(1) Authority for this Part is found in Sections 102, 201, 501, 503, 504, 506, 507, 509, 510, 512 and 522 of the Act. This Part contains the general requirements for permit systems under regulatory programs for surface coal mining operations and procedural systems under those programs for coal exploration. Some of the proposed provisions of this Part received no comments and remain unchanged in the final regulations, except for minor editorial or grammatical variations which are not intended to alter the substantive meaning or effect. Further discussion of the basis of authority and purpose for this Part is contained in the Preamble to the proposed regulations (43 FR 41687, September 18, 1978). All comments or significant changes with respect to Part 770 are discussed below.

(2) In connection with the permit requirements, a number of commenters expressed concern over the plight of the small operators and the burden upon them to comply with new permitting regulations in general. Others were concerned that small operators not be granted special exemptions or variances in the type of data required in submission of a complete permit application. In the final regulations, OSM has addressed these concerns in a variety of ways, but the extent of relief for small operators is constrained by the explicit limitations of the Act.

The Act and its legislative history clearly recognize that small operators may be burdened by compliance with the Act, and the Act grants only certain specific limited assistance to these operators, e.g., the small operators exemption in Section 502(c) and the provision of certain services to small operators relating to hydrology and test boring under Section 507(c).

{15009}However, Sections 507, 510 and 511 of the Act require that extensive information be provided before a permit application can be approved, and also provide no exemption or variance for small operators. Moreover, the court has ruled that OSM has no authority to grant exemptions or variances from the requirements of the Act, except where Congress explicitly provided for this authority. ( In re: Surface Mining Litigation, 452 F. Supp. 327 (D.D.C. 1978)). Therefore, except for those elements of the final permit regulations which are not specifically required by the Act, OSM cannot lawfully create exemptions for small operators in the final regulations. On the other hand, OSM may reduce the information required with respect to particular types of environmental resources where, due to the small size of the mine area (as opposed to the mine operator), the impact on those environmental resources will be minimal. In that regard, modifications of particular application requirements in Parts 779 and 780 are discussed in the Preamble for those Parts.

(3) Part 776 of Subchapter G provides minimum regulatory program standards for procedures applicable to coal exploration on non-Federal, non-Indian lands. Part 776 also is limited to coal exploration performed outside land which is already under a current permanent regulatory program per mit. Exploration performed inside the latter type of area is regulated as surface coal mining and reclamation under other parts of Subchapter G.

SECTION 770.2 (4)(a) Section 770.2 states that the objective of Part 770 is to ensure that surface coal mining and reclamation operations will be conducted "only after the regulatory authority has first determined . . . that . . . (such) operations are conducted so as to fully protect the environment.'' A number of commenters objected to the phrase "to fully protect the environment'' and suggested changing the word "fully'' to "adequately'' or "reasonably.'' Other commenters thought that the objective should be to minimize the impact of surface coal mining and reclamation operations on the environment. The phrase "fully protect the environment'' was intended to mean that the purposes of the Act should be fully served under the permit process. It was not, as the commenters assumed, intended to be an "anti-degradation'' provision. These comments have, therefore, been rejected.

(b) A commenter asserted that the States are not given enough discretion in the regulatory process to factor distinct regional and local differences into the permit process. Part 731 of the regulations explains in detail the provision for regional and local differences to be provided in State programs. The commentor did not indicate why Part 731 was inadequate to account for those differences, and, therefore, no change has been made in this Part.

SECTION 770.5 (5)(a) Section 770.5 provides for the definition of terms which are used frequently in different parts of Subchapter G. The basis and purpose and statutory authority for this Section was discussed at 43 FR 41687, September 18, 1978.

(b) Several commenters questioned whether the term "complete applications,'' as defined in Section 770.5, included the submittal of or proof of application for other permits required under laws other than the Act. The answer is no. This definition requires neither: (1) that other permits required under other laws be obtained prior to filing of the application under the Act, nor (2) that applications or proofs of submittal of applications for permits required under other laws be made part of the Act's application, unless a particular State chooses to require this as part of its State program. If a State decides to do so, then OSM would have to approve that action under Section 505 of the Act. It should be noted, however, that OSM has been engaged in negotiations with the Environmental Protection Agency (EPA) concerning whether the contents of application for an NPDES permit could be coordinated with, and serve to satisfy in part, the Act's application requirements. Those discussions have not yet been concluded. See also, the Preamble to Sections 770.12 and 816.42, for an explanation of the terms of Surface Mining Act coordination requirements with other laws.

I11(c) A number of commenters expressed concern over the definition of "general area'' in the proposed rules.

The term "general area'' is based upon the requirements of the Act at Sections 507(b)(11), 508(a)(13), and 510(b)(3), that the regulatory authority make an assessment of the probable cumulative impacts of all anticipated mining in the locale around the area for which a particular permit is being sought. "General area'' is used to describe the area for which hydrologic information must be available to the regulatory authority before this assessment can be made. Legal authority for this definition is Sections 102, 201, 503, 504, 506, 507, 508, 510, 515, 516, 517, 522 and 717 of the Act.

The basis and purpose for the definition were generally discussed at 43 FR 41687 (Sept. 18, 1978). Under the proposed rule, the definition would ordinarily have been tied to the scope of the Department's Office of Water Data Coordination "catalog unit.'' As a result of public comments, the final rule utilizes a definition that will ordinarily be much narrower in scope, with appropriate distinctions drawn between surface and ground water.

(i) The Act differentiates between "onsite'' and "offsite'' data and specifies that both types of hydrologic data are required before the regulatory authority can make the necessary assessment. See Sections 507(b)(11), 508(a)(13), and 510(b)(3), of the Act. Because "onsite'' data refers to data obtained from the area that would be eventually permitted, i.e., the mine plan area, "offsite'' data are those data obtained from outside the mine plan area, (see the discussion on the definition of mine plan area in the Preamble to Section 701.5).

In this context, the inner limit of the "general area'' is defined as the same as and contiguous with the outer limit of the mine plan area. Therefore, it is necessary to define the outer limit of the "general area'' in terms of the area which will provide sufficient quantities and kinds of hydrologic data for reasonably assessing the environmental impacts of all anticipated mining in the "general area.'' The "general area'' must also be large enough to establish locations which provide baseline data that are not anticipated to be hydrologically or otherwise initially affected by proposed mining operations. This is needed to: (a) Provide base-line information on the normal, ambient hydrologic conditions of the area prior to mining, to determine potential impacts of proposed mining operations, and (b) Analyze what additional information (if any) the regulatory authority may deem necessary to require the operator to gather for the determination of the probable hydrologic consequences.

On the other hand, the area should be small enough to eliminate "masking'' or confounding effects from other existing mining activities or non-mining hydrologic influences. This is important, because the applicant, when developing its "determination'' under Section 507(b)(11) of the Act, needs to analyze only the impacts of its mining operations on the hydrologic balance; the regulatory authority makes the "assessment'' involving the cumulative impacts of all anticipated mining in the area. If the area is not delineated properly to account for the cause-effect relationship for a particular operation, then it will be impossible for the regulatory authority to evaluate the determination and approve the permit application or to make a proper assessment of cumulative impacts of all operations in the area. For example, influences of domestic, municipal, or non-mining industrial activities tend to "mask'' the natural hydrologic regime and make it difficult to isolate the hydrologic impacts that may be attributed to mining from those due to other causes.

{15010}(ii) The difficulty of arriving at a hydrologically sound and workable, blanket definition of "general area'' is compounded by the extent of diverse hydrologic and topographic variability throughout the coal fields of the nation, especially in Appalachia. Adding further complexity is the fact that ground water and surface water basins are not necessarily geographically identical. A topographic drainage basin (watershed) will drain surface water to a discrete "outflow'' point between drainage divides. However, depending upon the subsurface angle and direction of underlying geologic strata within that same topographic basin, downward percolating ground water will intersect with the geologic strata and may flow outside and into one or more other topographic basins. (Hjelmfelt and Cassidy, 1975. p. 6 and figs. 1, 2; U.S.G.S., 1974b, pp. 20 62 and figs. 7 18; Van Voast, 1974, pp. 16 23; Van Voast, 1975, plates 1, 5, 7, 9, 11; Bur. Mines, 1977b, pp. 50 51, 63; Bur. Mines, 1978, pp. 184 202). Thus a ground water "basin'' may be larger than the surface water topographic basin or watershed.

On the other hand, underlying impermeable strata may isolate the ground water from the surface water, resulting in two independent systems that limit or confound indirect-observation techniques. In this case, the ground water basin may be smaller in areal extent than the topographic basin. Often a series of "perched'' ground water zones can occur. (Musser, 1963, p. A 20; McWhorter, et al., 1977, pp. 18 22; Bur. of Mines, 1978, p. 184; USGS, 1974b, pp. 20 63, figs. 7 18). Thus, it is imperative that the surface water basins and the ground water basins be separately delineated because of the possible differential flow directions of surface and ground water (Chow, V. T., 1964, pp. 4 23).

(iii) The definition of "general area'' involved, in addition to the above discussion, consideration of: (1) the influence of mining activities upon watersheds in which permit areas are located, and nearby unmined watersheds that may be adversely impacted by practices associated with those activities, such as disposal of excess uncontaminated water or contaminated water; (2) the possibility that alteration of ground water recharge zones and rates in mined watersheds may adversely influence the ground and surface water availability in non-mined watersheds; and (3) topography, because of its influence on flow, storage, and retention of surface water.

The concept of "watersheds containing perennial streams'' is used in the definition to assure that the scope of the hydrologic assessment is not limited to the flow of water in a single channel of a small wet-weather stream, but includes the total watershed of larger streams. This is needed because the Act protects particularly the public uses of streams (see sections 508(a)(13), 717(b)) which are more likely directly related to larger streams. Some of the difficulties in assessing cumulative impact of anticipated mining, particularly in areas where mining has been done prior to the approval of State programs, can be overcome by using unaffected or "control'' watersheds for comparative purposes. Data from such areas may be required to provide an understanding of the hydrologic differences between mined and non-mined area (Grubb and Ryder, 1972, pp. 17 33). This concept is inherent in the term "areal extent'' as used in the definition.

(iv) The Office of Water Data Coordination (OWDC) of the U.S. Geological Survey (USGS) uses a system of catalog units for grouping approximately equal-sized surface water sub-basins with approximately equivalent rainfalls within regional areas. The catalog units are used as a basis for segregation of water quality and steamflow data in the NAWDEX and WATSTORE computer programs of the USGS. Work also is underway to make the Environmental Protection Agency's STORET water data storage and retrieval system compatible with these units. I11The OWDC catalog units are valid criteria for making rational hydrologic sub-divisions of the nation and, therefore, may serve as a guideline for the hydrologic data acquisition mandated by Section 507(b)(11) of the Act. The Office believes that although mandatory assessment of entire catalog units is not always required, as they were under the proposed rule, the catalog units should be used by the regulatory authority for reference to mine area locations, and data compilation, storage, and retrieval.

(v) In order to fully utilize the advantages inherent in the catalog unit system and, at the same time, assure adequate data coverage at a reasonable level of costs, the Office recognizes that the regulatory authority may require data from a "general area'' that will often be more limited geographically than the boundary of the catalog unit. For example, where mining activities have been limited to either the extreme upstream or downstream reaches of a sub-basin because of local geologic or topographic conditions, the regulatory authority may make its assessment using data from that relatively small percentage of the total drainage area of the sub-basin catalog unit in the locale of proposed mining.

The Office recognizes that, in this context, several "general areas'' may exist in one catalog unit. In such cases, the regulatory authority may make an assessment of the probable cumulative impact of mining by considering the cumulative data from more than one "general area.'' Depending upon the location of the proposed permit area, data may or may not be required at the downstream terminus of the sub-basin.

The Office also recognizes that where proposed permit areas lie in more than one catalog unit or overlie areas subject to interbasin transfer of ground water, it may necessitate the use of data from more than one catalog unit and, in such cases, the "general area'' may extend beyond the limit of one catalog unit.

