INTRODUCTION

Part 786 in the final rules is a consolidation of Parts 786 and portions of Parts 787 and 788 of the proposed regulations. These Parts were combined so that all regulations generally relating to procedures and standards for review and decisions on applications in the permit process could be found in one place, in the chronological order of the review and decision process.

A few general comments were received concerning former Part 787 requesting that an index be prepared for all public participation Sections contained in the regulations. It was decided not to prepare such an index, but to put all public participation regulations relating to permit applications in Part 786. Each program must contain substantially the same type of public participation as called for in these regulations, subject to 30 CFR 731.13, but may be organized differently.

SECTION 786.1 Scope.

Authority, basis and purpose of this Section are discussed at 43 FR 41720 under Section 786.1; at 43 FR 41724 under Section 787.1; and at 43 FR 41726 under Section 788.1.

SECTION 786.2 Objective.

Authority, basis and purpose of this Section are discussed at 43 FR 41720 under Section 786.2; at 43 FR 41724 under Section 787.2; and at 43 FR 41726 under Part 788.

SECTION 786.4 Responsibilities.

Authority, basis and purpose of this Section are discussed at 43 FR 41720 under Section 786.4; at 43 FR 41724 under Section 787.4; and at 43 FR 41726 under Part 788.

SECTION 786.5 Definitions.

Since there were requests made to define terms found in this Part, a new definitions Section has been added. The statutory authority for this Section is Sections 102, 201(c), 501(b), 503, 504 507, 510, 515, and 516 of the Act.

A commenter requested that the terms "willful violation'' "irreparable damage to the environment,'' "demonstrated pattern of violation'', "duration'' of a violation, and "nature'' of a violation be defined for use in the regulations implementing the last half of Section 510(c) of the Act. The terms "willful violation'' and "irreparable damage to the environment'' have been defined in this new Section. Defining these terms will help clarify the requirements of Sections 786.17(d) and 786.19(i). The remaining terms were not defined, because it was believed that their use would vary greatly with different situations.

SECTION 786.11 Public notices of filing of permit applications.

Authority, purpose, and basis for this Section are discussed in 43 FR 41724 (Sept. 18, 1978), under Section 787.11 1. As set forth in the proposed regulations, Section 787.11(a) required the applicant to place an advertisement of its application in a local newspaper once a week for four weeks. Subsection 787.11(a)(2) required that the advertisement contain a map showing the specific location and boundaries of the proposed permit area. In the final rules, Section 787.11 has been numbered as Section 786.11.

2. Several comments were received concerning the map requirement. Many State and industry commenters wanted to delete the map requirement altogether, stating that it was difficult and expensive to publish a map in the paper and that the general public would find maps less helpful than textual descriptions. Others wanted to require a verbal, textual description of the permit area only. They argued that if the verbal description was complete enough, it would afford adequate public notice so that interested citizens could go to the courthouse to review the complete permit application, including the maps.

Citizens groups argued that the map requirement should be retained, since the best public notice reasonably possible is vital to public participation in the permit process. They argued that as the rest of the permit regulations have strict time limits, the public would miss its opportunities to comment, object, and request informal conferences, unless the best early notice was provided in the newspaper. Others argued that additional information should be added to the advertisement, such as the names of the adjacent property owners and more detailed information concerning the size and type of the mining operations.

700 One commenter wanted to delete the map requirement and use, instead, a newspaper advertisement with 1/2 high letters in order to give the greatest possible notice to the public. Others stated that the map requirements were confusing and wanted clarification concerning the information required to be on the map.

Some commenters argued that there are special problems with providing newspaper notices to the public in the West, because of the great distances involved and the limited ability of local newspapers to reach a wide circulation. Some State commenters wanted to give the regulatory authority more flexibility in designating which maps would be appropriate to use in the newspaper advertisement.

{15097}3. In response to these comments, the Office has made substantial changes in the required contents of newspaper advertisements.

(a) It still considers the use of a map in the advertisement of the proposed application as the preferred means of giving notice to the public. However, there may be instances when a verbal description will be a better means of giving such notice, so the regulation has been changed to provide for the alternative of a written description of the proposed permit area. The requirements for the contents of the map or the description contained in Section 786.11(a)(2)(i) (iv) have also been simplified.

There is no prescribed type of map or form of map set forth in the final regulations. This will be left to the regulatory authorities to specify under particular regulatory programs. Each State will have different maps which are in common usage by the surface mining industry. Some States already require small general location maps in the corner of more detailed maps submitted to the regulatory authority. Maps such as these could be used in the advertisement. The critical concern in these rules is that the map, if used, be large enough to be read and used by local residents, and that it contain enough information so that the proposed permit area is easy to locate.

The same principles hold true if a verbal description is used. The specific items to be used in the map or verbal description are listed in Section 786.11(a)(2)(i) (iv). If a verbal description is used, highly technical legal terminology should be avoided in describing the boundaries of the proposed permit area. The exact location of the proposed permit area should be immediately apparent to any local resident reading the description, preferably by use of local geographic names. The name of the USGS 7.5 minute quadangle which contains the proposed permit area is required, so that persons who desire a more precise location of the permit area can easily do this by obtaining their own USGS topo map. This is important in areas where the proposed permit area may be a considerable distance from the county courthouse, where a USGS map will be included in the file of the permit application. (b) The suggestion that the notice be printed in 1/2 high letters in the newspaper was rejected, since this would take up an inordinate amount of space in the newspaper, be expensive, and still would not give notice as well as a map. Pursuant to Section 507(b)(6) of the Act, the newspaper advertisement is supposed to notify the public that a surface coal mining operations application has been made, who made it, where the proposed permit area will be located, where a copy of the application can be found, and where and when comments can be submitted on the application.

Comments suggesting that additional information be placed in the newspaper advertisement were also rejected. While it might be desirable to put as much information as possible concerning the proposed operation in the newspaper, all relevant information is contained in the application on file at the local courthouse. It should be noted, however, that a State regulatory authority would not be precluded from requiring additional information.

(c) Regarding the problems with newspaper circulation in the Western States, the Office believes that the requirement for four weekly publications of the advertisement should generally suffice to insure that the public receive notice. However, if in particular localities close examination reveals that this system will not afford adequate notice, more effective procedures may be specified for individual permanent regulatory programs.

3. Under Section 522(e)(4) of the Act, mining is prohibited within 100 feet of the outside right-of-way of a public road, subject to two exceptions. Approval of those exceptions may be granted by the regulatory authority only after notice and opportunity for a public hearing. Proposed Section 787.11(a)(5) required that the newspaper advertisement of the permit application also contain notice of any proposed mining within 100 feet of a public road or any relocation of a road caused by mining. Several commenters asked that this requirement be deleted or moved to Section 778.16, which concerns the relationship of the permit application to areas designated as unsuitable for mining. These comments were rejected. I11The notice of proposed mining near a public road is required so that Section 522(e)(4) of the Act and 30 CFR 761.11 are adequately implemented. Placing the notice in the public advertisement of the permit application will also allow any informal conference on the application to serve as a public hearing on the road relocation, as is set forth in Section 786.14(d). Moving this Section to Section 778.16 would only confuse matters concerning the content of the public advertisement.

4. A number of comments were received suggesting that the public notification process not begin until the regulatory authority determines that a permit application is complete, so that public participation is based on all relevant information. Other commenters suggested that the application be filed at the local courthouse as early as possible, preferably at the same time as the first date of the required newspaper advertisement.

(a) The suggestion that a finding of completeness be required before the public notification process begins was accepted. The word "complete'' has been added before the word "application'' in Sections 786.11(a) and 788.14(b)(2).700 The concept of a "complete application'' is defined at Section 770.5, is found in Section 771.23(a), and flows through the rest of this Subchapter. This is so all necessary planning and information gathering will be finished prior to filing the application. However, even after the filing required by Sections 771.23(a) and 786.11(a), there may need to be subsequent, modifications to applications, if some information or plans are found to be inadequate and not complete, as a result of public participation. Section 786.11(d)(2) therefore, requires that any subsequent revisions of permit applications be made simultaneously in the copy on file with the regulatory authority and the copy on file at the local courthouse.

(b) In response to requests that the public have as long a period as possible to review permit applications, the Office decided to change the regulations to require the filing of copies of permit applications at the local courthouse at the same time as copies are filed with the regulatory authority, the first date of newspaper publication. Because of the highly technical engineering and hydrological data contained in permit applications, it was felt that a longer period was needed for public review of the applications. This change gives the public 28 more days to review the application prior to the deadline for the filing of objections, comments, or requests for informal conferences. Hopefully, this will also reduce objections and requests for informal conferences, and allow objectors to narrow their areas of concern prior to requesting a conference.

5. One comment was received asking that Section 786.11(c) specify the governmental units to whom actual notice of a permit application is to be sent. This comment was rejected. The determination of which governmental units are to be sent such notice is a task for each regulatory authority familiar with the governmental and administrative structure in its particular State. The Office's regulations cannot list all governmental units in all States to whom notice is to be sent.

{15098}6. Many commenters argued that Sections 786.11(c)(1)(4) be modified to delete "Federal agencies'' as governmental entities which would receive actual notice of a permit application. These commenters contended that Section 513(a) of the Act does not require the regulatory authority to notify Federal agencies. It is true that Section 513(a) expressly requires giving notice only to "local'' public bodies. However, the purpose of Section 786.11(c) is broader than merely implementing the express language of Section 513(a) of the Act. Under the Act and these regulations, Federal and State agencies have a wide variety of roles to fulfill in the permit process: 700 (i) "Appropriate Federal and State agencies'' (e.g., EPA, USGS, USSCS, State/water-quality data collection authorities) have to supply area-wide water quality data for the purposes of hydrologic assessments. Sections 507(b)(11), 510(b)(3), of the Act; (ii) The Secretary of Agriculture through the USSCS has to review permit materials related to prime farmlands. Sections 507(b)(16), 510(d), 515(b)(7), of the Act, 30 CFR 779.27, 783.27, 785.17, 823.1 et. seq.

(iii) Permits under the Act must be coordinated with permit and plan requirements under laws administered by other Federal and State agencies, under Sections 503(a)(6), 504(h), 508(a)(9), of the Act, and 30 CFR 770.12. Further, additional coordination may be required under Federal historical preservation and fish and wildlife statutes. 30 CFR Part 761; Sections 770.12; 779.20/783.20; 780.16/784.21; 786.19(o). (iv) Permits under the Act can only be issued after the applicant demonstrates that it will comply with all applicable design and performance standards. (Subchapter K). Many of the standards involve other Federal and State agencies (See Sections 515(b)(2), 515(b)(8), 515(b)(10)(3), 515(b)(12), 515(b)(15), 515(c), 515(e) of the Act), for the purpose of making concurrences with or to comply with the performance standards used by operators.

(v) Permits cannot be issued if the applicant is currently in violation at other mines of air or water pollution control laws enforced by other Federal or State agencies (Section 510(c) of the Act) unless those other agencies agree that satisfactory abatement procedures are being followed.

See 30 CFR 786.19 (h) and (i).

(vi) Coal mining on Federal lands necessarily involves Federal agencies, such as the Secretary of Interior (see Section 523 of the Act); USGS, BLM (See 30 CFR Parts 211 and 741) and, on National Forests, the Secretary of Agriculture and the U.S. Forest Service. (See Section 522(e)(2) of the Act).

Because implementation of the permit scheme under the Act requires substantial involvement of other Federal and State agencies on a continuing basis, there must be adequate provisions made in the regulations for the regulatory authority to ensure that those other agencies are notified, and, if relevant, participate in the application review process by filing comments with the regulatory authority. Furthermore, Section 513(b) of the Act expressly authorizes the "head of any Federal, State or local governmental agency or authority . . .'' to request that the regulatory authority hold informal conferences, which may be important to effect the "coordination'' required by Sections of the Act. In order to achieve this coordination, the Office's regulations need to provide for adequate notice to other Federal and State agencies. Therefore, this requirement was retained in the final regulations.

