulatory program.

Surface coal mining operations on Indian lands are not regulated under the permanent regulatory program. Regulations which currently apply to surface coal mining operations on Indian lands were published on December 16, 1977 (42 FR 63394 63410), and are found at 25 CFR Part 177.

Public Participation

{14908}Throughout the development of these final rules, the Office has solicited and given substantial consideration to the comments and recommendations received from the public. Following the release of the preproposed draft of final rules on July 3, 1978, and July 21, 1978, the Office held informal public hearings and was available for meetings with the public. The Office's administrative record was opened to receive written comments through August 18, 1978. Changes occurring between the texts of the preproposed and proposed permanent rules published on September 18, 1978, resulting from comments received during that period, were discussed in the preamble to the proposed rules (see 43 FR 41662 41663, September 18, 1978). 700

The final public comment period on the proposed rules began on the date of promulgation, September 18, 1978, and was originally scheduled to close at 5 p.m., November 17, 1978 (43 FR 41662, September 18, 1978). However, because the Office later determined that several pieces of technical literature referred to in the proposed rules were unavailable for inspection as of the 30th day prior to the close of the comment period, the closing date was then extended to 5 p.m., November 27, 1978. The Office also held one additional public hearing in Washington, D.C., on November 22, 1978, on the proposed rules (43 FR 50407, October 27, 1978).

Public Hearings

During the comment period on the proposed rules, 25 days of public hearings were held to receive oral and written comments on the regulations and regulatory analysis (see discussion of regulatory analysis, infra ). Transcripts of testimony were placed in the administrative record and processed in the same manner as all other written comments. Public hearings were held in Washington, D.C.; Charleston, West Virginia; Knoxville, Tennessee; Kansas City, Missouri; Indianapolis, Indiana; and Denver, Colorado.

Public Meetings

In response to specific requests, the Office and the Assistant Secretary for Energy and Minerals held a total of 57 public meetings on the substance of the proposed rules with State agencies or organizations, industry representatives, environmental groups, and other Federal agencies between September 18 and November 27, 1978. To the maximum extent possible, advance public notice was posted in the Administrative Record Office (Room 120), Office of Surface Mining, indicating the date, time, place, topic, and parties involved. A summary of each meeting was filed by a departmental or Office participant, incorporated in the administrative record, and processed as a written comment. A list of such meetings and the summary of each are available in the Administrative Record Office.

Analysis of Public Comments

The Office received 589 written comments on the proposed regulations from individuals, organizations, and government agencies. Beginning in early November 1978, the Office organized 22 task groups comprised of more than 100 technical experts from the Office and more than 20 other agencies. The groups were assigned specific topics, parts, and sections of the proposed rules and were responsible for analyzing comments and developing recommendations in their area of expertise. Control mechanisms were used to track the referral of comments to the various groups and to insure that all comments were considered. In addition to the comments received on the proposed rules, comments on the preproposed drafts which were received after the August 18, 1978, deadline and were not previously considered, were included in this process. Also included were two comments (from the Arizona Public Service Commission and the Council on Environmental Quality) received within 2 hours after the close of the official comment period at 5 p.m., November 27, 1978. The Office determined that the commenters made a good faith effort to hand-deliver their comments by 5 p.m.

During the official comment period, the Office received comments on the proposed rules from the Council of Economic Advisors (CEA) as incorporated in the Council of Wage and Price Stability report submitted on behalf of the Regulatory Analysis Review Group (RARG). The Secretary, pursuant to Executive Order 12044 and after consultation with the Executive Office of the President and the U.S. Department of Justice, Office of Legal Council, decided to consult with CEA prior to promulgation of final regulations. On January 4, 1979, the Office made a catalog of all oral and written contacts between CEA and parties outside the Executive Office of the President available for public review (44 FR 1355, January 4, 1979). Copies of the catalog were made available in the Administrative Record Office at the Central Office and all five Regional Offices. The administrative record was reopened to accept public comments addressing the substance of the information contained in the catalog and the relationship of the catalog to the proposed regulations and RARG's comments received on November 27, 1978. This announcement also stated that all written comments must be received by 5 p.m., January 22, 1979, in order to be considered or included in the administrative record.

Comments received were given the following consideration. Each comment was forwarded to the appropriate Assistant Director(s) having expertise on, or primary administrative responsibility for, the relevant subject. Control mechanisms were used to insure that all timely comments were considered. Comments received after the deadline were not considered or included in the administrative record.

The preamble to the final rules contains the bases and purposes, alternatives considered, and decisions made by the Office in responding to significant comments. The Office considered significant comments to be those urging the adoption of viable alternatives or questioning the provisions in the proposed regulations, which provided reasonable rationale, justification, technical references, or other materials supporting the recommendations or comments. Insignificant comments, that is, those of a more general nature or those which proposed changes found to be inconsistent with the requirements of the Act, are included in the administrative record but are not discussed in the preamble.

Approval of Other Agencies

The Act and other Federal statutes, regulations, and Executive Orders require the Secretary, prior to promulgation of the final rules, to obtain written concurrence or comments from certain Federal agencies. These agencies include the U.S. Environmental Protection Agency; the U.S. Department of Agriculture; the U.S. Army Corps of Engineers; the U.S. Department of Labor; the Director, Federal Register; the U.S. Fish and Wildlife Service; and the Advisory Council on Historic Preservation. All concurrences necessary have been obtained and are on file in the administrative record. In addition, under Section 201(e) of the Act and 44 U.S.C. 3502 and 3512, the Office must obtain the approval of the U.S. Government Accounting Office (GAO) for public recordkeeping and reporting requirements established by the regulations.

The requirements for concurrence or comment on the final rules by the foregoing agencies are as follows:

1. Sections 501(a)(B) and (b) of the Act require the written concurrence of the Administrator of the Environmental Protection Agency for regulations relating to air or water quality standards promulgated under the Clean Water Act and the Clean Air Act. By letter dated February 14, 1979, the Administrator of the Environmental Protection Agency concurred with the Office's regulations.

{14909}2. Section 510(d)(1) of the Act states that, under regulations issued by the Secretary with the concurrence of the Secretary of Agriculture, the regulatory authority shall follow certain procedures in granting permits for surface coal mining operations on prime farmland. The regulations concerning issuance of permits on prime farmland have been developed in consultation with the Secretary of Agriculture in accordance with Section 510(d)(1). By letter dated March 1, 1979, the Secretary of Agriculture concurred with the prime farmland provisions of the regulations.

3. Section 515(f) of the Act requires that regulations pertaining to coal mine waste piles and dams be promulgated with the written concurrence of the Chief of Engineers, U.S. Army Corps of Engineers. By letter dated February 15, 1979, the Chief of Engineers concurred with the regulations.

4. Section 516(a) of the Act states that the Secretary shall promulgate rules and regulations directed toward the surface effects of underground coal mining operations and requires that such rules and regulations shall not conflict with or supersede any provision of the Federal Coal Mine Health and Safety Act of 1969 or any regulation issued pursuant thereto. The written concurrence of the head of the department which administers the Act is required before final rules may be promulgated. By letter dated February 21, 1979, the Secretary of Labor concurred with these regulations.

5. Under 5 USC 522(a) the Office is required to consult with and receive the approval of the Director of the Federal Register for the incorporation by reference of materials into the text of the final rules. The Office filed a written request for approval of the Director of the Federal Register for incorporating by reference materials in the following Sections: 700.5, 785.17(b)(1), 785.19(e)(3)(i), 816.49(a)(5), 816.65(f)(2), 816.65(g), 816.97(c), 817.49(a)(5), 817.97(c). By letter dated February 7, 1979, the Director of the Federal Register has approved the Office's request.

6. The Office initiated consultation with the U.S. Fish and Wildlife Service pursuant to Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., by memorandum of September 21, 1978. By letter of January 26, 1979, the Director, U.S. Fish and Wildlife Service, filed a Biological Opinion with the Office stating that the final regulations will not jeopardize the continued existence of endangered species and threatened species or result in the destruction or modification of habitat of such species.

7. The Office initiated consultation with the Advisory Council on Historic Preservation, under Section 106 of the National Historic Preservation Act and Executive Order 11593, by memorandum of September 21, 1978. A public meeting between representatives of the Advisory Council and the Office was held on November 2, 1978. The Office received written comments from the Advisory Council on November 27, 1978.

8. Under Section 201(e) of the Act (30 U.S.C. 1211(e)), OSM is considered an independent Federal regulatory agency for the purposes of 44 U.S.C. 3502 and 3512. As a result, all of the permanent regulations which impose recordkeeping and reporting requirements on members of the public have been submitted to the General Accounting Office (GAO) for clearance pursuant to its regulations (4 CFR Part 10).

Some Sections of the permanent regulations require the collection, submission, or retention of certain categories of information by the States, operators, or the general public. Other Sections sponsor, through the States, such collection, submission, or retention of information. The purpose of GAO review is to assure that the required information is obtained with a minimum of burden on the public and that unnecessary duplication of effort in providing the information is eliminated.

OSM has identified the following Sections of the final regulations that impose recordkeeping and reporting requirements. The Sections listed below are adopted subject only to clearance by GAO, pursuant to 44 U.S.C. 3512. These particular Sections of the regulations will not be effective until OSM publishes a notice of clearance by GAO.

Subchapter A

Sections 700.12(b), 700.13, 707.12.

Subchapter C

Sections 730.12(b), 731.12(a), 731.13, 731.14, 732.11(d), 732.13(f), 732.14, 732.16(a) and (b), 732.17(b), (f), and (g), 733.12(a)(2).

Subchapter D

Sections 741.11(a)(1), 741.11(c)(1), 741.12(c), 741.13(c), 741.15(a)(1), 741.15(b)(1), 741.21(b), 741.23(c), 741.24(b), 742.11(a), 742.13(a), 742.18(c), 742.18(d), 743.11(b), 745.11(a) and (b), 745.15(a), 745.16. Subchapter F

Sections 761.12(b)(2), (d), (e) and (f), 764.11, 764.13(b) and (c), 764.15(a)(1), (2), (4), (5) and (6), 764.15(b)(1) and (2), 764.15(c) and (d), 764.17(a), (b), (c) and (e), 764.19(b), 764.21, 764.25(b), 769.11, 769.13.

Subchapter G

Sections 771.15(c), 771.21(a)(1), 771.21(b)(2) and (3), 771.23, 776.11 and 12, 776.14, 778.13 21, 779.11 27, 780.11 37, 782.13 21, 783.11 27, 784.11 25, 785.13(e), (f), (g), and (h), 785.14 22, 786.11(a), (b), (c), and (d), 786.12 23(d), 788.11 19.

Subchapter J

Sections 800.11, 800.12, 805.14(a) and (b), 806.11(b), 806.14, 807.11(a), 807.11(c), 807.11(e), 807.11(f), 807.11(g), 808.12.

Subchapter K

Sections 816.46(c)(4), 816.46(r), 816.46(t), 816.49(h), 816.52(a)(3), 816.52(b)(1)(iii), 816.53(a), 816.64, 816.65(a)(2)(iii), 816.67, 816.68, 816.71(j), 816.82(a)(4) and (b), 816.87, 816.91(b), 816.117(b)(4), 816.117(c)(1) and (c)(3), 816.131(b), 816.133(c)(1) (4) and (c)(8) (9), 816.150(d)(1), 816.152(d)(13), 816.160(d)(1), 816.163(d), 817.46(c)(4), 817.46(r), 817.46(t), 817.49(h), 817.52(a)(3), 817.52(b)(1)(iii), 817.53(a), 817.62, 817.65(b)(2)(iii), 817.67, 817.68, 817.71(j), 817.82(a)(4) and (5), 817.87, 817.91(b), 817.117(b)(4), 817.117(c)(1)(c)(3), 817.131(b), 817.133(c)(1) (4) (c)(8) and (9), 817.150(d)(1), 817.152(d)(13), 817.160(d)(1), 817.163(d), 822.14(a) and (d), 826.12(b).