(vi) All commenters, except one, construed "general area'' to mean the area from which hydrologic data must be collected or obtained by the permit applicant. It is important to note that "general area'' is used to define the area on which the regulatory authority must make an assessment of the probable cumulative impacts of all mining in the area and does not define the area from which the permit applicant itself must collect hydrologic data. The permit applicant may or may not be required to make use of general area data in order to make a determination of the probable hydrologic consequences in relation to a specific mine. ( See H.R. Rept. No. 95 218, 95th Congress, 1st Session at 64 (1977); and discussion in Preamble to Sections 779.13 779.16).

A number of commenters expressed concern over the vagueness of the geographic coverage of the "general area'' and stated that the imposition of the catalog unit system as the sole criterion for data collecton would result in unjustified costs and the acquisition of irrelevant data. The Office agreed with this position, believing that, in many instances, the excessive amount of data that would result from evaluating entire catalog units, or only that part of a catalog unit downstream from a proposed mining activity, would result in an unjustified expense for data that would not be needed for assessing the cumulative impacts of all anticipated mining in the area.

A commenter stated that OWDC catalog units are "inappropriate,'' because they may be much larger than the area anticipated to be impacted by mining activities. This commenter also suggested that hydrologic assessment data be provided only for the watershed in which the mine is located, downstream to a point where the mine area comprises ten percent of the watershed. The Office accepts this position in part, realizing that many catalog units are indeed much larger than the area to be impacted. However, the Office rejects the concept of data acquisition based on a fixed percentage of drainage, because it is felt that such an approach would not provide the flexibility needed for different hydrologic and geologic settings, where the percentage of impacted area may vary greatly. This is especially true for those basins which have a "dynamic'' boundary situation as discussed above in paragraphs (ii) and (iii).

{15011}A few commenters suggested that "general area'' should be limited to the watershed surrounding a proposed permit area and that a "tie-in'' to the OWDC catalog is "capricious in that said document is everchanging . . . and is not a common reference document available to the general public nor the coal industry.'' The Office believes that limiting hydrologic data requirements to the watershed surrounding the proposed permit area may fail to account for changes resulting from the interbasin movement of ground water and possible impacts on wells and streams in adjacent watersheds, particularly during base-flow conditions. The Office does not feel that the OWDC catalog is "capricious''; it will be made readily available to the public and industry by OSM and other involved Federal and State agencies under 30 CFR 779.13(b) and 783.13(b).

A few commenters opposed the proposed definition of "general area'' on the ground that it would require compilation of data on a "virtually limitless area'' not contemplated by Section 507 of the Act. That was not true, because the USGS catalog units have discrete definitions. In any event, the final rules definition insures a reasonably-ascertainable limit for both surface and ground water applications.

(vii). Technical literature considered in development of the definition of "general area'' were: 1. Chow, V. T., 1964, Handbook of Applied Hydrology, McGraw-Hill Book Co., New York, Sections 1 29 (various pagings).

2. Grubb, H. F. and Ryder, P. D., 1972, Effects of Coal Mining on the Water Resources of the Tradewater River Basin, Kentucky, U.S. Geological Survey Water-Supply Paper 1940, 83 pp. 3. Hjelmfelt, A. T., Jr., and Cassidy, J. J., 1975, Hydrology for Engineers and Planners, Iowa State University Press, 210 pp.

4. McWhorter, D. B., and others, 1977, Surface and Subsurface Water Quality Hydrology in Surface Mined Watersheds, (Prepared by Colorado State University, Fort Collins, CO), U.S. Environmental Protection Agency Project R802175 Report, 357 pp.

5. Musser, J. J., 1963, Description of Physical Environment and of Strip Mining Operations in Parts of Beaver Creek Basin, Kentucky, Chapter A in Hydrologic Influences of Strip Mining, U.S. Geological Survey Professional Paper 427 A, 25 pp.

6. U.S. Bureau of Mines, 1977b, Research on Hydrology and Water Quality of Watersheds Subjected to Surface Mining, (Third Semi-Annual Technical Report Prepared by U.S. Department of Agriculture, and Ohio Agriculture Research and Development Center in Cooperation with the U.S. Geological Survey), U.S. Bureau of Mines Contract No. JO166055 Report, 68 pp.

7. U.S. Bureau of Mines, 1978, Research on Hydrology and Water Quality of Watersheds Subjected to Surface Mining, Phase 1: Premining Hydrologic and Water Quality Conditions, (Prepared by U.S. Department of Agriculture and Ohio Agricultural Research and Development Center, U.S. Bureau of Mines Contract Nos. JO166054 and JO166055 Report, 296 pp, and Appendixes A O).

8. U.S. Geological Survey, 1974b, Shallow Groundwater in Selected Areas in the Fort Union Coal Region, U.S. Geological Survey Open-File Report 84 48, 72 pp. and illustrations and tables.

9. Van Voast, W.A., 1974, Hydrologic Effects of Strip Coal Mining in Southeastern Montana_Emphasis: One Year of Mining Near Decker, Montana Bureau of Mines and Geology Bulletin No. 93, 23 pp.

10. Van Voast, W.A., and Hedges, R.B., 1975, Hydrologic Aspects of Existing and Proposed Strip Coal Mines Near Decker, Southeastern Montana, Montana Bureau of Mines and Geology Bulletin No. 93, 31 pp.

(d) The definition of principal shareholder has been moved to this Section from Sections 778.5 and 782.5 of the proposed regulations. It also has been changed to cover beneficial owners of shares, as well as owners of record. This change is based on comments suggesting focus on all those who exert control on the applicant and the long experience of the Securities and Exchange Commission (SEC) in administering the Securities Exchange Act of 1934 (15 U.S.C. Chapter 2B). That experience led the SEC to require disclosure of both owners of record and beneficial owners of securities. The SEC's regulations for determining beneficial owners are set forth at 17 CFR 240.13d 3.

OSM believes that the regulatory concerns which led the SEC to promulgate this regulaton are similar to the basis for Section 507(b)(4) of the Act, which requires disclosure of persons owning 10 percent or more of any stock in a surface mining operation.

Because management control of a company can be exerted even by beneficial owners of 10 percent or more of such stock, OSM has decided to require that such ownership also be reported by permit applicants. SECTION 770.6 (6) With respect to Section 770.6, few commenters noted that theregulations contain no references to the Small Operators Assistance Program under Section 507(c) of the Act. A reference to this program has been added to Section 770.6 with a description by referring to Part 795, which was published along with the interim program regulations on December 13, 1977 (42 FR 62710) and remains unchanged for the permanent program.

SECTION 770.12 (7)(a) Section 770.12 implements several Sections of the Act which require regulatory authorities to establish a process for coordinating the review and issuance of permits under the Act with those under any other Federal or State permit process. In addition, this Section implements the requirements of certain other Federal laws which impose duties upon entities implementing the SMCRA, to ensure protection of resources regulated under those other laws. Statutory authority for Section 770.12 is Sections 102, 201, 501, 503, 504, 505, 506, 508(a), 509, 510, 513, 514, 515, 522, 523, 701, 702, and 707 of the Act and the statutes identified at Sections 770.12 (b) and (c).

(b) A few commenters suggested that the wording "Federal Programs'' in the first sentence be deleted. Because this Section relates to both Federal and State programs, the language has been changed to "regulatory programs.'' (c) A commenter suggested that Section 770.12 be revised to consider mining in national parks. This comment has been rejected as unnecessary, because mining in national parks is prohibited in Section 522(e)(1) of the Act and 30 CFR 761.11.

(d) A few commenters contended that Section 770.12 should mention Federal procedures for the protection of historic and cultural properties (36 CFR Part 800). This comment also has been rejected as unnecessary, because Section 786.19(e) already prohibits permits which allow mining on areas included in or eligible for the National Register of Historic Places, except as provided for in Section 761.11.

(e) One commenter suggested that, in order to coordinate the various environmental provisions of the Act, OSM should delegate its authority over air, water and solid waste to other appropriate Federal agencies. This comment has been rejected, because OSM cannot delegate any authority, however limited, except as authorized by the Act. Section 515 does require that surface coal mining and reclamation operations be regulated under State and Federal programs for air, Sections 515(b)(4), 515(b)(23); water, Sections 515(b)(4), (5), (8), (9), (10), (13), (15)(c)(iv), (17), (18), (24); and solid waste, Sections 515(b)(4), (10), (11), (13), and (14). The Act does not allow for delegation of authority under these provisions to any entity other than the regulatory authority. However, OSM is currently developing procedures for appropriate, detailed coordination with EPA.

{15012}(f) A few commenters questioned whether obtaining all permits under other laws is a prerequisite to issuance of a permit under the Act and Section 770.12. A State is not required under the Act to delay any permitting procedure pending the issuance of permits by agencies under other laws, unless the Act's permit would authorize the operator to take actions in conflict with the more stringent requirements of those laws. Where such a conflict occurs, the State is empowered to withhold issuance of the Act's permit under the Supremacy Clause of the United States Constitution (which makes Federal law supreme over inconsistent State law) and Sections 503 and 702 of the Act. State law cannot lawfully require the regulatory authority to issue a permit within a specified time, if a requirement of Federal law would operate to prohibit issuance of the permit.

It should be clearly noted, however, that under Section 510(c) of the Act and Sections 786.19(g) and (i) of the regulations, the State regulatory authority is required to withhold a SMCRA permit, if the applicant operates other coal mines in violation of other laws relating to air or water environmental protection. Thus the State regulatory authority may have to withhold issuance of the Act's permits, because of lack of concurrence from Federal or State agencies, on a basis independent from Section 770.12 of the final regulations.

(g) A commenter objected to Paragraph 770.12(b), arguing that the planning requirements cited there do not relate to permitting and are, therefore, not authorized under the Act. The Office does not agree and has retained these in the final rules.

(i) Section 208 of the Clean Water Act (CWA) requires that the States prepare and obtain approval of the Administrator, EPA, of "areawide waste treatment management plans,'' covering a variety of water pollution problems. It is to be the system for a national, comprehensive water quality planning and control process for "non-point'' sources of water pollutants. Among other elements, the various State plans are to identify and provide for controlling water pollutants in non-point source discharges (e.g., "runoff'') from mining activities (Section 208(b)(G), CWA). In addition, these plans are to provide the primary methods for the regulation of the discharge or other placement of dredged or fill material into navigable waters. Section 208(b)(4)(B) and (C). Dredging and filling is, of course, a common activity associated with coal mining in some areas of the country. Thus, Section 208 plans will clearly have to contain requirements in the regulation of numerous aspects of coal mining operations. (It is noted that EPA has, by policy memorandum, advised its Regional Offices that State reclamation plans and State programs under Titles IV and V of the Act will be deemed to satisfy Section 208, CWA plan requirements for coal mining in the States).

Section 303 of the CWA provides for a national, comprehensive water quality planning and control process that complements Section 208 plans, by covering point sources. Under Section 303(e), the States must establish a continous planning process to ensure that point sources of pollution are appropriately controlled through the imposition of effluent limitations (Section 303(e)(3)(A)), coordination with Section 208 plans (Section 303(e)(2)(B)), and other measures. Coal mining, of course, results in point source discharges, when water is discharged through discrete, confined conveyances.

(ii) The commenter objecting to Section 779.12(b) asserted that inclusion of plans under Sections 208, 303(e) of the CWA was unauthorized because Section 503(a)(6) of the Act refers only to coordination with "other Federal and State permit processes,'' and further asserted that neither Section 208 nor Section 303(c) required permits.

This argument is without merit. First, Section 779.12(b) is authorized under Sections 201(c)(12), 514(h), and 515(b)(10) of the Act, in addition to Section 503(a)(6). In any event, inclusion of a requirement in the OSM regulations to coordinate the Act's Sections 208 and 303(e) of CWA plans is authorized under Section 503(a)(6) of the Act because Sections 208 and 303(e) plans do constitute elements of a ". . . Federal or State permit process applicable to surface coal mining and reclamation operations.'' See Section 503(a)(6) of the Act.