7. Many commenters objected to the provision in Section 787.11(c)(5) which required the regulatory authority to provide actual notice of permit application to any persons who request such notice. Some commenters suggested that the right to request actual notice of permit applications be limited to persons with an interest which may be adversely affected by the application. Other commenters stated that the request should be renewed periodically to prevent unnecessary notices. Others wanted the entire Section deleted as unnecessary and unduly burdensome. Still others wanted actual notices sent to all surface and mineral owners within 500 feet of a proposed mining operation.

The Office has decided to accept the comments suggesting that the Section be deleted. Actual notice is not specifically required by the Act and would impose a significant administrative burden on the regulatory authority.

8. Many commenters objected to the requirements in Section 787.11(d) allowing public access to permit information. Some objected to the requirements for filing a copy of the permit application at a local court-house, and others asked what alternative public offices would be appropriate for filing the copy. Some objected to allowing the public to copy permit information and others wanted mandatory langauge used requiring that certain information be kept confidential.

Section 507(e) of the Act requires that a copy of the application filed with the regulatory authority also be filed at the county courthouse for the area where the mining is proposed. Therefore, comments suggesting deletion of the Section of the regulation implementing these requirements were rejected.

700 Section 507(e) of the Act also allows the regulatory authority to approve another "Appropriate public office . . . where the mining is proposed to occur,'' for filing of the copy of the application. Several comments were received from States asking whether a particular office would be "appropriate'' as an alternative to a local courthouse. In response, the following language was added to the last sentence of Section 786.11(d)(1): ". . .

public office, if it is determined that the office will be more accessible to local residents than the county courthouse.'' A purpose of the Act is to give local residents who will be most affected by a proposed operation the greatest opportunity reasonably possible for access to information about the application. See Section 507(b)(6) of the Act. Further, as commenters pointed out, requiring filing of a copy of the application at the county courthouse may not always accomplish this purpose, especially in the West where some counties encompass vast distances. The additional language will ensure that the criteria used in approving an alternate public office is convenience and accessibility for the public, rather than convenience for the regulatory authority or the operator.

Generally, all information contained in a permit application on file with the regulatory authority is to be made available to the public for inspection and copying. See Sections 102(i), 507(e) and 517(f) of the Act. There are certain exclusions from this general rule found at Sections 507(b)(17), 508(a)(12) and (b) of the Act. These exclusions state that certain information concerning the coal seam itself, and reclamation plan information required to be kept confidential under State law shall be kept confidential. Otherwise, all information is available to the public. Therefore, comments suggesting that copying not be allowed are rejected. Moreover, confidentiality provisions at Section 786.15 are adequate to implement the Act.

SECTION 786.12 Opportunity for submission of written comments on permit applications.

Authority, purpose, and basis of this Section were discussed at 43 FR 41725 (September 18, 1978), under Section 787.12.

{15099}1. Many comments were received objecting to proposed Section 787.12(a)(2) which allowed any person to file comments concerning a permit application. Some commenters urged that the entire Section be deleted as being beyond the requirements of Section 513(a) of the Act, while others urged that the right to file comments be limited to persons with interests which may be adversely affected by the proposed mining operations. In response, the Office has decided to limit the right to file comments on the application to governmental units which receive notice of the filing of the permit application. The need for governmental agency comment on the application is important to effect the coordination requirements of the Act, as explained above. This does not limit in any way the right of other persons who are or may be adversely affected by issuance of a permit for the proposed operations to file objections to the application under Section 786.13, or to request an informal conference on the application under Section 786.14. 2. Many commenters requested that Section 786.12(c) be reworded to require that all comments submitted to the regulatory authority under Section 786.12 also be transmitted to the applicant. These comments were accepted to insure that the applicant is provided with an opportunity to respond to comments.

SECTION 786.13 Right to file objections.

Authority, purpose and basis for this Section were discussed at 43 FR 41725 (September 18, 1978), under Section 787.13.

Many comments were received requesting that proposed Section 787.13(a) be modified to more closely reflect the language of Section 513(b) of the Act to limit the right to file written objections to those persons with interests which are or may be adversely affected by the proposed operations. The Office accepted these comments.

SECTION 786.14 Informal conferences.

Authority, purpose and basis for this Section were discussed in 43 FR 41725 (September 18, 1978), under Section 787.14.

1. Many comments similar to those discussed above for Section 786.13 were received concerning the rights of persons to request informal conferences on permit applications. Proposed Section 787.14(a) gave any person the right to request such a conference. Commenters suggested that this right be restricted to those persons with an interest which is or may be adversely affected by the issuance of the permit, as found in Section 513(b) of the Act. These comments were accepted.

2. Citizens groups were concerned that proposed Section 787.14(b)(3) gave too much discretion to the regulatory authority in determining whether to conduct visits to areas of proposed mines in preparation for informal conferences. Some suggested that the visits be made mandatory upon request, while others asked that visits be denied only if the request were made in bad faith. Industry commenters wanted the right to be deleted or limited by the concurrence of the operator. I11There will be many factors to consider in determining whether a minesite visit would be useful in particular cases, such as terrain, distances involved, availability of data on the area already on file, the materiality of data to be obtained by a visit and the number of persons requesting such a visit. Weighing of these factors is best left to the discretion of the regulatory authority, on a case-by-case basis. However, that discretion is not to be used by the regulatory authority so as to defeat public participation in the permit process. Visits to proposed mine sites prior to an informal conference should ordinarily be conducted upon request, unless there are substantial reasons not to do so. Informal conference preparation includes the right to minesite visits under the Act. therefore, the final regulation has been left as proposed.

3. A number of comments were received on proposed Section 787.14(b)(4) concerning the determination of the issues to be heard at the informal conference. As proposed, the issues at the informal conference would be limited to those raised in written comments, objections, and requests for hearing. In the preamble to the proposed regulations, the Office solicited comment on how issues were to be determined. Some commenters argued that the issues to be heard should be those raised at any time prior to the conference. Others wanted to allow issues to be raised at the time of the hearing, while others wanted a limit placed on the issues to be considered. Some commenters urged that the regulatory authority be allowed to determine which issues could be heard.

The Office feels that all issues raised in comments, objections, and requests for hearings, as well as the issues raised by the criteria for approval of a permit found in Section 786.19, would be proper subjects for these conferences. Since it is the object of the regulations to allow regulatory authorities to control procedures of informal conferences, the Office has decided to delete proposed Section 786.14(b)(4) in the final rule. This will allow the regulatory authorities to adopt whatever procedures they consider necessary to control consideration of issues at the conferences. However, this is to be done subject to the policy that all information concerning the sufficiency of the application, the applicant, the area to be affected, and whether the criteria for approval to be met are relevant and proper for consideration at these conferences. Therefore, procedures adopted by regulatory authorities cannot unduly restrict public participation at the conferences, and must allow for full and free examination of all relevant issues concerning the permit application.

700 SECTION 786.15 Public availability of information in permit applications on file with the regulatory authority.

Authority, purpose and basis for this Section are discussed in 43 F.R. 41725 (Sept. 18, 1978), under Section 787.15.

1. Many industry commenters objected to the rquirements in proposed Section 787.15(a) which allowed public access to permit information. Some objected to allowing the public to copy permit information and others wanted mandatory language used requiring that certain information be kept confidential.

Generally, all information contained in a permit application on file with the regulatory authority is to be made available to the public for inspection and copying, pursuant to Sections 102(i), 507(e), and 517(f) of the Act. There are certain exclusions from this general rule found at Sections 507(b)(17) and 508(a)(12) and (b) of the Act. These exclusions state that certain information concerning the coal seam itself and other information which is required to be kept confidential under State law shall be kept confidential.

As exceptions to the general purposes of the Act, these exclusions should be interpreted narrowly. The language used in the final rules provides for adequate exclusions. Otherwise, all information will be available to the public. Comments suggesting that copying of permit information not be allowed were rejected, because if information is publically available, then it should be allowed to be disseminated under Section 517(f) of the Act.

2. One commenter expressed the concern that unless Section 786.15(a) (3) was deleted or limited, the State could withhold reclamation plan information essential to informed public participation in the permit process. This Section is required by Section 508(b) of the Act. However, it should be pointed out that this exclusion to the public availability of information pertains only to reclamation plan information required by Section 508(a) of the Act, and not to any other permit or bonding information required under other provisions of the Act. Moreover, State law is no longer in effect in a Federal program. (See Section 504(a)), of the Act.) Section 786.15(a)(3) will have no applicability where the Office is the regulatory authority for a Federal program.

3. One commenter expressed concern that information required to be kept confidential under Section 786.15 be shared with the Office upon request.

It was felt that no change in Section 787.15 was necessary, since information sharing is adequately covered by 30 CFR 840.14 and 842.16.

SECTION 786.17 Review of permit applications.

Authority, purpose and basis for this Section are discussed in 43 FR 41726 (September 18, 1978), under Section 788.12.

An additional Subparagraph has been added to Section 786.17(a) in the final rules, by transfer and modification of material from proposed Sections 780.15(c) and 784.20(c). This addition was made in response to comments suggesting that coordination of reclamation plan contents of applications with fish and wildlife management agencies be the responsibliity of the regulatory authority, rather than the applicant. Authority for Section 786.17(a)(2) of the final rules is Sections 102, 201, 501, 503, 504, 505, 506, 507, 508, 510, 515, 516, 517, and 522 of the Act, The Endangered Species Act (ESA), and The Fish and Wildlife Coordination Act, and regulations adopted by The U.S. Fish and Wildlife Service under the ESA.

700 1. Many comments were received concerning the schedule of violations which permit applicants are to make available under Section 787.17(c). This Section requires the the applicant list all violations of the Act or other State or Federal air and water environmental protection statutes or regulations at any of its coal mining operations for a three-year period proceeding the application. If the regulatory authority ascertains during the review of a permit application that violations of those laws currently exist, then Section 786.17(c)(1) would require that satisfactory proof of the abatement of the violation be submitted by the applicant to the regulatory authority, unless the conditions of Section 786.17(c)(2) apply. Finally, until satisfactory proof of abatement of those violations is submitted, 30 CFR Section 786.19(g) (h) would preclude issuance of a permit.

(a). Many commenters objected to the language in Section 787.17(c) which called for listing of all violations of "soil or water environmental protection laws.'' (emphasis added.) The commenters suggested that this language be changed to "air or water environmental protection'' to be consistent with Section 510(c) of the Act. Section 510(c) of the Act covers "air or water environmental protection'' laws, not "soil or water.'' The choice of "soil'' instead of "air'' in the proposed regulations was an oversight and has been changed to specify that violations of "air or water'' environmental protections laws are to be listed. (b) There were also many objections to the requirement to list violations of laws outside the State in which the application is filed. As is discussed in detail in the preamble to Section 778.14, the Office accepted these comments, in part. The Office has concluded that the regulations implementing Section 510(c) of the Act should include violations of all State laws, rules, and regulations that are adopted under Federal air or water environmental protection statutes and regulations. Section 786.17(c) has been clarified to indicate that only violations of those State laws which are passed to implement Federal air or water environmental protection laws are subject to the final rules.