Subchapter L

Sections 840.11(a), (c), and (d)(3), 840.14(a) and (b), 842.12(a), 842.14, 842.15(a) and (b), 843.11(a)(2), (b)(2)(c) and (f), 843.12(a)(2), (b) and (e), 843.13(c), (d) and (e), 843.14(a) (d), 843.15(d) and (f), 843.16, 845.17(a) and (b), 845.18(c) and (d), 845.19(a).

Environmental Impact Statement

A draft Environmental Impact Statement (EIS) was prepared pursuant to Section 102(2)(C) of the National Environmental Policy Act of 1969 and Section 702(d) of the Act. The draft EIS was filed with the Environmental Protection Agency (EPA) and made available to the public on October 4, 1978. Comments were received until November 27, 1978. Public hearings were held on the draft EIS in Washington, D.C., on October 31, 1978; in Indianapolis, Indiana, on November 1, 1978; and in Denver, Colorado, on November 2, 1978. The final EIS was filed with EPA and made available to the public on January 29, 1979. Comments received on the EIS which related to the substance of a rule were processed by the task groups, as were comments on the regulations, in order to integrate environmental issues raised by EIS comments with environmental factors considered in the development of the regulations. All comments on the draft EIS were responded to in the final EIS.

{14910}The final EIS analyzes the preferred alternative regulations at Appendix C and programmatic alternatives to the preferred alternative in Part A, VI and Part B, IV. The environmental analyses of the preferred alternative and alternatives to it contained in the final EIS are integrated into this preamble and were before OSM, other Departmental officials, and the Secretary, and were considered by them, prior to adoption of the final regulations. The programmatic alternatives in the final EIS were considered in addition to the individual alternatives to specific regulatory provisions discussed in this preamble.

In addition, public comments submitted on the final EIS were reviewed and summarized for the Secretary prior to his decision to promulgate these final rules. Copies of these comments are available in the administrative record room. OSM determined that none of these comments required revision of or a supplement to the final EIS.

Regulatory Analysis

A draft Regulatory Analysis (RA), prepared on the proposed permanent regulatory program in accordance with the requirements of Executive Order 12044, was made available to the public on September 21, 1978. Public comments were accepted through November 27, 1978. The final RA is being made available on the date of promulgation of these rules. Although Executive Order 12044 and OMB Circular A 116, issued on August 18, 1978, allow for an urban and community impact analysis for all new regulatory programs for which an RA is prepared, the Office found it impracticable to conduct such an analysis, because the promulgation of the permanent program would have been delayed well beyond the statutory deadline. OMB concurred in the decision not to complete such an analysis in a letter dated December 18, 1978. Documentation of the decision and OMB concurrence is available in the administrative record.

The final RA contains an economic analysis of selected alternatives to individual regulatory requirements, which alternatives were selected as described in Chapter II of the RA. The analysis of these alternatives is integrated into this preamble and was before OSM, other Departmental officials, and the Secretary, and was considered by them prior to adoption of the final regulations. The specific economic analyses of alternatives to individual regulations in the RA were considered in addition to the individual alternatives to specific regulatory provisions discussed in this preamble. [The text of the preamble is divided such that each preamble part is a separate item.]

SUBCHAPTER A - GENERAL, 30 CFR Part 700 - GENERAL

PART 700 introduces the regulations of Chapter VII of Title 30 of the Code of Federal Regulations. The regulations in Chapter VII implement the Secretary of the Interior's responsibility under the Surface Mining Control and Reclamation Act of 1977 (Pub. L. 95 87, 91 Stat. 445, 30 U.S.C. 1201 1328). The Secretary's general rulemaking authority for regulations in Chapter VII is found in Section 201(c)(2) of the Act. In addition, the following Sections of the Act contain rulemaking authority for the regulations in Chapter VII: Sections 304, 405, 407, 412, 501, 510, 512, 515, 516, 517, 520, 523, 527, 528, 529, 708, and 719.

SECTION 700.1 SCOPE.

This Section provides a brief summary of the 13 Subchapters which compose Chapter VII of Title 30 of the Code of Federal Regulations. It serves as a guide to the reader interested in obtaining a summary of the regulations and contains no substantive provisions.

SECTION 700.2 OBJECTIVES.

This Section sets forth a simple statement of the objectives of the regulations. The regulations are intended to fulfill the purposes of Section 102 of the Act. The regulations implementing those purposes are based upon the substantive provisions of the Act, the legislative history, other applicable laws_particularly those cited in Section 702 of the Act, the Endangered Species Act of 1973, as amended, the Fish and Wildlife Coordination Act, the National Historic Preservation Act and related regulations and Executive Orders and judicial interpretations.

SECTION 700.3 AUTHORITY.

The statutory authority for this Section is found (1) for the Secretary of Agriculture in Sections 406, 507, 510 and 515; (2) for the Secretary of Labor in Sections 516 and 702; (3) for the Environmental Protection Agency in Sections 501, 503 and 702; (4) for the Corps of Engineers in Sections 515(f) and 702; (5) for the Council of Environmental Quality in Sections 702 and 709; and (6) for the Department of Energy in Title VIII and IX.

This Section sets forth the Secretary's authority under the Act to implement its programs, except where programs and responsibilities are specifically assigned to other agencies by the Act or where authority is retained by the States.

SECTION 700.4 RESPONSIBILITIES.

Authority for this Section is found in the Act at Sections 102, 201, 405, 502, 503, 504, 512, 514, 518, 519, 521, 522, 523, 525, and 601.

Subsections 700.4 (a) and (b) identify the Secretary's authorities and responsibilities derived from the Act which have been delegated to the Director. See, 216 Departmental Manual Chapters 1 and 2 (November 9, 1977). The delegation is to the Director through the Assistant Secretary, Energy and Minerals, of the Department of Interior, who is ultimately responsible to the Secretary for implementation of the programs in Chapter VII. Notwithstanding language in the delegation, Section 700.4(a)(1) and other provisions in Subchapter C reserve to the Secretary the right to withdraw approval of a State program and substitute a Federal program. This is a change from the proposed regulations based upon the recognition that inherent in the authority to approve a State program is the authority to withdraw approval and both these functions should remain with the Secretary.

Subsection 700.4(c) identifies the States' responsibility for regulation of coal exploration and surface coal mining and reclamation operations under the initial program and under an approved State program. The regulations which implement the Title V regulatory program in the Act are intended to provide the minimum requirements for State programs which will create the uniform minimum level of protection and enforcement throughout the country contemplated by the Act. The State responsibility under an approved State Reclamation Plan is also noted.

Consistent with the principle that the States should take the lead in regulating surface coal mining and reclamation operations within their borders, with respect to regulation on Federal lands, Subsection (d) recognizes that the Secretary may delegate certain responsibilities and authority to the States pursuant to Section 523(c) of the Act.

Subsection 700.4(e) has been added to reflect the responsibilities of the Director, Office of Hearings and Appeals, Department of the Interior, for administrative appeals of decisions by the Office under the Act. Procedural regulations governing those appeals are found at 43 CFR Part 4, 43 FR 34376, August 3, 1978.

1. OSM has adopted the comment suggesting the deletion of "initial'' in reference to the approval or disapproval of a State program in Subsection 700.4(a)(1). "Initial'' was intended to signify that the Director, rather than the Secretary, has the responsibility for certain subsequent actions such as substitution of Federal enforcement of a State program which is not being properly enforced as provided in 30 CFR Part 733. Instead, Subsection 700.4(a)(1) has been restated to clarify the relationship between the responsibilities exercised by the Secretary and the Director. The Secretary exercises the responsibility under Section 504 of the Act to approve or withdraw a State program. The Director exercises the responsibility to substitute Federal enforcement for a State program under Section 521(b) of the Act.

{14911}2. Commenters suggested that the regulation in Subsection 700.4(b) should list the Federal agencies with responsibility over natural resources and Federal land managing agencies with whom the Director must consult. This Section recognizes that the Director has a responsibility to confer with Federal land managing agencies and Federal agencies with jurisdiction over natural resources on Federal lands prior to taking actions which could affect their responsibilities. The Office believes listing specific agencies is inappropriate, because the agencies with expertise to be consulted will vary depending on the circumstances of the contemplated action.

3. A number of comments were received on various sections of the regulations concerning the Director's responsibility to comply with the Historic Preservation Act, 16 U.S.C. Section 470, et seq., and other statutes and Executive Orders concerning preservation of historic and cultural resources. These comments have been responded to in the preamble for specific sections which were the subject of the comments. In light of the nature of these comments, "historic'' has been added to 700.4(b) to reflect the Director's responsibility to consult with Federal agencies having responsibility for historic resources as well as natural resources on Federal lands.

4. Commenters also suggested that Subsection 700.4(b) be revised to require the Director to comply with the recommendations of the other agencies, or in the alternative, that the Director be obligated to notify the recommending agency of noncompliance, and to allow the agency a reasonable time in which to attempt to protect the threatened resources, by seeking a delay in the granting of a permit, or by conditions imposed in the permit. Such a requirement would, in effect, delegate the Director's decision-making responsibilities under the Act to other agencies. There is no basis for such a requirement in the Act. The Office does intend to notify other agencies of its decision where appropriate and believes the regulations provide appropriate mechanisms to resolve any differences. The Office has not adopted the recommendation and believes the purposes of the Act will be best served by making no change in the regulation.

5. Another commenter recommended the deletion of "certain'' in reference to the authority delegated to States under cooperative agreements in Subsection 700.4(d). The commenter argued that "certain'' is unnecessary to describe the Federal-State relationship under the cooperative agreement. This Section does not attempt to set forth the responsibilities or authorities to be delegated. Part 745 controls the content of cooperative agreements. The word "certain'' is in the regulation for informational purposes only. It serves to alert the reader to the fact that not all Federal responsibilities are assigned to the States under the cooperative agreements. For this reason the Office has decided to retain the present language in the provision. Part 701 to make the regulations as complete as possible so that persons using them will not have to turn constantly to the Act to find definitions of often used terms. Definitions repeating statutory definitions include "Federal lands program,'' "Fund,'' "Indian land,'' "Indian tribe,'' "Office,'' and "mining operations.''

Federal lands.An effort has been made to make the Federal lands definition clearer and more concise than that in Section 701(4) of the Act without changing its substance.

1. One commenter suggested deleting the phrase "including mineral interests'' from the definition of "Federal lands.'' No rationale was given. OSM has rejected this comment since it conflicts with the statutory definition in Section 701(4) of the Act which specifically includes "mineral interest'' under the definition of "Federal lands.''

2. Other commenters recommended a change in the definition to exempt private lands overlying federally owned coal rights. Exemption of privately owned surface was suggested in order to clarify Congressional intent that the private surface be controlled by the owner. Congress considered and provided protection for surface owners in Section 714 of the Act. An exemption for private surface would be a departure from the statutory definition. If private surface overlying Federal coal were exempted from the Federal lands definition then, arguably, the lands would fall under a State program and the State would serve as the regulatory authority over the extraction of Federal coal. This would be an unauthorized result, particularly, when under Section 714 of the Act the Federal Government would be leasing the coal under the Mineral Lands Leasing Act of 1920, as amended.

