Authority: Sections 102, 201(c), 501(a), 503, 504, 505, and 521 of Pub. L. 95 87.

SECTION 730.1 Scope.

This Section gives an overview of the Subchapter, and is essentially unchanged from the proposed regulations.

SECTION 730.2 Objectives.

This Section lists the objectives for Subchapter C establishing the criteria and procedures for the Subchapter. Changes from the proposed regulations are editorial in nature.

SECTION 730.4 Responsibilities.

This Section delineates general responsibilities for the States, the Regional Director, the Director, and the Secretary for permanent regulatory programs as implemented by the States. The specific duties and responsibilities set out in this Section are based on the authority of Section 201 of the Act and on specific responsibilities delegated by the Secretary. Submission, review, and approval or disapproval responsibilities are discussed, as well as responsibility to maintain programs, to revise and amend programs and to invoke remedial actions should State programs not be administered effectively. Responsibility for administering funding assistance necessary to develop and enforce State programs is also established.

1. The comments addressing this Section raised several objections concerning the responsibilities assigned to the Director and the Secretary. Specifically, a commenter objected to the Director being responsible for approving and disapproving program amendments under Section 730.4(f). The final decision, it was felt, should lie with the Secretary. This proposal has not been accepted. Prior to issuance of the proposed regulations, the Secretary officially delegated certain responsibilities to the Director as allowed under Section 201(c) of the Act. This delegation included the authority to make the final decisions regarding program amendments. The Department has not changed this delegation. These decisions are not expected to be of a critical or controversial nature which would require Secretarial action. In those cases where Secretarial review is needed, it will be obtained under internal administrative procedures.

2. Other commenters raised similar objections to Section 730.4(g). These commenters objected to the Director's responsibility for both initiating Federal enforcement for a State program and withdrawing approval of a State program not being properly administered, maintained, or enforced. These commenters pointed out that the Act provides the Secretary with the authority to administer the program and that withdrawing a State program or initiating Federal enforcement should be considered as critical as the initial approval of a program. Commenters also recommended that, because the Secretary has the final responsibility for approving State programs, other equally critical decisions should be retained by the Secretary and not delegated to the Director.

After consideration of these comments, the Department has chosen to retain the Director's authority to initiate direct Federal enforcement. This authority has been duly delegated to the Director under the authority of Section 201(c) of the Act. However, as proposed in the comments, the more sensitive decision of withdrawing approval of a State program has been assigned in these regulations to the Secretary. Again, internal administrative procedures will permit delegation of this authority to the Director at a future date if such action is warranted.

SECTION 730.5 Definitions.

This Section contains definitions of two fundamental terms used throughout the Sections concerning State programs. The terms "in accordance with'' and "consistent with'' are used in many places in the Act to describe the degree of similarity required between the provisions of the Act and those to be established in a State program. The terms have been defined in these final regulations to provide a standard for uniformity between State provisions contained in a State program and provisions of the Act and the regulations. Authority for this Section is found in Sections 201(c) and 503(a) of the Act.

The Office received many comments commenting that the definitions for the terms "consistent with'' and "in accordance with'' be changed to allow greater variations between State programs and the Act and these regulations. Commenters interpreted the proposed definitions as requiring that the State law and regulations be virtually identical to the Federal law and regulations. The definitions for these terms have been revised and the new definitions, along with comments received, are discussed in the Preamble to Section 731.13, Standards and procedures for approval of alternatives to provisions of the regulations of this Chapter. SECTION 730.11 Inconsistent and more stringent State laws and regulations.

This Section is based upon the provisions of Section 505(a) and (b) of the Act and reiterates the congressional directive that the Federal Act and regulations supercede any State law or regulation which is inconsistent with the provisions of the Act or its regulations. Section 730.11(b) specifies that any State law or regulation which provides for more stringent land use and environmental controls and regulation of surface coal mining and reclamation operations than do the provisions of this Act and this Chapter, or which provide for the control and regulation of coal exploration and surface coal mining and reclamation for which no provision is contained in the Act or this Chapter, will not be construed as inconsistent.

SECTION 730.12 Requirements for regulatory programs in States.

This Section requires that a State or Federal program be adopted no later than June 3, 1980, for each State in which coal exploration and surface coal mining and reclamation operations are or may be conducted on non-Federal and non-Indian land. Authority for this Section is contained in Section 503 of the Act. The Office is aware of several States with extractable coal reserves in which mining is not occurring now, but is likely to occur in the near future. The Office encourages these States to make a determination as to the potential for future mining. If it is determined that mining is likely to occur in the near future, a State program should be submitted by the August 3, 1980 deadline. Section 731.12(b)(2) allows States to submit programs at a later date as they become aware of proposed mining operations.

700 {14951}Section 730.12 also has been revised to reiterate the requirements contained in Part 736 of this Chapter and to highlight specifically the provisions of Section 503(d) of the Act establishing exceptions to the June 3, 1980, deadline for implementation of a State or Federal program where a State has been enjoined from preparing, submitting, or enforcing a State program.

Specifically, coal surface mining and reclamation operations in a State where a State program is subject to an injunction will be regulated by the State pursuant to Section 502 of the Act until the injunction terminates, or for one year from the issuance of the injunction, whichever is shorter. At the end of this time period, the requirements of Sections 503 and 504 again will be fully applicable. Section 730.12(b) has been added to require the State to notify the Director of the issuance of any injunction which prevents or prohibits the State from preparing, submitting or enforcing a State program or any part thereof.

SUBCHAPTER C -- PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-INDIAN LANDS, 30 CFR PART 731 -- SUBMISSION OF STATE PROGRAMS Authority: Sections 102, 201(c), 501(b) and 503(a) of Pub. L. 95 87.

Part 731 establishes procedures and requirements for submission of State programs. Under Section 503(a) of the Act, any State in which coal exploration and surface coal mining and reclamation operations are being conducted or may be conducted is eligible to submit a State program for approval.

SECTION 731.12 Submission of State programs.

This Section contains the submission deadlines for State programs and authority for this Section is contained in Sections 201 and 503 of the Act. Under Section 731.12(a), a State has until August 3, 1979, to submit its proposed program to the Office. Under the proposed regulations this Section required submission of a State program by February 3, 1979. Under proposed Section 732.12(b), a State could petition the Office for an extension of time beyond February 3, 1979, if it was necessary for its State legislature to act before a complete State program could be submitted.

Numerous commenters objected to the deadlines for program submission in Section 731.12. Most commenters stated that it would not be possible to develop and submit a State program by February 3, 1979. Even with a six-month extension to August 3, 1979, most believed that the schedule was unreasonable and perhaps unattain able. Most proposals for additional time suggested that the date be extended by the same number of months that the Office was late in promulgating the regulations. Although the Office is sympathetic to the commenters' concerns, the Act allows no discretion on the final program submission dates. The Act mandates a Federal program if States do not submit programs by February 3, 1979, or August 3, 1979, with a six-month extension, or if the State program is not approved by June 3, 1980. A Federal program must be established no later than June 3, 1980, if a State program has not been approved.

Section 731.12(a), however, has been revised to require submission on or before August 3, 1979. This change followed the Director's determination that legislative action was necessary in all States in order to prepare a State program in compliance with Section 503 of the Act. Another reason for this extension is that the effective date for these regulations establishing submission procedures falls beyond the proposed February 3, 1979, deadline.

Because of the modification in Section 731.12(a), Section 731.12(b) of the proposed regulations has been deleted. Sections 731.12(c) and 731.12(d) of the proposed regulations therefore have been lettered to Sections 731.12(b) and (c) respectively.

Two editorial changes have been made in Section 731.12(b). The term "under the Act'' in the proposed rules has been defined in a more specific manner as "August 3, 1977,'' and the phrase "become aware of'' has been made more definitive by using "anticipated.'' The Office believes that this latter change denotes more immediacy than was conveyed by the proposed language. Also, a new Section 731.12(b)(3) has been added, allowing submission after June 3, 1980, should the State program be enjoined as specified in Sections 730.12 and 503(d) of the Act. Section 731.12(c) is unchanged from the proposed regulations.

SECTION 731.13 Standards and procedures for approval of alternatives to provisions of the regulations of this Chapter.

This Section permits States to request variations from the regulations of this Chapter in order to develop regulatory programs to fit specific local requirements or local environmental or agricultural conditions of each State. This Section has been restructured and modified in response to many comments on the proposed regulations which pointed out inconsistencies between several Sections of the regulations and demanded greater clarity on the extent of variation to be allowed. Authority for this Section is contained in Sections 201(c), 503, 505, 518(i), and 521(d) of this Act.

1. Numerous commenters pointed out that while proposed Section 731.13 allowed alternative approaches, it was directly contradicted by the definitions of "consistent with'' and "in accordance with'' in Section 730.5. The definition of "consistent with'' required that State regulations be "the same as or similar to'' the regulations of this Chapter. The definition of "in accordance with'' required that State laws "be in agreement with'' the Act. Commenters stated that these definitions, especially the former, effectively limited the possibility of variation which Section 731.13 purported to allow. This inconsistency was compounded by a third standard for approval in Section 732.15(a)(2), "achieve the same or more stringent regulatory results.'' OSM agrees with these comments. All three Sections_730.5, 731.13, and 732.15(a)(2)_have been revised to include the same standard.

2. Commenters also addressed the question of how much variation should be allowed from the Federal Act and regulations. On this issue, commenters generally stated that Sections 101(f) and 201(c)(9) of the Act implicitly authorize a certain degree of flexibility for States in developing their programs and that this variation is explicitly authorized in Section 503 of the Act by the use of the words "in accordance with'' and "consistent with.'' In interpreting these phrases, however, commenters differed on the degree of flexibility. Differences ranged from insistence that broad flexibility be established for State programs to recommendations that the amount of flexibility be reduced.

700 Section 503(a) of the Act requires the submission of a program which demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purpose in part through State laws and regulations which are "in accordance'' and "consistent'' with the requirements of the Act and the regulations of this Chapter. The underlying principle of the Act is to establish minimum national standards for surface coal mining and reclamation. It is the mandate of Section 503(a) of the Act that States achieve at least this minimum level of environmental control and regulation. This principle is reiterated throughout the Act. Sections 101(f) and 102(g) of the Act provide the specific mandate for a national program, and Sections 503(a), 518(i), and 521(d) of the Act establish the specific standard of compliance (i.e., must be in accordance with, no less stringent than). Most importantly, Section 505 of the Act provides that the State laws and regulations which require more stringent land use and environmental control will not be considered inconsistent with the Act or the regulations.

{14952}OSM believes that these Sections clearly allow a degree of flexibility. The State provisions, however, cannot fall below the minimum standards established by the Act.

It is clear that Congress contemplated, through the use of the words "in accordance with'' and "consistent with,'' some variation be allowed. This concern was expressed specifically in Section 201(c)(9) of the Act requiring the Secretary to assist the States in developing a program that meets the requirements of the Act and, at the same time, reflects local requirements and local environmental and agricultural conditions.