In addition, language has been added at Section 786.17(c)(2), to allow the regulatory authority to issue a permit when, despite violations subject to Section 786.17(c), the applicant is pursuing, in good faith, rights to administrative or judicial review of the violations in direct appellate action. This provision is explained in greater detail in the preamble to Section 778.14. In addition, Section 786.17(c)(2) contains a further qualification that if the appeal is lost at any point by the applicant, any surface coal mining operations being conducted under a permit issued according to this Section must be terminated until the provisions of Section 786.17(c)(1) are satisfied. This qualification was deemed necessary because the policy articulated by Congress no longer applies. That is, pursuit of the appeal can no longer be viewed as being completely in "good'' faith once a stay is denied or the appeal lost on its merits.

3. One commenter asked that the word "process'' be defined as used in the phrase found in Section 786.17(c)(1)(ii): "violations which are in the process of being corrected.'' Section 786.17(c) implements Section 510(c) of the Act, which requires that all permit applicants attach a schedule of violations of air or water environmental laws, as well as violations of the Act to their application. No application can be issued if any violation is listed, unless it is shown that it has been corrected, or is in the process of being corrected in a manner satisfactory to the governmental unit with jurisdiction over the violation. Therefore, definition of the term "process'' would be left to the agency that originally charged the applicant with the violation. The Office felt it unnecessary to add a definition of that term.

4. Many commenters asked that a new Section be added to the regulations to specify procedures for hearings on permit denial for a demonstrated pattern of violations pursuant to Section 786.17(d). The regulations provide the permit applicant with an "opportunity for an adjudicatory hearing . . . as provided for in the regulatory program.'' Industry commenters wanted the procedures left unspecified, and determined by the regulatory authority.

The hearing on a pattern of violations is the only formal hearing provided for in the permit review process prior to a decision being made by the regulatory authority. If there is a finding that the applicant has a demonstrated pattern of violations then, under Section 786.19(i), no permit can be issued. An adjudicatory hearing of this importance should be afforded the same procedural safeguards as set forth in proposed Part 789 for formal hearings to review decisions on permits. Therefore, language has been added to Section 786.17(d) which specifies that all hearings on patterns of violation shall be conducted pursuant to the same procedures as are set forth in 30 CFR Section 787.11. Section 786.17(d) was not modified, therefore. However, this Section should not be read so as to unfairly penalize the permit applicant whose prior violations of the Act were caused by owners who are no longer currently involved in any way with the company. In such circumstances, there would not be the requisite "duration'' to justify a finding that the applicant had compiled a "pattern of willful violations of the Act.'' SECTION 786.19 Criteria for permit approval and denial.

The authority, purpose, and bases for this Section were, in general, discussed in 43 FR 41721 41723 (September 18, 1978), under proposed Section 786.15.

1. Because of reorganizing and renumbering of certain portions of the regulations, editorial changes were made in Section 786.19. In Subsection (d) the phrase "The area within . . .'' has been deleted as being redundant. In Subsection (e) the reference to 30 CFR 761.12(b) has been changed to Section 761.11(c). In Subsection (f) reference to right-of-entry information in 30 CFR 782.15 has been added. Subsection (g) had been condensed by simply referring to the applicant's duty under Section 786.17(c) to submit satisfactory information on its history of compliance. In subsection (m) the reference to 30 CFR 816.124 and 817.124 have been corrected to Sections 816.133 and 817.133.

2. Many comments were received on proposed Section 786.11 requesting that a finding of completeness by the regulatory authority be required be fore an application is submitted for the public review process. As discussed in the preamble to final Section 786.11, the Office has agreed that such a finding will be made at that point in the permit process. In addition, under final Section 786.19(a) such a finding will be necessary after the opportunity for public participation, in order for the permit application to be approved or disapproved, as provided for under Sections 510(a) and (b) of the Act. If the application is not complete, then it must be denied. If the applicant desires to complete the application and reapply, it must be handled as a new application.

{15101}3. Several comments were received concerning the requirement in proposed Section 786.15(e) that the regulatory authority find that a proposed operation would not adversely affect any places listed in the National Register of Historic Places, or any places eligible for such listing. The commenters felt that only those places actually listed should be protected and that the word "eligible'' should be deleted. The Office did not accept these suggestions for the reasons set out in the preamble to Part 761.

These same commenters also suggested that proposed Section 786.15(e) be amended to explicitly specify that a permit could be issued, notwithstanding adverse effects on a public park or historical place, if its approval was granted by the regulatory authority and agency with jurisdiction over the park or place. These comments were not accepted because additional language was unnecessary. Section 786.19(e) of the final rules cross-references to Section 761.11(c) of the final rules. The latter Section contains the exception langugage suggested by the commenters.

700 4. Several comments were received on proposed Sections 786.15(g) and (h) which require findings by the regulatory authority concerning the applicant's history of compliance. One commenter felt that the grounds for denial of a permit under those Sections were being interpreted too narrowly. It was argued that a denial should also be based upon previous permit revocations, bond forfeitures, violations for mining without a permit, or any other failure to comply with the Act.

5. Several commenters suggested that the violations considered in determining a pattern of violations should be limited to those which occurred within the past five years. Section 786.17(d) is based upon Section 510(c) of the Act. This Section of the Act places no time limitation upon the violations to be considered. Research of the legislative history reveals no indication that Congress intended that Section 510(c) of the Act be limited only to violations occurring in the last five years. Indeed, a long and continuing history of past violations is the most compelling case for invoking this provision.

The Office is aware that many States will not issue permits to operators who have had previous permits revoked or bonds forfeited. As a more stringent enforcement tool, this would not be precluded by either final Sections 786.17(d) or 786.19(i). These Sections require permit denial after a finding that an operator has a demonstrated pattern of violations. Although this finding could be made upon the basis of a number of violations which may not have resulted in a revocation or forfeiture, it would also be proper for the regulatory authority to consider any revocations and forfeitures, as well as all other failures to comply with the Act.

In order to make clear that a permit applicant must have a history of compliance with all portions of the Act, and not just Title V, final Section 786.19(h) has been added to require a finding that an applicant has paid all applicable reclamation fees required under Title IV of the Act.

5. One commenter suggested that proposed Section 786.15(h) be revised so that violations to be considered in determining a pattern of violation be limited to those occurring in the past five years. This same comment was made in relation to proposed Section 788.12(d) which sets forth the requirements for the determination of a pattern of violations. The Office has decided that the regulatory authority is not to be so limited in considering past violations. Discussion of this decision is found in the preamble to final Section 786.17.

6. A few commenters contended that there was no justification in the Act for proposed Section 786.15(i). This Section requires that the regulatory authority find that a proposed operation will not be inconsistent with other actual or anticipated surface coal mining and reclamation operations adjacent to it. Section 510(b)(3) of the Act requires that the regulatory authority assess the probable cumulative impact on the hydrologic balance of all mining anticipated in an area. In addition, it must also find, prior to approval, that a proposed operation will minimize damage to the hydrologic balance outside the permit area. This requirement is provided for in Section 786.19(c). In addition Sections 508(a)(3) and (8) of the Act require a description of the proposed postmining land use be "compatible with adjacent land use'', and Section 508(a)(7) of the Act requires a timetable for each step in the reclamation plan.

These provisions of the Act demonstrate the Congressional intent that surface coal mining operations be well planned and coordinated before, during and after the actual conduct of operations. Section 786.19(j) enables the regulatory authority to insure that adjacent operations are worked in a coordinated manner, and not at cross-purposes to each other. This will help minimize adverse impacts on any other operation, the environment, or the public. Related comments suggested that proposed Section 786.15(i) be revised to specify that the rules relate generally to consistency with land uses on adjacent property. This was not done because the issue of consistency with uses of adjacent land-use is separately addressed in Section 786.19(m), which cross-references to 30 CFR 816.133817.133. The latter Sections require consistency at 816.133(c)(1) and 817.133(d)(1).

In addition, these same commenters suggested that proposed Section 786.15(i) be revised to specify explicitly that operations on adjacent property be reasonably anticipated. This suggestion was not adopted by the Office. The text of the rule implicitly includes that it will not be invoked unless it is reasonable to expect that surface coal mining and reclamation operations will be conducted on adjacent land during the term of the permit involved. Therefore, the regulation was retained at final Section 786.19(j).

7. A commenter felt that proposed Section 786.15(k) should be revised so that all special demonstrations required in the permit application for operations on prime farmland be required findings under this Section. Since specific information and findings for such operations are required under final Section 785.17, the Office believes that it is unnecessary to repeat them in Part 786. However, for operations involving alluvial valley floors, the Office has added the requirement for a finding that the applicant has satisfied Section 785.19. Criteria for approval of other specific categories of mining are found in Part 785 of the regulations.

8. Two commenters felt that there was no justification in the Act for proposed Section 786.15(m). This Section requires a finding by the regulatory authority that all special approvals required by Subchapter K have been made. Sections 102(c) and 510(b) of the Act set forth the general requirement that surface mining operations not be conducted where reclamation as required by the Act is not feasible. In order to insure that this mandate is carried out, numerous facets of a proposed operation and reclamation plan require specific approval by the regulatory authority, as opposed to general approval of the whole permit. The finding made by the regulatory authority under this Section insures that the regulatory authority will perform a last check to make sure all such specific considerations and approvals have been completed. Because this requirement is essential to prevent damage to the environment caused by practices which could render necessary reclamation not feasible, the regulation has been retained.

{15102}9. Section 786.19(o) was added to the regulations pursuant to consultation with the U.S. Fish and Wildlife Service (FWS) of the Department. In accordance with Section 7 of the Endangered Specials Act of 1973, and 50 CFR Part 402, the Office was required to consult with the FWS in regard to the Office's permanent program regulations.

This consultation resulted in the FWS making specific recommendations for modifications or additions to the proposed permanent regulations. These proposed changes were suggested in order to insure that the protection granted threatened or endangered species and critical habitat under the Endangered Species Act would be provided under the Office's permanent regulations. These recommendations were adopted, under authority of Sections 4 and 7 of the Endangered Species Act of 1973; 50 CFR Part 402; and Sections 102, 201, 501, 503, 504, 507, 508, 510, 515, 516, 517 and 522 of the Act.

700 SECTION 786.21 Criteria for permit approval or denial: Existing structures.

This Section has been added to the final rules in response to comments solicited at 43 Fed. Reg.

41735 (Sept. 18, 1978), regarding structures which exist prior to the approval of a State or Federal program in a particular State. As is explained in further detail in the preamble to Subchapter A, the Office has adopted final rules which authorize special treatment in the application of the requirements of Subchapter K to existing structures.

Existing structures are defined at Section 701.5 of the rules. Section 701.11(e) establishes the applicability of Subchapter K to those structures. Under Sections 780.12 and 784.12, the operation and reclamation plan portions of permit application will have to establish how the applicant will effect compliance with the applicability requirements of Section 701.11(e). Section 786.21 establishes the criteria by which the regulatory authority is to decide whether the applicant has made a sufficient demonstration that the proposed operations will be conducted++ in++ compliance++ with++ the++ appli cability requirements of Section 701.11(e). The authority, basis and purpose for these criteria are discussed in the preamble to Section 701.11(e). SECTION 786.23 Permit approval or denial actions.

Authority, purpose and basis for this Section are discussed in 43 F.R. 41726 (September 18, 1978), under Section 788.13: 700 1. Many commenters objected to the requirement in proposed Section 788.13(b)(1)(i) that all existing operations obtain new permits within eight months of the approval of a permanent regulatory program. Most commenters suggested that the regulatory authorities be given flexibility concerning when to issue new permits during the initiation of a regulatory program. Others suggested that the exception for new permits issued during the initial program found in Section 771.13 be expressly repeated in this Subsection.