3. Another commenter suggested that the Section be revised to read "any land, including surface land or mineral interest,'' in order to make it clear that Federal surface overlying private coal is included in the definition of Federal lands. "Federal lands'' are defined as "any lands . . . owned by the United States without regard to how the United States acquired ownership of the lands.'' Acquired surface lands with private mineral interests reserved are covered by the phrase "any lands.'' Since OSM's interpretation of the definition is consistent with the comment, OSM believes it is unnecessary to adopt the suggested language.

Indian lands. The proposed definition for Indian lands restructured the statutory definition and changed the punctuation somewhat. A number of comments were received.

1. One commenter suggested that the phrase "supervised by an Indian tribe'' is ambiguous as used in the definition. The commenter recommended that such ambiguity be clarified by adding the phrase "excluding privately owned land'' to the end of the definition. The Office believes that the commenter's suggested alternative would materially alter the definition, making it inconsistent with the intent of Congress and the Act. For this reason the Office rejected the commenter's recommendation.

2. Another commenter was concerned that the phrase "all lands including mineral interests held in trust for or supervised by an Indian tribe'' may erroneously be construed to include those lands and mineral interests which Indian tribes may have purchased with tribal funds outside of designated reservations. Such construction, contends the commenter, would be contrary to the intent of Congress as shown by the legislative history of the Act. The commenter supports his argument with statements made before the Subcommittee on Public Lands and Resources of the Senate Committee on Energy and Natural Resources on S.7, 95th Congress, 1st Session, 626 (1977), and from later Senate debates concerning the question of whether Indian tribes should be treated essentially the same as States for the purpose of implementing the surface mining control program on Indian reservations. The commenter concludes that the definition of "Indian lands'' should be revised so as to exclude specifically any Indian lands or mineral interests located outside the exterior boundaries of an Indian reservation.

{14912}The Office believes that the commenter's rationale, based on its review of the legislative history, is misleading because the portions of the legislative history cited by the commenter focus on that portion of the definition dealing with exterior boundaries of Indian reservations. The Office does not believe that this should be construed to mean that Congress intended to limit the definition to only include lands within an Indian reservation. On the contrary, the Office believes that the last portion of the definition clearly demonstrates that Congress intended to expand the definition to include Indian lands outside the exterior boundaries of Indian reservations. In fact, Section 710(h) of the Act explicitly directs the Secretary to "analyze and make recommendations regarding the jurisdictional status of Indian lands outside the exterior boundaries of Indian reservations.'' For these reasons, the Office elected not to adopt the revision suggested by the commenter.

3. A third commenter suggested that punctuation changes in the regulatory defintion materially change the meaning of Indian lands, as defined in the Act. The commenter, therefore, recommended the definition of Indian lands, in all respects, be identical to that provided by Section 701(9) of the Act. Because of the potential sensitive nature of the Indian lands issue and the fact that the pending Indian lands study, required under Section 710(a) of the Act, will be using the definition provided in the Act as basis for its analysis of issues, the Office concurs with the commenter's recommendation that the definition of Indian lands in the regulations be exactly as provided by the Act. The Office has, therefore, adopted the comment and has revised the definition of Indian lands to be consistent with that provided in Section 701(9) of the Act. By this editorial change the Office intends no substantive change one way or the other from the definition as it was proposed.

Person. The definition of this term amplifies the definition in Section 701(19) of the Act. The definition includes Indian tribes in those situations in which an Indian tribe may be conducting surface coal mining and reclamation operations on non-Indian lands. In addition, specified governmental agencies are included because under Section 524 of the Act, they are subject to regulation when engaged in surface coal mining and reclamation operations and because such agencies have definite interests in actions taken under the Act. (See discussion under Paragraph 3 below.) A joint venture was added to the definition of "person'' on the basis that it is a type of business organization which should be specifically identified in the definition.

1. The Office received several comments which argued that the definition of "person'' exceeds OSM's statutory authority because it is not identical to Section 701(19) of the Act. OSM is not required to adopt verbatim the statutory definitions in regulations implementing the Act. Section 201(c)(2) of the Act authorizes regulations which will carry out the purposes and objectives of the Act.

2. Commenters recommended deleting the reference to Indian tribes. Although Section 710 of the Act creates a separate regulatory scheme and timetable for surface coal mining operations on Indian lands, Indian tribes while conducting surface coal mining operations on non-Indian lands are subject to regulation as is any other "person.'' The Office has decided to retain the reference to Indian tribes in the definition.

3. The final definition of "person'' has been changed from the proposed rule so as to delete the limitation that only government agencies proposing to conduct surface coal mining operations would be covered. A number of State government and industry commenters criticized the proposed definition of "person'' on the basis that since it amplifies the statutory definition it would allow government agencies to sue other government agencies and also allow agencies to become involved in the hearing processes under the Act. Commenters felt that this would subject the regulatory authority to restrictions not imposed by the Act and subject it to liabilities never contemplated by Congress. It was further felt that the definition would provide particular problems in and among various State agencies by providing legal standing that currently does not exist and was not intended to exist under the Act.

It is true that a potential for interstate or intrastate conflict exists where the genuine interests of separate agencies may be involved. To a great extent however, the commenters' fears are unwarranted since the regulations allow appeals and suits only for persons "who are or may be adversely affected.'' (See, e.g., 30 CFR 760.4(d), 764.13(a).) On balance, OSM has concluded that the purposes of the Act will be best served if the statutory definition is broadened to include governmental entities.

The Act mandates the involvement of and close coordination among many different agencies. Various agencies play important roles in the abandoned land's program in Title IV of the Act, in the regulatory process in terms of providing data, permit application reviews, performance standards compliance, and in designation of lands unsuitable for all or certain types of surface coal mining operation. (See Sections 503(a)(6), 504(b), 507(b)(11), 508(a)(9), 510(b)(3), 510(c), 515(b)(2) (8), 515(b)(10)(B), 515(b)(12), 515(c), 515(e) and 522 of the Act. See also the detailed discussion in the preamble to 30 CFR 786.11(c)(1) (4), infra. )

OSM believes the involvement of other State and local agencies, which the Act specifies, establishes an interest on the part of those agencies in actions taken by the regulatory authority under State programs, particularly actions relating to permits and designations. Therefore, OSM believes that inclusion of the government agencies in the definition of "person'' is justified. OSM does not intend by this to expand upon an agency's capacity to sue or be sued where the Act does not clearly indicate that the agency has an interest in the actions being taken. In such situations, existing principles of State or Federal law would govern. 700

4. One commenter suggested adding "cooperatives'' to the definition of "person'' because they are "a common form of doing business.'' Cooperatives are an increasingly more common form of business entity. Therefore, the Office agrees with the commenter and has added "cooperatives'' to the definition of "person.''

Person having an interest which is or may be adversely affected or person with a valid legal interest. The following references were used in developing this definition:

121 Cong. Rec. 13368 (May 7, 1975). H. Rep. No. 95 218, 95th Cong., 1st Sess., 90 (1977). S. Rep. No. 95 128, 95th Cong., 1st Sess., 87 (1977). 120 Cong. Rec. 25218 25219 (July 25, 1974). 119 Cong. Rec. 33190 (October 8, 1973). H.R. Rep. No. 93 1072, 93rd Cong., 2d Sess. 77 78 (1974). S. Rep. No. 28, 94th Cong., 1st Sess., 217 (1975). S. Rep. No. 93 402, 93rd Cong., 1st Sess., 56, 70 (1973).

Hearings on H.R. 2, before the Subcommittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, 95th Cong., 1st Sess., Ser. No. 95 1, Pt. III at 495 (1977).

Hearings on S. 7 before the Subcommittee on Public Lands and Resources of the Senate Committee on Energy and Natural Resources, 95th Cong., 1st Sess., 167 170, 272, 1089 (1977).

Sierra Club v. Morton, 405 U.S. 727 (1972). I21 SCRAP II, 412 U.S. 669.

Duke Power v. Carolina Environmental Study Group, 98 S. Ct. 2620, 46 U.S.L.W. 4845 (June 26, 1978). I111. In general, OSM received comments criticizing the regulation on the basis that the definition, for purposes of conveying standing, is too broad. Various commenters suggested the following revisions:

a. Delete "and enjoys'' and "esthetic'' from the definition.

b. Adopt the West Virginia Supreme Court of Appeals holding in McGrudy v. Callaghan, 244 S.E. 2d 793 (W. Va. 1978), that the definition be restricted to persons whose property is affected.

{14913}c. Define the term to apply only to property which is or may be substantially and adversely affected.

d. Limit the definition to persons living in the geographic area of potential influence.

e. Insert "lawfully'' before the words "uses and enjoys'' in the definition.

f. Provide that the resource having economic, esthetic, or environmental value should be found within the permit area or the adjacent area.

g. Add "measurably'' before "affected'' in the definition.

h. Add "adversely'' before "affected'' in paragrahs (a) and (b).

The rationale for all the alternatives is that the proposed definition is too broad. Commenters suggested that limitations should be set which remove subjective judgments (alternatives a and g), require a direct impact upon a person's property (alternatives b and c), circumscribe the geographic area within which a person must reside to have standing (alternative d), and circumscribe the area of resource impact (alternative f).

None of the alternatives to the proposed definition cited by commenters refer to or attempt to rebut the legislative history. "It is the intent of the Committee that the phrase "any person having an interest which is or may be adversely affected' shall be construed to be coterminous with the broadest standing requirements enunciated by the United States Supreme Court. Any resident of the United States injured in any manner through failure of any operator to comply with the provisions of this act, regulations issued thereto, order, or permits issued by the Secretary, may bring an action for damages in U.S. district court.'' H. Rep. No. 95 218, supra at 90. Sierra Club v. Morton, supra, is cited specifically in floor debates during 1973 as the latest Supreme Court decisions on standing. 119 Cong. Rec. 33190. "The Committee intends that this includes persons who meet the requirements for standing to sue set out by the Supreme Court in Sierra Club v. Morton (405 U.S. 727 (1972)).'' S. Rep. No. 94 28, supra at 217.

The proposed definition is consistent with the Sierra Club v. Morton holding. See also, SCRAP II, 412 U.S. 669. However, in response to the comment questioning inclusion of "enjoys,'' OSM agrees its inclusion is not necessary. The linchpin of the standing cases is "use.'' The phrase "uses and enjoys'' could be interpreted as narrowing the scope of standing. Therefore, "and enjoys'' has been deleted from the definition.

OSM has rejected other alternatives suggested in the comments. For instance, "esthetics'' cannot be deleted. Cases on standing have long extended the right to sue to other than pure economic injury. Sierra Club v. Morton and others specifically mention esthetics as a basis for standing. Because economic injury is no longer a prerequisite to standing, and because recreational use falls within the concept of use set forth in Sierra Club v. Morton, OSM has added the word "recreational.''

The West Virginia Supreme Court case is clearly narrower on the standing question than Sierra Club v. Morton and would not be consistent with what Congress intended. Cases do not require a showing of adverse impacts upon personal or real property or require persons to live in the geographic area of influence so long as use and injury in fact can be shown, nor do they require that injury be "substantial.'' The Office is convinced that the purpose of the Act will be best served by retaining the broader definition.

2. Other commenters recommended that the definition be referenced to current case law, particularly Sierra Club v. Morton, supra. It was suggested that this would help key the definition to Congressional intent. Legislative history is overwhelmingly clear that Congress had Sierra Club v. Morton in mind. However, the Supreme Court may someday change the concept of standing. Tying this definition to the latest Supreme Court case might work, but it would leave the definition up to lawyers to debate and give no guidance to the regulatory authority, the public, or operators. For these reasons OSM rejected this comment.