3. Generally, commenters expressed confusion over the meaning and relationship between such words as "in accordance with,'' "same or similar,'' "no less stringent,'' "reflects local conditions,'' and "meets the requirements of.'' Specific proposals by the commenters largely reiterated these terms, however. Suggested phrases were "no less stringent,'' "meets the minimum requirements,'' "is identical to,'' "achieves the same regulatory result,'' "no less stringent and meets the minimum requirements,'' and lastly, "achieves the same result.'' (a) "No less stringent'' on its own is not accepted because the Office believes that the Act establishes certain minimum requirements that alternative provisions must meet. These minimum requirements must be met regardless of the stringency of the alternatives. Section 503(a) of the Act specifically requires that a State submit a program which demonstrates that it has the capability of carrying out the provisions of the Act and meeting its purposes. "Stringency'' by itself is only part of the standard required by the Act.

I11(b) "Meets minimum requirements,'' alone is insufficient and therefore not accepted. Section 505(b) establishes that the Secretary shall set forth any State law or regulation which is construed to be inconsistent with the Act, adding that State laws and regulations shall not be construed as inconsistent should they provide for more stringent land use and environmental controls and regulations. Equally important, minimum requirements may not be explicit in all cases. Some other standard is needed to help ensure that the requirements of the Act and regulations are achieved.

(c) "Is identical to'' is not accepted because Section 503(a) of the Act clearly requires that State laws and regulations only be "in accordance with'' and "consistent with'' the provisions of the Act and the Secretary's regulations. Section 201(c)(9) of the Act requires that State programs be granted some flexibility to strengthen the regulations of this Chapter to meet local requirements and environmental and agricultural concerns.

(d) "Achieves the same regulatory result'' is not accepted because regulatory result is difficult to define. Also, there are many minimum requirements stated in the Act which must be met that are clearly not results.

(e) "Capable of achieving same regulatory result'' is not acceptable for the same reasons as (d) above.

(f) "Two distinct standards,'' for State regulations and State laws as outlined in the proposed regulations was proposed and not accepted. The use of the words "in accordance with'' and "consistent with'' in Section 503(a) of the Act do not explicitly require different standards to be set for judging the acceptability of State laws and State regulations. In fact, both the Act and the legislative history demonstrate that Congress used these terms interchangeably when referring to State laws or regulations.

(g) "No standards.'' The Office believes that there must be a standard degree of conformity between State statutes and regulations and applicable provisions of the Act and the regulations of this Chapter. This degree of uniformity is specifically required by Sections 101(f), 102(a), 201(c)(9), 503(a), 505, 518(i), and 521(d) of the Act. In addition Section 503(a) specifically requires the State to demonstrate that it is capable of meeting at least these minimum standards. This proposal is therefore not accepted.

(h) "No less stringent and meets the minimum requirements.'' This standard ensures that State programs will achieve a certain minimum level of environmental control and regulation as mandated by Sections 101(g), 503(a), and 505 of the Act and at the same time utilizes a test set out in Sections 503, 518(i), and 521(d) for judging alternative regulatory provisions proposed by the States.

Minimum requirements, however, poses a substantial problem when applied to the regulations of this Chapter.

Minimum requirements can readily be equaled to minimum design criteria, thus requiring a very high degree of conformity to the regulations and negating the flexibility intended. OSM's solution is to apply no less stringent to both the Act and regulations and meets the minimum requirements to the Act alone.

The no less stringent and meets the minimum requirements standard complies with the intent and requirements of the Act.

No less stringent alone, applied to the regulations is consistent with the concept of allowing variation in State programs. Thus, a State program may vary from the regulations, but it may not be less stringent than either the Act or the regulations and it must meet the minimum requirements of the Act. Further, by applying this standard to both State laws and regulations, OSM recognizes that there is no clear dividing line between the two and therefore recognizes that there is no basis for applying different standards to them.

The Office also has included in the standard that State law and regulations include all applicable provisions of the Act and meet applicable provisions of the regulations of this Chapter. In evaluating alternative regulatory provisions the Office will require that all applicable Federal provisions be included, and that each applicable provision contained in the regulations must be met within a State's regulatory proposal. As discussed in Preamble to Section 732.15(b)(1) in regard to limiting required performance standards, "applicable'' modifies the standard so as not to require States to include or meet Federal provisions where the State can demonstrate that there is an absence of conditions which would make the provision meaningful.

4. In addition to the comments regarding the general standards for State variations, the Office received comments proposing that States have the ability to approve alternatives to the Office's performance standards on a site-by-site, permit-by-permit basis. These comments maintained that, provided the alternative practices achieve the same regulatory result, there is no statutory prohibition against this flexibility.

700 This proposal has not been accepted. Establishment of a case by case variance capability commits the Secretary to pass judgement on program submissions which may be largely unspecified. The mandate of Section 503(a) of the Act is clear. The State must demonstrate its capability of carrying out the provisions of this Act. Adoption of the site-by-site alternative would allow for approval of State programs which could not demonstrate fully the capability to achieve the minimum standards mandated by Section 503(a) of the Act.

The final regulations specify that any variation to provisions of the Secretary's regulations must be approved pursuant to Section 731.13, and contained in the State program. Site-by-site variation, to the extent allowed, is already covered in Subchapter K.

5. In the proposed regulations, the degree of allowable variation for State programs was defined by the phrases in accordance with and consistent with in Section 730.5. Many commenters stated that the standard defined in Section 730.5 was applied incorrectly to the submission procedures in Section 731.13 and was improperly stated in Section 732.15(a)(2) of the proposed regulations dealing with the criteria for approval. A number of comments were critical of the order and consistency throughout these three Sections. In an effort to meet these objections, the Office considered the following alternatives: (a) keep the standard in the definition and revise the other Sections to assure consistency, (b) delete the definition and place the standard in Section 732.15, and (c) place the standard in each specific regulatory provision.

{14953}The final regulations adopted alternative (a). Due to the interest generated by the definition Section, and the changes made, the Office believes that deleting the definitions would cause needless confusion. Comments sought consistent application of a given standard, not specific deletions. Similarly, the proposal to place the standard in specific regulations has not been accepted. The Office believes that paragraphs should remain the focal point for defining the relationship between Federal provisions and State provisions. 6. Several commenters proposed limiting variations to environmental performance standards. Others proposed restricting such a limitation to providing that any variation must be based only upon physical conditions.

These comments were not adopted. Section 201(c)(9) of the Act directs the Secretary to assist the States in the development of State programs which meet the requirements of the Act and at the same time reflect local requirements and local environmental and agricultural conditions. In this regard, the Office believes legislative intent is clear. Variation, in order to meet these minimum requirements, is allowed. In addition, Section 503 of the Act does not offer support for the limitations proposed by the commenters. Based on these Sections of the Act, Section 731.13 allows the State to propose alternative regulatory provisions as long as the State can demonstrate through documented evidence that the alternative will be no less stringest than provisions contained in the Act and the Secretary's regulations, and will meet the minimum requirements and include all applicable provisions of the Act. In addition, the State must demonstrate that proposed alternative are necessary because of local requirements or local environmental or agricultural conditions.

7. Some commenters stated that no variation should be allowed in the enforcement and penalty Sections. This comment has not been accepted. Sections 518(i) and 521(d) do not preclude alternative regulatory proposals. Both Sections require provisions which are "no less stringent than,'' and contain "the same or similar procedural requirements.'' The Office believes that these provisions allow the States a certain degree of flexibility in developing their total program as long as the provisions of the Act and the stringency standards are met.

8. A few commenters cited the provisions of Section 505 of the Act and 730.11 of the regulations as a means for providing variations. Such an interpretation suggests that States be allowed to employ alternative approaches, unless and until the Office could show them to be inconsistent with the Act or the Secretary's regulations. This proposal is not accepted because Section 503(a) of the Act requires the State first to demonstrate its ability to carry out the provisions of this Act and the regulations. This Section of the Act clearly places the burden upon the State to prove that any alternatives will meet the required standards. To facilitate this requirement Section 731.13 is necessary to provide procedures for the States in submitting alternative proposals.

In addition to changes brought about by development of the new standard, Section 731.13 has been revised to establish more clearly the State's responsibilities in proposing alternative regulatory provisions. Language has been added establishing the standard and procedure for use in proposing alternative provisions pursuant to amendments under Section 732.17. In many instances a State will not have sufficient data and analysis for an alternative at the time of program submission. Under Section 731.13, the State can propose alternatives at a later date as an amendment to its program when data and analysis become available. Any variation proposed by a State is subject to public review and hearings.

SECTION 731.14 Content requirements This Section of the final regulations establishes the content requirements for a State program submission. A general requirement under Section 731.14 is that the submission demonstrate that the State is capable of carrying out the provisions of the Act and achieving its purposes. Final Section 731.14 (a) through (c) requires that the submission contain enacted or proposed laws and regulations, including existing or pending laws and regulations that directly affect the proposed program, and a legal comparison between the State laws and regulations and the Act and regulations of this Chapter. Final Section 731.14(d) requires designation of a State regulatory authority. Final Section 731.14 (e), (f), (i), (j), and (k) requires descriptions of the proposed organization, including personnel and staffing functions, and the relationship between the regulatory authority and other involved agencies. Final Section 731.14 (l) and (m) requires descriptions of budget projections and a description of physical resources, such as vehicles. Final Section 731.14(g) requires descriptions of the necessary systems and procedures that will make up the State program. Final Section 731.14(h) requires statistical information describing coal surface mining in the State which is adequate to demonstrate that the provisions of the State program and the resources available to it are sufficient when compared to the current and projected coal mining activities in the State. Final Section 731.14(n) requires a description of an anthracite program where applicable. Final Section 731.14(o) requires a description of other programs that the regulatory authority also may be required to administer. Final Section 731.14(p) provides that the Director may request other information that may be necessary to evaluate the proposed program submission.

The authority for establishing the content requirements for a program submission is contained in Section 503 (a) and (b) of the Act. Section 503(a) requires that a State program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. The seven provisions of Section 503(a) of the Act amplify this requirement, providing the basis for State program submission content requirements.

700 In keeping with the guidance furnished by the Act, the Office adopted three principal objectives governing what information should be included in a State program submission. First, the Office believes that basic data on the size and nature of the coal mining industry in a State is fundamental to the development of a State program as envisioned in the Act. Such information also enables the Office to properly assess the adequacy of the program. Second, and most importantly, the State must provide detail sufficient to demonstrate that the State program meets the requirements of the Act and regulations. Finally, the State should be required to submit only that information and detail clearly necessary to demonstrate capability as required in the Act. Consequently, several content requirements have been eliminated and others have been made more flexible allowing the State to submit information and to select appropriate methods for describing State capabilities.

Proposed Section 731.14 (a) and (b) required that program submissions include copies of effective or enacted State laws and regulations giving the State full authority to implement the program. Some flexibility has been added in the final regulations, however. Final Section 731.14(a) combines proposed Section 731.14 (a) and (b), and now requires copies of enacted or proposed State laws and regulations. Comments proposing additional time to submit State programs are discussed in the Preamble to Section 731.12. Additional time to gain full authority through enacted laws and regulations is also discussed in the Preamble to Section 732.11. {14954}In allowing submission of laws and regulations that have not been fully enacted, the Office has established two major criteria. First, the laws and regulations must be in the "process'' of enactment. By this criterion, the Office means that the laws and regulations must not only be fully drafted but they also must have been introduced into the legislative or public review process and in a sufficiently timely manner to result in their enactment within the time frames established by these regulations. The Office may reject a State program submission as incomplete if laws and regulations have not been enacted and the State is clearly not making a good faith effort to enact the appropriate legislation. This, in turn, could lead directly to the development of a Federal program for the State.