Sections 506(a) and 502(d) of the Act require that the regulatory authority "grant or deny'' a permit within eight months of approval of a State program. Therefore, suggestions that regulatory authorities be allowed more than eight months to grant or deny new permits must be rejected. However, Section 506(a) of the Act also allows operators with new permits issued in the initial program to continue operating under these permits past the eight month deadline, as long as they have made application for a permanent program permit. These requirements have been implemented by Section 771.13(b) of the regulations. Reference to Section 771.13 has been added to this Section in order that there be no confusion concerning time limits for actions on permit applications. To clarify the status of applications submitted after the two month deadline set forth in Section 771.13, new language has been added in Section 786.23(b)(1)(ii). All such late applications will be handled as applications submitted during subsequent operation of the permanent regulatory program under Section 786.23(b)(2). Therefore, an operator of an ongoing mine who is late in submitting his permanent program permit application runs the risk of having to cease operations, if a new permit is not issued eight months after the approval of the permanent program. 2. Several industry commenters suggested that there be further time limits placed upon regulatory authorities for processing permit applications under proposed Section 788.13(b)(1). Under that Section, the regulatory authority was to approve or disapprove a permit application within 60 days of the informal conference, or within a reasonable time if no informal conference is held. The informal conference is to be held within a reasonable time after a request for such a conference, pursuant to final Section 786.14. This means that a permit application for which no informal conference has been requested within approximately 60 days after submission of the application to the regulatory authority (four weeks of newspaper notice publication, plus 30 days comment period), would be processed in little more than the 60-day period. An application for which a conference has been held could be processed in as little as 80 days (four weeks of notice publication, plus 30 days comment period, plus 14 days notice of conference, plus a reasonable time for a decision).

700 No specific time limit has been set in the final rules. Alternatives suggested dealt with various specific times for the processing of applications. These times ranged from 60 days to six months. However, the present regulations expressly allow each regulatory authority to set its own maximum time limit depending upon the criteria of Section 786.23(b)(2)(ii). Because of the difference of the size, duration and types of mining in different States, and even between different permits within a State, the Office has determined that flexibility for the regulatory authority should be retained in the regulations. Therefore, comments suggesting that further specific time limits be set have not been accepted. It will be in the best interest of all parties to have expeditious processing of applications, but in those certain cases which require judicious consideration of the complex data required in applications, the regulatory authority should have as much flexibility as possible concerning time of processing.

3. One commenter was concerned that if an informal conference was held and it was later determined that a pattern of violations hearing was required on an application, that under Section 786.23(b)(3) there would not be enough time for the regulatory authority to consider other aspects of the application after a decision was rendered on the "pattern of violations'' hearing. No change in the regulations was considered necessary. The regulatory authority would not be precluded from hearing and processing other aspects of the permit during the time that a "pattern of violations'' hearing was conducted. Because of the time involved in such a hearing, the regulatory authority would have more time than usual to process the permit. In addition, the present regulations state that no time limit can expire during the pendency of pattern of violation hearing under Section 786.17(d).

4. A commenter asked that the regulatory authority be required to attach a fact sheet or finding of fact to its decision granting or denying permit applications under Sections 786.23(c) and 786.23(d). As proposed, the regulations required that the regulatory authority state the reason for its decision. The commenter was concerned that such broad language would lead to decisions filled with conclusory statements which would prevent meaningful review of those provisions. It was suggested that the bases for the decision be set forth explicitly in the form of findings of fact or a "fact sheet'', and that the proposed fact sheet be modeled after the proposed Environmental Protection Agency regulations to be found at 40 CFR 124.43, which call for such fact sheets on draft NPDES permits. The commenter was also concerned that previous State regulatory practice provided inadequate explanations for decisions on permit applications.

{15103}The Office believes that Section 786.23(c) already provides an adequate level of explanation for decisions. However, the wording of the regulation has been changed to require that the regulatory authority give its "specific'' reasons for the decision. The form of the decision is not dictated by the regulations, however. Hopefully, this will strike a reasonable balance between the need for applicants and citizens to know the facts and reasons behind a regulatory decision, and the need of the regulatory authority for ease of administration. A regulatory authority should ordinarily list the specific facts and reasons behind each decision in order to limit the number of issues in any appeal.

5. Several industry commenters objected to public notice of regulatory authority decisions on permit applications. Some objected to sending the decision to anyone but the applicant and others to the publishing of a summary of the decision in a newspaper. Others objected to notification of the Office's Regional Director and local governmental units. Section 514(a) (c) of the Act however, requires that the actual decision be sent to the applicant and all parties to the informal conference. Also Section 510(a) of the Act requires that notice be sent to local governments. Since the Office would still have enforcement responsibility under permanent State programs, it would be necessary for copies of all permits issued to be on file with the Office. In addition, under Section 514(c) of the Act, any person whose interests are or may be adversely affected by a decision on a permit application (regardless of their participation in the review of the application) has the right to file for administrative review of the decision by the regulatory authority. A newspaper advertisement would be essential in order to notify the public of the decision. Without this notice, adversely affected persons would lose their last opportunity to protect their rights because Section 514(f) of the Act limits the opportunity for judicial appeal to those who participated in the formal administrative hearing reviewing the decision of the regulatory authority. Therefore, newspaper notice provisions are also retained in the final rule.

SECTION 786.25 Permit terms.

The authority, basis and purpose of this Section was explained under Section 786.11 in 43 FR 41720 (Sept. 18, 1978): 1. Several commenters suggested that proposed Section 786.11(a)(2) be revised since a specified longer term may be needed to allow the applicant to obtain necessary financing for equipment and opening an operation. Section 506(b) of the Act states that a longer term may be granted ". . . if the applicant demonstrates that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and opening of the operation . . .'' Based on this, Section 786.25 was revised in the final rule.

2. Additional commenters suggested that the need for confirming this financial need in writing was unwarranted. However, Section 506(b) of the Act provides that the applicant shall demonstrate that a longer term is needed. The Office has determined that confirmation in writing is the appropriate method to demonstrate that a longer fixed term is, in fact, needed. Therefore, this Section has been retained as proposed.

700 SECTION 786.27 Conditions of permits: General and right of entry.

The authority basis, and purpose for this Section was explained under Section 786.12 of 43 FR 41720 (September 18, 1978): 1. Several commenters contended that warrantless entries by State and Federal inspectors would contravene the Fourth Amendment to the U.S. Constitution and suggested that proposed 786.12 (b) be deleted. Based upon a review of the Act's legislative history and relevant case law, the Office has found warrantless entries by State and Federal inspectors to be lawful and proper under the Act.

(See, In Re Surface Mining Litigation, 456 F. Supp. 1301, 1317 1319 (D.D.C., 1978).) The Office has determined that warrantless entries are necessary for proper administration and enforcement of the Act, and this Section was therefore retained in the final rules.

2. Other commenters suggested that Section 786.27(b) be revised so that entry to minesites was "at reasonable times.'' Section 517(b)(3) of the Act uses the term "at reasonable times'' only when access to and copying of any records is necessary, or inspection of any monitoring equipment or method of operation is necessary. However, the Act does not state that the right of entry of authorized representatives be exercised only "at reasonable times.'' Entry at all times is needed to insure for effective compliance by on-going operations. As a result, the rule was not revised. A few commenters contended that all of paragraph (b) should be deleted, since the provisions of those Sections are stated in the Act or Subchapter L of the regulations. Since Section 786.25 deals with general conditions of permits as to right of entry and Subchapter L deals with the exercise of that right during inspections, the provisions were not deleted. However, subparagraphs (b)(1)(i) (iii) of proposed Section 786.12 were deleted from Section 786.27, since they would be merely duplicative of Parts 840 and 842.

3. Several commenters stated that there was no authority under the Act for requiring accompaniment of State inspectors by private persons. Other commenters felt that Section 786.27 was too broad, because it did not specify in what instances a private citizen could accompany an inspector. Regarding citizen accompaniment of State inspectors, the Office decided not to change the final rule for the reasons explained in the preamble to Subchapter L. Commenters objecting to the breadth of the proposed rule were, however, correct, in objecting that it was not limited to citizens who had made a complaint to the regulatory authority. Thus, Section 786.27(b)(2) was revised to state that a person may accompany an authorized representative on an inspection when the inspection is in response to an alleged violation reported to the Office by that person.

4. A few commenters contended that revisions should be made to Section 786.27(b) to assure that (1) private persons are properly attired with safety apparel upon entrance to a mine site and (2) all private persons entering a minesite would be required to waive all claims against the operator for injuries received while on the property. These suggestions were not accepted. It has been the Office policy that all inspectors be properly attired with proper safety apparel before entering a minesite. Also, private persons entering a minesite must be under the control, direction, and supervision of the authorized representative. As a result, an authorized representative would not allow a private person to enter a minesite, unless he or she was properly attired with safety apparel. As for the liability question, ordinary tort law principles can be used and some States may have specific laws or regulations with regard to liability. See also discussion of this issue in the preamble to Part 842. Therefore, no change was made in the regulations as a result of this comment. 700 SECTION 786.29 Conditions of permits: Environment, public health and safety.

The statutory authority, basis and purpose for this Section was explained under Section 786.13 at 43 FR 41721 (September 18, 1978): 1. A few commenters requested that the entire Section 786.29 be deleted as having no justification. This Section, like Sections 786.25 and 786.27 sets forth general terms and conditions to be attached to all permits as well as special conditions to be attached to certain types of permits. Subsection (a) places affirmative responsibilities on operators to report and remedy events of noncompliance. Subsection (b) places affirmative responsibilities on operators to dispose of materials produced by pollution control devices in an environmentally acceptable manner. Subsection (c) allows the regulatory authority to place special conditions on permits in order to protect the environment in situations not specifically handled in the regulations. The Office feels this Section is necessary to carry out the environmental protection purposes of the Act found in Section 102 (a) and (d), and retained it in the final rules.

2. Another commenter suggested that a new Subsection be added to allow the permittee 15 days to revise any conditions attached to a permit and comment on them. This suggestion was rejected because an addition is unnecessary. If a permittee is dissatisfied with any conditions, he or she can appeal the decision of the regulatory authority under Section 787.11.

3. Several commenters state that warning a person who may be adversely affected by noncompliance, as required by Subsection (a)(3), would be an unnecessary burden to the operator. These commenters recommended that the provision be deleted. They felt the operator should not have to worry about who may be adversely affected in noncompliance situations which quite obviously do not threaten the health or safety of the public.

This Subsection has not been deleted, however. One of the purposes of the Act is to protect society and the environment from the adverse effects of surface coal mining operations. Section 786.29(a)(3) helps assure that this provision of the Act is implemented. A few commenters also suggested that this Section be re-worded for clarification. This was done to narrow the rule so that it now states ". . . any person whose health and safety is in imminent danger due to noncompliance.'' This revision implements the wording "imminent danger to health and safety to the public'' which is defined in Section 701.5 of the regulations. 4. One commenter recommended deletion of Section 786.29(b) as unnecessary and outside the scope of the Act. It was the commenter's position that the requirements of Subsection (b) were already being administered under the Clean Water Act. The Office believes, however, that the requirements in Subsection (b) in no way supersede or modify the Clean Water Act and will help insure that the goals of both that Act and SMCRA will be met. Therefore, the regulations have not been changed.

5. Several commenters objected to Section 786.29 (c) as being vague and not required by the Act. This Subsection allows the regulatory authority to attach special permit conditions. The Office considers this authority a critical element for any rational regulatory system. The performance standards of the regulations contain dozens of provisions which establish generally applicable rules, but provide for regulatory authority approval of "alternative'' ways to comply with the performance standards. The determination of whether and to what extent an alternative should be authorized will require a specific written regulatory decision, so that the agency, operator, and public will clearly understand what specific legal requirements are being applied to the operator. Further, these specific determinations need to be reflected in the permit to be binding and enforceable, since the enforcement provisions of the Act speak of violation of permits.