3. Other commenters recommended revising Paragraphs (a) and (b) of the definition to read "adversely affected.'' OSM has adopted this recommendation. The statute always includes "adversely'' when using the phrase. See 30 U.S.C. 507(b)(17), 513(b), 514 (c) and (f), 517(h)(1), 520(a), 522(c), 525(a)(1), 601(c). The revision is also consistent with the accepted concept of standing.

4. Other commenters suggested that "persons whose interests are or may be adversely affected'' be separately defined from "person with a valid legal interest,'' rather than combining the two terms. "Persons whose interests are or may be adversely affected'' is used in 30 U.S.C. 507(b)(17), 513(b), 514(c), 514(f), 517(h)(1), 520(a), 522(c), 525(a)(1), 601(c). "Person with a valid legal interest'' is used only in 30 U.S.C. 519(f) dealing with persons adversely affected by release of the bond. The best understanding of legislative history is that Congress intended to use the same standing test throughout the Act. There is no explanation of why the test in 30 U.S.C. 519(f) should be any different. Testimony in Congressional hearings shows people using the two phrases interchangeably. Therefore, OSM has decided to define both phrases the same way. (See H.R. Rep. No. 93 1072, supra at 77 78.)

Public office. This definition is included in the regulations to identify the kind of office in which records required by the Act to be made available to the public will be placed.

Regulatory authority. The definition of this term in subsection 701(22) of the Act has been expanded to include situations not covered by the statutory definition. Specifically, the Secretary is defined as the regulatory authority under a Federal lands program. The Federal lands program is a regulatory program in most respects comparable to a State program or a Federal program. Section 523 of the Act requires the Federal lands program to incorporate, at a minimum, all requirements of the Act. For this reason and for ease of reference in the regulations, the Secretary is defined as the regulatory authority for a Federal lands program.

1. Several commenters suggested deleting "or the Secretary when administering the Federal lands program'' from the definition of regulatory authority, because subsection 701(22) of the Act does not include the Secretary as the regulatory authority on Federal lands. These commenters believe that the definition may be misleading when the State has a cooperative agreement covering Federal lands, and State regulations are applied.

OSM considered expanding the definition to show that the State was also the regulatory authority on Federal lands if it had a cooperative agreement pursuant to 30 CFR Part 745. However, the State would not have all the responsibilities of the regulatory authority, because the Secretary cannot delegate the designating lands as suitable for mining or mining plan approval functions. OSM has decided that the purposes of the Act will be best served if no change is made in the definition. The definition is a legitimate exercise of authority granted in Section 201(c)(2) of the Act. OSM believes that not stating that the State is the regulatory authority on Federal lands does not prejudice in any way the cooperative agreement process or the actual implementation of the agreement.

Secretary. The Office has not accepted a comment that "or his representative'' be deleted from the definition of Secretary because the Act specifies the Secretary and not the Secretary's representative. Section 201(c) of the Act states "The Secretary, acting through the Office, shall . . . .'' Therefore, Congress has specifically provided that the Secretary would act through OSM personnel. The Act also refers to the Secretary in circumstances which clearly mean his or her representative. For instance, the Secretary cannot personally carry out all the functions, make necessary investigations and inspections or take field enforcement actions, as provided in Sections 201(c)(1) and 521 of the Act on 6,000 to 7,000 coal mines across the country. Therefore, the definition as proposed is necessary to fulfill the terms of the Act.

{14914}State regulatory authority. The State regulatory authority is defined as the State agency which has primary responsibility at the State level for administering the regulatory programs.

1. OSM received suggestions that the definition of State regulatory authority be made more explicit regarding the delegation of regulatory program responsibilities to other State agencies.

Subsection 701(26) of the Act and the regulation give some flexibility by defining State regulatory authority as the department or agency having primary responsibility. The use of "primary responsibility'' indicates that one State agency is to be designated the regulatory authority for purposes of dealing with the Office. The definition does not prevent States from assigning specified responsibilities to other agencies, using memorandums of understanding or other working agreements between the regulatory authority and the other State agency or agencies, in order that there will be a uniform, coordinated State program. (See 43 FR 41666 (September 18, 1978)). Employees of other State agencies assuming functions under a State program will have to comply with the conflict of interest requirements in 30 CFR Part 705, 42 FR 56060_56069 (October 20, 1977). OSM believes the language of the regulation is sufficient to establish that the State regulatory authority may delegate certain of its responsibilities.

2. One commenter recommended deletion of either the entire definition "State regulatory authority'' or else the first half of the definition "regulatory authority'' because the two definitions are essentially duplicative.

Subsections 701 (22) and (26) of the Act define both terms. Although the definition of "State regulatory authority'' is covered by the language in the definition of "regulatory authority,'' OSM believes retaining the definition will be helpful in highlighting the meaning of the State regulatory authority, especially with regard to its authority to delegate certain responsibilities.

Surface coal mining operations. The definition of surface coal mining operations follows the statutory definition, except that it includes in a proviso clause reference to extraction of coal from coal refuse piles as falling within the definition. The proposed regulation also included extraction of coal from refuse piles, but placed the relevant language in the main text of the definition.

1. A number of comments received by OSM recommended deletion of "extraction of coal from coal refuse piles.'' Although this change would make the definition conform to the definition in Section 701(28) of the Act, it would reintroduce the uncertainties about the regulatory coverage of mining of refuse piles. Mining of refuse piles can be as environmentally harmful as any other mining; but, like the remining of previously mined areas, if mining and reclamation are done correctly there can be a substantial improvement. Analysis of the statute and legislative history has convinced the Office that such extraction is an operation intended to be regulated under the Act. Congress specifically exempted certain mining activities in 701(28) and 528 of the Act. Rather than including remining of refuse piles among the exemptions, Congress wrote a comprehensive definition of surface coal mining operations. Therefore, OSM has decided not to change the definition. For a thorough analysis of the Act and its legislative history, see letter from the Solicitor, Leo Krulitz, to Representative Gus Yatron, dated March 13, 1978.

2. OSM has also rejected a related recommendation, which would add language to exempt specifically from the definition "extraction of coal incidental to abandoned mine reclamation operations.'' The commenter suggested no rationale for this. Abandoned mine land reclamation projects are conducted in accordance with 30 CFR Part 874 and other requirements in Subchapter R. OSM does not believe this comment, which would have the effect of exempting completely abandoned mine land reclamation from Title V of the Act, should be adopted without thorough justification supplied by the commenter or full analysis of the implications.

3. It was recommended that the definition of surface coal mining operations exclude private excavation which results in the incidental recovery of coal. The thrust of this comment was considered with other comments on 30 CFR Part 707, where it was decided that to accept it would be inconsistent with Section 528(3) of the Act. Therefore it is inappropriate to make any change in this definition.

4. The Office has also rejected a recommendation to add to the proviso concerning coal extraction incidential to the extraction of other minerals in the definition of surface coal mining operations the phrase "or stockpiles of coal located at wholesale or retail sale yards, or at residential, commercial or industrial use sites.'' The commenter, without citing legislative history, believes Congress did not intend to regulate stockpiles of coal at user sites. Section 701(28)(B) of the Act refers to stockpiles in the context of areas upon which the activities in Paragraph (A) occur or where such activities disturb the natural land surface. Such activities which include cleaning, concentrating, or other processing or preparation could, under some factual situations, occur at user sites. Therefore, OSM does not believe a blanket exemption for stockpiles at user sites should be written into the definition. Instead, OSM will apply the definition on a case-by-case basis to determine its applicability taking into account such factors as whether the environmental and public health and safety effects of such stockpiles are regulated by other Federal or State agencies. At this time OSM does not contemplate wholesale regulation of coal stockpiles at user sites.

5. Several commenters suggested the definition be changed to cover more clearly site preparation activities by adding to the activities listed in Paragraph (a) such things as "timbering and land-clearing operations'' and "removal of vegetation in anticipation of excavation of the coal.'' OSM believes that logging and site preparation in anticipation of mining clearly fall within the definition. However, the line between site preparation in anticipation of mining coal and independent work is sometimes difficult to draw, and can only be accurately drawn after experience with specific factual situations. After such experience, OSM may develop guidelines or propose amendments to the regulations if necessary. Therefore, OSM decided not to change the definition.

6. OSM has also rejected a recommendation that "crushing and screening'' be added to the definition. The statutory and regulatory definitions include "physical processing'' and "or other processing or preparation,'' terms which are readily interpreted to include crushing and screening. 7. Another commenter recommended the addition of the word "adjacent'' to the definition of surface coal mining operations before "lands affected by the construction of new roads or the improvement or use of existing roads in paragraph (b).'' The commenter argues that the definition is too broad without such a limitation. OSM has not adopted the suggestion since this would limit the statutory definition which specifically covers "all roads.'' Given the remedial nature of the Act, a limitation on protection of affected areas without persuasive justification should not be adopted. (See also the discussion of the definition of "adjacent area'' in the preamble to Section 701.5 below.)

{14915}8. Changes have been made in the permit and performance standard provisions of the rules to reflect the Office's interpretation that the phrase "at or near the minesite,'' used in the statutory definition of "surface coal mining operations,'' modifies only "loading of coal.'' The Office interprets the Act as setting no territorial limitation on its jurisdiction over other facilities identified in the statutory definition preceding "loading of coal.''

Resulting from or incident to. The Office received comments which recommended changing the proposed definition of "resulting from or incident to.''

1. A suggestion that the term be defined as "the reaction or outcome which would naturally or logically follow an action'' appears to make no major change in the proposed definition.

2. Another commenter recommended the term be defined as "any documented cause and effect relationship.'' OSM has decided not to define this term believing that a meaningful definition which would cover all situations is not possible. The causal relationship between the activities included in the definition of surface coal mining operations and the enumerated structures and facilities referred to as "resulting from or incident to such activities'' cannot be accurately stated in a definition. Instead, the concept will have to be developed by application to case-by-case situations.

Other minerals (proposed definition). OSM received two comments recommending the addition of a definition of "other minerals'' in order to prevent operators, who are in fact mining coal, from using the loophole of "other minerals'' when coal does not exceed 16 2/3 percent of the other mineral. The commenters cited an enforcement action arising under initial program regulations in which an operator alleged he was exempt from the Act because he was removing overburden as fill for a commercial construction project and that the coal being removed as an incidental matter was less than 16 2/3 percent of the tonnage of the overburden.

OSM believes that situations such as this can be taken care of by case-by-case inspection and enforcement actions. The Act defines "other minerals'' in Section 701(14). Application of this definition to the phrase as it appears in the definition of surface coal mining operations should prevent abuse. For dirt or earth to be included within the definition, an operator would have to show that the dirt or earth had commercial value and that coal was only an incidental byproduct of the extraction operation that amounted to less than 16 2/3 percent of the tonnage of the earth. Moreover, ambiguous cases would be governed by enforcement consistent with the remedial purposes of the Act.

SECTION 700.11 APPLICABILITY.

Authority for this Section is Sections 528, 701 and 710 of the Act.

This Section repeats the exemption for those surface coal mining and reclamation operations which are exempted from regulation by the statute. Paragraphs (a) and (b) of this Section repeat the language of the statutory exemptions in Section 528 of the Act. Language is added to Paragraph (a) to limit the concept of noncommercial use based upon applicable legislative history. (S. Rep. 95 128, No. 95th Cong., 1st Sess. 97 98 (1977)).

1. Several commenters suggested revisions in the exemptions of Section 700.11. It was argued that the specific exemption of "landowner'' in subsection (a) implies that "nonlandowners'' do not share the exemption. Subsection (a) follows the language of Section 528(1) of the Act in this respect. Lacking clear congressional direction in the language of Section 528(1) of the Act or its legislative history, OSM is not prepared at this time to depart from the statutory language as suggested by the commenter.