The second criterion is that the State must have determined that the laws or regulations are "essential'' to allow the approval. It is expected that the State program submission will clearly show this finding and the reasons that the laws or regulations proposed are essential. Finally, the Office notes that allowing submission of proposed laws and regulations is intended to facilitate State program development and should not be construed as allowing States to delay the necessary enactment or rulemaking process. If a State choses to submit a proposed program based substantially on laws or regulations not fully enacted, it faces an obvious risk of ultimate program disapproval because of the short periods available during the later portions of the schedule. It could not prove impracticable or impossible because of time for the State to correct deficiencies identified during the public review and hearings and final review by the Office.

1. Proposed Section 713.14(c) required submission of copies of other State laws directly affecting the regulation of coal surface mining and amendments to existing laws or regulations which are under consideration or pending. Commenters raised objections to both parts of the proposed Section. A commenter pointed out that numerous laws and amendments are proposed every year, while few are passed. The commenter continued, that proposed Section 732.17, requiring notification of the Regional Director when a significant event or proposed change in State law or regulations will affect the implementation, administration, or enforcement of the approved State program, is adequate protection against such potential conflicts. Another commenter noted that OSM is charged with enforcing Pub. L. 95 87 only and argued that proposed Section 731.14(c) exceeds the Office's statutory authority.

OSM has elected to retain the requirements of Section 731.14(c). Under the test of Section 503(a) of the Act, the Office considers this information essential to the State's presentation demonstrating that it can carry out effectively the provisions of the Act.

Section 731.14(b) of the final regulations requires States to submit copies of other laws and amendments to laws and regulations enacted or pending which directly affect the regulations of coal exploration and surface coal mining and reclamation. Inclusion of other laws and regulations should alert the Office and the State to potentially conflicting laws and regulations which may create problems during enforcement of a State program. The Office encountered several instances of this problem during the initial program, e.g., conflicting water quality requirements relating to coal mining.

Proposed Section 731.14(d) (relettered) required a legal opinion from the Attorney General of the State affirming legal authority to implement, administer and enforce the program in accordance with the Act and consistent with the Federal regulations. Proposed Section 731.14(d) also required a Section-by-Section comparison of the State's laws and regulations with the Act and Federal regulations, explaining any differences and their legal effect. This provision has undergone two changes. First, the required legal opinion may be prepared by either the Attorney General or the regulatory authority's chief legal officer. Several commenters indicated that the legal staff of the regulatory authority may be in a better position to determine the authority of its program when an Attorney General's office has not been involved previously with the regulatory authority. Second, final Section 731.14(c) allows both the opinion and the Section-by-Section comparison to address proposed laws and regulations, when the required authority has not been established by the date of program submission. A revised opinion and comparison will be required, if laws and regulations later enacted differ from those of the proposed program submission.

2. Several commenters recommended deleting the Section-by-Section comparison of State's laws and regulations with the Act and this Chapter. These commenters further recommended deleting the requirement for an explanation of any differences and their legal effects. One said that the State's Attorney General will formulate his opinion utilizing appropriate procedures of his office and will thus carry the same legal effect, irrespective of his method of analysis. Other commenters said that any written Section-by-Section analysis should be prepared by OSM. Another comment asserted the Section-by-Section analysis was unfair and burdensome. Contrary to these comments, the Office believes a side-by-side comparison is necessary. Section 503(a) of the Act specifically requires the State to demonstrate its capability to carry out the provisions of the program. The Section-by-Section comparison is an essential ingredient of the State's demonstration of ability and program adequacy under this Section of the Act. With regard to the comment proposing that OSM prepare the side-by-side comparison, the Office believes that this is best performed by State officials most familiar with their own laws and requirements. Finally, this analysis will also assist the Office in evaluating proposals for alternative provisions pursuant to Section 731.13.

Proposed Section 731.14(d) has not been changed. It requires submission of the order or statute authorizing the State to carry out a State program and administer program grants.

Final Section 731.14(e) has not been changed from proposed Section 731.14(f), requiring a chart or table of organization for the regulatory agency and other agencies involved in the State program. The chart primarily will allow the Office to assess the adequacy of the program in terms of projected workload and time constraints imposed by the Act.

Final Section 731.14(f) (formerly Section 731.14(g)) is unchanged. This requires a copy of supporting agreements between agencies which will have duties in the program. These agreements are necessary to ensure program support within the proposed State program.

700 Section 731.14(g) (previously Section 731.14(h)) has been revised to allow a degree of State discretion in detailing proposed systems and processes. The revised language allows the use of "other appropriate means'' to describe proposed systems and processes. In short, whatever device the State determines to be most suitable may be used. 3. Several commenters called proposed Section 731.14(h), now Section 731.14(g), irrelevant and burdensome. A commenter stated that copies of the State's coal related laws and organizational charts should suffice. Another wrote that this Section requires States to develop systems and processes for over 16 specific categories and illustrate these by flowchart. Continuing, this commenter stated that Section 503 of the Act only requires a process for the review and issuance of permits, and argued that we should not strangle ourselves with flowcharts and paperwork. Another commenter suggested that a statement to the effect that these functions will be carried out in accordance with applicable regulations would be sufficient. The revision to final Section 731.14(g) allowing other appropriate means to describe proposed systems and procedures should reduce the burden to the States in preparing information required under this Section. Suggestions to reduce the coverage of this Section have not been accepted, however. Section 503 of the Act requires that the State demonstrate its capability to carry out the provisions of the Act. In addition to permitting, these provisions cover bonding, inspection, enforcement, public participation, etc. All are part of the total State program which the Secretary must approve. The information requested is essential for that purpose. Proposed Section 731.14(h)(1) required description of the State's proposed permitting system and also required the States to use a uniform numbering permit system adopted by the Office. A few commenters stated that each State regulatory authority should be allowed to establish a permit numbering system of its own or institute a system already in existence. They proposed that the Office develop a suggested permit numbering system for the States to adopt at their discretion. Another commenter asked why the Federal Government should dictate a uniform numbering system for permits. These comments were accepted and the numbering system has been deleted from the final regulations.

{14955}Final Section 731.14(g)(1) also has been revised to expand the required description to include receiving applications for new or revised approvals for coal exploration. This revision is basically editorial and combines proposed Section 731.14 (h)(1) and (h)(14).

4. Several commenters argued that proposed Section 731.14(h)(2) (i) and (ii) was in contradiction to Section 507(a) of the Act which states that permit fees "may be less than, but shall not exceed the actual or anticipated cost of reviewing, administering and enforcing the permit issued pursuant to a State or Federal Program.'' Proposed Section 731.14(h)(2) eliminated the Act's language ". . . may be less than . . .,'' and added, in Section 731.14(h)(2)(ii) the concept of "average estimated costs . . .'' While these two departures from Section 507 of the Act were believed to have no substantive effect, numerous commenters misinterpreted the proposed Sections to have removed the discretionary minimum fee level provided for in the Act. Other comments suggested that permit fee requirements be relocated to Part 771, General requirements for permits and applications.

The Office has accepted these comments. Fee requirements for a State program have been clarified to reflect the intent of Section 507(a) of the Act. Final Section 731.14(g)(2) now is written to conform to Section 771.25.

Proposed Section 731.14(h)(3) has not been changed and appears in these final regulations as Section 731.14(g)(3). This requires description of the system for posting, releasing, and forfeiting performance bonds or other equivalent sureties. Proposed Section 731.14(h)(4) has been revised and appears in these final regulations as Section 731.14(g)(4). This Section requires description of the procedure and system for inspecting and monitoring coal exploration and surface coal mining operations.

5. Several commenters challenged the authority of the Office to require citizen participation in State inspections. These commenters believe that other opportunities for public participation are adequate. They also fear that citizens may disrupt the inspection process or the mining operation. Another commenter expressed uncertainty as to what public participation can be included in an inspection. Another commenter noted that Section 731.14(h)(15) requires the State to describe all public participation and stated that it was therefore unnecessary in proposed Section 731.14(h)(4). The Office has not accepted these comments to eliminate the phrase requiring provisions for public participation in the inspection process. As required in Section 732.15(b)(5), States must have an inspection system consistent with the requirements of Section 517 of the Act and Subchapter L of the regulations. This requires that the State include provisions for public participation in inspections.

Proposed Section 731.14(h) (5), (6), (7), and (8) has not been changed. This appears in the final regulations as Section 731.14(g) (5), (6), (7), and (8). This Section requires the States to describe systems and procedures for enforcement, assessment of civil penalties, and holding of public hearings.

Proposed Section 731.14(h)(9) has not been revised and appears in the final regulations as Section 731.14(g)(9). This requires the State to describe the procedure for coordinating issuance of permits required under the Act and the regulations with other State, Federal, and local agencies.

6. In reference to proposed Section 731.14(h)(9), a commenter pointed out that some State laws provide only one agency statutory authority to issue permits and proposed that Section 731.14(h)(9) require consulting, not coordinating. This commenter interpreted coordinating to be a shared responsibility for issuing permits. In many States, however, surface mining and water quality control permits are issued by different agencies, necessitating a coordinating function. In addition, Section 503 (a) and (b) of the Act requires a process for "coordinating'' the review and issuance of permits. Thus, this alternative is not accepted.

7. A few commenters stated that involvement of Federal agencies, as proposed in Section 731.14(h) (9) and (10) should not be required. They argue that these requirements will be administratively and financially burdensome and will duplicate or replace involvement already in place between the responsible State and local agencies and their overseeing Federal agencies. This recommendation has not been ac cepted. Proposed Section 731.14(h)(9) is required pursuant to Section 503(a)(6) of the Act. Proposed Section 731.14(h)(10) (now (g)(10)) is required pursuant to other Federal laws, which must be implemented pursuant to the Act.

Some States have designated a State agency to administer Federal environmental, historical, and cultural laws and Federal permits associated with coal mining. The Historic Preservation Act is administered by the Heritage Conservation and Recreation Service through various State agencies. However, there are cases where a program affected by surface mining under the Act is directly administered by a Federal agency. Attempting to make allowances for the variety of administrative arrangements between Federal and State agencies would needlessly complicate the regulation.

8. A few commenters asked that the Office specifically incorporate into proposed Section 731.14(h)(10), consultation with the State Historic Preservation Officer concerning archaeological, historical, and cultural resources. The commenters stated that because of the importance of the cultural resources such required consultation should be clearly defined. One commenter suggested that consultation with other agencies be carried out on a regular basis, particularly prior to or during the permitting process. A few commenters asked that OSM incorporate consultation with the Historic and Cultural Preservation Laws. A commenter also recommended that the regulations include specific penalties and other sanctions sufficient to render willful destruction of cultural resources more expensive than avoidance of criminal behavior.

700 {14956}These suggestions have not been accepted. The Office believes the requirement that the State identify a proposed system or process for consulting with State and Federal agencies having responsibility for these matters is sufficient to assure compliance with other Acts and requirements with regard to other environmental values, particularly when viewed in light of the specific requirements of Subchapter F.