Under Section 208(b)(2)(G)(ii), State plans are to include ". . . procedures and methods . . . to control . . .'' mine-related sources of pollution. Individual States may well decide to specify permit systems in their plans as the "procedure and method'' to control mine-related pollution. Indeed, as indicated above, the EPA expects that the Act's State programs and, therefore, the Act's permits will be used in many States to satisfy Section 208 planning requirements. Furthermore, Section 208 plan provisions are incorporated directly into, and become elements of, the NPDES permit system requirements of Sections 401 et seq.

of the CWA, 33 U.S.C. Section 1341 et seq.

Under Section 308(e), CWA, no NPDES permit may be issued if it conflicts with a Section 208 plan requirement. Thus, Section 208 will be part of a "Federal or State permit process'' under Section 503(a)(6) of the Act.

Section 303(e), CWA plans also are clearly subject to coverage under the Act. First, a satisfactory Section 303(e) plan is a necessary element of any State NPDES permit program. Section 303(e)(2), CWA. Second, the plans must provide for the imposition of effluent limitations and schedules of compliance on discharges. Section 303(e)(3)(A), (F), CWA which are implemented through the NPDES permit system. See Section 402(a)(1), (b)(1) of the CWA. Thus, Section 303(e) plans are critical elements of the NPDES "permit process'' and subject to inclusion within the coordination requirements of Section 503(a)(6) of the Act.

(h) With respect to Section 770.12(c), comments asserted that none of the laws cited there require permits and, therefore, this paragraph is beyond the scope of Sections 503(a)(6) and 504(g) of the Act. It also was contended that none of these laws apply to actions of State agencies, thereby implying that this Section should apply only to Federal programs and Federal lands programs. These arguments mostly have been rejected, on the basis of the Secretary's interprettion of the following statute, three of which he administers: (i) The Endangered Species Act of 1973, as amended, 16 U.S.C. Section 1531 et seg. (ESA): ESA contains forceful provisions designed to protect endangered and threatened species of plants and animals, entitled to protection by virtue of "listing'' by the Secretary of the Interior. Its principal operative provision is Section 7(a) (16 U.S.C.A. 1536(a)).

Pursuant to the ESA, the U.S. Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration (which has jurisdiction over listed species not relevant to OSM programs) have published regulations implementing Section 7 consultation requirements. (See 43 FR 870 876, January 4, 1978). Under these regulations (50 CFR 402.20), examples of activities which may require consultation include: (1) actions intended to conserve listed species or their habitat; (2) the promulgation of regulations; (3) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (4) actions directly or indirectly causing modifications to the land, water, or air. {15013}Because OSM is required to insure that SMCRA permits under Federal programs must be issued in accordance with ESA requirements, this statute provides authority to promulgate Section 770.12(c) to accomplish that result. First, OSM can issue regulations under Section 7(a) of ESA itself, as it provides for action by the Secretary to "administer'' his non-ESA programs to further the purposes of the ESA. Second, Sections 102, 515(b)(10), 515(b)(17) and 515(b)(24) of the Act all provide authority to insure that Title V regulatory programs under the Act provide for protection of fish and wildlife under OSM's implementing regulations.

With regard to State programs, State permits are covered by the opening sentence of Section 7(a) of ESA, which provides that "the Secretary shall review other (i.e., non-ESA) programs administered by him and utilize such programs in furtherance of the purposes of the Act.'' State programs will be part of the permanent national regulatory program under Title V of the Act and, therefore, will be among the other programs which must further the purposes of ESA.

Even after a State program is approved, the Secretary, through OSM, will continue to administer those programs, by conducting inspection and enforcement actions in the States, funding State programs, and conducting oversight activities to ensure that the States are adequately enforcing State program provisions. Furthermore, permits issued under State programs are actions authorized, funded, or carried out by a Federal agency, as defined in 50 CFR Section 402.02(a).

The regulation covers the "promulgation'' of the OSM national regulations, and because State programs will be adopted as Federal rules, the approval of State programs. Therefore, OSM must insure that State programs contain appropriate requirements to prevent jeopardizing listed species and destruction or modification of critical species' habitat. In addition to the direct authority of ESA and the USFW's regulations, OSM also has relevant authority under various provisions of the Act. (See Sections 102, 515(b)(17); and 515(b)(24)).

In conclusion, OSM has the authority required to ensure the coordination of ESA requirements with the issuance of SMCRA permits under Federal and State programs. Other Sections implementing ESA include: 30 CFR 776.13(b)(2) (Coal exploration approval); Sections 780.16(a)(1), 784.20(a)(1) (Reclamation plans); Section 786.17(a) (Regulatory authority permit review coordinations with fish and wild life agencies); and Section 786.19(o) (Permit approval criteria).

(ii) The Fish and Wildlife Coordination Act, 16 U.S.C. Section 661 et seq. (FWCA): FWCA is also administered by USFWS. The operative provision is Section 2(a), 16 U.S.C. Section 622(a). That requires, with respect to actions covered by it, that consultation occur with USFWS and the State fish and wildlife management agency prior to the issuance of a Federal permit or license. The statute covers projects conducted by private enterprises when a Federal license or permit is needed, so persons conducting coal mining would be subject to the consultation requirements.

The FWCA consultation requirement has been closely integrated into permitting requirements under the Federal Water Pollution Control Act (FWPCA), as amended (33 U.S.C. Section 1251 et seq.

), for all NPDES permits. Prior to obtaining those permits, the applicant must go through the FWCA consultation process. Because FWCA consultation requirements for NPDES and dredge and fill permits (which many coal mining operations must obtain), OSM has authority to specify FWCA as one of the statutes for which coordination must be effected with SMCRA permit applications under Section 503(a)(6) and 504(g). Both of these Sections authorize OSM to promulgate regulations to insure that SMCRA permits are "coordinated with other State and Federal permit processes.'' To ensure that requirements of SMCRA permits are coordinated with NPDES and dredge and fill permits, OSM has the authority to require that SMCRA application reviews be coordinated with applicable requirements of FWCA.

(iii) The National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq. and Executive Order No. 11593 (NHPA) NHPA establishes a National Register of Historic Places, requiring all Federal agencies to take into account the effect of agency "licensing'' (which includes "permitting'') on any facility listed, or eligible for listing in the National Register. Also, Section 522(e) of the Act prohibits mining that will adversely affect public parks or historic places on the National Register, unless approved jointly by the regulatory authority and other agencies with jurisdiction over the park or place.

In addition, Sections 102, 201(c) and 501(b) provide authority for Section 770.12(c). Section 201(c) gives the Secretary authority to promulgate such Section regulations as may be necessary to carry out the purposes and provisions of the Act, while Section 501(b) requires the Secretary to promulgate a regulatory program based on and conforming with, the provisions of Title V. One of the purposes of the Act is to "establish a national program to protect society and the environment from the adverse affects of surface coal mining operations'' (Section 102(a)). Other relevant purposes relate to protection of the rights of persons with a legal interest in land and appurtenances thereto (Section 102(b)), and protection of the environment (Section 102(d)). Section 770.12(c) serves to carry out these clauses, with respect to National Historic Register matters.

(iv) Archaeological and Historic Preservation Act of 1974, 16 U.S.C. 469 1 (Moss-Bennett Act) The Moss Bennett Act provides a means for private parties or the Federal Government to perform actual recovery of archaeological material and data, as for example through surveys, excavation, and transportation to a museum. Upon receiving information as to the imminent loss or destruction of significant data, the Federal licensing agency or department may conduct a survey and salvage program, or transfer funds to the Secretary for that purpose.

Unlike NHPA, Moss-Bennett does not appear to extend, in general, to State program permitting. It applies only to a Federal agency's own activities, in connection with a Federally-licensed project, activity, or program which may adversely affect enumerated resources. Although mines permitted under a State program may arguably be Federally-licensed activities and Federal agencies may be involved in the permit review process, these agencies' activities would not themselves cause the adverse affect on the enumerated resources protected under Moss-Bennett. The sole apparent exception to this would be when OSM approves a State program permit embodying an experimental practice under Section 711 of the Act and 30 CFR 785.13. However, in such cases OSM, not the State regulatory authority, would be responsible for compliance with Moss-Bennett. Therefore, OSM has concluded that Moss-Bennett should not be made applicable to State program permit requirements under Section 770.12(c).

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 771 -- GENERAL REQUIREMENTS FOR PERMITS AND PERMIT APPLICATIONS INTRODUCTION 1. This Part implements Sections 102, 201, 501(b) 502, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, and 516 of the Act. It sets forth the criteria for obtaining and utilizing permits under permanent regulatory programs and the general requirements for permit applications and fees. General discussion of the authority, basis, and purpose of this Part is at 43 F.R. 41687 41689 (Sept. 18, 1978) 2. Two paragraphs of proposed Part 736 (736.4(c); 736.14(b)) which concerned permitting requirements were moved to Part 771 at sections 771.13(a) and 771.15. Succeeding sections in Part 771 were re-numbered. The general authority, basis, and purpose for the sections of Part 736 which were transferred was described in the Preamble to the proposed regulations. 43 F.R. 41679 41680 (Sept. 18, 1978). In addition, material on the types and scales of maps and cross-section plans, in general, and the need to break down map areas according to past mining, which was located in various sections of proposed Parts 779, 780, 783, and 784, has been consolidated at Section 771.23(e) of the final rules.

3. Substantial comment was received on Part 771 and some significant modifications were made as discussed in detail below. Some sections received little or no comment, however, and remain unchanged from the proposed regulations, with the exception of minor editorial changes to clarify their meaning.

SECTION 771.2 4. On Section 771.2, a commenter asked whether facilities ancillary to a surface mining and reclamation operation (such as a storage shed for central distribution of parts) are subject to the permitting requirements.

These facilities are subject to the permitting requirements to the extent that they fall within the definition of surface coal mining and reclamation operations in Sections 701(26) (27) of the Act and Section 700.5 of the final rules.

SECTION 771.11 General requirements for permits_operations.

1. Authority, basis, and purpose for this section were generally discussed at 43 F.R. 41687 (Sept. 18, 1978). Minor rewording of this section was made to improve its clarity.

2. One commenter questioned whether reclamation of abandoned mines would require a permit. If activities defined as surface coal mining and reclamation operations under the Act and in Section 700.5 are carried out, regardless of the previous use or present condition of the land, then a permit under the Act is required. However, the reader is referred to 30 CFR Part 874, in particular, and Subchapter R of this Chapter in general, for requirements for abandoned mine reclamation work to be conducted under Title IV of the Act.

3. Several commenters stated that the requirement for having a valid permit to mine coal within eight months from the date on which a regulatory program is approved by the Secretary was much too short. Because two months are allowed for operators to file applications after the program is approved, six months remain for the regulatory authority to review the application. Under Section 506(a), however, permits for existing mines continue in effect, if the regulatory authority does not act within six-months. Several commenters felt that the six-month review period was too long. The comments were rejected, because these time limits are required by Sections 502(d) and 506(a) of the Act.

4. A commenter suggested amending Section 771.11 to explain that cooperative agreements are covered. This suggestion was rejected as unnecessary under 30 CFR 745, as a cooperative agreement provides for the application of a State program to Federal lands. State programs are "regulatory programs'' under Section 701.5 of the final rules and covered by Part 771.

5. Some commenters suggested that existing operations be allowed to obtain "revised interim'' permits under the permanent regulatory program, arguing that "re-permitting'' is simply a duplication with no real benefit. Sections 502(d) and 506(a) of the Act explicitly require that all operations existing eight months after the permanent program comes into effect must obtain a permit under a State or Federal program. State programs and Federal programs are defined in Section 701 of the Act as programs promulgated under Sections 503 and 504 of the Act, that is, under the permanent program. The permanent program provides specific, detailed requirements for permit applications and public participation in review of those applications (see Sections 507, 508, 513 and 514 of the Act), which were not applicable in the interim program. Furthermore, under Section 510(b) of the Act, an applicant must show compliance with all of the Act's performance standards, many of which were not in effect during the interim program. ( Compare Section 502(c) with 515 and 516 of the Act.) Thus, permits under the interim program cannot satisfy the requirements of the permanent regulatory program.

SECTION 771.13 Continued operation under interim permits. 1. As explained in the introduction, Section 771.13(a) is a new section derived from Section 736.4(c) of the proposed regulations. It was moved to Subchapter G, where it logically belongs, because it provides for the continued effect of permits issued under the interim program. The proposed version of Section 771.13 has been re-numbered as 771.13(b) in the final regulations.

