FEDERAL REGISTER: 42 FR 62639 (December 13, 1977)

DEPARTMENT OF THE INTERIOR  
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Parts 700, 710, 715, 716, 717, 718, 720, 721, 722, 723, 725, 740, 795, and 830
Surface Mining Reclamation and Enforcement Provisions  

ACTION: Final rules.  

SUMMARY: The regulations in this chapter set out the Department of the Interior's Surface Mining Reclamation
and Enforcement program as required by the Surface Mining Control and Reclamation Act of 1977 (Act).  The Act
requires that the Secretary of the Interior publish initial environmental protection regulations that are applicable to all
coal mining operations regulated by the States until a State has an approved regulatory program or a Federal
regulatory program is implemented in that State.  

EFFECTIVE DATE: December 13, 1977.  

ADDRESSES: Director, Office of Surface Mining Reclamation and Enforcement, Department of the Interior,
Washington, D.C. 20240, 202-343-4237.  

FOR FURTHER INFORMATION CONTACT:  
Paul Reeves, 202-343-4237.  

SUPPLEMENTARY INFORMATION: 

   The Surface Mining Control and Reclamation Act of 1977 (the Act), Pub.L. 95-87, requires the Secretary of the
Interior to publish initial environmental protection regulations that are applicable to all coal mining operations on
lands that are regulated by the States until a State has an approved regulatory program or a Federal regulatory
program is implemented in that State.  These regulations were developed in consultation with the Environmental
Protection Agency, the Department of Agriculture and the Corps of Engineers.  The Act also requires the Secretary
to implement a Federal enforcement program by February 3, 1978, which lasts for the duration of the initial program
in each State.  Regulations for Federal financial assistance to States for reimbursement of incremental enforcement
costs during the initial regulatory program and for development, administration and enforcement of permanent State
regulatory programs for the control of surface coal mining and reclamation operations are also required by the Act. 
A brief discussion of the major parts in the regulations follows. 

   Part 700 is a general statement of the scope, objectives and applicability of these regulations.  It also states the
responsibilities of the Secretary, the Director and the States and defines terms used throughout the chapter.  The
authority of the Secretary, the Director of the Office of Surface Mining Reclamation and Enforcement (OSM or the
Office) and other governmental bodies is described, their responsibilities distinguished and the Federal-State
delegation of duties described.  

   Part 710 introduces the initial regulatory program and includes definitions, a statement of applicability and
provisions for the special exemption for small operators.  

   Part 715 contains the general initial performance standards and includes regulations governing the operator's
general obligation to comply with the initial standards requiring restoration of disturbed areas to suitable postmining
use, backfilling and grading, off-site disposal of spoil and waste materials, topsoil handling, protection of the
hydrologic system, construction, inspection and maintenance of dams, use of explosives, and revegetation.  

   Part 716 contains the special initial performance standards and includes regulations governing steep slope mining,
prime farmlands, mountaintop removal, special bituminous coal mines, anthracite coal mines and Alaska coal mining
operations.  

   Part 717 contains initial performance standards for underground mines and includes regulations governing the
operator's general obligation to comply with the initial standards requiring signs and markers, backfilling and
grading, protection of the hydrologic system, construction, inspection and maintenance of dams, topsoil handling and
revegetation.  

   Part 718 contains procedures for adoption of State laws and regulations when they prescribe more stringent
standards of performance than the general or special performance standards of this chapter provide.  

   Part 720 sets forth the regulations governing enforcement activities to be carried out by the States during the initial
regulatory program.  

   Part 721 provides for Federal inspections on the basis of (1) at least two consecutive State inspection reports
indicating a violation; (2) information provided by a State or person indicating a violation; (3) random inspections of
each operation at least once each six months; and (4) the Secretary's own initiative.  

   Part 722 sets out the general procedures governing issuance by Federal inspectors of orders of cessation, notices of
violation and orders to show cause why a permit should not be suspended or revoked.  

   Part 723 contains the regulations governing the assessment of civil penalties and prescribes the use of a mandatory
point system in determining the amount of the penalty.  