2. A number of comments were received on Section 701.11(b). That section as proposed added language to that which appears in Section 528(2) of the Act for the purpose of eliminating interpretations of the statutory exemption which OSM felt would be contrary to congressional intent (see 43 FR 41666, September 18, 1978). Some commenters approved of the proposed language saying that without it, the 2-acre exemption "constitutes a tremendous loophole which would be continuously abused.'' Without some limitation commenters were concerned about unpermitted operators circumventing the law by skipping from one less than 2-acre site to another without reclamation. Other commenters felt the language was too restrictive. Specifically, commenters suggested (1) deleting the words "or intends to affect,'' (2) adding the phrase "at a single site or combination of sites,'' (3) adding a time limitation on the phrase "or intends to affect'' and (4) substituting 250 tons as the basis for the exemption rather than 2 acres. OSM has rejected the suggested deletion of the words "or intends to affect.'' The language is in the regulation to clarify that the first 2 acres of a larger operation or a series of less than 2-acre operations that are actually one mine are not excluded. This is felt to be the proper interpretation of congressional intent.

OSM has responded to other comments by changing the proposed language in Paragraph (b) to clarify that the Act and the regulations do not exempt operations conducted by the same operator at several sites that together exceed 2 acres regardless of whether they are situated so as to be considered one mine. However, OSM agrees in part with commenters who suggested that a time period should apply to operators intending to affect less than 2 acres. OSM believes that the time period should apply only to operations at physically unrelated sites such that an operator would be exempt from the Act and regulations if he or she affected a total of less than 2 acres at physically unrelated sites within 1 year. If the operator affected a total of more than 2 acres at physically unrelated sites within 1 year, he or she would not be exempt from the Act or regulations.

If a time period were not adopted, an operator would only be exempt from the Act and regulations for one 2-acre surface coal mining operation during his or her lifetime. Lacking a clear indication that this is what Congress intended, OSM does not believe such a limitation would be fair or is necessary to fulfill the intent of this section of the Act. Adding the 1-year time limitation is also responsive to the comment that the phrase "or intends to affect'' might cover operations planned years in the future and miles away.

The time limitation should not apply to physically related sites, however, or else the mining of what is in reality a larger nonexempt mine may fall within the exemption. Should the 1-year period apply to physically related sites, an operator could phase the operation so as to affect less than 2 acres per year and qualify for the exemption.

OSM has rejected a suggestion to substitute 250 tons as the standard for exemption instead of 2 acres, as 250 tons is a limitation on the Act's coverage in the definition of "operator'' in Section 701(13) of the Act. It is in addition to, not a substitute for, Section 528 of the Act and OSM cannot change an explicit standard in the Act such as the 2-acre standard.

3. Commenters suggested that proposed Paragraph (c), which has been redesignated as Paragraph (d), should be stricken or changed. That paragraph refers to the exemption based on Section 528(3) of the Act and is explained in Part 707 of the regulations. It governs coal extraction which is an incidental part of Federal, State, or local government-financed highway or other construction. The thrust of the comment was considered and rejected in Part 707 and therefore cannot lead to a change in Section 700.11. For further discussion see the preamble to Part 707.

{14916}4. The Office has added a new Paragraph (c) and relettered the Paragraphs that follow. Paragraph (c) sets forth the exemption provided by Section 701(13) of the Act in the definition of the word "operator'' for persons who remove 250 tons of coal or less. The word "operator'' is not used in the Act in all places at which responsibilities are imposed on those who mine coal. However, there appears to be no rational scheme for the use of the word "operator'' and the use of words such as "persons'' or "permittee.'' This unsystematic usage not only tends to support a broad exemption from Federal regulations for removing 250 tons or less of coal during a surface coal mining operation but also ensures that, if the exemption were limited to those sections of the Act where the word "operator'' is used, the results would be an irrational and confusing regulatory scheme. Thus, the Office has adopted 250 tons of coal or less as a general exemption from regulation of surface coal mining and reclamation operations.

This exemption does not apply to coal exploration. Section 512 of the Act regulates coal exploration without regard to how much coal is removed in the process, although Section 512(d) hinges a requirement of prior approval on removal of more than 250 tons. The exemption of mining 250 tons or less, and the regulation of exploration that removes 250 tons or less, is consistent and rational. Explorations can have substantial adverse impacts over a relatively large area with the removal of only insignificant amounts of coal. Moreover, the regulatory burden on coal exploration is considerably lighter than that on a surface coal mining and reclamation operations.

5. Proposed Paragraph (d), which has been redesignated as Paragraph (e), provides the exemption for coal extracted incidental to the extraction of other minerals, an exemption which appears in the definition of surface coal mining operations in Section 701(28) of the Act.

6. One commenter suggested that mining on Indian lands should not be exempted from Paragraph (e) of the proposed Section, which has been redesignated as Paragraph (f). Regulations implementing Section 710 of the Act for the mining of coal on Indian lands are located in 25 CFR Part 177. Therefore, it is appropriate to exclude that category of mining from regulations in 30 CFR Chapter VII.

7. It was suggested that proposed Paragraph (f), which has been redesignated as Paragraph (g), be deleted in order that coal exploration on Federal lands outside the permit area be included under the coverage of the Chapter. This proposal was rejected. Section 512(e) of the Act provides that exploration on Federal lands is to be regulated under Section 4 of the Federal Coal Leasing Amendments Act of 1975, and not under SMCRA. However, Section 4 applies only to coal exploration on unleased lands. Because of this, OSM believes the Act does not prevent OSM from regulating coal exploration within permit areas on Federal lands. See the preamble to Part 740 for more discussion. 700

8. Finally, it was suggested that the exemptions be expanded to exclude all small operators from coverage by the Act until the law and regulations can be changed. OSM has declined to follow this suggestion. OSM cannot create new exemptions not authorized in the Act where it is clear that Congress considered the Act's application to small operators and specified certain exemptions in Sections 502(c) and 507(c), and the definition of operator in Section 701.

SECTION 700.12 PETITIONS TO INITIATE RULEMAKING.

Authority for this Section is found in Section 201(g) of the Act which provides a petitioning process for initiation of a proceeding to issue, amend, or repeal rules issued under the Act. This process is set forth in Section 700.12 of the regulations and is basically the same as that of the initial regulatory program.

A change from the initial program regulation on petitions places a burden upon the petitioner to present facts, technical justification, and legal arguments which support the petition. If the petition concerns an existing rule, it must present justifications and arguments not considered in the previous rulemaking. The Director has authority to reject a petition which does not provide this information and create a reasonable basis for further consideration of the need to issue, amend or repeal a rule. This is also intended to eliminate the need for further consideration of petitions which are frivolous and do not provide a minimum threshold of information meriting the initiation of the administrative process.

The Director's decision on a petition is a final decision for the Department. This has the effect of opening the opportunity for judicial review of the decision without further appeals within the Department.

1. In response to a comment on Section 700.12, OSM has eliminated "State or local government'' from Paragraph (a). The reference is not required because State and local governments are included in the definition of "person,'' thereby entitling them to petition.

2. OSM has rejected comments which suggested that Paragraph (c) be changed to provide for direct notification to the petitioner rather than publication in the Federal Register. OSM feels notification in the Federal Register is the better course because it notifies the broadest possible group who may be interested in the petition.

3. It was also suggested that Paragraph (c) be changed to require a public hearing. OSM believes that a public hearing may not be necessary in all cases. It is sufficient, therefore, to provide for discretionary hearings. If hearings on the petition would be helpful, OSM anticipates holding them. Hearings will be conducted as part of the rulemaking process if one is initiated.

4. Some commenters recommended revising the Section to provide for judicial review pursuant to Section 526 of the Act if a petition is denied. By making the Director's decision final for the Department, the decision will be subject to judicial review. Specifying that judicial review is pursuant to Section 526 of the Act is unnecessary. Section 526 is applicable according to its terms. Adding language to the regulation could not serve to confer jurisdiction under Section 526 if Section 526 did not confer jurisdiction by its own terms.

5. A commenter suggested adding "practical reasons for the change, . . . if any'' to 700.12(b) saying this is one of the most important things to consider when deciding whether to amend a rule. OSM agrees that practical reasons are important factors to consider but believes these will be reflected through "facts'' which merit issuing or amending a rule. Therefore, because "facts'' are included in 700.12(b), OSM found no reason to add the suggested language.

6. Commenters recommended deleting from 700.12(c) the sentence "facts, technical justification, or law previously considered in a petition on rulemaking on the same issue shall not be found to provide a reasonable basis.'' The commenters felt that situations, ideas and experience with a rule over time may change and make previously rejected facts, technical justification or law relevant. OSM agrees with this rationale but once again feels that the commenters' concern is addressed by the final language. In essence, the commenters are saying that over time facts concerning the implementation or experience with a regulation may change. Therefore, new facts would be relevant to a decision whether to issue or amend a rule and would be considered. For this reason, OSM has not adopted the commenters' suggestion.

{14917}7. A commenter suggested deleting "technical justification'' from 700.12(b) and revising 700.12(c) to require publication of a notice in the Federal Register on every petition, regardless of whether it was supported by new facts, technical justification or law. The commenter suggested that the technical justification is to be elicited by the notice process and its absence in the petition should not preclude publication of the petition in the Federal Register. OSM has rejected this comment. Section 201(g)(2) of the Act requires that petitions set forth the "facts'' claimed to establish the need to issue, amend or repeal a rule. OSM believes it to be within its rulemaking authority in Section 201(c)(2) of the Act to amplify what is meant by "facts'' to include technical justification and legal issues in order to limit frivolous or unsubstantiated petitions. Such petitions could be used as an attempt to divert OSM personnel from fulfilling other functions under the Act and regulatory program by consuming their time and energy in processing unsubstantiated petitions. Thus, some minimum threshold is essential. OSM does not, however, intend to apply this standard so rigorously as to deny petitions which present a minimal justification which establishes the need to issue, amend or repeal a rule.

8. A commenter objected to the Director's decision granting or denying a petition being final for the Department. Instead the commenter suggested an administrative appeal mechanism be substituted which the commenter felt would provide a less burdensome recourse from the Director's decision.

OSM has not adopted this suggestion. OSM believes the factors which will be the basis for granting or denying a petition are fundamental to the Director's management and administration of the Act. For this reason the basis for the Director's decision is best reviewed by a court rather than an administrative review board of the Department.

SECTION 700.13 NOTICE OF CITIZEN SUITS.

This regulation is repeated from the initial program regulations, with only minor changes for clarification.

1. OSM received comments suggesting that the alleged violator needs more protection pertaining to notification. One recommendation would add a requirement to Paragraph (e)(1) that the complainant state an exact reference to the allegedly violated provision. This suggestion would have more force if Section 700.13 were dealing with a court pleading which almost certainly would be prepared by an attorney. However, Section 700.13 deals only with notice of intent to sue and may be prepared by a nonattorney. For that reason, the requirement to provide information which is sufficient to advise the recipient of the alleged violation was used rather then requiring citation to the specific regulation alleged to be violated. OSM believes retaining this approach is better since the recipient will receive enough information to understand the basis of the accusation.

2. Other commenters suggested replacing Paragraph (d) with a provision that completion of service be made in accordance with either local court rules or the Federal Rules of Civil Procedure. This is an appropriate comment for the filing of a suit but not for the the 60-day notice. OSM feels that imposing that degree of formality on the notice of intent to sue is unnecessary.