2. Section 771.13(a) is promulgated under Sections 102, 201, 501(b), 502, 503, 504, 506, 510, 515, 516 and 701 of the Act. It implements the provisions of Section 502(f), of the Act, to cover permitting in the period between the Secretary's disapproval of a state program submission under 30 CFR 732 and implementation of a Federal program for the state involved.

3. As proposed, the rule would have precluded issuance of permits during judicial review of the Secretary's institution of a Federal program. A commenter correctly pointed out that this misinterpreted Section 502(f) of the Act, suggesting that the preclusion on issuance of permits applies, instead, to the period which includes judicial review of a dissaproval of a State program submission until the Secretary's promulgation of a Federal program. The final rule has been modified accordingly.

4. Several commenters suggested that proposed Section 736.4(c) be revised, to allow the states or OSM to issue new permits during the period between disapproval of a State program and implementation of a Federal program. That suggestion is not legally possible under Section 502(f) of the Act. Further, interim program permits which lapse during that period continue in full force and effect, and the Secretary must, in any event, institute a Federal program no later than June 3, 1980 (see Section 504(a), of the Act). Therefore, the requirement of Section 736.4(c) should not cause substantial problems for the industry.

5. Section 771.13(b)'s authority, purpose and basis were explained at 43 F.R. 41687 41688 (Sept. 18, 1978). A few commenters suggested that the regulation be amended to allow for continued operation under permits issued before the Act, as well as for permits issued under the interim program regulations, if the regulatory authority fails to act on the permanent program permit. Such a change would not meet the intent of Congress under Sections 102, 502, 503, 504, and 506 of the Act, because it was contemplated that operations commenced under pre-Act permits be regulated to demonstrate compliance with the Act's interim program requirements. ( See H.R. Rept. No. 95 218, 95th Cong. at 86 1977). Thus, 30 CFR 720.12 requires States to revise pre-Act permits to comply with the interim program.

{15015}6. Several commenters requested that the reference in proposed Section 771.13(a) to a "complete'' application be deleted. This comment was rejected. Public participation and the review process cannot go forward until a "complete application'' is on file, as required by sections 502(d), 513, and 514 of the Act. Ordinarily, those processes will take approximately six months to conclude, so that complete applications are needed within two months of institution of the permanent regulatory program if the regulatory authority is to meet the eight-month deadline of Section 506(a) of the Act. (See also the discussion of Section 771.21 below.) 7. Some commenters requested that Section 771.13(b)(2) be amended to refer to the final decision of the regulatory authority. These comments were rejected as contrary to Section 506(a) of the Act. If the regulatory authority decides against an applicant under 30 CFR 786.17, 786.19, 786.21, and 786.23, the operations involved will no longer qualify for the exemption of Section 771.13(b). Regarding contentions that the exemption must be preserved pending a final decision under Section 514(c) (e) of the Act, the Office notes that adequate opportunity for a hearing is provided to the applicant in 30 CFR 787.11, which need not occur prior to the expiration of the exemption given the important public interests at stake. (Compare In re Surface Mining Regulation Litigation, 456 F. Supp. 1310 (D. D.C. 1978).

8. In response to concerns that Congress did not intend for existing operation to cease, pending the initial decision of the regulatory authority on the permanent regulatory program application, the Office has clarified Section 771.13(b) to cover interim permits or "amendments'' thereof. Thus, revisions and renewals of interim program permits can qualify for the exemption of 771.13(b) under the final rules.

SECTION 771.15 Continued operation under federal program permits.

1. Authority, basis, and purpose of this section were discussed at 43 F.R. 41688 (Sept. 18, 1978). A change was made in the main text of the section to specify that the Secretary approves of a state program consistent with 30 CFR 730 732. Commenters also requested that the language of Section 771.15 be changed from "shall'' to "may'' to track with Section 504(f) of the Act. These comments were accepted.

2. Another commenter asked that extension of the 60-day compliance period in Section 771.15(c)(1) be authorized to meet economic considerations. Economic impossibility is not a valid reason for failure to comply with the Act. ( See In re Surface Mining Regulations, 452 F. Supp. 327, 338 339 (D.D.C. 1978). Moreover the rule allows for an extension beyond 60-days for physical impossibility, similar to the delays allowed for existing structures at the commencement of the interim and permanent regulatory programs.

3. The same commenter's request that the 60-day limit be extended to eight months was also rejected. Section 771.15(c)(1) implements the requirements of Section 504(f) of the Act, setting procedures by which additional requirements of a State program that supersede a Federal program can be imposed on persons holding Federal program permits. Section 504(f) provides that those permittees are to be provided a reasonable time to conform their ongoing operations to the State program's additional requirements. OSM has specified 60 days as that reasonable time limit, with a further extension allowed if either (1) the permittee showed that it was physically impossible to comply within 60 days, or (2) the state agrees to a longer time schedule. OSM maintains that 60 days is a reasonable time for operations to meet additional requirements of state programs, because most states will not have as many additional requirements calling for complete redesigns of structures, as in first implementing the permanent regulatory program.

The 60 days will not begin until the regulatory authority issues an order to the permittee. This will not be immediately upon approval of State programs, but rather after the regulatory authority has had time to consider whether its requirements are additional to Federal requirements. In any event, based upon a showing of physical impossibility, the 60-day limit can be waived. OSM believes that allowing more time would seriously delay implementation of the requirements that a State deems necessary to protect the environment. For this same reason, the term "promptly'' has been added to Section 771.15(c)(1) to ensure that the state regulatory authority does not delay in taking this important action. See section 102(a), of the Act.

4. A commenter objected to and another favored the requirement for an adjudicatory hearing in proposed subsection 771.15(c)(2) for the permits that need to be modified when a state program supersedes a Federal program. The Office has deleted the term adjudicatory.

This change leaves to individual states the choice of whether to provide for adjudicatory hearings. Under the United States Constitution, an adjudicatory or informal hearing is not required when an administrative agency acts in a rulemaking proceeding. ( United States v. Allegheny-Ludlum Steel, 406 U.S. 742 (1972); United States v. Florida-East Coast Ry., 410 U.S. 224 (1973)). Thus, a state may implement Section 504(f) of the Act by a rulemaking proceeding applicable to all persons holding a permit from the superseded Federal program. Such an approach is encouraged, because it would allow for the most expeditious and flexible approach for ensuring that additional State program requirements are implemented. Also, this approach will not preclude a State, if it chooses, from providing adjudicatory hearings, if required by State law.

SECTION 771.17 Continued operations under state programs.

Section 771.17 has been moved from Section 736.15(b), because it fits more logically in Subchapter G. The final regulation is otherwise unchanged from the proposed rule.

SECTION 771.19 Compliance with permits.

1. As a result of the addition at Section 771.17 of the final rules, Section 771.17 of the proposed rules was moved to Section 771.19 in the final rules, but remains unchanged. Authority, basis, and purpose of this section were discussed at 43 F.R. 41688 (Sept. 18, 1978).

2. Some commenters suggested adding specifying that the operator need only comply with State program requirements and not 30 CFR Chapter VIII. These suggestions were rejected, because permittees are still responsible for compliance with provisions of 30 CFR Chapter VIII under State programs. Subchapters A, D (in cooperative agreement situations), and L will be directly applicable. Insofar as Subchapters G, J, K, and M are concerned, individual State program provisions implementing these subchapters will prevail.

SECTION 771.21 Permit application, and filing deadlines.T 1. This section was renumbered from section 771.19 of the proposed rules. Its legal authority, basis, and purpose were generally described at 43 F.R. 41688 (Sept. 18, 1978), with the exception of Section 771.21(b)(4). The latter provision is based on Sections 102, 201, 506, 510, 511, 515, and 516 of the Act and implements principally Sections 506(b) and 511(b) of the Act. It was added in response to a comment on proposed Part 792 (Sections 788.17 788.19 of the final rules), requesting that the time limit at Section 506(b) of the Act be specified in the rules.

2. Several commenters objected to the two-month application filing deadline after initial institution of permanent regulatory programs. These comments were rejected, because that date is required under Section 502(d) of the Act.

{15016}The Office also notes that the final rules have eliminated the provisions for mandatory one full water-year data collection requirements at Sections 779.16 and 783.16. Those provisions were cited by the commenters objecting to the two-month deadline as the major obstacle to meeting that time limit. As with other aspects of the application, that change allows for the use of existing data to extrapolate, through valid predictive devices such as modeling, to satisfy the requirements of parts 779 780, 783 784.

3. Comments suggesting that paragraph (a) be amended to add language regarding the area of lands involved were rejected. The existing text relates only to lands on which operations are to occur after eight months from approval of a regulatory program and is sufficiently clear. A new subparagraph (a)(2) was added to clarify how applications filed after the two-month deadline are to be disposed of by the regulatory authority.

4. Comments were rejected that suggested requirements be lessened under paragraph (a), to allow for the staged submission of application information for up to 17 months after initiation of a permanent regulatory program. Sections 502(d) and 506(a) of the Act contemplate that existing operations will have been reviewed and their applications fully processed and evaluated not later than eight months from institution of a State or Federal program. Public participation requirements, regulatory authority review, and coordination with other governmental entities will require most of the six-months prior to the eight-month deadlines. Those requirements make it imperative that complete applications be provided to the regulatory authority within the two-month deadline of Section 502(d) of the Act and 30 CFR 771.21(a)(1).

5. Several commenters suggested that the application filing deadline for permit renewals be changed from 120 to 60 days. This was rejected, because the 120-days are required by Section 506(d) of the Act.

6. Several commenters objected to specifying a six-month prior deadline for filing applications for permit revisions, particularly noting that the need for permit revisions often arises from unforeseen circumstances. As a result, the final rule has been modified at Section 771.21(b)(3), to leave the exact time to the regulatory authority's discretion, subject to allowing sufficient time for adequate reviews and public participation ( See 30 CFR 788.12.) SECTION 771.23 Permit application_general requirements for format and contents.

1. Authority, basis, and purpose for Section 771.23(a) (d) of the final rules was discussed at 43 F.R. 41688 41689 (Sept. 18, 1978) under Section 771.21, from which the final rule has been re-numbered. As explained at the introduction for Part 771 above, Section 771.23(e) of the final rules was consolidated from various provisions of proposed Parts 779 780, 783 784. Comments about the relationship of Section 773.21(a) to small operators are discussed in the introduction to Part 770, and in specific sections of the permit application requirements of Parts 779 780. However, none of the comments to Section 771.21 of the proposed rules provided data upon which a determination could be made that the amount of land affected by surface mining activities is rationally related to the degree of detail needed in permit applications.

2. Other commenters suggested that the language in Section 771.23(d) which require the disclosure of contacts made by the applicants should be a part of the application only "if appropriate.'' These contacts are not required to be made as part of the application process, but, if they are made, they must be reported in the permit application. OSM determined that this qualification amply responds to the comments, so the commenter's proposed wording has not been added. A commenter suggested a change in subsection 771.23(c) to require full disclosure of the applicant's subcontractors. Because that subsection already requires adequate disclosure of nature of any persons who collect technical data, the relationship between them and the applicant should be apparent to the regulatory authority during the review process.

3. (a) Section 771.23(e)(1) sets forth the general requirements for the format and scale for all maps which must be submitted with a permit application. Authority for this section is Sections 102, 201(b), 501(b), 502, 503, 504, 506, 507(b), 508, 509, 510, 511, 513, 514, 515, 516, 522, and 701 of the Act. High quality map information is necessary to enable the regulatory authority to evaluate the applicant's ability to comply with the performance standards in Parts 816 and 817. (Grim and Hill, 1974, at 17).

(b) In the proposed rules, the scale of maps to be included in the application was specified at several sections. ( See proposed Sections 779.23(b); 780.13(a); 783.23(b); 784.22(a)). Some ambiguities existed. For example, Parts 779 and 783 would have established a minimum scale of 1:25,000 for maps, but did not mention scale for plans or cross-sections. Parts 780 and 784 specified a minimum scale of 1:25,000 for maps and plans, explicitly leaving the scale of cross-sections to the regulatory authority. Parts 779 and 783 would have applied scale specifications to maps of the mine plan and adjacent areas, while Parts 780 and 784 would have specified scales for maps and plans of the permit area.