   Part 725 sets forth the policies and procedures for reimbursements to States for the incremental costs of enforcing
performance standards during the initial regulatory program. 

   Part 740 sets forth the policies and procedures for grants to States to develop, administer and enforce approved
State programs for the control of surface coal mining and reclamation.  

   Part 795 provides for financial and other assistance to eligible small coal mine operators in determining the
hydrologic consequences of mining and reclamation.  The analyses are to be performed by qualified public and
private laboratories and paid for by the regulatory authority.  

   Part 830 provides a procedure for dealing with acts of job discrimination due to exercise of rights under the Act.  

CONCURRENCES  

   Section 501(a)(B) of the Act requires that the written concurrence of the Administrator of the Environmental
Protection Agency be obtained with respect to regulations relating to air or water quality standards promulgated
under the Federal Water Pollution Control Act and the Clean Air Act.  By letter dated November 18, 1977, the
Administrator of the Environmental Protection Agency has concurred with these regulations for the initial regulatory
program.  

   Section 510(d)(1) of the Act states that the regulatory authority shall follow certain procedures in granting permits
to mine on prime farmland. Among those procedures is a requirement that the permit shall be issued "pursuant to
regulations issued hereunder by the Secretary of the Interior with the concurrence of the Secretary of Agriculture * *
* ." Specifications for soil removal, storage, replacement and reconstruction for prime farmland have been developed
by the Secretary of Agriculture in accordance with Sec.  515(b)(7) and are included herein.  By letter dated
November 16, 1977, the Secretary of Agriculture has concurred with the prime farmland provisions in these
regulations.  

   Section 515(f) of the Act requires that regulations pertaining to coal mine waste piles and dams be promulgated
with the written concurrence of the Chief of Engineers of the Corps of Engineers.  By letter dated November 30,
1977, the Chief of Engineers has concurred with such regulations.  

BACKGROUND  

   In anticipation of enactment, the Department of the Interior organized a task force composed of more than 90
people from nearly 20 Federal agencies to prepare for the initial regulatory program.  Since its creation in April
1977, the task force has maintained a working relationship with the National Governors' Conference.  Several
general and workshop meetings with State officials were held.  After public notice, general informational meetings
were held in Washington, D.C. on August 9 and 10, 1977, for the public.  Early task force drafts of the regulations
were given wide circulation to the States and the public prior to publication of the proposed regulations.  Numerous
comments were received and were considered by the task force.  

   The Surface Mining Control and Reclamation Act of 1977 was signed into law on August 3, 1977.  Proposed rules
implementing the Act were published in the FEDERAL REGISTER on September 7, 1977 (42 FR 44920).  Public
hearings on the proposed rules were held on September 20-22, 1977, in Washington, D.C., Charleston, W.Va., St.
Louis, Mo., and Denver, Colo.  At the close of the comment period on October 7, 1977, over 300 commenters had
submitted written comments, many of which were very lengthy.  The transcripts of the public hearings, all written
comments, many technical studies and manuals and generally accepted engineering practice have been considered in
the development of these final regulations.  A document that identifies the major technical publications, studies and
manuals relied upon in developing these regulations has been prepared by the task force.  

   {62640} Comments pertaining to each part of this chapter or each section of the performance standards have been
summarized and are stated below.  In this way it is hoped that the public will understand the response to each
comment and will therefore have a better understanding of the bases and purposes of the final regulations.  General
comments are treated below first, followed by specific comments directed to particular parts or sections of the
regulations.  

GENERAL COMMENTS  

1.  Several commenters objected that the public was not given enough time to adequately respond to the proposed
regulations.  The Act requires that the final rules for the initial program be published within 90 days of enactment. 
As a result of this statutory mandate, it was necessary to limit the comment period to the 30 days prescribed by the
Act.  Despite the relatively short comment period, public participation has been extensive and has covered nearly
every aspect of the proposed regulations.  Due to the enormous volume of comments to be considered and time
required for review and concurrence by other agencies, it was impossible to extend the comment period and still
adhere closely to the statutory deadline.  