3. It was also suggested that the requirement of service by certified mail be deleted from the Section because it is not required in the Act and is burdensome and costly. Cerfification serves as proof that a letter has been sent to the Secretary of the Interior, the OSM Director, the appropriate State regulatory authority, and the alleged violator. Certification also provides a precise date for determining the beginning of the 60-day period. Finally, certification serves as protection for the citizen in the event the letter is not received by one of the parties. OSM has decided to retain the requirement because the burden and cost are small in comparison to the certainty provided.

4. One commenter also expressed concern that operators will be subject to harassment through unwarranted citizen suits, and, therefore, recommended that a Section be added to the regulations, comparable to Section 518(g) of the Act, providing a criminal penalty for frivolous and unwarranted accusations. Section 518(g) of the Act would apply to certain citizen actions of concern to the commenter. Although the provision could be repeated in the regulations, other statutory criminal sanctions are not being repeated. OSM cannot by regulation create criminal sanctions for those actions of concern to the commenter which are not covered by Subsection 518(g) of the Act. That power is reserved to Congress.

SECTION 700.14 AVAILABILITY OF RECORDS.

Paragraph (a) indicates that the records are to be available at the office of the regulatory authority geographically closest to the area to which the document pertains.

1. One commenter suggested changing the Section to require that records "be retained at the mine office and sent to the appropriate State or Federal regulatory authority having jurisdiction over the area on request only.'' The comment misconstrues the applicability of the regulation. The regulation applies to OSM and the States, not operators.

2. Another comment recommended that Paragraph (a) be reworded to clarify where records are to be made available. OSM believes, however, that the wording of Paragraph (a) is sufficient to indicate that records are to be retained at the regulatory authority office which is geographically closest to the area involved.

SECTION 700.15 COMPUTATION OF TIME.

These regulations are repeated from the initial program regulations, with only minor changes for clarification.

The Office has considered a suggestion that "work stoppages due to labor disputes'' be excluded from the computation of time. This Section on computation of time is merely a mechanical aid and is completely neutral on policy. The thrust of the comment is aimed at the legal or statutory interpretation or policy issue of whether a strike or labor interruption is a defense to an enforcement action and was, therefore, considered under Section 843.18. The Office decided that no change in the method of comput ing time under Section 700.15 is warranted.

SUBCHAPTER A -- GENERAL, 30 CFR Part 701 -- PERMANENT REGULATORY PROGRAM Authority for regulations in this Part is found in Sections 102, 201, Title V, 701, 702, 708, 710, 711, 713, 714, 715, 716, 717, and 719 of the Act.

Part 701 of these regulations serves as a general introduction to the permanent regulatory programs promulgated in accordance with the requirements of Section 501(b) of the Act. For a general explanation of the rationale for Part 701 and its relationship to the initial regulatory program and regulation of surface coal mine operations on Indian lands, see the discussion in the preamble to the proposed rules in 43 FR 41666 41667 (September 18, 1978).

SECTION 701.1 Scope.

1. This Section identifies the Subchapters in Chapter VII of 30 CFR which comprise the permanent regulatory program. It indicates under which Subchapter the various regulatory components of the permanent regulatory program may be found. Section 701.1 has not materially changed from that proposed on September 18, 1978.

2. Although Section 701.1(b)(8) refers to Subchapter M on the training, examination and certification of blasters, this Subchapter is not being promulgated in final form at this time. Instead, the Subchapter will be reproposed for additional public comment due to the nature of the changes which will need to be made by the Office of Surface Mining in response to public comment and internal review. See explanation for this under preamble to Subchapter M.

SECTION 701.2 Objectives. This Section summarizes the objectives to be achieved by Part 701. Other than nonsubstantive, editorial changes, this Section has not changed from that proposed on September 18, 1978.

SECTION 701.3 Authority.

This Section reiterates the authority conferred upon the Secretary by Sections 501(b) and 523 of the Surface Mining Control and Reclamation Act to promulgate regulations implementing the permanent regulatory program. The final sentence as it appeared in the proposed regulations of September 18, 1978, has been deleted. The deleted sentence indicated that the Secretary had delegated his rulemaking authority to the Director of the Office of Surface Mining. Delegation of authority to promulgate these regulations is an internal administrative matter within the Department of the Interior. Rules and amendments to them relating to the permanent regulatory program may, in some cases, be promulgated by the Secretary and in other cases by the Director. The deletion of this sentence is necessary to preserve this internal administrative flexibility.

SECTION 701.4 Responsibility.

Authority for this Section is found in the Act at Sections 102, 201, 501, 503, 504, 512, 517, 521, and 523. The basic rationale and purpose of this Section is set forth in the preamble on the proposed regulations at 43 FR 41667 (September 18, 1978). Comments were received on this Section which have resulted in certain changes being made for the final regulations.

1. A commenter suggested that the language in Section 701.4(a) be changed to indicate that the State regulatory authority "shall'' assume primary responsibility for regulation if its program is approved, rather than the State regulatory authority "may'' assume such responsibility. The commenter suggested that the word implied some degree of residual discretion or subsequent action by the Secretary. The use of the word "may'' in the proposed regulations was not intended to suggest such residual discretion in the Secretary, but rather that the State has the choice initially whether to request program approval in order to assume primary jurisdiction. In response to the comment and because, if the program is approved, the State is required to assume pri mary responsibility, OSM has accepted the comment and substituted the word "shall'' for the word "may'' in the first sentence of Section 701.4(a).

2. Comments were received suggesting that the use of the word "primary'' in the first sentence of Section 701.4(a) did not reflect the statutory language and should be replaced with the word "exclusive.'' Section 503 of the Act uses the phrase "exclusive jurisdiction.'' However, that phrase is followed by the clause "except as provided in Sections 521 and 523 and Title IV of this Act.'' OSM believes that use of the word "exclusive'' is misleading because, in fact, the Office of Surface Mining retains certain responsibilities during an approved State program. For example, OSM inspectors can issue notices of violation and cessation orders under Section 521(a) in those instances where a State fails to act after being notified by OSM of a potential violation. Furthermore, the State's jurisdiction is not exclusive on Federal lands and applies only if a cooperative agreement exists pursuant to Section 523(c). Even with such a cooperative agreement, the Secretary retains the duty to approve mining plans on Federal lands and to designate, pursuant to Section 522 of the Act, certain Federal lands as unsuitable for surface coal mining. Because of these responsibilities which remain with the Secretary, OSM believes that the word "primary'' more accurately reflects the Federal and State relationship during implementation of a State program.

700 3. A commenter suggested that the language in Section 701.4(b) be changed to read "while a state regulatory program is in effect, the Office's primary responsibility includes . . .'' The commenter felt this change would more accurately describe the Federal and State relationship during implementation of a State program. Another commenter suggested that this Section should state that "while a State regulatory program is in effect, the Office's responsibility is limited to . . .'' The Office considered these alternatives. With respect to the first alternative, including the word "primary'', and deleting the words "but is not limited to . . .'' would make no substantive change in the language and would not serve to clarify the meaning. The second alternative would limit the responsibility of OSM to only the three items mentioned. The items identified are intended to signify OSM's major areas of responsibility, but because other areas of responsibility may arise under the Act, OSM does not believe this Section should represent an exclusive list of responsibilities. See, for example, 30 CFR 785.13.

4. Section 701.4(b)(3) is new in the final regulations and reflects comments received and OSM's analysis of its statutory authority. The proposed regulations published on September 18, 1978, and the preamble to this Section indicated that during an approved State program, OSM inspectors could issue cessation orders should a State fail to act in response to information referred to it by OSM pursuant to Section 521(a) of the statute. Commenters suggested that OSM's authority was not limited to issuing cessation orders under these circumstances, but also included authority to issue notices of violation. Based on these comments and OSM's analysis of the Act, Section 701.4(b)(3) has been added to reflect OSM's authority to issue notices of violation. Readers are referred to the preamble at Section 843.12(a)(2) of the regulations for a fuller explanation of the rationale and authority for this provision.

701.4(b)(4) This Section appeared in the proposed regulations as Section 701.4(b)(3) and has been redesignated to provide for the new Section 701.4(b)(3). This Section remains unchanged from the proposed regulation, except with a clause added to clarify an inspector's authority to include affirmative obligations when issuing cessation orders. This authority is derived from Sections 102, 201, and 521(a)(2) of the Act. This language is added merely to clarify and be consistent with the operative provisions of the regulations at Section 843.11.

701.4(c) This provision of the regulations sets forth the responsibilities of the Office with respect to implementing a Federal program in a State. This Section is the same as it appeared in the regulations, except for minor editorial changes intended to clarify the Section's meaning but not to change its scope or intent.

701.4(d) This Section sets forth the responsibilities of the Office to function as the regulatory authority upon implementation of a Federal program in a State. This Section is changed from the proposed regulations by editing for clarity only.

701.4(e) This provision of the regulations refers to the Office's authority under Section 521(b) of the Act to assume responsibility for enforcing permit conditions, issuing new or revised permits, and issuing necessary notices and orders when a State fails to enforce effectively all or any part of its approved State program. This Section refers to Part 733 of the regulations which sets forth the process which will be followed by OSM should it become necessary to assume such responsibilities.

{14919}A comment was received suggesting that OSM include in this Section specific examples of when a Federal take over of this sort would occur. The commenter suggested that the bases for such takeover could include (1) inadequate inspection and permit application review staff, (2) failure on the part of the State regulatory authority to prosecute violations, or (3) failure of the State to have an acceptable designation process.

The essence of this comment was considered in connection with comments raised in Part 733 of these regulations. The criteria used in the regulations in Part 733 refer to failure on the part of the State to implement, administer, maintain, or enforce adequately a part or all of the State program. OSM decided to leave these general criteria in the final regulations rather than specify factual situations in which Federal enforcement might be substituted in order to maintain administrative flexibility. In certain situations, the examples given by the commenter might well be the basis for withdrawing approval of a State program under Section 504 of the Act. However, in other situations, the examples might prompt OSM enforcement of a State program under Section 521(b) of the Act. OSM believes that an exhaustive list of factual examples would not be possible. The reader is referred to the preamble to Part 733 for further discussion of this issue.

701.4(f) This provision of the regulations sets forth the Secretary's responsibilities for substitution of a Federal program for an approved State program. The final regulations have identified this responsibility with the Secretary rather than with the Office. At this time, it is anticipated that the actions described would be taken by the Secretary rather than the Director. The Director may be delegated the authority at a later date through the Department of the Interior's internal procedures.

701.4(g) This Section was inserted in the final regulations to show the Secretary's responsibilities with respect to Federal lands. It provides, by reference to Subchapter D, that certain responsibilities are to be retained by the Secretary, others normally held by the Secretary are delegated to the Director, and still others are shared with State regulatory authorities under cooperative agreements.

SECTION 701.5 Definitions.

The terms in this Section are defined under authority of Sections 102, 201, 501, 502, 503, 504, 506, 507, 508, 510, 511, 513, 514, 515, 516, 517, 521, 522, 523, and 701 of the Act. The basis and purpose of this section was generally explained at 43 Fed Reg.

41667 41671 (Sept. 18, 1978).

Definitions which apply during the permanent program and which have the same meaning in more than one Subchapter of Chapter VII are in Section 701.5. Definitions generally applicable to all of Chapter VII are in Part 700. If a defined term is used as defined only in one Subchapter, Part or Section of the regulations, the term is defined in that Subchapter, Part or Section. The Office believes that the words not defined in the regulations have generally accepted meanings that will not lead to ambiguity or misinterpretation.