Also, the scale of 1:25,000 to be established in the proposed rules would have been inconsistent with the 1:6,000 scale of maps required to be made of the permit area under the interim regulatory program. ( See 30 CFR Section 715.11(c)). That would have led existing operations to re-draw maps, if the regulatory authority implementing the permanent program insisted on use of scales in the range of 1:25,000. The matter was further complicated because those sections of the proposed rules which addressed scale specifications did not appear to cover some types of maps and plans which were required in the applications. ( See proposed Sections 779.19(b); 779.22(b); 779.26(a); 780.17; 780.19(g); 780.21(a); 780.25(a); 780.29; 780.33; 780.35(a); 780.37 and corresponding provisions of Parts 783 and 784.) The above problems would have resulted in sets of maps, plans, and cross-sections depicting existing environmental resources under Parts 779 and 780 which could not be compared easily to mining and reclamation operations materials submitted under Parts 780 and 784.

Commenters suggested a range in the scale of maps from 1:25,000 to 1:5,000. Some suggested that there should be a limit on the scale of maps based on the Act (1:24,000 or 1:25,000 as set forth in Section 507(b)(13) of the Act). Others suggested that maps be of a enough scale and detail to reveal all significant matters. These commenters suggested, for example, that detailed plans be shown on maps no smaller than 1:25,000 and that larger scale maps such as 1:10,000 or 1:5,000 be required where the details and complexity of the site or operation cannot be adequately represented at a smaller scale.

(c) In Section 771.23(e)(1) of the final rules, the Office has provided for consistent treatment of all maps required in permit applications. Thus, the ambiguities in the proposed rules are eliminated, as to whether some, but not all, maps must have specified scales.

The most important considerations in regard to map scales is the legibility and usefulness of the information depicted. In order for the regulatory authority to make decisions on permit applications, it is necessary to have mapped information of sufficient detail and accuracy as a basis for making relatively precise estimates of, for example, volume of overburden, waste material and areas needed for topsoil storage. Therefore, the Office has determined that maps of the permit area shall be at a scale of 1:6,000 or larger. This scale is consistent with the smallest scale required by MSHA (30 CFR 77.1200) and with the Act's interim regulatory program (30 CFR Section 715.11(c)).

{15017}Maps of the entire mine plan area and adjacent areas, as opposed to the immediate permit area involved, do not need to be in the same scale. Those portions of the application do not involve the same level of detail on location of operations and other features for areas outside the permit area. Therefore, maps of the remainder of the mine plan and adjacent areas, when required, may be of a scale determined by the regulatory authority (but in no event shall such maps be of a scale smaller than 1:24,000) and must clearly show the lands and waters within those areas. The scale which the Office has chosen for mine plan and adjacent area maps is the minimum scale set forth in the Act ( See Section 507(b)(13)).

(4) The scales of plans and cross-sections are not specified in 771.21(e)(1) and are, therefore, left to the discretion of the regulatory authority. The scale of these materials will necessarily vary for particular facilities and portions of the permit or mine plan area, depending upon the materiality of the issues to which they relate.

(5) The concept of delineation of phases of mining on application maps relates to key dates in the interim and permanent regulatory programs establishing different periods and levels of regulation under the Act. Delineation of those phases in application maps appeared at proposed Sections 780.13, 780.17, 784.11(b), and 784.22. Delineation is required in the final rules as specified at Section 771.23(e)(2).

(a) Section 771.21(e)(2)(i) requires that areas subject to surface coal mining operations prior to the date of enactment of the Act be specified primarily because, if those operations were ceased and not re-started prior to the date of enactment, they are not subject to the Act. Also, if continued, they may be entitled to special treatment under Sections 506(d), 510(b)(5), 510(d)(2), and 522(e) of the Act.

(b) Section 771.21(e)(2)(ii) requires delineation of areas that were mined after the date of enactment, but prior to the effective dates of the interim regulatory program performance and design standards. This is necessary to distinguish operations from those which qualify for the benefits discussed above under Section 771.21(e)(2)(i). Delineation according to the date of either May 3, 1978 or January 1, 1979, is necessary to identify those operations which, if ceased prior to those dates are not subject to the interim or permanent regulatory program design and performance standards. As commenters noted, the proposed specification of February 3, 1978, as a critical delineation date was not appropriate. Instead, the dates of May 3, 1978 (generally applicable), or January 1, 1979 (the date for expiration of the small operator's exemption under 30 CFR 710.12) were used in the final rules.

(c) Section 771.21(e)(2)(iii) requires further delineation of operations areas, for the period from the effective date of the interim regulatory program's design and performance standards until the approval of the permanent regulatory program. Facilities which constitute existing structures constructed during that period may qualify for special treatment under the permanent regulatory program. ( See 30 CFR 701.11(d) (e)).

(d) Finally, delineation is required for those areas which will be affected during the permanent regulatory program. This is based on the generally effective date of design and performance standards of Subchapter K, the first date upon which a permanent program permit must be acquired. ( See 30 CFR 701.11(d)).

(e) Delineation is required under Sections 102, 201, 501(b), 502, 503, 504, 506, 507, 508, 510, 515, 516, 522, and 701 of the Act, so that the public and the regulatory authority can clearly distinguish among the various phases of regulation in reviewing applications and so that the permittees responsibilities for compliance will be clearly stated, if the application is approved.

SECTION 771.25 Permit fees.

1. Authority, basis, and purpose for this section were explained at 43 F.R. 41689 (Sept. 18, 1978). The final rule has been modified to track the language of Section 507(a) of the Act more closely and to serve as the minimum criteria for State and Federal programs. In the proposed rules, those criteria were set forth at 30 CFR 731.14(h)(2) and 732.15(a)(3)(ii).

2. Several commenters suggested that permit fees be either increased, reduced, or eliminated under State programs. One commenter suggested amending the wording to conform exactly to Section 507(a) of the Act. That section provides for a fee less than or equal to the regulatory authority's cost of application review and administration and enforcement of the permit. OSM agreed with this commenter. Section 771.25 was amended to include the exact language of Section 507(a). The remaining comments on Section 771.25 have been rejected. Readers are referred to the OSM regulatory analysis for a discussion of alternatives considered.

SECTION 771.27 Verification of application.

Authority, basis, and purpose for this section were discussed at 43 F.R. 41689 (Sept. 18, 1978). A commenter on this section suggested that it be deleted as unauthorized under the Act and as too onerous for the industry to comply with, in view of the amount of data required. This comment was rejected.

Section 771.27 is authorized under Sections 102, 201(c), 501(b), 506, 507, 508 and 510 of the Act, and is an important tool for the regulatory authority to insure that accurate information is provided by the applicant in seeking to establish its entitlement to conduct operations. It is similar to requirements for SEC reporting under the Federal securities laws and to filing requirements under the NPDES permit system. Moreover, it does not require an absolute guarantee by the individual executing the verification, but rather imposes a due diligence standard for the official to insure that the application is true and correct to the ". . . best of (his or her) information and belief.'' SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 776 -- GENERAL REQUIREMENTS FOR COAL EXPLORATION Authority, basis, and purpose for Part 776 were explained, in general, at 43 Fed. Reg.

41689 41691 (Sept. 18, 1978). Section 776.1 specifies the legal effect of Part 776 and explains the applicability of the Part. First, it specifies that Part 776 constitutes the minimum requirements mandated under Section 512 of the Act, by which the Secretary will decide to approve or disapprove State and Federal program components for coal exploration. Second, it specifies that Part 776 will be applicable to coal exploration outside the permit area.

A few commenters felt that Part 776 should not apply to coal exploration in areas that are already covered by permanent regulatory program permits issued pursuant to Title V of the Act and Parts 771 and 778 786 of Subchapter G.

Once a person has received a permanent regulatory program permit to conduct surface mining and reclamation operations, the permit terms and conditions control the performance of the operation. Therefore, the procedures of Part 776 would be unnecessary for exploration conducted within the permit area. Exploration within a permit area should have been planned as an integral part of the surface coal mining and reclamation operations, not handled in a piecemeal, separate proceeding.

{15018}As a result, Section 776.1 was revised in the final rule so as to exclude exploration which occurs inside an active permit area. Those operations instead are to be regulated under Parts 771 and 778 786 of Subchapter G.

SECTION 776.3 Responsibilities.

This Section explains the responsibilities of both the industry and the regulatory authority under Part 776. Several commenters suggested that the proposed version of this Section be modified in Paragraph (a), to limit its applicability only to coal explorations which "substantially disturb the natural land surface.'' This suggestion was rejected as unnecessary because Section 776.3(a) merely requires persons seeking to conduct or already conducting coal exploration to comply with the rest of the provisions of Part 776.

As they appear in the final rule, the operative provisions of this Part are limited to a relatively simple notification system except for coal exploration which substantially disturbs the natural land surface. (see Section 776.1.).

SECTION 776.11 General requirements: Exploration of less than 250 tons.

This Section established minimum requirements for regulatory procedures to be followed by persons prior to conducting coal exploration involving the removal of less than 250 tons of coal, specifies compliance responsibilities for those persons with respect to the applicable performance standards, and requires appropriate public notification by the regulatory authority.

Section 776.11(a).

As adopted, Section 776.11(a) requires any person before conducting coal exploration removing less than 250 tons from one specific area, to file with the regulatory authority a notice of intention to explore. Several comments were received which suggested that this paragraph be limited to apply the notice-filing requirement only to coal exploration which "substantially disturb the natural land surface.'' These comments were rejected. Under OSM's authority to issue regulations to carry out the purposes of the Act, OSM believes the requirement to file a notice of exploration is reasonable. It is based on the need to know where exploration is being conducted in order to determine if it will substantially disturb the natural land surface and adversely affect the environment. Furthermore, the requirement is not burdensome because it does not subject the person conducting coal exploration to the performance standards in 30 CFR Part 815 unless the exploration substantially disturbs the natural land surface.

Many commenters also suggested that the geographic area to which Section 776.11(a) would apply be narrowed from ". . . in any one location,'' as specified in the proposed rules, to only the area in which exploration is to be actually conducted. In response, the final rule was revised to apply the requirements for filing of a notice of intention to explore to "the area to be explored,'' to clarify that the exploring entity's obligation to file a notice occurs before entry upon the actual area of the land. However, the Office rejected the extreme of limiting the geographic scope of application of Section 776.11 to only areas where coal will be physically removed, as substantial disturbance to land may occur from actions incident to coal extraction, such as construction of roads and facilities and disposal of debris and waste.

Section 815.4 of the proposed rules specified that the notice of intention to explore would have to be filed with the regulatory authority at least 30 days before commencement of exploration. Several commentors objected to this as being unduly burdensome, arguing that the highly competitive nature of small-scale exploration requires that individual explorers be able to move quickly into the field before attracting other entities. Section 815.4 has been deleted in the final rules, and the Office, in response to the above comments, has decided not to provide for any similar specific mandatory time period in Section 776.11(a). The amount of lead time required for filing of notices of intention to explore will be left to individual regulatory authorities to decide.

Section 776.11(b).

(1) One commenter suggested that reclamation plans be required for all exploration operations and that a new paragraph be added to Section 776.11 specifying this requirement. This comment was rejected. Section 512 of the Act does not require prior regulatory authority approval of a reclamation plan for a coal exploration operation when less than 250 tons of coal will be removed. The notice of intent to explore is to provide information for the regulatory authority to determine whether close surveillance of the actual operation will be needed in the field, not to form the basis of a preexploration decision by the regulatory authority.

(2) Another commenter felt the regulatory authority should be expressly provided with the authority to halt exploration when an inadequate notice of intention is filed, by addition of a new paragraph to Section 776.11(a). This comment was rejected because specific enforcement remedies are covered in Subchapter L of the regulations. Adequate provision is made in that Subchapter for the issuance of notices of violation and, if necessary, cessation orders, in the event of noncompliance with the exploration regulations.