2.  Many commenters objected to the absence of an economic impact analysis accompanying the regulations.  The
Office relied on a study compiled by the Congressional Budget Office, found in the April 22, 1977, Report of the
Committee on Interior and Insular Affairs, House of Representatives.  The Committee concluded that enactment of
H.R. 2, will have virtually no inflationary impact on the American economy.  Since the regulations closely comport
with the Act, an economic impact analysis was not deemed necessary for the initial program.  However, an economic
impact analysis will be prepared for the permanent program regulations.  

3.  Several commenters objected that the regulations were unreasonably inflexible.  These commenters argued that
the proposed regulations did not adequately take account of regional differences.  In response to this objection, a
number of sections allow the regulatory authority the flexibility to approve alternative methods of compliance. 
However, the underlying policy to ensure a fair and generally applicable set of standards for all mining operations
remains intact.  Further, uniform standards ensure consistent enforcement and avoid conflicting interpretations of the
regulations in different regions.  

4.  Several commenters expressed the fear that many mining operations would be forced to close as a result of what
was believed to be overly strict regulations.  These regulations fairly interpret the intent of Congress and the Act.  

5.  A number of commenters argued that existing State regulations are sufficient to ensure the purposes of the Act
and therefore Federal regulations are unnecessary.  This view was not accepted.  A specific intent of the Act was to
provide minimum uniform standards to regulate surface mining.  

PART 700 - GENERAL  

1.  Sections 700.1 and 700.2 state the scope and objectives of the final regulations.  Several commenters objected to
the absence of an objective to balance the environmental protection standards with coal production goals. Section
102 of the Act lists 13 purposes, one of which is to "(f) assure that the coal supply * * * is provided and strike a
balance between protection of the environment and agricultural productivity and the Nation's need for coal as an
essential source of energy." This purpose and the 12 other purposes listed in Sec.  102 of the Act are indisputably the
goals of the Act and the program administered by the Office of Surface Mining Reclamation and Enforcement.  

    Section 700.2 of these regulations states the four broad objectives of Chapter VII to establish a regulatory program
to implement the Act. Therefore, this suggestion was not accepted.  

2.  Section 700.4(b) was added to the regulations to further define the role of the Director in relationship to the
management of Federal land resources as a result of administering these regulations.  This section is necessary to
comply with the provisions of other laws which place responsibility in other Federal agencies for supervising the
postmining use of Federal lands.  

3.  Several commenters suggested changes in the definitions of "Indian lands" and "surface coal mining operations"
in Sec.  700.5.  The proposed definitions have been retained to remain consistent with the Act.  

4.  Although the term "permit" was defined, the proposed rules did not contain a definition of the term "permittee." A
definition of "permittee" has been added to correct this omission.  

5.  Several commenters noted that the definition of "state lands" conflicted with the commonly held meaning and was
confusing.  Accordingly, the term was deleted in the final regulations and the phrase, "operations on lands regulated
by a state" was substituted.  

6.  The definition of "ton" found in Sec.  837.5 of the Abandoned Mine Reclamation Fund regulations has been
included in Sec.  700.5 and is applicable throughout the chapter.  

7.  Several commenters suggested defining other terms such as "mining area," "mine property," "permit area,"
"renewal permit" and "interim regulatory authority." These suggestions were not accepted since many of the terms
would overlap other definitions creating confusion, and others have commonly accepted meanings in the mining
industry.  

8.  Several commenters requested that a definition of "professional specialist" be added to include registered land
surveyors as well as registered professional engineers.  This suggestion is rejected because Sec.  515 of the Act
specifically requires that various duties be performed by registered professional engineers.  Where the Act does not
specify that the work be performed by a registered professional engineer, the regulations have been revised to permit
some flexibility while maintaining high professional standards in the performance of the work.  

9.  Section 700.5 provides guidance for the proper interpretation of the key phrase "significant, imminent
environmental harm." It is important to keep in mind that this section is not a true definition because in each instance
the key words of both the phrase and the regulations are very general.  Merely substituting one general word for
another is not satisfactory as a definition.  