This authority is also necessary since there will invariably arise situations where the proposed operations have the potential to cause adverse environmental impacts, but the solutions for these problems are not specifically given by the regulations or Section 515 of the Act. Indeed, Congress recognized this problem by requiring the issuance of cessation orders for "significant, imminent environmental harms,'' but that provision only deals with on-going operations, not prevention of such harms which can be identified during the permit process. Because the Office believes the regulations should, to the extent practical, ensure that potential problems raised by proposed operations be adequately handled in the permit phase, the authority of regulatory authorities to impose special conditions has been retained. However, in order to clarify the situations in which these special conditions may be added, the language of the regulations has been changed to specify that they may be imposed to prevent environmental harms and to ensure compliance when alternative methods of meeting the performance standards of the Act.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 787 -- ADMINISTRTIVE AND JUDICIAL REVIEW OF DECISIONS BY REGULATORY AUTHORITY ON PERMIT APPLICATIONS Part 787 was Part 789 in the proposed regulations.

Authority, purpose nd basis SECTION 787.11 Administrative review.

Authority, purpose and basis for this section are discussed in 43 FR 41727, (Sept. 18, 1978). As proposed, 787.11 concerned the procedures to be followed by a regulatory authority at the adjudicatory hearing to review the decision on the approval or denial of a permit application. Sections 514(c), (d) and (e) of the Act set forth the minimum procedural requirements for adjudicatory hearings on permit actions. The proposed regulations basically repeated the language of these sections. In the preamble to the proposed regulations, the Office solicited comments on whether more specific procedural requirements should be adopted.

700 1. Some commenters pointed out differences between Federal, State and Federal lands programs, but suggested that the procedures for each program be as close as possible for consist ency's sake. Two commenters wanted to be sure that an Admininstrative Law Judge would hear appeals under Federal programs. Some commenters recommended that the following specific additional procedural requirements be included: (a) Final decisions in a hearing should include findings of fact and conclusions of law and a "fact sheet'' similar to that required under USEPA's National Pollutant Discharge Elimination System (NPDES) permit regulations; (b) Specification of a "presiding officer,'' who would have the power to administer oaths, issue subpoenas, rule on evidence, regulate the hearing, hold prehearing conferences and make recommended decisions; (c) Provide for a right to present oral or documentary evidence, and cross-examine witnesses; (d) Provide for the right of the parties to submit proposed findings of fact and conclusions of law at the end of the hearing; (e) Prohibit ex parte contacts between persons deciding hearings and parties to proceedings which include the staff of the regulatory authority; and (f) Include provisions to ensure that an informal conference under Section 786.14 is an adjudicatory hearing. 2. The Office has decided to adopt the suggestion that Section 787.11 distinguish between adjudicatory hearings for Federal, State and Federal lands programs, because of the statutory and institutional differences between the three programs.

3. Regarding State programs, the Office has decided to accept the suggestion that the regulations be modified to specify that, in addition to the procedural devices specifically enumerated in Section 514 (c) and (e) of the Act, the adjudicatory hearing must provide for right to prehearing discovery and for decision of the regulatory authority to be in the form of findings of fact and conclusions of law.

{15105}Specification of discovery rights is particularly necessary, as commenters pointed out, in preparing for the complex, site-specific technical issues involved in coal mining permit hearings. Furthermore, discovery is implicit in the specifications of Section 514(e) of the Act which allows the regulatory authority to subpoena witnesses or other evidence. Discovery merely ensures that this subpoena power can be exercised prior to the hearing in order to provide rational fact finding and assist the parties in evaluating settlement possibilities.

Findings of fact and conclusions of law are required as a matter of due process in adjudicatory hearings. Further, as commenters pointed out, judicial review (provided for in Section 514(f) of the Act) is impossible unless adjudicatory hearing decisions are accompanied by specific reasons for the decisions.

4. One commenter suggested that Section 787.11 be modified to state specifically which party has the burden of proof in the administrative hearing. The Office accepted this comment for nation-wide consistency, and Section 787.11(b)(5) was inserted to place the burden on the party seeking to reverse the decision of the regulatory authority in accordance with general principles of administrative law.

5. The Office has decided not to require that an adjudicatory hearing decision be accompanied by a "fact sheet,'' since the findings of fact and conclusions of law provision is adequate to insure that the hearing decision explains in detail the rationale of the regulatory authority. The Office has also decided not to require the State program hearings be conducted by a particular "presiding officer,'' since the States may have hearing bodies with a panel of decision makers, thereby rendering the "presiding officer'' concept irrelevant. Also, the State programs need not necessarily require the right to present oral testimony in all cases, as the constitutional guarantee of due process may be statisfied by written submission of evidence, so long as an adequate oppportunity to respond is allowed. See, e.g., 5 U.S.C. Sections 554, 556, and 557.

6. Regarding the prohibition on ex parte contacts, due process does not prohibit all ex parte contacts, such as between a presiding examiner and the head of an agency. However, ex parte contacts between representatives of parties and the decision maker of the hearing are prohibited. See e.g., 5 U.S.C. Sections 554(d), 556, and 557. Therefore, ex parte contacts between the hearing authority and any of the parties before it is prohibited. This does not preclude, of course, meetings between only the parties themselves.

7. The Office has decided not to require that informal conferences under Section 513 of the Act and Section 786.14 of the rules be governed by rules applicable to formal adjudicatory hearings, since Congress clearly intended those to be truly informal. Compare In re: Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1322 (D.D.C. 1978).

8. Federal programs and the Federal lands program will, in general, be governed by procedures required by 5 U.S.C. Section 554 and rules of the Department's Office of Hearings and Appeals (43 CFR Part 4). Rules for that Office, which were promulgated recently, have reserved space for proceedings on permit matters under the Act. Accordingly, consideration of what specific provisions should be required for these matters will be made in the process of proposing and promulgating amendments to 43 CFR Part 4.

9. To ensure that the right to a 5 U.S.C. Section 554 hearing required by Section 514(c) of the Act is afforded under Federal lands programs, appeals from the initial decision of the Department to either grant or deny a permit on Federal lands will be made directly to the Department's Office of Hearings and Appeals. See Section 787.11(c). Proceedings before the Office will be governed by rules supplementing 43 CFR Part 4.

700 10. As is discussed in the preamble to Section 786.14, the Office accepted comments suggesting that the right to an adjudicatory hearing be provided with respect to decisions of regulatory authorities to approve or disapprove applications to conduct coal exploration in which more than 250 tons of coal is to be removed in any one location. This was done by cross-referencing to Section 787.11. Appropriate revisions were also made to Section 787.11 to include these appeals within its scope. Similarly, the requirements of Section 787.11 have also been made applicable, as suggested by commenters, to Section 786.17(d) hearings, Section 788.11 hearings, and to review of the decision of the regulatory authority under Sections 788.17 788.19.

11. Some commenters objected to the provision of proposed Section 789.11(c)(4). One objected that it should not be applied to existing operations, while another argued that it should be equally applicable to requests for stays of permit issuances. The Office has not modified this provision in the final rules which appears at Section 787.11(b)(2)(iv). There is no basis in the Act to distinguish between existing and new operations as to this condition on the grant of temporary relief. Either should be authorized to be conducted only upon a clear demonstration that reclamation will be feasible, which is not appropriately determined in a preliminary relief hearing, as was explained in the preamble to the proposed rules. Moreover, existing operations will not have held permanent regulatory program permits, so there will be no status quo to be restored by temporary relief. The Office also feels the provision is not inequitable. Where persons seek temporary relief to stay the approval of a permit, there is a status quo (e.g. no permit) which can be restored.

SECTION 787.12 Judicial review. The authority, basis, and purpose for this section were explained at 43 FR 41728 (September 18, 1978), under Section 789.12. The rule was modified to clarify that it also applies to Federal lands programs under authority of Section 526(a)(2) of the Act.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 788 -- PERMIT REVIEWS, REVISIONS, AND RENEWALS: ANDTRANSFER, SALE AND ASSIGNMENT OF RIGHTS GRANTED UNDER PERMITS In order that all permit actions taken subsequent to the granting of a permit could be found in one location, to condense the size of the regulations, and to minimize cross-referencing, proposed Parts 790, 791 and 792 have been combined into one new Part 788. Because of this combination, editorial changes have been made in Sections 788.1 and 788.2.

SECTION 788.1 Scope.

Authority, basis and purpose are discussed in 43 Fed. Reg.

41728 (Sept. 18, 1978), under Parts 790, 791, and 792.

SECTION 788.2 Objectives.

Authority, basis and purpose are discussed in 43 Fed. Reg.

41728 (Sept. 18, 1978), under Parts 790, 791, and 792.

SECTION 788.3 Responsibilities.

Authority for this section is found in sections 102, 201(c), 501(b), 503(a), 504, 506, 507, 508, 509, 510, 511, 513, 514, 515, 516, 517, and 701 of the Act. Because of the combination of three parts into new Part 788, a new Section 788.3 has been added which sets forth, first, the responsibilities of regulatory authorities in taking permit actions subsequent to the granting of the original permit under regulatory programs. This section also specifies the responsibilities of persons conducting surface coal mining and reclamation operations with respect to changes, modifications, renewals, and revisions of permits after they are originally granted, and of persons who attempt to succeed to rights granted under permits by transfer, sale, or assignment of rights. This section has been added as an aid to users of the regulations and does not establish any responsibilities which were not included in proposed Part 790, 791, or 792.

SECTION 788.5 Definitions.

Authority for this section is sections 102, 201(c), 501(b), 503, 504, 506, 507, 508(a), 509, 510, 511(b), 515, 516, 517, and 519 of the Act.

In response to a comment directed to proposed section 792.12(a) (788.18(a) in the final rules), the office has added definitions for the terms "successor in interest'' and "transfer, assignment, or sales of rights.'' The commenter was concerned that actual transfers of effective control would not necessarily be subject to prior regulatory authority review and approval, if these terms were not specifically defined. As defined, these terms will include any change in ownership or in the person actually exercising the rights to mine. For example, these terms would include all subcontractors who actually perform the mining who were not listed in the original application pursuant to Sections 788.13(a)(5), 783.13(a)(5) and 778.14, 783.14. This is necessary so that the regulatory authority can determine the suitability of the person actually conducting the surface coal mining and reclamation operations involved under the substantive criteria of 788.17 788.18.

The definition of successor-in-interest is provided to insure for consistency with use of the term "transfer sale, or assignement of rights'' within the same or similar context in those sections. The definition of "transfer, sale or assignment of rights'' is based on the common understanding of those terms to include any effective shift in control over rights, in addition to technical changes in ownership.

See Black's Law Dictionary at 153, 1669 (1957 ed.).

SECTION 788.11 Regulatory authority review of outstanding permits.

Authority, purpose, and basis for this section are discussed in 43 Fed. Reg. 41728 (Sept. 18, 1978) under section 790.11.

1. Under Section 511 (c) of the Act, the regulatory authority is to review each permit at least once during its term. Following this review, the regulatory authority is authorized to revise or modify the permit, to assure compliance by the permittee with the Act. Similar, but particularized review, revision, and modification power is provided to the regulatory authority for certain special categories of mining by Section 515(b)(16), 515(c) and 515(e) of the Act. Section 788.11 is proposed to generally implement these requirements, along with similar provisions for the special categories of mining at Section 785.13, 785.16 and 785.18 of this Subchapter. 2. Several commenters suggested that this section be modified to allow the regulatory authority to revoke a permit through the review process. These comments were rejected. Section 511(c) of the Act allows the regulatory authority to require "Reasonable revision or modification of the permit provisions,'' during the review process. Sufficient mechanism is provided in other sections of the regulations for the revocation of a permit (See Subchapter L).