Proposed Section 731.14 (h)(10), however, has been revised to specifically include consultation with regard to archaeological values. Archaeological resources have been included as a specific value based on Section 507(b)(13) of the Act which requires consideration of such features in permit application reviews and Section 522 of the Act, with respect to the designation of lands as unsuitable for coal mining.

Proposed Section 731.14 (h)(11) and (12) has not been revised and appears as Section 731.14 (g)(11) and (12) in these final regulations. Final Section 731.14 (g)(11) requires the State to describe its program to designate lands unsuitable for surface coal mining operations. Final Section 731.14 (g)(12) requires a description of the procedure for monitoring, reviewing and enforcing the conflict of interest requirements with regard to State employees.

Proposed Section 731.14 (h)(13) has been revised and appears in the final regulations as Section 731.14 (g)(13). The proposed regulation required that a program submission include the description of the procedure for training, examining and certifying blasters consistent with Subchapter M. Because Subchapter M is being reproposed and will not be effective until sometime after promulgation of these regulations, final Section 731.14 (g)(13) requires that the State describe the procedure for training, examining, and certifying blasters no later than six months following promulgation of final Subchapter M. The initial program submission should describe procedures for developing the system to train, examine, and certify blasters once Subchapter M is effective.

Proposed Section 731.14 (h)(14) has been combined with Section 731.14 (g)(1). Proposed Section 731.14 (h)(15) and (16) has not been substantially revised and appears in the final regulations as Section 731.14 (g)(14) and (15). Final Section 731.14 (g)(14) requires a description of the procedure for providing public participation in the development, revision, and enforcement of State regulations, the State program and permits under the State program. Final Section 731.14 (g)(15) requires a description of the procedure for administrative and judicial review of the State program, including inspection and enforcement actions.

A new Section 731.14 (g)(16) has been added, requiring a description of the State program to provide assistance to small operators. This is in response to several commenters who pointed out that Section 507(c) of the Act requires that the determination of probable hydrologic consequences and the statement of the result of test borings be funded by the regulatory authority for small operators. Although final regulations issued December 13, 1977, established this requirement, the proposed regulations did not. The Office, therefore, has included the Small Operator's Assistance Program as a submission requirement in Section 731.14.

Proposed Sections 731.14 (i)(1) through (8) required that a program submission include eight specific items of statistical information, describing coal exploration and surface coal mining and reclamation operations in the state. Numerous comments were received addressing this requirement. Most questioned the need for the information in a program submission.

9. A commenter stated that the informational requirements of proposed Section 731.14 (h) are excessive and that it should be remembered that "a State regulatory authority has as its purpose for being, the assurance of reclamation, not the reassurance of OSM.'' This commenter further stated that while the Act requires the State to demonstrate its ability to carry out the provisions and purposes of the Act, it is also very specific about the mechanisms deemed necessary for this demonstration. According to the commenter, the proposed program content requirements go well beyond the intent of the Act. Another commenter stated that proposed Section 731.14 contained 45 specific mandates for data submission and that much of this detail is unnecessary and of little value in reviewing a State's application. Another commenter recommended that all required information should be based on "existing data.'' Another commenter stated that the information required on permits in effect, when considered with existing personnel and other resources of the regulatory authority, will provide a much more meaningful index of the State's ability to implement the permanent program. This commenter added that much of the information requested is neither available nor relevant and will be time consuming to prepare.

10. One commenter suggested deleting proposed items (1) through (8) and revising Section 731.14 (i) to read: "Statistical information describing coal exploration and surface coal mining and reclamation operations in the State, including, the number, size, and geographical distribution of surface and underground mines at the time of submission of the program.'' In response to these many comments, the Office has revised Section 731.14 (i) to provide the States with a degree of flexibility in the submission of data and statistics. Items (1) through (8) have been restated in final Section 731.14 (h) as "suggested,'' not mandatory requirements. However, program submissions must include information adequate to demonstrate that the provisions of the State program and the resources available to it are sufficient to meet current and projected coal mining activities in the State. Items (1) through (8) would, the Office believes, provide the type of information necessary to make such an evaluation. However, the State may elect to provide other similar information which will show the current and projected workload of its program.

700 11. There were several comments recommending expansion of proposed Section 731.14(i)(6) (now (h)(6)) to include the number of violations cited and their disposition during the interim program. Two commenters said that the frequency of inspection, taken alone, is no index to the effectiveness of a State's enforcement efforts. They continued that one must know the number of violations cited and their disposition before any reliable evaluation of State enforcement can be made. Another commenter suggested that citizen complaints regarding operations be included along with their disposition within the program submission. Another commenter asked for specific enforcement data for at least a three-year period prior to program submission. Another suggested inclusion of prosecution statistics.

This Section allows the Office to judge the State's capability to meet minimum Federal inspection frequency requirements in the permanent regulations. Proposed requirements for the history and progress of regulation in the State have been deleted because of a State's past history of administration is not a fair indicator of its future abilities under the Federal legislation. There was a wide diversity of State legislation prior to enactment of Pub. L. 95 87 and simple statistics will not give a reliable guide to the State's enforcement practices. For these reasons, the proposals to expand the language of Section 731.14(i)(6) have not been accepted.

12. Proposed Section 731.14(l) required the program submission to include a map showing office locations of the regulatory authority and other agencies involved in the State program, including the number of employees and job functions at each location. The Office received many comments protesting this requirement. Most commenters said that the requirement was burdensome and irrelevant. One commenter said the aim of the requirement was to ensure accessibility; however, a map is not a good indicator due to numerous other factors. This commenter continued that the distance and proximity of the Office to operations and the public would require some indication as to the location of either group. Another commenter stated that given the wide dispersal, particularly of the public affected by mining, such a relationship would be impossible to estimate, let alone illustrate. Another commenter called the map requirement: "a striking example of overly detailed requirements.'' In response to these comments, the map requirement has been deleted. Office locations however must be included in the program submission in response to final Section 731.14(m).

{14957}Proposed Section 731.14(n) has not been changed except for editorial clarifications. It appears as Section 731.14(l) in these final regulations. This Section requires the State to describe its existing and proposed budget for administration of the State program.

13. Proposed Section 731.14(p) required a narrative description of the State's history and progress of regulation. A large number of commenters felt this requirement was unnecessary and burdensome. A commenter stated that the capability to administer a permanent program at any given point in time is based more on the integrity and strength of the regulatory agency's director and staff than on the "progress of regulation in the State.'' Another commenter stated that this requirement is not authorized by the Act nor justified by any legitimate OSM need for purposes of program approval or disapproval. Another commenter stated that OSM would have already monitored the States' performance in microscopic detail and will have kept voluminous records and suggests deletion of the requirement. 14. Related to the same issue, two commenters asked that proposed Section 731.14(p) be revised to eliminate the first proposed clause and leave the second proposed clause requiring other information as appropriate to demonstrate the State's capability to administer a permanent regulatory program. Other commenters suggest the narrative history requirement be expanded. One commenter recommended requiring a record of past public participation.

The request to expand required documentation of past performance has not been accepted while the numerous comments recommending that the proposed history narrative be deleted in its entirety have been accepted. The intent of the Act is to bring about major changes in regulation of surface coal mining operations. The use of past history to determine whether a State program should be approved is inconsistent with that intent.

Proposed Section 731.14(r) required a description of other programs administered by the regulatory authority. This Section has not been revised and appears in the final regulations as Section 731.14(o). The Office believes this requirement is necessary to determine whether other obligations may interfere with new responsibilities under the State program.

Proposed Section 731.14(s) (now Section 731.14(p)) established that a State may be required to submit other information as the Director may require. This requirement is essential to enable the Director to request information addressing the unique characteristics of each State making a submission.

15. There were a large number of comments objecting to proposed Section 731.14(s). Many of these comments charged that the explicit content requirements, in Sections 731.14 (a) through (r) are in themselves excessive, and the inclusion of other information "as the Director may require,'' raises the possibility of extended disputes and negotiations with respect to the completeness of a State's program submission. A commenter proposed expanding this requirement by adding: "Such other information as the Director may, after reasonable notice, require to ensure the State sufficient time to respond to such requests and prevent unnecessary delay . . .'' in taking over a program. The Office has not accepted these suggestions, but has revised this Section to make it clear that the Director may require only such additional information requirements of Sections 731.13 and 731.14. Deleting Section 731.14(p) would deprive the Director of authority to obtain information needed for evaluation of State programs. Lacking such information, the Director could find it necessary to recommend program disapproval because some element had not been demonstrated as fully adequate by the material submitted. The Office believes it more appropriate to provide for a request for additional data than to leave only the more serious action of disapproval available when such a deficiency is found.

16. The proposed regulations contained no requirements that a State submit resource maps describing specific resources in relation to potential coal mining. One commenter suggested that Section 731.14, content requirements be expanded to include three maps as follows: a. A State map or maps showing streams contaminated with acid mine drainage with a description of the problem by watershed.

b. A State map or maps showing location, type and size of abandoned mines. c. Maps indicating the relationship of present and potential mine areas to prime farmland and unique historical and archaeological features.

This suggestion for additional maps has not been accepted. The pictorial information provided by these maps would be useful in generally understanding surface mining within the State. However, the information gained pertinent to evaluating a State's capability to properly administer the Act would not outweigh the cost of preparing such maps statewide and the time consumed in performing the job. In addition, much of this information will be generated on a site-by-site basis as a requirement for permit applications or included in the State's abandoned mine reclamation plan under Subchapter R of this Chapter.

700 17. A number of commenters suggested that OSM have an evaluation team visit each State before program submission to gather the statistical and technical information required by Section 731.14. In this proposal, OSM would evaluate their findings and submit a written report which would be incorporated into the State program. In support of this alternative, a commenter wrote that OSM should send a State program review team to each State to interview staff and administrators and send a written finding that details program deficiencies to the regulatory authority. Another commenter suggested an on-site evaluation after program submission. Another commenter stated that the burden for proof of an acceptable program should be on OSM and not on the States.

With regard to recommendations to require OSM to visit States and evaluate proposed programs, OSM believes that such visits and evaluations are not an effective way of gathering the required data and would frustrate the Act's emphasis on State development of a program. This approach would be time consuming in that most of the data requested would still have to be prepared for presentation to the evaluaters. Public participation and hearing requirements would make it difficult to accept less than complete responses to the requirements of Section 731.14, thus using most of the preparation time required under the proposed guidelines. In addition, because of scheduling difficulties, the evaluation team process may actually further delay the timetable for program submission and approval. This alternative is therefore rejected. This does not mean that OSM staff will not aid and meet with States in order to review and discuss their submittals.

{14958}The proposed regulations did not include a Section establishing requirements dealing with meetings between the Office and a State regarding program submissions. These final regulations make no change in this area and there is no Section establishing requirements for program development meetings between the Office and a State.