(3) A number of comments were received on the specific elements of the notice of intention to be required under Section 776.11(b). In reviewing these comments, the Office carefully considered the fundamental purposes of the notice requirement. These are, first, to provide the regulatory authority and the potentially affected members of the public with notice of how, when, where, and by whom exploration removing less than 250 tons of coal will be conducted. With these essential elements of information, the regulatory authority and interested members of the public can check, if necessary, the conduct and completion of the exploration activities to ensure that they are reclaimed as required by Section 512(a) of the Act and Part 815 of Subchapter K.

(4) Some commenters argued for greatly expanded items of information in notices under Section 776.11(b), which, if adopted, would have required notices to essentially contain the data and plans required for reclamation plan portions of mining permits under Section 508 of SMCRA. These comments were not accepted, for the most part, because such a high level of detail is not necessary to fulfill the fundamental purposes of the notice reqirement described above. However, it was decided to revise Section 776.11(b) in the final rule to require that the notice specify certain identification data with respect to the persons conducting exploration, so that those persons can be contacted during or after exploration if reclamation practices are not successful.

(5) One commenter objected to use of the term "precise'' as to the type of description required of the area to be explored under Section 776.11(b)(3). This comment was rejected. Precision is needed because exploration areas may be quite small and, therefore, not readily identifiable on an ordinary 1:24,000-scale topographic map unless appropriately qualified with a textual description of the area.

(6) Another commenter objected to requiring the notice to contain an explanation of the exploring entity's legal right to enter upon and conduct exploration within the lands involved, arguing, first, that this is not required by the Act and, second, that this information needs to be kept confidential. No supporting information was presented to demonstrate the commenter's broad claim of confidentiality. The Office decided to modify the final rule in response to this comment, but not to delete the requirement entirely. Section 776.11(b) (5), as adopted, requires the person seeking to conduct exploration to explain the right of entry only if that person does not own the surface of the lands involved. The need for this information is supported by Section 102(b) of the Act, which requires protection of the rights of surface owners of land and other persons with a legal interest in land and appurtenances. With this information, the regulatory authority can identify the surface owner of the exploration area, if necessary, to ascertain if reclamation was properly conducted. Regarding the threat to competitive interests of the explorer, Section 776.17 provides for adequate safeguard against unwarranted disclosure of information.

700 {15019}(7) Several commenters recommended deletion of the requirement that the notice contain a description of the measures that the exploring entity will take during exploration to protect the environment, on the grounds that this was not authorized by the Act. The Office rejected these comments. Section 776.11(b)(6) of the final rules is authorized under Section 102, 201(b), 501(b) and 512 of the Act, both to encourage the exploring entity to adequately preplan its exploration activities to protect the environment and to provide the regulatory authority with sufficient information to decide if field inspection of the exploration is necessary for determining compliance with the requirements of Part 815. The Office does not believe that this requirement is inconsistent with Section 512(a) of the Act. The regulation merely leaves to the exploring entity the duty to ensure adequate planning of exploration before its commencement.

Section 776.11(c).

The requirement that the regulatory authority make notice of intention to explore publicly available received substantial comment. Some commenters supported this requirement as necessary to inform landowners and the public of the conduct and location of coal exploration that could adversely affect their interests. In addition some of these commenters suggested additional requirements, including newspaper and mail notification by the regulatory authority of receipt of notices. Industry commenters, on the other hand, objected to making notices publicly available at all, arguing that this would harm the competitive interests of exploring entites and that it was not authorized by the Act.

After consideration of all comments, the Office decided to adopt the requirement of public notification without modication from the proposed rule. This requirement is authorized under Sections 102, 201(c), 501(b), 512 and 517(f) of the Act, to provide for an adequate level of public participation in the permanent regulatory program. Under Section 517(f) of the Act, a general rule is established for information obtained by the regulatory authority in administration of programs under Title V of the Act, including Section 512(a). As such, documents obtained under Section 512(a) of the Act are ordinarily to be made available to the public for inspection and copying under Section 517(f) of the Act. In addition, the Office is required to ensure under Section 102(i) of the Act that adequate provisions are made for public participation in the enforcement of regulatory programs. To foster the purposes of the Act, as supplied by Section 102(i), the Office has decided that public availability of notices received by the regulatory authority is to be required as an aid to public participation in enforcement of the permanent regulatory programs. Regarding protection of the competitive interests of exploring entities, the Office has determined that Section 776.11(d), through cross-reference to Section 776.17, provides for sufficient protection. It is noted that no commenter supplied any data tending to show that the public-availability requirement of Section 776.11 would, in fact, harm competitive interests. Similarly, conclusory claims that existing state laws already adequately regulate coal exploration in this regard were also rejected as unsubstantiated.

Regarding additional public notification by newspaper and mail, the Office has decided to leave that decision to the discretion of individual regulatory authorities, because of the wide variation among the States in the intensity of coal exploration. Given that variation, it was decided that newspaper and/or mail notice may be necessary in only some States, where the level of exploration is high.

Section 776.12(a)(3).

A commenter objected to the requirement of Section 776.12(a)(3) that each application for approval of exploration contain a narrative description of the geology, vegetation, and existence of threatened or endangered species and their critical habitats in the area to be explored. This commenter reasoned that, given the definition of "coal exploration'' in 30 CFR 701.5, collection of the data necessary to fill out the application would itself be subject to prior approval as "coal exploration.'' This comment was not accepted, because the type of information objected to is important in providing the regulatory authority with a sufficient baseline for assessing the impact of the proposed exploration. Further, these items can be obtained without physical disturbance of the area to explored, through general geology maps and texts of the general vicinity, vegetation data collected by surface reconnaissance, and information concerning threatened and endangered species from the U.S. Fish and Wildlife Service.

See., e.g., USEPA, 1976, Erosion and Sediment Control, Vol. 1 at 74 77.

Section 776.12(a)(4).

A commenter suggested that some latitude be made under Section 776.12(a)(4) for circumstances when the actual owner or claimant is not determinable, because of title defects or irregularities in the claim of titles, by addition of the phrase "if reasonably ascertainable.'' No change has been made in the regulations, because the added wording is believed to be unnecessary. Obviously, if defects or disputes exist, the applicant can submit only as much information as is reasonably available.

Section 776.12(a)(5).

Some commenters suggested that Section 776.12(a)(5) be amended to add archeological resources to the list of items to be disclosed on the map of the exploration area, noting that these are significant resources afforded protection under the Act. (Sections 102, 507(b)(13), 522(a)(3)(B)); 552(e); and the National Historic Preservation Act of 1966 (16 U.S.C. Secs. 470 et. seq.) from the adverse effects of mining and are required to be disclosed in mining permit applications. The Office accepted those comments and modified the final rule accordingly.

A commenter argued that Section 776.12(a) was unduly restructive in requiring advance prediction of the location of drill holes, which may be impossible to specify before actually commencing drilling. No change was made to the regulation, because it does not require a "precise'' identification of each drill hole. Rather, the general location and number of drill holes within the area would satisfy the requirement of the regulation. Section 776.12(b).

This section provides for notice and opportunity for the public to comment upon applications for approval for coal exploration, to ensure that adequate public participation is afforded in the review of these applications under Section 102(i) of the Act. As suggested by several commenters, an incorrect cross-reference to Section 781.77 in the proposed rule was deleted. Several other comments were received on this paragraph.

700 1. Some commenters urged that the public-notice requirement be made more detailed and that they track the requirements of Section 786.11 relating to mining permits as closely as possible. Others wanted public notices deleted entirely. Many commenters also pointed out that the regulations, as proposed, were unclear in certain particulars, such as who should post the public notice, where the notice should be posted, who could file, and when the comments could be filed.

{15020}Public notice and comments have not been deleted, because involvement of the public under the authority of Section 102(i) of the Act is an important component of ensuring thorough review of applications by the regulatory authority. (See S. Rep. 95 128, 95th Cong., 1st Sess. at 59 (1977).) Nor were major additional procedures added, because the Office determined that exploration, which is ordinarily on a smaller scale than mining, need not be subjected to as wide an area of public participation as mining permits.

Some clarification was made, however, in response to the comments. First, a reasonable time limit was provided for the posting of the public notice. Notice is to be posted by the applicant, rather than the regulatory authority, because the applicant is ordinarily in closer proximity to the immediate local area where notice will be posted.

2.

Section 776.12(b)(2).

Some commenters requested that Section 776.12(b)(2) provide for a specific time limit on the submission of comments. The suggestion was not accepted, because of the wide variation in the number of explorations in particular States. Therefore, the time limit will be left to the discretion of the regulatory authority to decide on a case-by-case basis.

3.

Section 776.12(b)(3).

Several commenters recommended that Section 776.12(b)(3) be revised to limit the right to file written comments on the application to persons "who are or may be adversely affected,'' on the model of Section 513(b) of the Act. Although the "written approval'' required by Section 512(d) is not intended to be a permit, the Office agreed that the right to file written comments on an exploration application should not extend to parties beyond what is authorized on permit reviews. Therefore, the comments were accepted.

SECTION 776.13 Applications: Approval or disapproval of exploration of more than 250 tons.

This Section requires the regulatory authority to act on applications for exploration and provides the criteria by which the application is to be approved or disapproved.

1. A commenter suggested deleting the entire Section, arguing that approval of the State program is all that is necessary to ensure that the regulatory authority will administer Section 512(d) of the Act. However, minimum requirements are necessary to implement Section 512(d) of the Act and to ensure that the purposes of the Act (Sections 102(a)(d), 102(k)) are furthered. It was, therefore, decided to retain this Section substantially as proposed.

2. A commenter's suggestion that the title to this Section be clarified as to its applicability only to coal exploration operations of more than 250 tons was accepted.

3. Several commenters suggested that a "reasonable time'' be more explicitly stated for the regulatory authority to act upon a completed application. These suggestions were not accepted because of the wide variation among States in the number of explorations and consequent variability in workloads for reviewing applications.

4. Several comments were submitted regarding the use of the word "may'' in Section 776.13(b) and requesting that potential arbitrariness in use of this word be eliminated by replacing it with "shall.'' These comments were accepted.

5. A commenter questioned whether protection of critical habitats of threatened or endangered species should be required during coal exploration.

Sections 101, 102, 512, and 515 of the Act make specific reference to protecting environmental values, including fish and wildlife habitats. Although coal exploration operations may affect small areas, the special categories of the environment (habitats) for which protection is authorized can be similarly small areas. Further, the Endangered Species Act and the U.S. Fish and Wildlife Service regulations require that these habitats be protected under statutes, such as the Act, administered by the Secretary. This comment was accepted. (See also, the preamble discussions to sections 770.12(c) and 779.20.) SECTION 776.14 Applications: Notice and hearing for exploration of more than 250 tons.

This Section provides for the procedures for the regulatory authority to follow, once a decision has been made under Section 776.13 to approve or disapprove the application, in order to notify the applicant and the public of its decision. This Section also provides that the decisions of the regulatory authority are to be subject to appropriate opportunity for administrative adjudicatory and judicial reviews.

1. A commenter questioned whether the regulatory authority should be specifically empowered to modify coal exploration applications. This comment was not accepted because power to approve or disapprove implies the power to modify an application. Any application which is disapproved could be modified and resubmitted under Section 776.13(c).

2. Several commenters questioned whether it should be required that government officials receive personal notice of a regulatory authority decision on coal exploration applications, rather than having to depend on newspaper advertisements. These comments were accepted, because local governments should be provided with notice in all cases of exploration, to ensure that their property, public roads, and land-use control scheme is protected and coordinated as to large-scale coal exploration.

3. Several commenters questioned whether there should be an opportunity for a hearing on the approval or disapproval of coal explorations over 250 tons. As proposed, Section 776.14 conferred discretion to the regulatory authority to hold a hearing after approval or disapproval of exploration applications. Under the due-process requirements of the 5th and 14th amendments to the United States Constitution, the Federal and State governments can only take property or deprive individuals of their due-process rights if opportunity for an adjudicatory hearing is afforded on particularized, factual determinations. Furthermore, the Federal Administrative Procedure Act (5 USC 554) and most State laws provide for a similar right to a hearing. Therefore, any person adversely affected by the decision of the regulatory authority on an exploratory application must be given an opportunity for a hearing. The type of hearing to be afforded is specified in Part 787, which itself has been modified in the final rule to account for exploration application approval and disapproval hearings.