   Commenters objected that the concept of "reasonable time" in paragraph (b) of the definition of "significant,
imminent environmental harm to land, air or water resources" was vague.  The paragraph has been clarified so that
the "reasonable time" is the same "reasonable time" used in Sec.  521(a)(3) of the Act.  Thus, the environmental
harm is imminent if it is occurring or if it may reasonably be expected to occur if the violation, condition or practice
remains uncorrected until the end of the "reasonable time" for abatement referred to in Sec.  521(a)(3).  Further, if
the harm may not reasonably be expected to occur before the end of such "reasonable time," it is not imminent.  In
such a case, a notice of violation under Sec.  521(a)(3), rather than a cessation order under Sec.  521(a)(2), would be
appropriate.  

   An example may further clarify this point.  Twenty days may be a "reasonable time" for abatement of a particular
spoil violation under normal operating conditions.  If within that time "significant environmental harm" may
reasonably be expected to occur from that mishandled spoil, then the "significant, environmental harm" is imminent,
and a shorter time for abatement will be required.  If, on the other hand, a significant environmental harm may not
reasonably be expected to occur, then the normal abatement time would be allowed under Sec.  521(a)(3).  

   Comments were received that the definition of "significant" in paragraph (a) was improper in several respects.  It
was argued that the definition could result in the ordinary practices of mining being found to create a "significant,
imminent environmental harm".  While this definition and the statutory phrase itself could be so interpreted in
unusual circumstances such as areas of unusual topography or geology where soil stability cannot be achieved, the
proper interpretation of the statutory phrase and the definition in the regulations does not normally encompass
mining practices in conformity with the Act and these regulations.  

   {62641} Comment was also received that the use of the word "appreciable" in the regulations is inconsistent with
the word "significant" in the Act.  By the use of the word "appreciable" the meaning of the statutory word
"significant" is not prejudged in any particular factual setting.  It is anticipated that practice and enforcement
proceedings will eventually elaborate the meaning of this critical phrase.  

10.  Section 700.13 contains procedures for prior notice of citizen suits.  Comments were received that OSM should
require the notice to include the time and location of the alleged violation.  The comments were accepted.  Of course,
all the complainant is required to do is to give the information available to him.  

11.  A comment was received that notification to a State under Sec.  700.13 should be to the Governor rather than the
State regulatory authority. This comment was rejected because notice should be given to the agency most familiar
with the circumstances.  

12.  Section 700.15, Computation of Time, was inserted to clarify the method of computing deadlines set out in
various parts of the regulations.  

PART 710 - INITIAL REGULATORY PROGRAM  

   Parts 710-725 contain the initial regulatory program regulations. Parts 700, 740 and 830 are included in this
publication for reasons of convenience and ease of administration.  The standards and procedures of the initial
regulatory program should not be confused with the standards and procedures that will be promulgated for the
permanent regulatory program.  The initial regulatory program represents a phasing-in of the full standards and
procedures of the permanent program consistent with the intent of Congress.  The initial regulatory program
standards do not implement the provisions of the Act in its entirety and will not prejudice the development of any
standard in the permanent regulatory program.  Permanent regulatory program standards will cover the full range of
standards and procedures required by the Act and may vary from those of the initial regulatory program depending
on the requirements of the Act and experience gained during the initial program.  

1.  One commenter suggested that Sec.  710.4(b) be revised to require a State to issue permits and perform other
duties during the initial program only if an adequate State staff exists.  This suggestion is not accepted since it has no
basis in the Act.  Section 502 of the Act requires that if a State regulates surface coal mining operations, such
operations must comply with the Act and regulations.  

2.  The requirements of Sec.  522(e) of the Act which prohibit mining on certain lands and were effective upon
enactment have been referenced in Sec.  710.4(b).  