18. The Preamble to the proposed regulations stated that there would be no ex parte contact following submission of a State program. Instead, according to that Preamble, following program submission, the Office would afford interested citizens and groups an opportunity to attend any meeting between OSM and the State. The Preamble also stated that OSM intended to meet often with the State prior to program submission to assist in the development of the program. Several commenters contended that it is certain that key program decisions will be made during these presubmission meetings. These commenters proposed that these discussions also be open to the public. The same commenters offered an alternative to open meetings by suggesting that the Office hold public briefings from time to time in an effort to obtain public input and to keep the public involved. In contrast, one State agency proposed that the following be inserted in the regulations: "The regional director will at the request of the State regulatory authority assist the States in an advisory capacity in the preparation and development of a State program. In this capacity he may conduct preliminary reviews of the State program or any part thereof without being required to initiate public notices and/or participation.'' The Office has not accepted these comments to establish requirements within the regulations for presubmission and postsubmission meetings between the Office and a State to discuss program development. These final regulations therefore do not specifically prohibit ex parte contact prior to or following program submission. It should be noted that this explanation represents a change in intended policy from that contained in the Preamble to the proposed regulations. The recommendation to change the regulation to provide for open meetings between the States and OSM has not been accepted since it is not required by the Act. The presubmission meetings will be crucial to program development and the Office intends to meet often with States during this time to provide assistance. Many of these meetings are likely to be working sessions which extend over days or weeks. With regard to meetings following program submission. The Office intends to issue procedural guidelines prior to submission of State programs. These guidelines will address the format for postsubmission exchanges that will occur between OSM and the State. It must be noted that the final regulations provide for an additional period of time following program submission in which States will be permitted to make modifications, changes and additions to programs. Certainly there must be free exchange between OSM and the State during this additional period for program modification. The provisions for public participation in the development and approval process are discussed further in Part 732. SUBCHAPTER C -- PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-INDIAN LANDS, 30 CFR PART 732 -- PROCEDURES AND CRITERIA FOR APPROVAL OR DISAPPROVAL OF STATE PROGRAM SUBMISSIONS Authority: Sections 102, 201(c), 501(b), 503, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 518, 519, 521 and 522 of Pub. L. 95 87.

Part 732 of the regulations provides criteria and procedures for review and approval or disapproval of State program submissions. Authority for these provisions is contained in Sections 503(b) and (c) of the Act. This Part also establishes the procedures and criteria for amending approved State programs.

Commenters have raised three major issues in this Part. First, there was a great deal of concern and interest in the review procedures of the State program submissions. Interest in this area dealt with questions of submission and approval deadlines as well as with the type of involvement the public will have in the review process. The second major issue concerned criteria for approval. Commenters in this area again were chiefly concerned with internal procedures of review and approval. Third, commenters showed great interest in the amendment section. Comments in this area addressed the inconsistencies contained in the proposed regulations and also suggested changes to the amendment procedures.

One important change in Parts 731 and 732 is the establishment of a new timetable for program submission and review. In Part 731 the program submission date has been extended six months to August 3, 1979. This extension, however, requires a revision of the program review procedures. Set forth below is the new timetable for program review and an explanation of how this timetable will be implemented. A more detailed discussion of the comments and specific Sections in Part 732 will follow.

700 As now set forth in Part 732 for programs submitted on or just prior to August 3, 1979, the Regional Director will hold a public review of the initial program submission on or about September 15, 1979, to discuss the program and its completeness. States will have until November 15, 1979, to make additions and modifications and to submit evidence of full legal authority with copies of enacted laws and regulations. States that do not submit full legal authority at this time will have their program disapproved by initial decision of the Secretary no later than February 3, 1980. However, pursuant to Section 503(c) of the Act, these States will have an opportunity to resubmit programs with enacted laws and regulations for review and approval or disapproval.

All program submissions, whether they contain enacted or proposed laws and regulations, will be subject to a public hearing scheduled during late December 1979 or early January 1980. This hearing will be held for all submissions even though those without enacted laws and regulations will be subject to a second public hearing following enactment of necessary authority. The arrangement acknowledges the short time available for the public to review revised program submissions before the second public hearing. The requirement for two review periods and two public hearings for submissions that do not include enacted authority prior to the first hearing should provide citizens adequate opportunity for input. Following the initial public hearing, the Secretary must issue a decision approving or initially disapproving the program. This decision must be issued within six months of the receipt of a program submission by the Regional Director but no later than February 3, 1980. States whose programs do not include full legal authority in the form of fully enacted laws and regulations prior to the public hearing will be disapproved under the initial decision. These States and States with disapprovals for other reasons may resubmit a revised program on or before April 3, 1980. All program resubmissions must include full authority through enacted laws and regulations. Another hearing will be held on or about May 3, 1980. The final decision of the Secretary approving or disapproving the program will be issued by June 3, 1980.

With the new timetable contained in the final regulations States are allowed until November 15, 1979 to make modifications to the submission including the addition of full legal authority. If a program is initially disapproved, States are allowed to make further modifications and add full legal authority through enacted laws and regulations until April 3, 1980.

{14959}Following is a timetable listing the key dates for submissions, review, approval or disapproval and resubmission of State programs. The regulations, however, are drafted so as not to limit earlier submission, and earlier submission will result in an earlier review and decision by the Office and the Secretary.

Submission, Review, Approval or Disapproval Timetable Latest Submission_August 3, 1979.

Public review sessions_written public comments due_September 15, 1979.

Public hearings_from December 15, 1979 through January 10, 1980.

Written public comments due_On date of public hearing.

Secretary's decision_February 3, 1980.

Latest resubmission for disapproved programs_must include full legal authority_April 3, 1980. Public hearing for program resubmissions_on or about May 3, 1980. Written public comments due_on or about May 3, 1980.

Final Secretary's Decision_June 3, 1980.

The new timetable is consistent with the key dates established in Sections 503 and 504 of the Act. This revision eases the time constraint imposed by the requirement of full authority at date of submission that appeared in the proposed regulations. It gives States more flexibility by allowing them to modify programs following an informal public review and comment period.

There is sufficient flexibility within Section 503(a) of the Act to allow States additional time to acquire full legal authority after submission of their State programs. The public will be entitled to review proposed laws and regulations for the period of the public review and still will have at least 30 days to review enacted laws and regulations before the public hearing. For those States that resubmit corrected programs there still will be at least a 15-day period for the public to review enacted authority before the second public hearing is held. The Office believes that States whose legislatures meet in 1979 should be able to enact laws and regulations before November 15, 1979, and submit them to the Regional Director so they may be made available for public review. For these States the formal public hearings to be held in late December 1979 or early January 1980 will provide the public at least 30 days for review and analysis of enacted laws and regulations. This alternative is preferable to others suggested by commenters because it requires no tampering with the June 3, 1980, dead line for permanent programs, contained in Section 504(a) of the Act.

Discussed below are the specific comments received on Part 732 and all changes that have been made by the Office. Because of the large volume of comments and the detail needed to respond to them, the Office has outlined its discussion by Section.

SECTION 732.1 Scope.

This Section remains essentially the same as in the proposed regulations except for a few minor editorial changes.

SECTION 732.4 Responsibility.

This Section establishes the responsibilities for the Regional Director, the Director and the Secretary and is restructured into three Sections. The changes that have been made are editorial. SECTION 732.11 Review by the Regional Director.

1. Section 732.11(a), concerning initial program review by the Regional Director, has been substantially revised due to the new timetable discussed previously. This Section requires the Regional Director to publish in the Federal Register and in a newspaper of general circulation in a State a notice meeting certain specified requirements. This Section now requires that the notice provide the location of each Office within the State where copies of the program submission are available for review and also allows the public 30 days within which to submit comments. Lastly, Section 732.11(a)(4) now makes a public review meeting mandatory.

2. In Section 732.11(b) the revisions have been less extensive. Due to the new review timetable discussed previously, the Regional Director now has 60 days to publish his determination of completeness.

3. Sections 732.11 (c) and (d) also have been amended due to the new review schedule. Under this new schedule, modified program submissions must be returned to the Regional Director no later than November 15, 1979. If required modifications have not been made, the program submission will be disapproved under the Secretary's initial decision (Section 732.11(d)). The provision requiring the initiation of procedures to implement a Federal program has been deleted. This provision was criticized by many commenters as too drastic. The Office agrees. The new submission and review timetable should give the State greater flexibility and time to submit an acceptable program.

700 Submissions that do not include full authority through enacted laws and regulations by November 15, 1979, will be disapproved under the Secretary's initial decision. Enacted laws and regulations may still be added to the program and resubmitted under Section 732.13(f) for review and final decision by the Secretary.

SECTION 732.12 Notice and Public Hearing Requirements.

1. Section 732.12 establishes procedures for public hearings to review the initial State program submissions. At least one public hearing is specifically required by Section 503(b)(3) of the Act. As discussed previously, the new review timetable requires hearings to be held in late December 1979 or early January 1980 for States that submit programs just prior to August 3, 1979 or that wait until or just prior to November 15, 1979 to make additions or modifications to program submissions. Paragraph (a) sets forth the notice requirements for the public hearings. Such notices will include information on how and where the public can review the State program submissions as well as specifying the comment period and date of the public hearing.

2. Section 732.12(b) sets out the date of the public hearing as well as the type of procedures that will be followed in the hearing. Because of the new timetable for review, the public hearing will now be held no sooner than 30 days after publication of the notice required in Section 732.12(a). Given the new provision in Section 732.11 which allows for additions and modifications to the initial program submission, there is not sufficient time for a 60-day notice. However, this is offset by more extensive early public review. This Section also requires a public hearing for all program submissions although the submission does not include enacted laws and regulations by November 15, 1979. If a State program submission includes proposed laws and regulations which the State believes will eventually be enacted, the public hearing under Section 732.12(b)(2) will be used to review the proposed program and proposed authority. When a State's laws and regulations are fully enacted, another public hearing will be held to review them. This arrangement allows public involvement throughout the review process without curtailing the flexibility needed by the States to develop an acceptable program.

3. The provision in Section 732.12(b) relating to additional hearings has been deleted. The Office anticipates holding only one public hearing for most State submissions (in addition to the public review meeting). However, if a program is disapproved and a revised program is resubmitted, another public hearing will be held to review the final submissions.

{14960}4. Section 732.12(b) also provides that the public hearings will be informal and follow legislative procedures. Several commenters suggested quasi-adjudicatory procedures including the right to cross-examination or to question witnesses. OSM has not adopted this alternative. Neither the Constitution nor the Administrative Procedures Act requires more than legislative type procedures. See Vermont Yankee Nuclear Power Commission v. NRDC, 435 U.S. 519 (1978); South Terminal Corporation v. EPA, 504 F. 2d 646 (1st Cir. 1974).

SECTION 732.13 Decision by the Secretary.

1. Section 732.13 establishes the procedures for Secretarial approval or disapproval of a State program submission. Authority for this Section is contained in Section 503 (b) and (c) of the Act. The changes that have been made in these five Sections are nonsubstantive and editorial in nature. In Section 732.13(d) the "180-day'' time limit has been changed to "six months'' to be consistent with the language in Section 503(b) of the Act.

2. A commenter on these Sections objected to the requirement in Section 732.13(b)(2) concerning concurrence by EPA. The comment stated that this exceeds the authority of the Act. This requirement, however, has been left in regulations. Under Section 503(b) of the Act, the Secretary must obtain the written concurrence of the Administrator of the Environmental Protection Agency before a State program is approved.