The principal sources of technical definitions are American Geological Institute, Glossary of Geology, 1972; American Society of Civil Engineers, Nomenclature of Hydraulics, 1962; U.S. Bureau of Mines, Dictionary of Mining, Mineral, and Related Terms, 1968; Bituminous Coal Institute, Glossary of Current and Common Bituminous Coal Mining Terms, 1947; Soil Science Society of America, Glossary of Soil Science Terms, 1970; and Soil Conservation Society of America, Resources Conservation Glossary, 1976. Numerous comments were received primarily recommending various changes in the definitions.

ACID DRAINAGE 1. Acid drainage from coal mines has been a problem since coal first was mined in the 1700's in the United States. Although acid formation is a natural phenomenon in certain hydrogeologic settings, mining of coal has resulted in a widespread acid problem by exposing vast quantities of acid-producing material to an oxidizing environment (Braley, 1954, pp. 1 3; See Final EIS at BIII 30/31.) The U.S. Environmental Protection Agency defines acid mine drainage, as "any acidic water draining or flowing on, or having drained or flowed off, any area of land affected by mining.'' (EPA 670/2 74 093, 1974, p. 214). Technically, all water having a pH of less than 7.0 and draining from a mining area may be considered acid mine drainage.

However, because USEPA has set a minimum pH of 6.0 for its effluent limitations (EPA 490/1 76/057 a, 1976, Sec. VI) and because pH values outside the range of 6.0 8.5 in natural waters are indicative of stress, the Office has elected to consider water having a pH of less than 6.0 and draining from mining areas as "acid mine drainage.'' This is the primary basis for the terms "acid drainage'' and/or "acid mine drainage'' in Sections 816.50 and 817.55 of the regulations and Section BIII, page 30 of the Final Environmental Statement (OSM EIS 1979).

700 2. The occurrence of acid drainage from nonmined natural settings has been documented by Braley (1954, pp. 1 3) and other investigators; such situations are not within the regulatory scope of the Act. However, when mining activities are proposed or conducted in such areas, it is presumed that the permit applicant has prior knowledge of natural acid production and the probability of augmenting acid production by mining. (See 30 CFR 779.14, 779.16(b), 783.14, 783.16(b).) The Office believes that the operator must assume responsibility for the environmental consequences of mining in these areas and, therefore, assumes responsibility for acid production and acid drainage. There is no known feasible way, once mining has altered the natural geohydrologic environment, to separate the effects of "natural'' acid production from those resulting from mining activities.

3. When preliminary hydrologic and soils investigations show that those materials will yield drainage with pH values of less than 6.0, the Office believes that adequate forewarning of the likelihood of encountering acid-producing conditions exists, and that these data may be useful in making management decisions to acquire treatment facilities or to decline mining. Whether a mine is termed "active'' or "inactive'' has no bearing upon the concept of acid drainage, only upon fixing responsibility of remedial efforts as required by the Act. Therefore, as a definitional matter, acid drainage is defined to include any such drainage from coal mining.

4. The definition was expanded to include the phrase "and in which total acidity exceeds total alkalinity.'' This was done because the pH alone can occasionally be insufficient as an indication of acid drainage. Occasionally, a stream in its natural state will fall briefly and slightly below a pH of 6; however, its acidity will not exceed its alkalinity. The additional test is currently used by the Pennsylvania Department of Environmental Resources to identify acid drainage.

ACID-FORMING MATERIAL.

No comments were received on this definition, and it is unchanged from the proposed regulations. The basis for the definition is knowledge of the process of acid production from mineral materials. Ca ruccio, F. T., and Parizek, 1968, An Evaluation of Factors Affecting Acid Mine Drainage Production and the Ground-Water Interactions in Selected Areas of Western Pennsylvania, in Second Symposium on Coal Mine Drainage Research, Mellon Institute, Pittsburgh, Pa., Bituminous Coal Research Inc., Monroeville, Pa., preprint, pp. 107 151; Emrich and Merritt, 1969; Smith et al., 1978. The definition follows closely the concept of the definition for the term found in Grim, E. C., and Hill, R. D., 1974, Environmental Protection in Surface Mining of Coal, U.S. EPA Publication, "EPA670/ 2 74 093, p. 214''.

{14920}AFFECTED AREA/PERMIT AREA/MINE PLAN AREA/ADJACENT AREA/DISTURBED AREA Introduction: These five terms are the key terms used throughout the permanent program regulations to distinguish among various areas of land and water, in a geographic or spatial sense, which are to be protected or regulated. Legal authority for defining these terms is Sections 102, 201, 501, 503, 504, 506, 507, 508, 509, 510, 511, 515, 516, 517, 519, 522, 523, and 701 of the Act.

As proposed, it was intended that "affected area,'' "permit area,'' "mine plan area,'' and "adjacent area'' be defined and used upon one conceptual basis. "Affected area'' was intended to be where surface coal mining and reclamation operations were conducted or located at any time.

"Permit area'' was intended to be where those operations were authorized under the permit to be conducted within the term of the permit, generally a maximum of five years. "Mine plan area'' was intended to be where those operations were authorized to be conducted throughout the entire life of the operations, or the total of all permit areas for the operations. "Permit area'' and "mine plan area'' were, therefore, intended to represent temporal distinctions in the underlying spatial concept represented by "affected area.'' "Adjacent area'' was intended to be the geographically separate area from the "affected area'' which could receive impacts from the conduct of surface coal mining and reclamation operations in the "affected area.'' "Disturbed area'' was intended to describe those areas where mining operations would remove topsoil, vegetation, or overburden and was defined principally to specify portions of the "affected area'' needing special attention for protection of the hydrologic balance.

The Office received substantial comments on these terms, both with respect to the proposed definitions in Section 701.5 and the uses of these terms in the rest of the proposed rules, particularly in Subchapter G. In response to comments, the Office has made major modifications in the definitions of these terms found in the final rules at both Section 701.5 and in the way these terms are used in the rest of the final rules. However, no substantial changes were made in the basic concepts discussed above, as representing the Office's intention in proposing the definitions.

a. AFFECTED AREA 1. As proposed, this definition specified that it included resources "disturbed or utilized'' within the permit area for surface mining activities. Ambiguity, however, was created by the proposed definition of "permit area,'' which covered all areas within the boundaries of the permit and the provision in the definition of the "mine plan areas,'' that "permit'' and "affected areas'' would always be the same. To ensure that no confusion exists in the application of the term "affected area,'' the final rule has been revised to specify that "affected area'' is any area where surface coal mining activities are conducted or located.

2. For underground mining activities, the proposed rule created ambiguity by use of the term "affected during the term of the permit'' and was criticized by commenters as being too subjective. In the final rules, this ambiguity has been eliminated, by specifying that the "affected area'' is where underground mining activities are conducted or located at the surface and also is lands overlying underground mine workings.700 3. Regarding lands overlying underground mine workings, the Office notes that many commenters objected to the inclusion of those areas within the definition of affected area. The commenters argued that surface areas where facilities are built or actual excavation occurs should be the only places regulated by the Act. The Office did not accept these comments, finding that Congress intended that the Act's Title V regulatory program protect surface areas overlying underground workings. This congressional intention is evident from the express provisions of Sections 516(b)(1) and 516(c) of the Act, protecting the use of surface lands from subsidence. Therefore, the Office decided to retain coverage of lands overlying underground mine workings in the definition of affected area, so that Subchapters G and K would clearly apply to those lands.

4. A commenter's objection that the definition of "affected area'' should be limited to only those areas where overburden is removed or deposited was rejected, because the basis for the definition is the conduct or location of surface coal mining operations, which, as defined in Section 701(28) of the Act includes many other operations and activities.

b. PERMIT AREA 1. This definition was changed in the final rules to rely on only a spatial concept. The definition now includes the area designated on the approved permit application maps which must contain, at a minimum, all the "affected area'' during the term of that permit. The approach in the proposed definition based on the concept of impacted resources was rejected.

Areas which will be "affected'' (e.g. where surface coal mining and reclamations will be conducted or located) during the term of the permit must be included "at a minimum.'' This leaves to the discretion of the regulatory authority whether or not to include areas which will not be "affected'' by the operation within the term of the permit. In response to comments, the language in the proposed definition which tied the definition of permit area to coverage by a performance bond was deleted, leaving that matter to be specifically addressed in Subchapter J of the final rules.

2. Several commenters recommended that the distinction between "permit area'' and "mine plan area'' be dropped, with "permit area'' defined as "mine plan area'' as now defined. The reasons for this proposal were assertedly to protect the operator's right to automatic permit renewal, rather than requiring operators to apply for a new permit every five years.

OSM rejected this suggestion, because under the Act the applicant ordinarily receives permission to mine and the right of successive renewal only for the geographic area which was subject to full review by the regulatory authority under the initial application. Sections 102(c) (d), 506(d), and 510(b) of the Act. Since permits are ordinarily limited to a five-year term under Section 506(b) of the Act, the entire mine plan area is not scrutinized in the initial review in the same degree of detail as is the permit area. The permittee will not, therefore, have demonstrated to the regulatory authority in the initial application that reclamation of successive permit areas is feasible, as required by Section 506(d) of the Act before automatic permit renewal may be allowed. I11Regarding these commenters' contentions that failure to provide for automatic renewal of the permit for the entire mine plan area will adversely affect the industry's ability to obtain development capital, the Office first notes that if a legitimate need for a long-life permit is shown, the Act (Section 506(b)) and regulations (30 CFR 786.25(a)) authorize an exception to the five-year limitation on the life of the permit. Moreover, the concerns of these commenters appeared to be contradicted by other industry commenters, who objected to requiring permit applications to cover the entire mine plan area as imposing undue front-end costs on the applicant. Thus, if the Office were to allow all permits to be automatically issued for the entire life of the mine, the information requirements on a national basis for details of the entire mine plan area on the same scale as the permit area in the initial permit application (which the Office does not require) would apparently be too great for the industry, as a whole, to absorb.

{14921}3. Several commenters suggested that the language "whether or not the areas will be impacted by surface coal mining and reclamation operations'' be deleted from the definition of "permit area'' to allow release of the performance bonds on unaffected areas. OSM adopted this recommendation, leaving the question of whether bonding should be required for unaffected areas within the permit area largely to individual regulatory authorities under Subchapter J, because not all unaffected areas need to be covered by a bond.

4. One commenter recommended that the area included in the "permit area'' be merely that area approved by the regulatory authority for inclusion in the permit area, deleting the language which indicates that the area of the map submitted by the applicant with its application must be included in the "permit area.'' This was rejected, because defining permit area as land designated on maps is expressly required by Sections 507(b)(13) and 701(17) of the Act.

5. Several commenters recommended that a distinction be drawn in the definition of "permit area'' between surface and underground mining. They said underground mining involves an initial disturbance of the surface, with little additional disturbance during the life of the mine. They recommended that subsidence problems be dealt with in the performance standards, rather than in the definitions. OSM rejected this proposal, because underground mining can have continuing effects on the surface, as evidenced by Sections 516(b)(1) and (c) of the Act and as explained in the technical literature cited in the preamble to Sections 817.121 817.126 of the regulations. Because subsidence effects are regulated under both the permitting provisions of Subchapter G, the performance and design standards of Subchapter K, and the inspection and enforcement provisions of Subchapter L, the definition of permit area in Section 701.5 must include all surface areas over underground mine workings.

c. MINE PLAN AREA 1. The definition of this term was modified in the final rule to reflect more clearly the Office's intention that the term is to cover all "affected areas'' for the entire life of the operations, so that it includes all of the individual permit areas for those operations. The definition retains the language of the proposed rule which explained the relationships of "affected,'' "adjacent,'' "permit'' and "mine plan'' areas, so that the reader of the regulation clearly understands the relationship between each of these terms.