3. Many commenters suggested that modifications be made to this section to allow citizens to petition the regulatory authority to conduct reviews of existing permits. The regulatory authority has plenary power under the Act and regulations to deal with the overall plans and operations during review of the permit application, the mid-term review, and the renewal process. In addition, it can order cessation of an operation at any time for any imminent harms or hazards created by the operation. (See Subchapter L). Therefore, the right to petition for review was considered unnecessary to protect citizen's rights. Concerned citizens can also file citizen's complaints and participate in the review and renewal process.

4. A commenter requested that public notice and opportunity to submit comments be added to this section. The Office rejected this suggestion. If citizens believe that an operation is in violation of the Act or regulations, or is creating danger to the public or the environment, they can file complaints with the regulatory authority or OSM under Subchapter L. In investigating the complaint, the regulatory authority will necessarily review the past performance of the operation. Moreover, during the periodic review, the regulatory authority will have to consider complaints which have been filed against the operations.

5. A commenter objected to the office setting times for permit reviews as per proposed Section 788.11(a), citing Section 511(c) of the Act as leaving this issue entirely to the regulatory authority. The commenter suggested modification of this section to delete references to Sections 785.15, 785.16, and 785.18, and to delete the requirement that all permits be reviewed not later than the middle of the permit term, except those permits governed by Section 785.13.

This comment was rejected. Section 788.11(a) is within the authority granted the Secretary, acting through the office, pursuant to Sections 102, 201, 501(b) and 503(a) of the Act, to establish guidelines for the State programs.

6. Some commenters suggested that where permits are issued for terms of longer than five years under Section 786.25(a), regulatory authority review of the permit should occur more frequently than once in the term of the permit. The Office agreed with that suggestion. Where permits extend beyond 5 year terms, mining and reclamation technology advances should be considered for application on recurring intervals. Moreover, care is needed to insure that the predictions of successful reclamation accepted when the original permit was issued remain valid. Therefore, the final rule was revised to require that long-term permits be reviewed at least once each 5 years, the ordinary length of a permit term.

7. Some commenters questioned the criteria for notice and opportunity for hearing or orders of the regulatory authority requiring modification or revisions to permits following review. This matter was clarified by cross-referencing Section 788.11 in the final rules to 30 CFR 787, which provides detailed hearing criteria. SECTION 788.12 Permit revisions.

Authority, purpose, and basis for this section are discussed in 43 Fed. Reg. 41728 (Sept. 18. 1978), under Section 790.12.

1. Under Section 511(a) of the Act, a permittee may apply for a permit revision during the term of its permit, by filing an application together with a revised reclamation plan. Under Section 511(a)(2) of the Act, however, those revisions are not to be used to extend the area of operation beyond the original permit area, except for incidental boundary revisions. Section 788.12 implements those provisions of the Act.

2. A commenter suggested that Section 788.12(b)(1) be modified to require a permit revision only for "substantial'' changes in the methods of coal mining or reclamation operations. The commenter recommended that this be when these changes would constitute a significant departure from the methods of mining and reclamation contemplated by the original permit. The commenter reasoned that mining and reclamation plans would always be fluid to some extent, and that changes in the methods of operations or reclamation which were consistent with the basic plans approved in the permit application should not require a permit revision.

The Office agreed and, accordingly, Section 788.12(b)(1) was modified in the final rules. Additional language was also incorporated to ensure that each regulatory authority will provide parameters in their regulations to determine what changes in the methods of operations or reclamation constitute a significant departure from those approved in the original permit and, therefore, necessitate a revision.

{15107}3. A commenter requested that Section 788.12(c)(2) be revised to include a definition of the term "significant alteration,'' and to exempt operators from complying with the requirements contained in Section 788.12(c)(2) for a permit revision required by an order issued under 30 CFR 788.11. The commenter's rationale for these requests was as follows: (a) Certain changes in the mine operations might be "significant,'' but would have no effect on public safety or the environment that had not already been reviewed by the regulatory authority.

(b) Mine operators should not be subject to the notice and hearing requirements of Parts 786 and 787 when the permit revision is required by the regulatory authority under Section 788.11, particularly when the contents of the applications for a revised permit may be specified by the regulatory authority.

(c) The revision order itself may have followed public participation through petition, hearings, or complaints.

The basic request of this commenter was rejected for the following reasons: First, the wording of Section 788.12(c)(2) closely tracks that of the Act in Section 511(a)(2) under "Revision of Permits.'' Section 511(c) of the Act requires that revision or modification of a permit required by the regulatory authority (based on written findings) be subject to notice and hearing requirements established by the State or Federal program. Thus, the operator cannot be exempted from the requirements of Parts 786 and 787.

While the comment was rejected, the rationale supporting the comment indicated that modification of Section 788.11 needed further consideration. Under Section 788.11(c), the regulatory authority may, by order, "require reasonable revisions or modifications of the permit provisions . . . ,'' subject to notice and hearing requirements. In effect, the regulatory authority could have subjected an operator to these potentially expensive and time consuming requirements with no avenue of appeal regarding the "reasonableness'' of the ordered revisions being open to the operator. Accordingly, the regulations were revised to provide the operator with a procedure whereby any order issued by the regulatory authority under this section would be subject to a hearing process. The necessary language to provide this process is incorporated in Section 788.12(c)(2).

4. A commenter suggested a complete rewording of paragraph (c) of the proposed rule to use only the language of the last sentence of Section 511(a)(2) of the Act. The Office rejected this for the following reasons: (a) The commenter argued that proposed Section 788.12(c) was unauthorized under the Act. However, Congress did not limit OSM to merely repeating the language of the Act.

See Sections 102(a) and 503(a) of the Act. The provisions of 788.12(c) are authorized under Sections 102 (a) (d), (k), (m), 501(b), 503(a), 506 508, 510, and 511, to ensure that applications for revisions of permits contain sufficient information and are subject to public participation, so that revised operations are first proven to provide for feasible reclamation. Further, OSM is not prohibited from providing guidelines for State programs, as Sections 501(b) and 503(a) of the Act clearly contemplate that OSM would adopt such regulations. Indeed, these regulations are necessary to ensure that the States generally provide even-handed treatment among operations on revision requests and that the States require sufficient information in revision applications.

(b) The commenter also asserted that OSM may not require applications for revisions to extend beyond changes in the reclamation plan. This is without merit. First, Section 511(a)(1) of the Act authorizes requiring applications for a revision of the permit, together with a revised reclamation plan to be filed with the regulatory authority. Second, Section 511(a)(2) author izes the establishment of guidelines as to "all permit application information requirements and proce dures. . . .'' Third, Section 510 (a) and (b) prohibit issuances of revisions of permits, unless supported by a complete application. Thus, the Act clearly requires that regulations under the Act ensure that all relevant aspects of the permit application be appropriately revised prior to approval by the regulatory authority of a revised permit.

5. A commenter suggested deletion of paragraph (e) of the proposed rule, on the basis that the material covered there was also included in Section 788.12(a) and was, therefore, redundant. This comment was rejected. Paragraph (e) was not clearly included in the provisions of proposed paragraph (a); further, this section is grounded directly in Section 511(a)(3) of the Act and should, therefore, be clearly stated in the regulations.

700 6. Some editorial changes were made to eliminate redundancy and ambiguity. Paragraphs (a) and (b) of the proposed rule covered essentially the same material; that is, when a revision should be obtained. They were combined into one paragraph in the final rule. Section 790.12(b)(4) referred to "State'' programs only in the proposed rule. However, proposed Section 790.1 indicated that all sections of 790 applied to both State and Federal programs (e.g. "regulatory programs''). An appropriate change was made to the final rule. Paragraph (c) of the proposed rule did not specify that the permit application was to be "complete.'' As discussed in the preamble to 30 CFR 786.11, the Office accepted comments suggesting that the permit rules be generally revised to specify that time limits for application reviews and public participation run only from the submission of "complete'' applications to the regulatory authority. Because permit revisions will also be subject to time constraints and public participation in the review of applications, Section 788.12 was modified in a manner similar to 786.11.

SECTION 788.13 Permit renewals: general requirements.

Authority, purpose and basis for this section are discussed in 43 Fed. Reg. 41728 (Sept. 18, 1978). under Section 791.11.

1. Section 788.13 has been changed from its proposed form in Section 791.11, in order to accommodate the change in organization of Parts 790, 791, and 792, and to clarify procedures relating to permit renewals which seek to extend the boundaries of the original permit. Under paragraph (a) of the final rule, permit renewals are only available for those portions of the mine plan area which were approved as being within the boundaries of the initial permit area when the permit was first issued by the regulatory authority. This clarifies the confusion expressed by many commenters as to the relationship between and differing effects of the forms "permit area'' and "mine plan area.'' It also reflects Congressional intention that permit renewals not be used by the operator to avoid making the detailed demonstration to the regulatory authority that proposed operations will be conducted to comply with the Act and regulatory program provisions wherever those operations are conducted or located.

See H.R. Rept. No. 95 218, 95th Cong., 1st Sess. at 92 (1977).

2. Paragraph (b) of the final rules provides standards for disposition of portions of applications that cover parts of the mine plan area that were not within the permit area approved under the permit for which renewal is being sought. These are to be treated as application for new permits under Section 788.14(b)(2).

SECTION 788.14 Application for renewals.

Authority, basis and purpose of this section are found at 43 Fed. Reg. 41728 (September 18, 1978), under section 791.12.

1. Several commenters objected to the public participation provisions found in Section 788.14 for the permit renewal process. Section 506(d) of the Act states that renewals of permits are subject to the public notice requirements of sections 513 and 514 of the Act. These sections of the Act are implemented by Sections 786.11, 786.12, 786.13 and 786.14 of the final regulations. However, the proposed rule made reference only to the requirement for newspaper notice, and not to opportunities for objections, comments, and informal conferences on the application.

Some commenters thought that the newspaper advertisement of permit application requirement should be deleted as unreasonable, while others thought that the public notice requirements were meaningless, without inclusion of the rights to public participation set forth in Sections 513 and 514 of the Act. It was obviously the intent of the Act to encourage public participation throughout the permit process. (See Section 102(i) of the Act). Section 506(d) of the Act contemplates public participation at some type of proceeding, by stating that the burden of proof shall be on the opponents of renewal of permits.

Given that Section 514 of the Act concerns public notice of regulatory decisions after informal conference, and with adjudicatory hearings thereafter, it was decided that Sections 786.11, 786.12, 786.13 and 786.14 should apply to the renewal process. Therefore, the final rule has been changed to require compliance with all these sections. This will give citizens the right to file objections and requests for informal conferences concerning permit renewals. The wording of the section has also been changed to make it clear that the right to administrative and judicial review exists for decisions on permit renewals, which will protect both the permittee and the public.

2. A commenter suggested stipulating that proof of publication of the newspaper advertisement of the permit application should not be a factor in determining the completeness of an application for permit renewal. As discussed above, it has been determined that full public notice and participation requirements will apply to permit renewal actions. The submission of proof of publication to the regulatory authority is necessary, in order to demonstrate that the required notice has been given.

3. Also suggested was an addition to this section allowing an operation to continue under the terms of the old permit, should the application for renewal be contested beyond the term of the old permit. This suggestion was rejected. Section 771.21(b)(2) of the regulations requires that applications for renewal be submitted at least 120 days prior to expiration of the permit involved, which should be ample time in which to process renewal applications. Section 506(d) of the Act and 30 CFR 788.16 state that an operation shall have the right of successive renewal, unless the regulatory authority makes certain findings. If these findings are not made, the permittee could con tinue mining past the term of the original permit, even if the decision of the regulatory authority was contested by opponents of renewal. However, if the regulatory authority found that the permit should not be renewed, and the original term of the permit expired during an appeal, the operator should not be able to continue to operate under the Act. See Sections 102, and 510(b) of the Act.