3. A few commenters suggested that Section 732.13 of the regulations provide a preliminary disapproval decision in less than 180 days for those States where disapproval of the program would necessitate legislative action prior to resubmission. This suggestion has not been accepted by the Office since such procedures would be cumbersome and are not specifically required by the Act. Moreover, the Office has already addressed this problem during the initial review by the Regional Director under Section 732.11. During this time the Office will make every effort to work with the States to resolve program deficiencies.

4. Section 732.13(f) provides the procedures to be followed by a State if the Secretary disapproves the initial program submission. Section (f) states that resubmitted programs will be reviewed under the procedures of Section 732.12. In all cases, this hearing will be the second public hearing for the proposed program. Emphasis by the Office during this second public hearing will be on the portions of the proposed programs that have been revised since the first hearing. Under the revised time schedule for review, this Section provides that the public review and comment period may be shortened to not less than 15 days. The public hearing also may follow public notice by not less than 15 days. Because this will be a second hearing and a second opportunity to comment, the Office believes that this shorter comment period will not hinder public review.

5. The Office also has made one editorial change. Resubmission of a revised program should be made to the Regional Director and not the Director as required in the proposed regulations.

6. Section 732.13(g) has been added to this Section in order to clarify the effect of not resubmitting a program within the 60 day period provided in Section 732.13(f). If a State fails to meet this deadline, which may be as late as April 3, 1980, the Secretary will issue a final disapproval and publish his decision and the basis for it in the Federal Register.

7. Section (h), formerly Section 732.13(g), provides that a program submission cannot be approved unless it can be approved in whole.

700 Section 732.13(h) also provides that the publication date of the Secretary's decision approving a program represents the official starting date for the State program. This language has been added to clarify the starting date which was not specified in the proposed regulations.

The comments that full legal authority be developed after Secretarial approval or alternately on the effective date of the program are beyond the scope of the Act and cannot be accepted. Section 503(a) of the Act requires that the State have the capability of carrying out the provisions of the Act and meeting its purpose through enacted laws. Proposed laws do not meet this standard. Additionally, Sections 503(b)(1), (2) and (3) of the Act require involvement of the public and EPA, as well as Agriculture and other Federal agencies in the approval process. Without fully enacted laws, meaningful comment and review would be impossible. Lastly, Section 503(b)(4) of the Act provides that the Secretary may not approve a State program until the State has the "legal authority'' for enforcement of the environmental performance standards. These specific statutory directives clearly show that the State must have full legal authority prior to approval.

8. A new Section 732.13(i) has been added setting out the requirements for conditional approval. This Section allows the Secretary to conditionally approve a State program where the program is found to have minor deficiencies. The provisions of this Section limit the types of deficiencies and establish that unless they are corrected within a specific time, the program will be disapproved in whole by the Secretary. This disapproval will then represent the final decision by the Secretary and will constitute the final decision required under Section 732.13(f).

Although not specifically provided in the proposed regulations, the language in proposed Section 732.16 (Terms and Conditions) would have allowed conditional approval of State programs. Because of the various delays encountered by the Office after enactment of the Act, the Office believes that a limited form of conditional approval is authorized. The clear mandate of the Act, as expressed in Sections 101(f) and 201(c)(9), is that the primary responsibility for implementing the Act should rest with the States. Because of the time constraints now experienced by the States, the Office feels that this Section will give the Secretary some flexibility to conditionally approve programs where minor deficiencies must be overcome and where the State has been making a good faith effort to develop an acceptable program.

9. Several commenters argue that there is no authority to disapprove a program for minor deficiencies in certain parts. Other commenters claim that there is authority to approve programs that are missing certain parts. These comments contend that Section 503(c) of the Act contemplates approval or disapproval of a "portion thereof.'' The final regulations retain the requirements that final Secretarial approval of a State program be given only if the program can be approved in whole. This is specifically required by Section 503(a) of the Act which provides that a State must demonstrate the ability to carry out all the provisions "in whole or in part.'' Sections 503 (b) and (c) of the Act apply only to the Secretary's initial action. State programs or portions not approved must be resubmitted within sixty days. In fact, Section 504(a)(2) of the Act requires the Secretary to implement a Federal program if a State fails to resubmit an acceptable State program within sixty days of disapproval of a proposed State program. It is clear the Act contemplates approval of a total State program and not portions thereof. Partial approval, as suggested, would allow the States to implement only the most desirable parts of the program, leaving the more difficult, expensive, and politically undesirable actions to OSM. Partial approval could also lead to dual administration and likely chaos as well as creating judicial confusion (e.g., to whom should an operator appeal; which court has jurisdiction).

The commenters did present sound suggestions for not disapproving a State program because of minor deficiencies. These comments stated that the proposed regulations would require disapproval and result in implementation of Federal programs where a State's good faith attempt to obtain approval is frustrated by a technical or minor deficiency which cannot be corrected before the deadlines for revision are passed. Because of the time constraints experienced by the States in developing acceptable programs and in response to these comments, the Office added Section 732.13(i) allowing for conditional approval of State programs.

{14961}10. Section 732.13(i) in no way allows approval of State programs that do not provide implementation and administration for all processes, procedures and systems required by the Act and these regulations. Instead, it only will be utilized upon a showing that certain deficiencies of a State program will be corrected expeditiously after condition approval. Failure of a State to make the corrections as established in the conditional approval shall result in automatic disapproval of the program and implementation of a Federal program under Part 736 of these regulations. Through Section 732.12(k) the Office retains as much flexibility as is legally possible in attempting to assist the States. There also should be a clear understanding that failure to meet the conditions and deadlines will require immediate implementation of a Federal program.

SECTION 732.14 Resubmission of State programs.

1. Section 732.14 provides that should the State program submission be disapproved under Section 732.13(f), the State must wait until after implementation of a Federal program before another program submission can be made. Section 732.14 also establishes that resubmissions shall be made and acted upon according to the same requirements, procedures and within the same timeframes except for specific dates as initial submissions. Authority for Section 732.14 is contained in Sections 504(a)(2) and (e) of the Act. Section 504(a)(2) of the Act requires that the Secretary implement a Federal program should a State fail to resubmit an acceptable State program within sixty days of disapproval of a proposal State program. Section 504(e) of the Act then provides that a State which has failed to obtain the approval of a State program prior to implementation of a Federal program, may submit a State program at any time after such implementation.

2. Several commenters objected to proposed Section 732.14. They contend that should a State submit its program prior to August 3, 1979, the Secretary would then make his determination of approval or disapproval prior to February 3, 1980, and second approval or disapproval prior to June 3, 1980. These commenters stated that a Federal program shouldn't be required until June 3, 1980, and that States ought to be given every opportunity to resubmit proposed programs right up until the time that a Federal program is required. The commenters contend that Section 504(e) of the Act means that a State which has failed to obtain the approval of a State program prior to implementation of a Federal program may submit a State program any time thereafter. Commenters also argue that a restriction on resubmitting State programs is contrary to the intent of the Act and not authorized. The Office has not accepted these proposals of their rationale. The mandate of the Act is specific. Section 504(e) of the Act provides "A State which has failed to obtain approval . . . prior to implementation of a Federal program may submit at any time T3after such implementation '' (emphasis supplied). Congress provided in Section 503 of the Act two opportunities_an initial submission and one resubmission. After disapproval of a resubmission, a Federal program is mandated. The Office does not have to wait until June 3, 1980, to implement a Federal program; rather, that is the latest date for implementation.

SECTION 732.15 Criteria for approval or disapproval of State programs. S4700 1. This Section establishes the criteria for approval or disapproval of State programs. The Secretary shall approve or disapprove a State program on the basis of information contained in the program submission and information gained at the public hearing and other information.

2. Sections 732.15 (a), (b), (c) and (d) list the requirements that the State program, State laws and regulations and State regulatory authority must meet before the Secretary can approve the program. The authority for these requirements is contained in Sections 503(a) and (b) of the Act.

3. Final Section 732.15 has been renumbered due to the deletion of proposed Section 732.15(b) and several other proposed Sections. This Preamble discussion identifies each deleted provision and lists the proposed and final Section numbering for provisions that have been retained or revised.

4. Section 732.15(a) sets forth the basic requirements contained in Section 503(a) of the Act.

5. Proposed Section 732.15(a)(1) requiring a good faith demonstration by the State has been deleted in the final regulations. Several commenters pointed out that no provision in the Act states or suggests that State permanent programs can be disapproved on a subjective evaluation by the Secretary of its good or bad faith concerning its interim program performance. Other commenters stated that "this purely subjective determination is not only unauthorized by the Act, it runs counter to the requirement in Section 503 of the Act that States demonstrate only the capability to carry out the Act.'' Another commenter points out that with the vagueness of the term it will be impossible to judge a program's effectiveness in a manner that will hold up in court if a program is denied and subsequently challenged. Other comments regarded the irrelevancy of an initial program evaluation, versus the ability to implement a permanent program, in that items such as money, manpower and legal authority, may not have been available in sufficient quantities during the initial program.

The Office has elected to delete proposed Section 732.15(a)(1). As noted in comments received, past performance is determined by factors which may not necessarily relate to future intentions or capabilities. Such good faith judgments would be difficult to administer consistently and objectively. Part 733.12 more appropriately provides for such evaluations where maintenance of a State program is not satisfactory.

I116. In addition to the deletion of proposed Section 732.15(a)(1), proposed Sections 732.15(a)(3) and (a)(5) have been combined into Section 732.15(b) for reasons of clarity. Comments on these proposed sections will be discussed in Section 732.15(b).

7. Section 732.15(b) has undergone considerable revision and modification. This Section requires the Secretary to find that the State regulatory authority has the authority under State laws and regulations pertaining to coal exploration and surface coal mining and reclamation operations and the State program includes provision to accomplish 16 separate requirements. The specific requirements are listed as Sections 732.15(b)(1) through (16). Included in these requirements is a new provision concerning assistance to the State's small operators as required under Section 507(c) of the Act. This requirement for a small operator's assistance program was added in response to comments that pointed out that Section 507(e) of the Act required this provision. The content requirements for a State program submission have also been revised.

8. Proposed Section 732.15(a)(3) required that the State regulatory authority have full and exclusive authority under State laws and regulations to implement, administer and enforce the State program pursuant to Sections 503(a) and 731.12 of the Act and regulations respectively. The Preamble to the proposed regulations failed to explicitly establish this point. This gave rise to many questions from commenters asking whether authority for various functions of the program could be vested in other contributing agencies. One comment suggested that proposed Section 732.15(a)(3) provide for the inclusion of the statutory authority of other State agencies having a delegated role in the State program to avoid duplication. The same comment stated that Section 503(a) of the Act, under provision (6), provides for such inclusion as does Section 731.14(f) of the proposed regulations. These proposals are not consistent with Section 503(a)(3) of the Act, however. The final regulations in Section 732.15(b) require the State regulatory authority to possess the authority required under a State program. Through memorandums of understanding and other agreements, other agencies may implement, administer and enforce parts of the program. However, the agency designated as the regulatory authority must possess all required authority. 9. Related to the issue of exclusive authority is the extent to which a State regulatory authority may delegate functions or responsibilities of an approved State program to another agency. The Preamble to proposed Section 731.14(m) stated: "The Office does not envision approval of a State program if the functions of inspection and enforcement are handled by staff other than regulatory staff. Inspection and enforcement must be incorporated within the regulatory authority.'' Several commenters objected to this Preamble requirement. One State intends to satisfy the Act's coal exploration provisions for inspection and enforcement with personnel from other agencies. That State contends that this practice is already in place and working efficiently and for the Office to require a change would be unreasonable. Others pointed out existing practices of providing water quality inspection and enforcement with personnel from other agencies.