SECTION 776.15 Coal exploration compliance duties.

This Section establishes the compliance responsibilities of persons seeking to conduct or already conducting coal exploration under the permanent regulatory program. Suggestions by commenters that this Section be limited to those explorations which substantially disturb the natural land surface were accepted, in part, as Section 512(a) of the Act limits the scope of application of the performance standards of the Act to such operations. However, 776.15(b) is applicable to all coal exploration, for the reasons explained in the preamble to section 776.11.

SECTION 776.17 Public availability of information.

This Section provides for standards and procedures regarding the extent to which information submitted to the regulatory authority under Part 776 is to be made publicly available.

700 1. A number of commenters objected to the wording of Paragraphs (a) and (b) of this Section, arguing that the exploring entity, not the regulatory authority, should determine what information is to be kept confidential. These commenters said that those determinations were neither authorized to be entrusted to the regulatory authorities under the Act, nor could the regulatory authorities be completely trusted not to divulge some confidential information. Some commenters also argued that disclosure of any information regarding exploration would harm the competitive rights of exploring entities.

Section 512 of the Act must be viewed as a part of the entire regulatory scheme which Congress desired to exist under the Act. That scheme provides for adequate public participation and public availability of information (Sections 102(i) and 517(f) of the Act). Ordinarily, information obtained by the regulatory authority is to be publicly disclosable, including that obtained through regulation of coal exploration. Provisions against disclosure, therefore, such as Section 512(b) of the Act, constitute an exception which is to be narrowly construed.

No data were submitted to substantiate commenters' concerns that determinations of confidentiality or the release of any information will harm competitive interests. Moreover, an objective standard for determining confidentiality requests, as opposed to a subjective standard based purely on the desires of the person submitting information, is necessary to foster the purposes of the Act to protect the general public and the environment. The Office believes, on the basis of these principles, that Section 776.17 strikes a proper balance between public interests in disclosure of relevant information and protection of competitive rights. Moreover, the addition of the opportunity for a prior hearing on the disclosure of information should ensure against possible mistaken releases of data entitled to confidential treatment.

2. A related comment suggesting expansion of the categories of confidential information protectable under Section 776.17 to include any information "affecting marketability of land or mineral rights'' was also rejected, because Section 512(b) of the Act is limited to information which if disclosed relates to trade secrets, or would harm competitive rights. Expansion beyond this category was not shown to be needed by the commenter, nor does the Office believe that the excepting language of Section 512(b) should be read more broadly.

3. Several commenters suggested modifying Section 776.17 to provide the person submitting the information to have protection from unwarranted disclosure of confidential information through notice and opportunity for a prior hearing on proposed disclosures.

Section 512(b) of the Act specifies that information submitted to the regulatory authority as confidential shall not be available for public examination. Section 517(f) of the Act specifies that information obtained shall be immediately available to the public. This potential conflict places the regulatory authority in a position of ascertaining if the information submitted pursuant to Section 512 is of the type specified as confidential. However, information that is entitled to confidential protection to prevent damage to a person's business, competitive interests, such as the type of information covered by Section 776.17(b)(2), is subject to the requirements of due process.

Due process requires that a person not be individually deprived of individual property without some opportunity for a hearing. The divulgence of information in the possession of the regulatory authority which is entitled to confidential protection under Section 776.17(b)(2) must, therefore, be protected by providing for advance notice to and opportunity to be heard by the person requesting that the information be protected. As a result, a new Paragraph (b)(3), was added to the final rules.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 778 -- SURFACE MINING PERMIT APPLICATIONS: MININUM RQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE AND RELATED INFORMATION INTRODUCTION Part 778 provides the minimum requirements for legal, financial, compliance and general non-technical information for surface mining activities applications. Information submitted in permit applications under Part 778 will be used primarily to enable the regulatory authority and interested members of the public to ascertain the particular nature of the entity which will mine the coal and those entities which have other financial interests and public record ownership interests in both the mining entity and the property which is to be mined. In addition, certain other non-technical information needed for processing and approval or disapproval of the application is required.

The basis and purpose of Part 778 was set forth, in general, at 43 F.R. 41691 41693. Most of the comments on Part 778 apply also to Part 782 and, when changes were warranted in both parts based on comments addressed only to Part 778, corresponding changes were also made in Part 782. (Part 782 concerns minimum requirements for legal, financial, compliance, and related information for applications for underground mining activities.) Some minor editorial changes have been made throughout this Part. Many comments were received on Part 778, and some changes in the regulations have been made. Paragraphs 778.5 and 782.5, Definitions, have been deleted since the definition there has been moved to section 770.5 in the final rules.

700 SECTION 778.13 Identification of interests.

Authority for this Section is Sections 102, 201(c), 503, 504, 507, 508, 509, 510, and 515 of SMCRA. It should be noted that some amplification of the coverage in Sections 778.13 (b) and (d) will be necessary in particular cases, when the actual operator is to be a different person from the applicant. This information will aid the regulatory authority in determining the past compliance history of the person actually doing the work. Section 510(c) of the Act requires this determination. Even if the applicant had no previous violations, the permit could be denied if the actual operator had a history of noncompliance with the Act or other air or water environmental protection statutes.

1. Section 778.13(a): Several objections were received that too much detail was required on both applicant ownership and land-to-be mined ownership. On the other hand, one commenter felt more detail would be necessary to reveal complex ownership patterns. The comments were rejected. The requirements for details of ownership are specifically stated in Section 507(b) of the Act. Ample authority exists in section 510(c) of the Act to deny permits where the operator or applicant is controlled by a parent company that has a willful pattern of violations of the Act.

2. Commenters objected to furnishing telephone numbers for all of the persons mentioned in 778.13. Since rapid communication by telephone would be required only for persons immediately involved in the operation, Paragraph 778.13(a) was modified to require the telephone numbers only for the applicant, operator, and resident agent.

3. Several commenters objected to the requirement for the listing of equitable, as well as legal owners, of record in subparagraph 778.13(a)(2). The reasons given were that the equitable owners were not required by the Act and the determination of equitable owners might be difficult or impossible in some cases. These comments were rejected. The equitable owner of record of the property to be mined needs to be named in the application in order to enable the regulatory authority to easily locate these owners, if their interests would be adversely affected by the proposed operations, and, in the event of a violation of applicable regulations during the mining process, to locate potentially responsible parties. This requirement should not pose an additional burden on applicants, as equitable owners of record can be identified by the same process of searching public property records at the same time as for legal owners of record. It is also noted that the applicant should try to identify "equitable owners of record'' to insure that rights to mine coal are being obtained free and clear from equitable claim to minerals.

{15022}The Office believes it has legal authority to require this information under Sections 102(a), 201(c), 507, 508, 510(b)(c), and 515 of the Act. Section 102(a) of the Act requires protection of "society'' from adverse effects of coal mining. Further, Section 102(b) of the Act requires protection of all persons with "legal interests'' in land from adverse effects of coal mining. An "equitable owner of record'' is a "person with legal interests'' within the meaning of the Act.

Black's Law Dictionary at 1259 1260 (1956 ed.). Because Sections 102 (a) and (b) of the Act protect equitable owners of record, subparagraph 778.13(a)(2) is lawfully issued under section 201(c)(2) of the Act.

4. Section 778.13(b): Some commenters wanted to limit this subsection to operations in the State, rather than the entire United States. These comments were rejected because Section 507(b)(4) of the Act expressly requires that the applicant identify the operations "within the United States,'' not just the State in which the application is filed. 5. Sections 778.13(d) and 782.13(d): Several commenters objected to the listing of previous coal mining permits held by the applicant. The reasons given were that some of the information required might be unavailable or have little present relevance. The comment was accepted by limiting the information requirement of Sections 778.13(d) and 782.13(d) to permits issued after 1970.

Some commenters wanted to limit Section 778.13(d) to operations in the State, rather than the entire United States. These comments were rejected, because Section 507(b)(3) expressly requires that the applicant list current or previous coal mining permits in the United States, rather than just the State in which the application is filed.

One commenter wanted to limit the statement of any current or previous coal mining permits to "surface'' coal mining permits. This comment was accepted, since this phrase more closely tracks Section 507(b)(3) of the Act. By the definition of surface coal mining operation in Section 701(28) of the Act, it is clear that both surface and underground activities are intended to be included by this requirement.

One commenter wanted to delete the phrase "and by any person identified in paragraph (b)(3) of this Section'' in Section 778.13(d), since it was not explicitly required in the Act. This comment was rejected, as those entities are persons who are in a position to exercise significant control over the conduct of an applicant's business affairs and who could be responsible for violations of law incurred by the applicant, for which the applicant is responsible under Section 510(c) of the Act. As a result, information about those persons' histories of compliance with permit obligations would be relevant and useful to the regulatory authority. Because that information would be in the possession of persons who would be closely associated with the applicant, requiring the applicant to produce that information should not pose a significant burden on the industry.

6.

Sections 778.13(e) and 782.13(e).

Several commenters objected to the requirement for listing all owners of property contiguous to the permit area, rather than owners of surface property and of coal mineral rights. The comments were rejected, since Section 507(b)(2) of the Act requires identification of owners of all property next to the proposed permit area.

7.

Section 778.13(f).

One commenter objected to supplying the Mine Safety and Health Administration's MSHA identification number for the mine. This comment was rejected, since the information is needed to aid the regulatory authority in coordinating review of the permit application with the MSHA, so that any potential conflicts between the regulatory requirements of the Mine Health and Safety Act and the SMCRA could be resolved. In addition, identification of the MSHA number will be important in the case of a proposed new coal mine which might constitute a "new source'' under the Clean Water Act. 33 U.S.C. 1251, et seq.

See 44 Fed. Reg. 2587 (January 12, 1979). The name of the mine and the mine MSHA I.D. number are, therefore, required under Sections 102, 201(c), 503, 504, 507, 508, and 510 of SMCRA, to insure that an effective permit system is implemented.

8.

Sections 778.13(g) and 782.13(g).New subparagraphs were added as Section 778.13(g), that were from Sections 779.12(c) and 783.12(c) in the proposed rules. Requirements for information on interests, options, and pending bids on lands more logically belong with the legal and financial sections of the applications, rather than the general environmental resources information.

Commenters objected to the requirements for listing various interests in lands within mine plan areas. The reasons given were that the requirements exceeded the authority of the Act, that confidential information would be disclosed, and only information on lands contiguous to the permit area was required.

The basic justification for the requirement is contained in the preamble to Section 779.12 (43 Fed. Reg. p. 41694); however, limitation to contiguous lands is more consistent with Section 508(a)(11) of the Act. Confidentiality of the information is adequately protected by 30 CFR 786.15.

Several commenters objected to the phrase "options or pending bids on such interests'' as being unauthorized by the Act. Section 508(a)(11) specifically requires this information, so the comments were rejected.

700 SECTION 778.14 Compliance information.

Authority for this Section is, in general, Sections 102, 201(c), 501(b), 503(a), 504, 507(b), 508(a), 509, 510, and 515 of the Act. The purpose and basis for this section was generally discussed at 43 Fed. Reg. 41692 (Sept. 18, 1978).

Some amplification of the coverage in Section 778.14 will be necessary for the situation when the actual operator is to be a different person from the applicant, as is explained above in the preamble to Section 778.13. Section 510(c) of the Act specifies that no permit shall be issued to an applicant after a finding that ". . . the applicant or the operator . . .'' has a demonstrated pattern of willful violations. This information is necessary so that the regulatory authority can make a determination concerning the past compliance history of the person actually doing the work.

1.

Scope of laws involved Several commenters suggested that the compliance information required by Sections 778.14(c) and 782.14(c) should be restricted only to operations of the applicant in the State where the application is made. These comments posed related suggestions to proposed Sections 786.15(g) and 788.12(c), which are the substantive rules designed to implement the first portion of section 510(c) of the Act.