4. A few commenters suggested that the permit renewal applications be required to be "complete.'' As discussed in the preamble to Section 786.11 of the regulations, the Office has decided to require complete application for permit renewals, so the comments were accepted.

SECTION 788.15 Terms of renewals.

1. Authority, purpose and basis of this section are discussed in 43 Fed. Reg.

41728 (Sept. 18, 1978), under Section 791.13. Under Section 506(d)(3) of the Act, renewals are not to be granted for a term in excess of that authorized by the Act for the original permit. Section 506(b) of the Act and 30 CFR 786.25 provide for maximum permit terms. Section 788.15 implements those provisions for permit renewals.

I112. Several commenters objected to the proposed rule, on the grounds that it limited permit renewals to a maximum period of 5 years. Proposed section 786.11, however, did not limit permits to a 5-year maximum term; under certain specified conditions a longer fixed term permit may be granted. See 30 CFR 786.25(a). Further, Section 506(d)(3) of the Act specifically states that the renewal shall not exceed the term of the original permit. The comments were, therefore, accepted. Section 788.15 was modified to track the language of the Act.

SECTION 788.16 Approval or denial of renewals.

Authority, purpose and basis for this section are discussed in 43 Fed. Reg.41728 (Sept. 18, 1978), under Section 791.14.

1. The criteria for determining whether an application for renewal of a permit should be granted are provided for in Section 506(d)(1) of the Act, together with provision for establishing the burden of proof in that determination. Section 788.16 implements those provisions of the Act. 2. Several commenters suggested that the regulatory authority be required to approve or deny a permit application within a specified period of time. These comments were rejected. Section 510 of the Act clearly states that "the regulatory authority shall grant, require modification of, or deny the application for a permit in a reasonable time set by the regulatory authority . . .'' (emphasis added). The legislative history suggests that the intent of Congress was not for the Office to fix a specific time for action by the regulatory authority, but to allow State regulatory authorities to determine specific decision times at their own discretion.

SECTION 788.17 Transfer, sale or assignment of rights granted under permit: General requirements.

Authority, purpose and basis for this section are discussed in 43 Fed. Reg. 41728 et seq. (Sept. 18, 1978), under Part 792.

1. Section 788.17 sets forth the requirement for written regulatory authority approval prior to any transfer, assignment, or sale of permit rights. Section 788.18 contains the procedures for obtaining such approval, and Section 788.19 establishes under what circumstances a successor-in-interest will be required to get a new permit. Subsections (b)(1) and (2) of proposed Section 792.11 and (2) have been deleted in the final rule as duplicative of revised Section 788.18 and new Section 788.19 which is discussed below.

2. A commenter contended that the concept of "prior written approval'' regarding transfer, sale, or assignment of permit rights was beyond the authority of the Act. The suggestion was rejected. Sections 102, 201(c)(2), 501(b), 503(a), 504, 506, 510, and 511(b) of the Act provide adequate authority for the regulations concerned and the concept of prior written approval. See the discussion at 43 Fed. Reg.

41728 41729 (Sept. 18, 1978). 3. A few commenters contended that revision of permits should not be required where only the transfer of ownership from one entity to another is involved. These comments were accepted. As discussed in the preamble to the proposed rule, the Office felt that revision of permits and the need to apply for a new permit need not occur on every transfer of ownership, so long as the successor agrees to operate by all the terms and conditions of the original permittee. Should the successor change or attempt to change the method of mining or reclamation operations or the terms or conditions of the permit, an application for a new or revised permit would be required. Authority for this is provided by Sections 102, 506, and 511 of the Act. These comments have been further addressed by the addition of Section 788.19.

SECTION 788.18 Obtaining approval for transfer, assignment or sale of rights.

Authority, purpose and basis for this section are discussed in 43 Fed. Reg. 41729 (Sept. 18, 1978), under Section 792.12.

1. A commenter suggested that the proposed Section 792.12(a)(1) (now included as Section 788.18(a)(1)) be revised to allow that, in the event of a permit transfer, the new permittee should be required to post a new bond, at which time the bond of the original permittee should be released. In support, it was said that it would be very unlikely for a surety company to consent to the transfer of its bond to a new permittee. This suggestion was rejected, as it was determined that such a release of the original permittee's bond would not always be desirable, if complete reclamation has not occurred or the successor is unwilling to assume all reclamation responsibilities of the original permittee.

Section 506(b) of the Act requires a successor-in-interest to "obtain the bond coverage of the original permittee.'' It was, therefore, decided in light of the foregoing comment, to clarify the regulations to show that the intent was for the successor to obtain equivalent bond protection. In obtaining equivalent coverage, the successor would have several options, including that of obtaining the bond coverage of the original permittee. Accordingly, the proposed regulations were revised by adding subsections 788.18(a)(1)(i) (iv) to the final rules.

2. A commenter suggested that the provisions of this section be expanded to cover the possibility that a permit could be effectively transferred by outright purchase of the permit holder, or by some other method of gaining effective control of the permit holder. As Section 511(b) of the Act specifically prohibits the transfer, assignment, or sale of rights granted under a permit without the written consent of the regulatory authority, the regulations were revised. Definitions of terms "succesor-in-interest,'' and "transfer, assignment, or sale of rights,'' have been included in new Section 788.5 and are discussed in the preamble to that section.

I113. Several comments were received objecting to the contents of the application for approval required under the proposed rule. Commenters contended that a potential succesor-in-interest to the rights granted under a permit should only have to agree to abide by the terms of the original permit and show adequate financial responsibility. One asserted that an assignee of a coal property which is covered by a permit should not be subjected to a detailed permitting process, as long as the assignee is prepared to furnish the required bond. Some commenters requested that the requirements for information in Section 788.18(a)(2)(iii) be deleted, as this information would have been supplied by the original permittee.

These suggestions were all rejected, because the permit application requirements of Sections 102, 507, and 510 of the Act specifically require the applicant to provide a variety of specific and detailed information to the regulatory authority, on the nature of the person conducting operations. Approval of a permit application depends on more than the financial stability of the applicant, e.g. information regarding the past performance and character of the operator is required by Section 510(c) of the Act. The clear intent of those sections of the Act is to provide the regulatory authority with sufficient information to accurately assess both the applicant and the proposed field operations prior to issuing a permit. Thus, a successor-in-interest to a permittee should be subjected to the appropriate permit application requirements of the regulatory authority.

4. Several commenters objected to the requirement in subsection 788.18(b) that a transferee of a permit place a new newspaper advertisement notifying the public of his application for approval of the transfer. In determining whether to grant an application for approval of transfer, it is necessary that the regulatory authority conduct an evaluation of the prospective successor-in-interest to ascertain whether he or she will have the legal and financial capabilities required by the Act to carry out the plan, as well as his or her past history as an operator. An integral part of this process is the solicitation of comments from the public on the plan and the operator since public comments will help in determining an operator's past history of compliance with the Act. ( See Sections 102(i), 513, and 514 of the Act.) For these reasons, the public notice requirement has been retained in the final rule.

5. Several commenters suggested modifying the proposed rule, to limit the right to submit written comments to any person whose interests are or may be adversely affected by a decision of the regulatory authority. This suggestion was adopted, to align section 788.18 with the wording of Section 513(b) of the Act.

SECTION 788.19 Requirements for new permits for persons succeeding to rights granted under a permit.

1. Authority for this section is 102, 201(c), 501(b), 503, 504, 506, 507, 508, 509, 510, 511, 513, 514, 515, 517, 519 and 522(e) of the Act. Under 506(b) of the Act, persons succeeding to rights under an existing permit must file an application within 30 days of that succession for a new permit. Section 788.19 implements that section as interpreted by the Office, by requiring persons seeking approval under Sections 788.17 and 788.18 to obtain a new or revised permit from the regulatory authority, if the operations are to be changed from those contemplated under the original permit or extended outside the original permit area. See 43 Fed. Reg.

41728 41729 (Sept. 18, 1978).

2. A commenter suggested revising proposed Section 792.11(b)(1) (now included in Section 788.19) to delete the references to Sections 792.12(c)(2), and 771.19(b)(3), and insert a time requirement of 30 days to apply for a new permit. This request was based on the commenter's interpretation that 506(b) of the Act explicitly requires a successor-in-interest to a permittee to obtain bond coverage for the area and file an application for a new permit within 30 days.

The Office does not agree that 506(b) of the Act requires every successor-in-interest to obtain a new permit. As stated in the preamble for 788.17, a new permit is required only if the successor wishes to either change the method of operation from that contemplated under the original permit, or to expand the operations to areas outside those authorized by the original permit.

SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS

This Subchapter establishes the minimum requirements for the Secretary's approval of that portion of a regulatory program governing performance bonds and liability insurance in accordance with Sections 102, 201, 501, 503, 504, 507(f), 509, 510, 519 and 701(17) of the Act. These include requirements governing the amount of liability under a performance bond, adjustments in the amount of liability, the duration, form, terms and conditions of the bond, procedures and criteria for the release of bond liability under a permit, and criteria for forfeiture of the bond.

SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS, 30 CFR PART 800 -- GENERAL REQUIREMENTS FOR BONDING OF SURFACE COAL MINING AND RECLAMATION OPERATIONS UNDER REGULATORY PROGRAMS Part 800 establishes general requirements for bonding and liability insurance imposed on permit applicants as conditions precedent to the issuance by the Regulatory Authority of new, revised, or renewed permits to conduct surface coal mining and reclamation operations.

SECTION 800.5 Definitions.

1. Section 800.5 includes nineteen definitions. These definitions should aid in the interpretation and clarification of bonding requirements. The definition of a collateral bond has been changed to include the irrevocable letter of credit concept. Although a "letter of credit'' as defined by the Uniform Commercial Code does not fall within the traditional concept of collateral, it was added here in response to a commenter's request because it was determined that an irrevocable letter of credit would offer the regulatory authority a financial commitment as secure as the bank which issued the letter. Such a commitment would, in some cases, be more secure than that offered by a surety company, depending upon the relative State requirements regulating surety company and banking practices. In order to assure at least the same minimum degree of security, the tests established for determining the maximum surety commitment of a surety company (Sections 806.12(e)(2) and (3)) also are applicable to banks granting letters of credit (Section 806.12(g)). Although a State regulatory authority may accept letters of credit along with surety bonds and traditional collateral bonds (Section 806.11(a)), nothing in this Subchapter is intended to prohibit a State from establishing more stringent criteria for the acceptance of either a surety bond, traditional collateral bond or letter of credit in addition to those set out in Section 806.12. SECTION 800.11 Requirement to file a bond.

1. Section 800.11(a) is intended to make it clear that a permittee is required to file a performance bond which complies with this Subchapter prior to issuance of a permit for surface coal mining and reclamation operations on lands within an approved permit area. A few commenters recommended deleting the requirement to file the bond only after the application is approved. These comments were not accepted because a different approach would be inconsistent with the intent of Congress as set out in Section 509(a) of the Act, and because the amount of the bond cannot be determined until the proposed mining and reclamation plan has been approved by the regulatory authority. The regulations require the applicant to estimate the cost of reclamation (Section 805.11(a)(1)), but it is likely that the final bond amount set by the regulatory authority in many cases will be different.

Unless it has been done sooner, the regulatory authority shall notify the applicant of the amount of performance bond liability required for the entire permit area (to be determined in accordance with Part 805) when notice of permit approval is given. If an approval initially given by the regulatory authority is stayed by a hearing authority during the pendency of any appeal proceeding resulting from the approval, then the amount of required performance bond liability will be redetermined, if an approval is given after completion of the hearing. Such redetermination should be made in order to consider any changes in the mining or reclamation operations made as a result of the proceeding, and to account for any changes in reclamation costs caused by the delay.