These suggestions have been accepted and the Office will allow the Regulatory Authority to delegate various functions to other agencies where a State can demonstrate that utilization of professional and technical personnel from other agencies is reasonable and practical and achieves the purposes of the Act.

The Office, however, strongly supports State efforts to develop programs with functions and responsibilities including inspection and enforcement capabilities unified within the regulatory authority. The ability to delegate certain functions under limited conditions does not in any way or manner alter the requirement in Section 732.15(b) that the designated regulatory authority must possess all required program authority.

10. Proposed Section 732.15(a)(3)(i) required as a condition for approval that the program include laws and regulations to implement, administer and enforce environmental protection performance standards consistent with Subchapter K of this Chapter. A commenter objected to this provision that laws and regulations are necessary to enforce all the performance standards of Subchapter K. The commenter suggests that this would result in States having to adopt irrelevant and inapplicable standards. The commenter asks that the word "applicable'' be added to the requirement mandating that the State enforce all permanent performance standards of Subchapter K. This comment has been accepted and final regulation Section 732.15(b)(1) limits the requirement to applicable performance standards.

700 Addition of the word "applicable'' will in no way relieve a State from its obligations to meet the intended goals of the Act. Inclusion of the word "applicable'' relieves the State from its compliance responsibilities only if the State can demonstrate that there is no situation within the State which would be covered by the Act and regulations. For example, the special protections offered alluvial valley floors are only applicable west of the 100th meridian and therefore need not be included in programs submitted by States east of that meridian.

11. Proposed Section 732.15(a)(3)(ii) provides as criteria for approval that the State program include authority to implement, administer and enforce a permit system consistent with the regulations of Subchapter G of this Chapter and to require permit fees with each application such that the approximate costs or review, administration and enforcement of such permits are recovered. Comments correctly pointed out that this criteria was not in accord with Section 507(a) of the Act. Section 507(a) establishes a maximum, but no minimum permit fee level to be required by State regulatory authorities. Proposed Section 732.15(a)(3)(ii) required that fee levels be sufficient to recover the approximate costs of review, administration and enforcement of such permits. Additional comments recommended that in order to be consistent with other requirements, permit fee provisions should be related to Part 771, General Requirements for Permits and Applications. The Office has accepted these recommendations and Part 771 now establishes fee requirements as provided in the Act. Specific fee requirements have been removed from final criteria in Section 732.15(b)(2).

12. Proposed Section 732.15(a)(3)(iii) established as criteria for program approval that the State control coal mining incidental to Government financed construction consistent with Part 707 of this Chapter. Several commenters asked whether the criteria should signify "notification'' and not "control'' of coal mining incidental to Government financed construction. They noted that Part 707 of the proposed regulations required that the regulatory authority be notified of coal mining operations incidental to Government financed construction while proposed Section 732.15(a)(3)(iii) required States to control such operations.

The comments were correct with regard to the proposed regulations. However, final Part 707 has been revised to require that any person extracting coal incident to Government-financed highway or other construction maintain certain information on site. The recommendation has therefore not been adopted but final Section 732.15(b)(4) has been revised and the regulatory authority must be able to require that any person extracting coal incident to Government financed construction maintain certain information on site consistent with 30 CFR 707.

13. The Office received many comments dealing with requirements contained in proposed Section 732.15 (a)(3)(vii) and (a)(5)(ii). These two provisions established specific requirements for inspectors of State regulatory authorities. Proposed Section 732.15(a)(3)(vii) stated that in addition to general issuance of orders by the regulatory authority, the State inspectors must have authority to issue orders, including issuance of notice of violations, cessation orders and show cause orders. Proposed Section 732.15 (a)(5)(ii) established that State law and regulations had to provide for the issuance of cease and desist orders by the State regulatory authority and its inspectors.

Most comments objected to the requirement that State inspectors specifically have these powers. Commenters pointed out that Section 521 of the Act vests such powers with the Secretary or his or her authorized representative. Others stated that at least one State had a constitutional restriction against inspectors having the proposed authority. Several commenters also recommended that proposed Section 732.15(a)(5)(ii) be revised to only require issuance of cease and desist orders by the head of the State regulatory authority or his or her authorized representatives.

While the majority of comments objected to the requirements for inspector authority, there were several comments in support of inspectors retaining the authority to issue cease and desist orders on site. However, a commenter also recommended that inspectors not be given authority to modify or terminate notices of violation or cessation orders. The commenter stated that once such orders have been issued, the only recourse should be through administrative review as provided in the Act. {14963}The suggestions to limit the authority of State inspectors have not been accepted by the Office. Section 521(d) of the Act specifically states that as a condition of approval of any State program, the enforcement provisions, at a minimum, must incorporate sanctions no less stringent than those set forth in Section 521 and must contain the same or similar procedural requirements. Section 521(a) (2) and (3) provide that the Secretary or his or her authorized representative T3shall "immediately'' order a cessation of surface mining operations in the case of imminent danger to the health or safety of the public, significant imminent environmental harm, or failure to abate a violation. Issuance of a cessation order at a departmental level is inconsistent with this Section of the Act. The legislative history of the Act clearly establishes that the ability of field inspectors to issue cessation orders in the field is a critical and essential enforcement mechanism and one that is mandatory for each State program. H. Rep. 95 218, 95th Cong., 1st Sess. 129 (1977). The Office believes that properly trained and supervised inspectors are fully capable of making judgments appropriate to issue a cessation order. For further discussion of enforcement responsibilities, refer to Part 843 of these regulations.

The Office has not accepted the recommendation to limit the authority of field inspectors to modify or terminate notices of violation or cessation orders. Authority for this provision is contained in Sections 521(a)(3)(5) and 521(d) of the Act.

In order to clarify State inspector responsibilities, the Office has revised the content of Section 732.15(b) (7) and (8) (formerly Section 732.15(a)(3)(vii)) by stating the specific requirements in their respective Sections of the regulations. This Section now provides general provisions which incorporate the specific requirements of these other Sections. To clearly understand the specific requirements for State inspectors, reference must be made to specific provisions of Subchapter L of the regulations. Final Part 840 establishes State regulatory inspection and enforcement requirements to be no less stringent than Sections 518 and 521 of the Act and consistent with Part 843 of these final regulations. The Preamble to this Part explains that each State program must require issuance of cessation orders immediately after the inspector observes a condition or a practice which causes or can reasonably be expected to cause an imminent danger to health or safety of the public or a significant, imminent environmental harm to land, air or water, or upon the failure of an operator to comply with a notice of violation.

14. Proposed Section 732.15(a)(4) required that the State regulatory authority and other agencies having a role in the State program have and will continue to have sufficient technical and administrative personnel and sufficient funding to implement, administer and enforce the provisions of the program, the requirements of Section 732.15(b) (formerly Section 732.15(a)) and other applicable State and Federal laws. This Section has been renumbered Section 732.15(d) in the final regulations.

700 A number of comments recommended that the phrase ". . . and will continue to have . . .'' be deleted from the criteria contained in this Section. Comments noted that a criterian of this kind would require the Secretary to predict the actions of future State legislatures and administrations. Such a predication would be subjective and of questionable reliability. The Office has accepted the recommendation and the rationale and has deleted the requirement from final Section 732.15(d). A number of commenters objected to the requirement contained in proposed Section 732.15(a)(4) that State programs have sufficient personnel and funding to implement, administer and enforce other applicable Federal laws.

Several commenters stated that they do not have authority to enforce all applicable Federal laws and expressed doubt about receiving such authority from their respective legislatures. One comment added that revised cooperative agreements required affected States to administer reclamation related laws. In response to this comment the Office believes that those Federal laws addressed in the regulations are, by definition, reclamation related, and are therefore applicable. It must be emphasized, however, that in establishing this requirment, the Office does not intend that States must have the capability to enforce all applicable Federal laws. Rather, it is recognized that some Federal laws will only require the State regulatory authorities to be capable of complying with and fulfilling any necessary responsiblities. In either case, the principal reason for including this requirment was and is to ensure that State programs have sufficient technical and administrative personnel and sufficient funding to satisfy the minimum obligations imposed by these applicable laws.

As is explained in further detail to the Preamble of Section 770.12 of the permits regulations, OSM can require that the States effect "coordination'' in the Act's permitting process with requirments imposed upon an applicant under the Clean Air Act, Clean Water Act, Endangered Species Act, Archeological and Historic Preservation Act, and Fish and Wildlife Coordination Act. Ordinarily coordination will only require that the State consult with other agencies directly responsible for enforcing these Federal laws to insure that operations planned under permits will be conducted consistent with requirements imposed by the other Federal Laws. However, in some instances, certain other provisions of the regulations will impose upon State agencies the need to independently administer and enforce regulatory requirements derived, in part, from the Endangered Species Act and Archeological and Historic Preservation Act. See 30 CFR 761.11, 761.12, 776.12, 780.15, 784.20, 786.19(e). As to both Section 770.12 and those Sections of the regulations imposing direct responsibilities upon the State agency, the Office has determined that it has the authority to invoke these requirements. Their necessity is explained in the Preamble to the individual Sections involved. States must therefore obtain the necessary legislative authority needed to implement these requirments.

A few commenters recommended as additional criteria for approval of a State program that the State have sufficient legal capability to go along with the State's technical and administrative capability. A commenter stated that permanent programs without sufficient legal personnel obviously cannot meet the enforcement obligations under the Act and regulations. The Office has accepted this reasoning and Section 732.15(d) now requires sufficient legal capability as a criterion for approval. Final Section 731.14(j) has also been revised to require States to address the projected legal workload in program submissions.

Proposed Section 732.15(a)(4) did not establish any specific requirment for experience or expertise of the State regulatory authority. Several commenters stated that while Section 503(a)(3) of the Act requires the State regulatory authority to have sufficient administrative and technical personnel the regulations do not expound further upon their expertise or experience. One commenter stated that there are stringent requirements concerning technical personnel used by industry to comply with the regulations, and that it would appear absurd that industry incur the expense of employing professional people to prepare permit applications when the work will not be reviewed by persons having proper experience and technical training.

{14964}Others stated that State regulatory authorities should be required to have registered professional engineers on their staffs. The commenters reason that since professional engineers must prepare many technical plans the review of these plans by the regulatory authority should only be performed by similarly qualified personnel.