2. Several commenters recommended that the phrase "life of the mine'' in the proposed rules be deleted, because this requires regulation of a geographically larger area than the Act allows. These commenters also recommended that "permit area'' always be used in place of "mine plan area'' throughout the regulations. The principal commenter objected to the use of the term "mine plan area'' in several of the informational requirements in the regulations on permit applications and reclamation plans. Commenters argued that Congress explicitly required information on an area larger than the permit area in several instances, and that where the Act does not contain such explicit language, information can be required only for the permit area itself.

Those arguments are not supported by the language of the Act, as discussed in greater detail below. In addition, the Act requires the regulatory authority to make its permitting decisions on whether the Act and regulations can be met based on complete and adequate information. (See Sections 507 510 of the Act.) Because of the interrelationship of different elements of the environment, adequate information must include data concerning resources outside of the immediate permit area.

(a). It should first be noted that the commenters' statements that Congress made a distinction in the Act between "permit area'' and "mine plan area'' are inaccurate. The phrase "mine plan area'' is not explicitly used in the Act, but is a term defined by OSM to implement the Act. "Mine plan area'' is used to enable the regulatory authority to insure that sufficient information is provided in an application so that a determination can be made as to a permit applicant's ability to comply with the Act and regulations.

(b). A cardinal rule of statutory construction is that ambiguous statutory language should be construed to serve the purposes of the statute, rather than to undermine the statute or make it inefficient. In Re Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1323 N. 27 (D.D.C., 1978). Thus, unless the language of the Act clearly indicates otherwise, its provisions should be construed so that they further rather than defeat the Act's environmental purposes as reflected in Section 102 of the Act.

The language of the Act cited by the commenters, as supporting their argument for narrower informational requirements, is not clear, unambiguous language. They cited Sections 507(b)(11) and (12), and 508(a)(1) of the Act, as specifically requiring information concerning hydrology, climatology, and identification of lands subject to mining operations for areas larger than the permit area. The Office does not dispute this reading of those sections. However, the commenters went on to argue, that the Act, in Sections 507(b)(1), (9), (13), and (15), "specifies'' that other information is required for the permit area only. This statement, like the statement that the Act distinguishes between "permit areas'' and mine plan areas,'' is inaccurate. 700 Section 507(b)(1) requires that the permit application contain, "among other things,'' information concerning the persons having a legal interest in the property "to be mined.'' This phrase does not indicate whether it means property to be mined immediately under the the first permit for which the applicant is applying, or whether it includes property to be mined in the future (e.g. over the entire life of the mine). When an individual has a property interest in a larger coal-containing area around the permit area, it is reasonable to conclude that the "property to be mined'' may include the entire mine plan area. This is especially true when this language is compared to the language of Section 508(a)(1), which the commenters described as "specifically'' requiring information on a broader area; this Section refers to lands "subject'' to mining and goes on to mention "sub areas for which it is anticipated that individual permits for mining will be sought.'' The phrase, "lands subject to. . . mining'' is no more specific than "property . . . to be mined.'' The commenters' arguments that this language creates a clear distinction between "mine plan area'' and "permit area'' is, therefore, unpersuasive.

A similar argument holds true for the "land to be affected'' language found in Sections 507(b)(9) and (13) cited by the commenters. Clear evidence that "land to be affected'' goes beyond the permit area is found in Section 507(b)(4) of the Act, which refers to "lands to be affected including the actual area to be mined'' (emphasis added). Like "land to be mined,'' "land to be affected'' is an ambiguous phrase in the Act that should not be taken to explicitly forbid the regulatory authority from requiring information concerning other areas within the cumulative areas permitted during the entire life of the mine.

Concededly, there are several sections of the statute which contain language which appears to focus more closely on the permit area. Section 507(b)(9) refers to the "area of land within the permit area'' which the applicant has a right to mine. Section 507(b)(13) requires legal information concerning "areas abutting the permit area'' and the location of buildings ". . . within one thousand feet of the permit area.'' Finally, Section 507(b)(15) requires information concerning the coal in the "permit area.'' {14922}However, the commenters contention that this more limited language means that all other environmental resources information need only be provided for the permit area overstates the case. These sections do not specifically forbid the regulatory authority from requiring the information for the mine plan area. When read in the light of the rules for statutory construction discussed earlier, the language of sections 507(b)(1), 507(b)(4), 508(a)(1), 508(a)(14), and 510 of the Act, and the purposes of the Act, the Office does not construe the statutory language cited by commenters to forbid the regulatory authority from gathering information which is necessary in order to determine whether or not the operations described in the permit application will be able to meet the performance standards.

(c) The technical literature emphasizes that successful reclamation and reduction of adverse impacts from coal mining depends upon adequate information regarding the physical, chemical, and biologic conditions both on and off the mine site. Grim and Hill, Environmental Protection in Surface Mining of Coal, p. 17, (1974); Arthur H. Johnson, Jon Berger and Ian L. McHarg, Landscape Analysis for Ecologically Sound Land Use Planning, p. 2; USEPA, 1976, Erosion and Sediment Control, Vol. 1 at 74.

For example, blasting can cause widespread effects such as flyrock, which can land long distances from the explosion itself. Gustafsson, p. 86; Hearings on H.R. 2 before the Subcommittee on Energy and Environment of the House Committee on Interior and Insular Affairs, 95th Cong., 1st Sess. Part II, p. 313 (1977). Blasting can also cause ground vibrations and air blast damage at substantial distances from the mine site, as is recognized in Section 515(b)(15)(E) of the Act, which requires preblasting surveys where requested by individuals residing within one-half mile of the permit area, as well as in the technical literature. Gustafsson, p. 217.

Another example of the far-reaching effects of surface mining is fugitive dust emissions, which can pollute the air in an area much larger than the permit area. Francis X. Murray, Where We Agree_Report of the National Coal Policy Project (1978), Vol. 2, p. 206; U.S. Environmental Protection Agency, Survey of Fugitive Dust from Coal Mines (1978), EPA 908/1 78 003, p. 1; ERT Doc. No. P 3549 Assessment of Particulate Matter Impacts Associated with Strip Mining Activities: Fugitive Dust and the Proposed Surface Coal Mining Regulation (1978), p. 4 1.

Surface mining can also have widespread effects on fish and wildlife, primarily because of its effects on their habitat.

An Environmental Guide to Western Surface Mining Part II: Impact, Mitigation and Monitoring, FWS/OBS 78/05, pp. III 104 139; Methods for the Assessment and Prediction of Mineral Mining Impacts on Aquatic Communities: A Review and Analysis, FWS/ OBS 78/30 (1978), pp. 5, 15. ( See also, preamble discussion to Section 816.97).

(d) The legislative history of the Act also reveals the need for the regulatory scheme under Title V of the Act to be adequate to protect lands and waters outside the immediate permit area. Congress intended that the information required in the permit system be thorough and complete, so that the regulatory agency can make an informed decision on whether an applicant will be able to meet the performance standards and reclamation requirements of the Act. Congress was clearly aware that adequate data is crucial to intelligent decisionmaking about environmental matters: In any coal surface mining regulatory system, the determination that reclamation can or cannot be accomplished in an area proposed to be mined depends initially upon the judgment of the regulatory agency. Experience has shown that without a thorough and comprehensive analysis both by the agency and by other affected parties, based upon adequate data, this judgment is apt to reflect the economic interest in expanding a State's mining industry. Valid environmental factors tend to receive short shrift. H.R. Rep. No. 95 218, 95th cong. 1st Sess. 91 (1977).

As the House Report indicates, Congress intended permit applicants to submit information for areas outside the permit area itself: The physical parameters of the mining site and its environs must be clearly set forth in the application, so as to yield an accurate picture of the geologic, hydrologic, surficial, developmental, ecological and general land use features of the landscape which will be affected directly or indirectly by the operator. H.R. Rep. No. 95 218, 95th Cong., 1st Sess. 91 (1977). ( Emphasis added ) Thus, the legislative history indicates that decisions about cumulative impacts of mining in an area must be made, that they must be based on adequate data, including areas outside the immediate permit area, and that applicants are to be the source of the data. Therefore, the Act's permit application requirements should not be construed in such a way as to undermine these purposes.

(e) The need for adequate information on wide areas is especially clear, when one considers the nature of environmental decision-making. The regulatory authority will be unable to assess the environmental effects of proposed mining, if it has the information only for the mine site itself. Environmental effects cannot be assessed for discrete units of land; these effects spill over property lines and similar artificial boundaries, as discussed above. A recognition of the interrelationship of natural ecological systems lies at the heart of the Act. See Sections 101(c) and (d) and 102 of the Act. The effects of consecutive permit renewals may be far greater than the sum of the effects of each individual permit, and blindness to large, catastrophic cumulative effects could be the source of the damages which the Act is intended to prevent.

700 (f) The commenters' arguments appeared to utilize the legal principle that "expression of one thing is the exclusion of another.'' They argue that, because Congress, in several instances, explicitly required information for an area larger than the permit area, the failure in the Act to require such information explicitly should be taken as forbidding such a requirement. There are several flaws in that reasoning.

The commenters' principle is merely a tool to aid in construing statutory language and should not be used to thwart a statute's purpose. Legislative intent overrides other considerations in construing a statute, and the commenters' principle is increasingly disfavored by modern courts. National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672 (D.C. Cir. 1973), cert den., 415 U.S. 951. Furthermore, the principle should not be applied in cases where something was expressly mentioned only because of caution and not to exclude other things. Thus, Congress mentioned that the regulatory authority may require information concerning hydrology, climatology and identification of lands subject to mining in areas broader than the permit area, because it was especially aware of the need for this information and not because it considered it unimportant to have broad information on other subjects. H.R. Rep. No. 95 218, supra at 91.

Moreover, the regulations complained of do not rest solely on Sections 507(b)(1), (9), (13), and (15) of the Act. Section 508(a)(14) states that the reclamation plan, which is submitted as part of the permit application under Section 507(d), shall contain "such other requirements as the regulatory authority shall prescribe by regulations.'' Many sections of the regulations rely on Section 508(a)(14) of the Act as authority. Sections 779.24(a) and (b) rely on the "land to be affected'' language of Section 507(b)(9) of the Act, and Sections 779.24(d)(3) and (h) rely on the same phrase in Section 507(b)(13) of the Act.

{14923}3. One commenter recommended that the definition of "mine plan area'' be revised to take into account the problem of operators who have several mines within the same general vicinity and who need to know whether these mines must be considered together for regulatory purposes. This commenter suggested that the revised definition of "mine plan area'' utilize the concept of a "logical mining unit,'' as in the Federal Coal Leasing Amendments Act of 1975, 30 U.S.C. Section 181 et seq.

The commenter also believed that this change would aid in coordination between the Act and the Coal Leasing Amendments.

OSM rejected this comment, because the Act and the Coal Leasing Amendments are already coordinated in particular regulations applicable to mining on Federal lands. 30 CFR Parts 211, 740 745, and 769. Extension of the use of the "Logical mining unit'' (LMU) concept to private lands is inappropriate, because (1) LMU is a developmental and economical concept relevant to planning on very large areas, and (2) non-Federal holdings are generally too small to make such a concept useful.

4. One commenter recommended that the definition of "mine plan area'' include a definition of "sub-area'' in order to clarify its meaning. OSM rejected this comment as unnecessary; use of the term "sub-areas'' in Subchapter G clearly refers to individual permit areas.

d. ADJACENT AREA (1) This definition was changed in the final rule to abandon the distinction between permit applications and the actua