Congress did not require that the amount of performance bond liability applicable to a permit be subject to review or an adjudicatory proceeding. Therefore, the Office does not require or provide for either administrative or judicial review of such a decision. The Office believes this is not inconsistent with due process because the regulatory authority has no discretion to reject a bond and withhold a permit if the required amount of performance bond liability is filed in accordance with this Subchapter and the regulatory program. Furthermore, the amount set is intended to assure completion of necessary work by the regulatory authority which must be satisfied that adequate resources are available to carry out its responsibilities. Given these factors, the Office believes that Congress intended to allow such a decision to be made by the sole discretion of the regulatory authority. Where the regulatory authority is a State under a State program, such decisions will be subject to oversight review by the Office. This review should be adequate to assure the effective implementation of Subchapter J.

2. Many comments were received regarding Section 800.11(b). A few commenters objected to the one-year incremental bonding system since it did not provide any flexibility for the regulatory authority to alter this time period. These comments were accepted and the one-year increment deleted in favor of no specific time period. This change was made, because the Act does not specify a one-year increment interval and flexibility is considered desirable in order to accommodate variations in mining practices.

3. A few commenters requested revisions regarding clarification of the scope of liability for a bond filed under the incremental system. In response, Section 800.11(b) has been rewritten to clarify requirements for filing a bond. As rewritten, the applicant may elect to file a performance bond for the entire permit area or choose to increment the bonding within the permit area. If the applicant chooses to increment the bond, the sequence of areas within the permit area for which bond liability will be added during the term of the permit, must be specified by the applicant and approved as part of the permit application. The total bond amount for the entire permit area also must be determined, and a schedule of incremental additions to bond liability must be approved prior to permit issuance. This alternative differs from that proposed in that it allows greater flexibility to the applicant and the regulatory authority in fitting the bonding and sequence of mining and reclamation operations to the actual conditions at the site rather than into rigid one-year increments.

700 Liability under bonds filed incrementally under an approved schedule, shall extend to the entire permit area and shall not be limited with respect to either surface area or reclamation work to be performed within a permit area. Legal authority for this requirement is found in Sections 509(a) and 701(A) of the Act.

The principle underlying this approach is the practical need to address the reclamation of a mined site as an integrated activity which can achieve success only if all the various phases of reclamation are planned and implemented with a view toward the entire mined area. To be avoided is a situation where the bond has been incremented and partial liability for the first area mined under the permit has been released, then a water pollution or other unanticipated problem is found in the area where the bond has been partially released. The remaining liability under the bond filed for that incremental area is inadequate to cover the work required to correct the problem, and liability under bonds filed for later increments is not applicable to the first area. It is intended that any bond liability filed under a permit extend to all reclamation, restoration or abatement work needed anywhere in the permit area to achieve the reclamation and environmental protection goals of the Act, regulations, and regulatory program. This principle will also apply to renewed permits where additional acreages to be mined are approved in second or successive terms of the original permit. As the permit area expands with the approval of successive permit terms, the liability under a bond applicable to that permit will extend to the newly approved additions to the permit area.

{15111}This does not mean that the dollar amount of liability under a specific performance bond will change. The amount of liability under a given instrument will not change without the consent of the parties to the instrument. As mining advances, new areas are disturbed, and old areas successfully reclaimed, the total dollar liability of performance bonds under a permit will change. As the dollar liability changes, existing instruments creating the bond liability may be modified, supplemented by additional instruments, or replaced by new instruments at the option of the permittee with the approval of the regulatory authority. However, all bond liability in effect under a permit must apply to the entire area under the permit and extend to all reclamation, restoration or abatement work which may need to be performed by the regulatory authority at that operation.

SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS, 30 CFR PART 805 -- AMOUNT AND DURATION OF PERFORMANCE BOND Part 805 prescribes the criteria that the regulatory authority shall use to determine the amount of performance bond applicable to a permit for a surface coal mining and reclamation operation. This Part also prescribes the minimum amount of each bond, periods of liability, and the requirement that the regulatory authority adjust the bond amount if the costs of reclamation are determined to have substantially changed during the term of the permit. The authority for this Part is found in Sections 102, 201, 501, 503, 504 and 509 of the Act.

SECTION 805.11 Determination of bond amount.

1. Section 805.11 provides standards the regulatory authority must use to determine the appropriate amount of the performance bond for each surface coal mining and reclamation operation. This Section is intended to clarify that the amount of such bond must be based on the estimated cost to the regulatory authority of completing all work at an operation in order to bring the site into full compliance with the Act, and not on the estimated cost to the permittee, since in the event of forfeiture, the regulatory authority will be required to do the work.

2. Revision of the proposed final regulations included combining the initial two paragraphs (a and b) of Section 805.11 for simplication. Also, the phrase "reclamation, restoration, and abatement work required of a person who conducts surface coal mining and reclamation operations under the Act, this Chapter, the regulatory program, and the permit'' was chosen as an editorial revision to more clearly express the intent of the Office regarding the scope of activities subject to the bond liability. This phrase, or portions thereof, are repeated throughout the Subchapter. It is the intent of the Office that the initial bond amount, the amount retained after partial releases (Section 807.12(d)) and amounts forfeited (Section 808.14) be adequate to not only allow the regulatory authority to complete the backfilling, grading, topsoiling, and revegetation program contained in the approved reclamation plan, but also to restore any property damaged outside the permit area in violation of the permit and Section 515(b) (2), (4), (8), (9), (10), (12), (13), (15), (17), (18), (21), (24), and (f) of the Act. In addition, the amount must be adequate to abate any pollution or hazards to life or property which exist within or outside the permit area in violation of the requirements of Sections 515, 516, 517 of the Act and Subchapter K, or of Section 521 of the Act and Subchapter L of the regulations, or the permit and are causally related to the permitted operation. The Office recognizes that the regulatory authority cannot reasonably establish the initial bond amount based upon speculative events such as the need to abate ground water pollution, since the operation must be designed initially to prevent such consequences in order to qualify for a permit. However, such unplanned consequences occasionally occur due to improper mining or reclamation, or because an important variable was not evaluated properly. When such consequences are identified prior to the release of all liability and termination of the permit in accordance with Part 807, the permittee's legal obligation to abate them necessarily adds to the cost of reclamation.

Under such circumstances, the regulatory authority would be authorized to impose additional bond liability under that permit, or to retain a larger portion of the total liability than otherwise required in response to an application for release of bond, in order to ensure adequate funding to complete the abatement work required (Sections 805.14(a) and 807.12(d)).

3. Several commenters recommended that the bond amount should be sufficient to ensure an operator's compliance, but that it should be below the regulatory authority's completion cost. Section 509(a) of the Act specifically states that the amount of the bond shall be based on the regulatory authority's costs and not those of the operators. These comments were, therefore, not accepted.

Several commenters pointed out that vague wording existed in the proposed regulations when using the phrase, "estimated actual costs to the regulatory authority . . .''. A conflict existed between the words "estimated'' and "actual''. To clarify, the language was changed to read, "the estimated cost to the regulatory authority . . .''.

700 4. A few commenters requested a definition of the bond penalty. The bond penalty is construed to mean the total liability under performance bond(s) applicable to a permit as set by the regulatory authority. The surety will always know the terms and conditions of the bond obligation before entering into a bond agreement because the amount is set prior to bond execution. Both Section 509(a) of the Act and Section 800.11 of the regulations require that the bond be conditioned upon faithful performance of all the requirements of the Act and the permit. Based upon this requirement, the bond may be viewed as a form of "penalty'' and may be forfeited in the event the permittee fails to comply with any requirement of the Act or the permit. However, forfeiture is discretionary to the extent that it is not required by Part 808, and should be used as an enforcement tool only in serious situations. Based on this rationale, the comments were not accepted.

5. Several comments were received regarding the use of the words, "shall be based on . . . '', in context with the regulatory authority's criteria. They felt that the words should be changed to "may be'' to allow more flexibility for the regulatory authority to determine bond amount. These comments were not accepted because it was determined that sufficient flexibility exists within the individual criteria to be considered. Deleting consideration of any criteria would preclude a decision by the regulatory authority which would be inconsistent with all the factors required by Section 509(a) of the Act.

6. Section 805.11(a) also contains a non-exclusive list of criteria the regulatory authority must use in making its determination as to bond amount. First, the regulatory authority will use the estimated costs that the permittee submitted with the reclamation plan as required under 30 CFR 780.18 and 784.13. This change was made in response to several comments which pointed out that data provided by the applicant would assist the regulatory authority in determining bond amount. This is consistent with Section 509(a) of the Act which states that the "amount of bond required for each bonded area shall depend upon the reclamation requirements of the approved permit''.

Several comments suggested adding a new subparagraph to consider the specific factors of topography, geology, hydrology and revegetation potential since they appearirements or the need to bring additional personnel or equipment to the permit area.

{15112}8. In response to a few commenter's request, Section 805.11(a)(4) was added to provide for consideration of cost changes which may occur on the basis of changes during the preceding 5-year period. Failure to consider such changes would result in a bond which may not be adequate to complete essential reclamation activities because the period of liability is for 5-years after the completion of revegetation work, at a minimum.

Note that in this Section cost "changes'' are considered, which reflects a language change from the proposed regulations. The original language stated that only cost increases would be considered. The change was made in response to a few comments which pointed out that while cost increases may occur, the possibility exists for costs to decrease in the future as a result of improved technology or changes in the economic structure. In considering either prospective increases or decreases in costs, the regulatory authority must identify a five-year pattern of change as the basis for making future projections. Speculative changes not based on patterns of actual experience observed in the industry should not be used to project future change.

9. Section 805.11(a)(5) allows the regulatory authority to utilize other data that would be of assistance in determining the bond amounts. The regulatory authority can require an applicant to produce the data necessary for proper determination of bond amounts. This change was made in response to a commenter who suggested that the regulatory authority should have the authority to require additional information if it was available.

The Paragraph pertaining to specific criteria for determining bond amounts for underground mine operations, as it appeared in the proposed final regulations under Section 805.11(b)(2), has been deleted from the final regulations.

10. Many comments were received relative to this Section recognizing the enormity and complexity of developing criteria for bonding the surface effects of underground mining. These pointed out that ensuring successful environmental protection from underground mining is made difficult by the two principal surface effects_subsidence and mine drainage_and by the fact that they can occur over a very long time period. While the Office is cognizant of the arguments, no clear-cut solution was presented in the comments. Both the complexity of the issue and a present lack of adequate information to develop a special bonding program for underground mining has led to the deletion. Further study is required regarding the long-term effects of underground mining. Until a solution to this problem is found, general criteria for performance bonds will apply to both underground and surface mining operations.

SECTION 805.12 Minimum amount.

1. Section 805.12 is a statement of the minimum amount required for performance bonds for surface coal mining reclamation, restoration, and abatement operations. This Section follows the basic intent of the Act that bonds shall be used to assure the faithful performance of applicable performance standards in the Act and this Chapter. The Section also specifies, as does the Act in Section 509(a), that in no case shall the initial bond be less than $10,000 for a permit area, even if the amount determined by the standards set forth in this Section would be less.

2. Many comments were received in relation to the minimum $10,000 bond requirement, stating that this is discriminatory to small operators. The minimum bond amount is based on the Act and cannot be altered. Additionally, the bond is incrementally released as required under Part 807 and the $10,000 minimum does not apply to bond release.

To simplify this, proposed Section 805.12 was condensed to incorporate Subsections "a'' and "b'' into one paragraph.

SECTION 805.13 Period of Liability.

1. Section 805