The Office has not accepted these suggestions to expand the specific requirements for regulatory authority expertise. The inherent differences between State programs preclude establishing more detailed requirements. However, pursuant to Section 732.15 criteria, the Secretary is required to find that the State has sufficient personnel to implement, administer and enforce all provisions of the program. In reviewing program submissions the Office will evaluate program personnel against required program functions to ensure that the requirements of the Act and regulations can be met. This review will include an analysis of the numbers and types of personnel to ensure that the performance standards in Subchapter K can be properly incorporated into permits and that permit applications and approved permits can be properly field checked, inspected and enforced. Many of the performance standards are highly technical in nature. This requires that a State program include sufficient technical personnel to understand the requirements and ensure incorporation of the requirements in all permits. At a minimum the proposed staff should have the capability to deal with the land use, engineering, hydrologic, geologic, agronomic and administrative requirements of the Act and regulations.

The proposed staff should also have the capability to deal with the more specialized areas of a State program such as blasting. In addition Section 521 of the Act requires the regulatory authority to determine steps necessary to abate violations and imminent hazards and to list these steps in any orders or notices that are issued to operators. This requirement means that regulatory authorities should have personnel experienced in mining and reclamation matters who can make these required determinations.

15. Proposed Section 732.15(a)(5), now renumbered as Section 732.15(b), stated that the laws and regulations must be in effect at the time of a complete program submission. The Office received many comments objecting to this requirment of full authority at time of submission. As previously discussed in the beginning of Part 732, this requirement has been revised.

16. Proposed Section 732.15(a)(5)(iv) required that a State provide protection for employees of the State program in accordance with protection afforded Federal employees under Section 704 of the Act. Several commenters stated that this requirement was not justified under the Act, nor specifically required. These suggestions have not been accepted. The Act contains many provisions which clearly establish that State programs are to address all requirements of the Act. Section 503(a) specifically requires that the State program demonstrate that the State has the capability of carrying out the provisions of the Act. The Office interprets this to mean carry out all the provisions of the Act.

700 17. One commenter recommended that State programs include judicial review similar to that required in the Act. This comment has been accepted and final Section 732.15(b)(15) has been revised to require that State programs include judicial review in accordance with Section 526 of the Act. 18. Proposed Section 732.15(a)(5)(v) required that the State law and regulations provide for public participation in the development, revision and enforcement of State program regulations and that the State program be consistent with public participation required in the Act and regulations of this Subchapter.

A commenter stated that citizen's rights granted under Federal law and regulations may not be abridged by State programs and that no State program can be approved which does not provide at least the same level of citizen participation in all phases of the State program as does the Federal statute and regulations. The commenter further noted that the Office seemed to accept this basic principle. However, the commenter stated that in an area as controversial as citizen rights, it is incumbent to spell out in the final regulations the requirements for "citizens rights'' to be certain there is no confusion and that these rights actually end up in the State program. The alternative offered by the commenter is that criteria for approval of a State program regarding public participation in proposed Section 732.15(a)(5)(v) establish as minimum requirements the following: (a) State law must allow the citizen at least as much access to the mine site as allowed under the Federal law.

(b) State law must authorize compensation for citizens for participation in all adjudicatory (in accordance with 43 C.F.R. 4.1284) and non-adjudicatory rulemaking, permit hearing, or other similar proceedings held by the State. The State should also be required to budget adequate monies for this participation.

(c) State law must provide citizens with the right to request inspections and participate in the resulting inspection. State law cannot weaken the rights of citizens under Federal law, as established by Section 521 of the Act including the right to review established by Section 517(h)(1) and (2).

(d) State law must allow fee awards against the State and against permittees in accordance with 43 C.F.R. 4.1284.

(e) The State must establish an administrative review procedure similar to that contained in Section 525 of the Act, 43 C.F.R. 4.2 et seq., and 30 C.F.R. 722. This system must allow for at least the same citizen access to the administrative review process as exists under federal law. For example, there must be administrative procedures for review of civil penalties and not simply access to the State court system as urged by at least one State.

(f) The State must allow citizens as much access to the State courts as the Federal law allows to Federal court in areas such as citizen suits, damage actions, review of enforcement proceedings, rulemakings, permit applications etc.

(g) The State must provide citizens with as much access to information regarding surface mining and reclamation operations and regulatory authority activities as is permitted under Federal law to federal information and documents.

Another commenter says the regulations fail to specifically explain what States must do to ensure the citizen participation specifically provided for in the law. Without minimum criteria for citizens' rights, State programs may fail to give the public the same access to the regulatory process which the Act envisioned. This commenter suggests the new requirements for public involvement in inspection of mine sites, civil penalty assessment, access to information, permitting, bonding and designation of lands unsuitable for mining.

Another commenter says the word "consistent'' fails to clearly require any level of public participation and suggests that no State program be approved which provides for less public notice and participation than is proposed under the regulation for use of Federal lands.

Another commenter says the final permanent regulations should contain provisions establishing a procedure for involving citizens in the drafting of State regulations. Another suggests creation of a citizen's advisory council whose membership shall be drawn from names submitted by conservation, environmental and citizen groups Statewide.

Another commenter wants language added guaranteeing the fullest public participation through public hearings on permit applications and other mechanisms in the permit process and in designation of lands unsuitable for mining. Another commenter says that the Office and the States must get beyond the concept of the public hearing as the appropriate vehicle for citizen input. This commenter suggests establishing a procedure for involving citizens in drafting State programs and requiring program data allowing evaluation of State responses to citizen participation. This commenter also suggests that educational programs be established to inform the public of their rights.

{14965}Another commenter urges more effective public participation mechanisms than are provided in the regulatory proposal and requests that the regulations be expanded to make clear that public participation means more than public notice and hearings. Another commenter requests that citizens be permitted to accompany State inspectors during their visits to the mine sites.

Another commenter states that additional minimum requirements should not be established by Federal regulations for mandatory inclusion in a State regulatory program. This commenter summarizes by saying that States should be allowed to devise their own procedures for hearings so long as they do not violate due process requirements.

Most public comments generally speak to expanding requirements for public involvement in the various Sections of Suchapter C. After careful consideration of each comment, OSM has not accepted the proposals to expand on the public participation requirements. The Office has concluded that Section 732.15(b)(10) (formerly Section 732.15(a)(5)(v)) provides adequate assurance for public participation in the development, revision and enforcement of State regulations and the State program consistent with public participation required in the Act and regulations of this Chapter. This language gives the Office flexibility in working with the States to develop suitable public participation procedures and programs and gives States the flexibility to select methods best suited to their individual conditions and needs.

However, the Office believes that the following ten items are required by the Act and should be included in a State program: 1. Development of regulations pursuant to a State program. 2. Development of the State program.

3. Approval and disapproval of permits.

4. Inspections and enforcement including the citizen's right to request inspections and including the right for citizens to accompany State inspectors onto the mine site.

5. Release of performance bond.

6. Designating areas unsuitable for mining.

7. Administrative and Judicial Review that is in accordance with that required in Sections 525 and 526 of the Act and consistent with the Secretary's regulations.

8. Citizens' suits in accordance with Section 520 of the Act.

9. The State program also must allow citizens as much access to program information and records as is permitted under the Act.

10. The State law must provide for the authorization of the award of costs and expenses in administrative and judicial proceedings as provided under Section 520 (d) and (f) and 525(e) of the Act and 43 CFR Part 4.

700 19. Proposed Section 732.15(b) established that the Director may provide for other criteria necessary to meet the provisions of this Subchapter in order to determine whether a State has the capability to carry out the provisions of the Act and this Subchapter. There were many adverse comments regarding this provision. Commenters argued that unless the regulations specified criteria, the States cannot be certain that additional criteria will not be requested by the Office. Other commenters contended that the ability to establish additional criteria during the review process ". . . denies the State the use of time constraints placed on the Director for completing his review.'' In addition several comments maintain that no such discretionary authority is provided for in Section 503 of the Act which sets forth the basic criteria to be used by the Director in evaluating proposed State Programs. These recommendations and suggestions have been accepted and proposed Section 732.15(b) has been deleted.

SECTION 732.16 Terms and conditions for State programs.

1. This Section provides the Director with authority to establish terms and conditions for the implementation, administration and operation of a State program as necessary. Authority for this Section is contained in Section 201(c) of the Act. Proposed Section 732.16 listed three types of terms and conditions that could be established by the Director including a system for reporting information collected by the State, requiring consultation with the Office on a regular basis and providing the Office with access to books and records. Proposed Section 732.16(b) allowed the Director to modify the terms and conditions of the State program from time to time to reflect changes in the regulations of this Subchapter, the conduct of the program or the coordination with the Office. 2. Several commenters stated that the lack of an established set of terms and conditions in proposed Section 732.16 placed State regulatory authorities in an unfair position subjecting them to any provision which the Director may elect to establish. One commenter stated that any additional information requirements should be explicitly stated in the regulations. In addition, several commenters questioned the statutory authority of the Director to modify terms and conditions of the program after final approval. Another commenter stated that Section 732.16(a) is totally inadequate. That commenter would use this Section to require State programs to be revised to reflect subsequent Federal developments. The Office has chosen to accomplish this function under Section 732.17 which requires States to amend their programs whenever there are changes in the Act, regulations, State law, etc.

3. Another commenter states that modification of terms as provided in proposed Paragraph (b) should be established only if it can be approved by both parties. Another commenter suggests that changes in terms should require public hearings similar to those for adoption of regulations unless they are for minor administrative reporting items. Another commenter suggests modifications only after complying with State program amendment procedural provisions.

The Office has accepted the rationale of the comments and has deleted proposed Paragraph (b) allowing modification of terms and conditions from time to time from final Section 732.16. Following program approval and program implementation, changes in the Secretary's regulations that require changes in the State program will be dealt with through an amendment. See the Preamble for Section 732.17 for further discussions on amendments.

4. Final Section 732.16 combines proposed Sections 732.16(a)(1) and (3). The Office also has deleted the provision concerning consultation with the States. The Office does not believe that there is a need to establish this requirement in a formal regulation. The Office recognizes that consultation with the States is one of the Office's oversight responsibilities and that it is best to keep these consultations on an informal basis.

SECTION 732.17 State program amendments.

1. This Section sets forth the amendment provisions for the State programs. Amendments may be initiated by the State or by the Office. Amendments under this Section are available so that an approved State program may be adjusted to meet changes in the Act or regulations of this Chapter, to meet changes in staffing, budgets and resources of the State regulatory authority and to meet changes in the number or size of State mining operations. Amendments are not intended for use by the Office to address inadequate implementation, administration or enforcement of State programs. Inadequate administration of the State programs will be dealt with according to provisions of Section 733. Authority for this Section is derived from Sections 201(c), 503, 504 and 505 of the Act which authorize the Secretary to administer the programs for controlling surface coal mining and reclamation operations.

{14966}2. Section 732.17(a) defines the term "amendment.'' In the proposed regulations, a State program amendment was a written alteration of the provisions, terms or conditions of the approved State program. Several commenters recommended changing the description of a State program amendment in proposed Section 732.17(a) by deleting the words "provisions, terms and conditions'' from this provision. These words were viewed by the commenters, at a minimum, as unnecessary qualifiers to the "approved State program'' and "improperly restrictive'' at worst. This suggestion has been adopted and final Section 732.17(a) identifies a State program amendment as any alteration of the approved State program whether accomplished on the initiative of the State regulatory authority or the Director.

3. Section 732.17(b) requires the State regulatory authority to notify the Director in writing of any significant events or changes which will a