In response to these comments, the Office has made several modifications to the final rules in Sections 778.14(c), 782.14(c), 786.17(c), and 786.19(g), which will more closely follow the Congressional intention for Section 510(c) of the Act. Following is the Office's analysis of the comments received on the proposed rules and explanation of their disposition.

One comment argued that Section 510(c) of the Act is limited in application to Federal programs only. This argument is not substantiated in the comments and is without merit. Indeed, as that commenter itself recognized, Section 510(c) can be applied to State programs, although (says that commenter) only for violations by the applicant of that State's laws. In any event, Section 510(c) is not limited as to the type of program under which it should be applied. Section 510(c) is one of four paragraphs of the section of the Act which establishes the criteria for permit denial/approval decisions by the regulatory authority. As Section 510(a) indicates, decisions under either a State program or Federal program are to be made in accordance with the Act, which includes Section 510(c). Second, Section 510(c) on its faces applies to the "applicant'' without any indicated qualification as to whether a State or Federal program is involved. Third, Section 510(c) applies ". . . where the schedule or other information available to the regulatory authority . . .,'' without limitation as to the type (i.e., Federal or State) of regulatory authority involved. "Regulatory authority'' is defined at Section 701(22) of the Act to include both State and Federal programs. Fourth, Section 510(c) prohibits issuance of the "permit,'' without limitation as to the type of permit involved. "Permit'' is defined at Section 701(15), to include permits under both State and Federal programs. The words of Section 510 thus clearly apply all provisions of Section 510(c) to both State and Federal programs. In such cases, the ordinary meanings of the words of the Act are to be given full and complete effect.Burns v. Alcala, 420 U.S. 575 (1975). Therefore, Sections 778.14(c), 782.14(c), 786.15(g), and 788.12(c) have been modified to narrow their coverage to Federal programs only.

{15023}Some commenters contend that Section 510 of the Act applies only to violations of Federal laws and, therefore, not to violations of laws administered by agencies in other States. They asserted that, because Congress failed to expressly list State laws in the phrase "violations of this Act, any law, rule, or regulation of the United States pertaining to air or water environmental protection,'' Congress chose to exclude coverage of laws administered by State governments. A close reading of this portion of Section 510(c) reveals, however, that Congress did intend to include some laws enforced by State governments.

The critical phraseology of Section 510(c) that these commenters point to is "violations of this Act and any law, rule, or regulation of the United States, or of any department or agency in the United States,'' contending that this covers only Federal laws administered by Federal agencies because of the use of the term "United States.'' This argument, however, ignores completely the phrase "department or agency in the United States.

'' (Emphasis supplied) The phrase "in the United States'' is construed by courts to mean physically located within the United States.

See e.g., United States v. Neptune, 337 F. Supp. 1028, (D. Conn.) Therefore, the preferred way to read section 510(c) is to construe "department or agency in the United States "to mean any governmental department or agency'' physically located in the United States, which would include State and local governmental entities.

The commenters suggested construction of Section 510(c) would also render meaningless the phrase "department or agency in the United States,'' a result which is always to be avoided. Ziegler Coal Co.

v. Kleppe, 536 F. 2d 398 (D.C. Cir., 1976), cert. den., 411 U.S. 917 (1973). If Congress had intended to apply Section 510(c) to Federal laws administered by Federal agencies only, it could have limited its choice of words to "violations of the Act or of any law, rule, or regulation of the United States'' and excluded the words "or of any department or agency in the United States,'' since the former would have covered, by reference to "law, rule, or regulations of the United States,'' all Federal laws. Instead, Congress enacted Section 510(c) to cover violations of laws, rules, or regulations of the United States (e.g., Federally administered) and of "laws, rules, regulations . . . of any department or agency in the United States,'' thereby clearly intending to cover a body of law in addition to Federal law administered only by Federal agencies. In summary, the structure of Section 510(c) and accepted principles of statutory construction reveal that Section 510(c) of the Act was intended to cover violations of the Act and of air or water environmental protection statutes administered by both Federal and State governments. 700 On the other hand, it appears from the legislative history that Congress did intend that Section 510(c) would apply to violations of any State environmental protection laws which implement Federal environmental laws. The relevant portion of Section 510(c) originated in the 1974 version of the House bill, H.R. 11500, and was the same as that finally enacted by Congress in 1977. Compare Section 209(e), H.R. 11500, H.R. Rep. No. 93 1072, 93rd Cong., 2d Sess. at 12 (1974), with Section 510(c). As the House reports through the years reveal, Congress intended that Section 510(c) apply to a "wide range'' of violations of Federal environmental protection requirements. H.R. Rep. No. 93 1072, supra, at 82, 133; H.R. Rep. No. 94 45, 94th Cong., 1st Sess. at 45, 113 (1976); H.R. Rep. No. 94 1445, 94th Cong., 2d Sess., at 44, 115 (1976); H.R. Rep. No. 95 218, 95th Cong., 1st Sess., at 92 (1977). It is important to note that those "other Federal air and water environmental protection statutes,'' continually referred to by the House, are largely implemented through State adoption of laws which are enforceable as Federal laws.

For example, the Clean Air Act is implemented under State plans to control existing stationary sources of air pollution (Section 110, 42 U.S.C. Section 7410), new sources (Section 111, 42 U.S.C. Section 7411), hazardous air pollutant sources (Section 112, 42 U.S.C. Section 7412), and to prevent significant deterioration of air cleaner than the national ambient air quality standards (Section 127, 42 U.S.C. Section 7427). The provisions of these State law plans are, however, also Federal law and enforceable by Federal agencies and courts. Sections 113, 304, 42 U.S.C. Sections 7413, 7604; Union Electric Co.

v. EPA, 515 F. 2d 606 (8th Cir., 1975), aff'd., 96 S. Ct. 2518 (1976); Friends of Earth v. Carey, 535 F. 2d 165 (2nd Cir. 1976); Friends of Earth v. Potomac Electric Power Co., 419 F. Supp. 528 (D.D.C. 1976).

Parallel provisions prevail under the Clean Water Act (33 U.S.C. Section 1251 et seq).

Non-point source pollution is to be controlled according to State plans which become Federal law when approved by the Administrator, USEPA, 33 U.S.C. Section 1288. Point source discharges are to be regulated under State laws approved by EPA for water quality standards (33 U.S.C. Section 1313) and permits (33 U.S.C. Section 1342). These State plans are enforceable as Federal law by Federal agencies and courts. 33 U.S.C. Sections 1319, 1365; EPA v. California, 426 U.S. 200 (1976); United States Steel v. Train, 556 F. 2d 822 (7th Cir. 1977); Montgomery Environmental Coalition v. Fri., 366 F. Supp. 261 (D.D.C. 1973). See also Dwyer v. City of Ann Arbor, 261 N.W. 2d. 231 (Mich. Ct. of Appeals, 1977).

Similarly, the Act's State programs, while adopted in the first instance by the States, will also become Federal law when approved by the Secretary of Interior, being promulgated as Federal regulations and enforceable as such in the United States courts. Section 520(a) SMCRA; 30 U.S.C. Section 1270(a). Therefore, although the House Reports relating to the Act evidence Congressional intent to apply Section 510(c) to violations of Federal law, those laws would include State laws which are passed to implement Federal environmental protection statutes and thereby are incorporated into Federal law. Further, this type of State-administered law is also "laws, rules, and regulations . . . of any department or agency in the United States'' which, as explained above, Congress clearly intended to include within the scope of Section 510(c) of the Act. OSM's regulations implementing Section 510(c) should, therefore, include violations of those State laws, and regulations adopted under Federal air or water environmental protection standards.

{15024}In addition to contentions about the meaning of Section 510(c) of the Act itself, the commenters also raised two additional objections to the proposed rules on legal grounds. First, they argue that, to require the State in which a permit application is filed to enforce the law of another State, by refusing to issue the permit on the basis of violations by the applicant of the other State's laws, would be unconstitutional under the Commerce Clause of the United States Constitution. Those commenters cited neither supporting case law, nor detailed legal rationales. Further where, as in enacting Section 510(c) of the Act, Congress itself acts under the Commerce Clause, the courts accord it broad latitude to impose pre-conditions to engaging in business. American Power Light Co.

v. SEC, 303 U.S. 419. There would appear to be no constitutional barrier under the Commerce Clause to requiring an applicant for a mining permit to establish first that it is effectively abating violations of important environmental protection laws at other mining operations under its control.

The second legal argument raised by the commenters, aside from those directly relating to Section 510(c) of the Act, is that some States have "no authority'' to withhold permits for violations of other States' laws. Assuming that these comments are intended to mean that some States do not presently have State laws which would authorize their regulatory authorities to implement Section 510(c) of the Act, these comments were rejected, because Congress, of course, clearly anticipated that the States might have to change existing laws in order to qualify for State program approvals.See Sections 102(g), 201(c)(9), 503 of the Act.

Several commmenters argue against any adoption of regulations to implement Section 510(c), of the Act, based on complaints of the administrative inconvenience to State regulatory authorities to implement the Office's regulations under State programs.

One commenter objected that the proposed Office regulations would require the State regulatory authority to hold hearings on violations of laws other than those it directly administers. This contention may be true for a small number of cases, as due process would certainly require that the permit applicant be provided at some point with notice and opportunity for a hearing to contest an allegation of a violation of law. Thus, to the extent that the applicant has been provided with prior or contemporaneous notice and opportunity for a hearing by the department or agency responsible for a violation notice, the regulatory authority reviewing the permit application need not itself provide another such opportunity.

For example, if a permit application to the Kentucky Department of Natural Resources is being denied a permit for a violation notice issued by West Virginia's DNR for the applicant's coal mine in West Virginia, Kentucky need not provide a hearing if the West Virginia DNR offered one on that violation notice. Sections 778.14(c) and 782.14(c) would require the applicant to include in the permit application the documentation necessary for the regulatory authority to determine whether opportunity for a hearing had been available to the applicant on a violation notice listed by the applicant.

As Federal and State agencies enforcing environmental law routinely grant hearings in enforcement of these laws, it can be expected that in only a limited number of cases will an applicant subject to Section 510(c) of the Act be entitled to a hearing before the regulatory authority to contest the validity of a violation notice being used as the basis for refusing to issue a permit. In those circumstances, the adjudicatory hearing requirements of Section 514(c), of the Act and 30 CFR 787.11 would be available to protect the rights of the applicant.

Another objection raised by the commenters is that implementation of Section 510(c) of the Act under a State program will require, for violation of laws of another State, that the regulatory authority engage in an allegedly tedious task of comparing the provisions of the State program being administered by that regulatory authority with the requirements of the second State's laws to determine which State's laws are more stringent. This objection incorrectly assumed, however, that more stringent provisions of another State's laws are directly applied under Section 510(c), of the Act to the operations proposed by the applicant to be conducted in the State in which the application is filed and reviewed under Section 510(c). Section 510(c) and the Office's implementing regulations require only that provisions of other State laws be enforced to the extent that violations of those laws at mining operations in those other States be abated to the satisfaction of the other State. Section 510(c) does not require, and the Office's regulations do not imply, that the substantive provisions of those other State laws will be applied to the operations being proposed under the permit application.

The commenters also argued that implementation of Section 510(c) of the Act and the proposed regulations would unduly restrict a State regulatory authority's flexibility to permit coal mining in its State. To the extent that Section 510(c) requires a State regulatory authority to withhold a permit application because of violations of law at other mines controlled by an applicant. Congress has mandated circumscription of State flexibility and the Office has no alternative but to adopt its proposed implementing regulations.

Commenters contended that the proposed regulations would have absolutely prohibited issuance of permits. However, in limited circumstances the legislative history Section 510(c) allows for issuance of a permit, notwithstanding existing, uncorrected violations of law at other mines operated by the applicant. The Senate Committee reports contained the following cautionary instructions regarding versions of Senate bills identical to Section 510(c): It is not the intention of the Committee that an operator who is charged with the types of violations described in Section 510(c) be collaterally penalized through denial of a mining permit if he is availing himself, in good faith, of whatever administrative and judicial remedies may be available to him for the purpose of challenging the validity of violations charged against him. However, t