3.  Commenters suggested that proposed definitions be changed or definitions be added to Sec.  710.5.  In response
to these comments, definitions were added for terms that have been added or for technical terms that comment
indicated required definitions.  Those terms are: "essential hydrologic functions", "flood irrigation", "subirrigation",
"valley fill and head-of-hollow fill" and "waste".  A number of other definitions were modified in the interest of
improving clarity.  For example, "settling pond" was changed to "sedimentation pond".  The definition of the term
"safety factor" was incorporated here and deleted from Sec.  715.18(b).  The principal sources of technical
definitions were American Geological Institute, Glossary of Geology, 1972; American Society of Civil Engineers,
Nomenclature for Hydraulics, 1962; U.S. Bureau of Mines, Dictionary of Mining, Mineral, and Related Terms,
1968; Bituminous Coal Institute, Glossary of Current and Common Bituminous Coal Mining Terms, 1947; Soil
Science Society of America, Glossary of Soil Science Terms, 1970; and Soil Conservation Society of America,
Resource Conservation Glossary, 1976.  Numerous alternative definitions that were suggested were largely from
standard reference works or made slight modifications that did not represent a substantive improvement or alleviate
confusion.  

4.  Section 710.11 sets forth the general obligations under the Act of those mining coal, describes the application of
those obligations on May 4, 1978, and for the application of those standards to certain structures and facilities. 
Numerous comments were received on this section, almost all addressing paragraph (d)(2) granting the limited
extension of time beyond May 4, 1978, for pre-existing non-conforming structures and facilities.  

   A comment was received suggesting that paragraph (a) be changed to clarify that the interim standards do not
apply in States in which only "collateral" regulation of mining occurs.  As examples of such "collateral" regulation,
the commenter cited minimum wage laws and water quality control. Regulation by the State minimum wage law does
not constitute regulation in a State so as to make the interim standards applicable.  However, regulation of water
quality relating to mining does in fact constitute regulation of mining in a State so as to make all the initial standards
applicable in that State.  Under Sec.  502 of the Act any regulation in a State within the scope of any of the initial
performance standards is regulation that triggers the application of the Federal initial performance standards within
that State.  

5.  A number of comments were received that the Act provided no legal basis for an extension beyond May 4, 1978,
for complying with the performance standards.  These comments suggested that the extension in Sec.  710.11(d)(2)
should be deleted.  A number of other commenters suggested the extension be expanded.  Extensions were suggested
as follows: (1) for the life of the structure or facility, (2) for as long as they meet State and Federal water quality
standards and effluent limitations and have been approved by the regulatory authority, (3) for the life of the structure,
if the regulatory authority determines that reconstruction would cause environmental harm, (4) for the life of the
structure, if the regulatory authority determines that the structure or facility will not constitute an imminent danger to
the health or safety of the public or a significant, imminent environmental harm, and (5) as long as a "good faith"
effort to correct the problem is being made.  After careful consideration of these comments and the Act and its
legislative history, no change in the regulations has been made.  

   Section 710.11(d)(2) allows a limited exemption in specified circumstances.  It is not a blanket invitation to delay
the reconstruction of pre-existing structures and facilities.  Structures and facilities which can be reconstructed by
May 4, 1978, must be reconstructed by that date.  Given the length of time between enactment of the Act and the
May 4 deadline, the vast majority of the reconstruction can be accomplished by May 4, 1978.  

   In order to qualify for an extension, the operator must show that using his best effort and all resources available he
cannot complete reconstruction by May 4, 1978.  He must then submit a plan for reconstruction designed by a
professional engineer.  The requirement that a professional engineer design the plan is appropriate because it is
anticipated that extensions will be justified for only the largest and most complex reconstruction jobs.  The work on
such a job must start as soon as possible after the issuance of these regulations.  The Department believes this narrow
approach is required by the Act.  The 1974 surface mine reclamation bill contained a limited impossibility defense
when it was introduced on the House floor and when it went to the Conference Committee.  The Conference
Committee deleted this defense, and it was never again inserted into the bill.  Moreover, the nine-month (longer for
small operators) delay in imposition of the initial performance standards is the time that Congress gave for the
adjustment of existing mining practices and pre-existing structures and facilities. On the other hand, the Secretary has
the duty, within the constraints of the Act, to resolve practical problems on a case-by-case basis.  Thus, the
regulations provide a limited extension of time in demonstrated cases of impossibility.  

6.  Comments were received that Sec.  710.11(d)(2) should be changed by explicitly requiring the operator to make a
showing that a "good faith" attempt had been made to accomplish the reconstruction by May 4, 1978.  No change
was made as a result of this comment because, as explained above, the regulation already requires the appropriate
showing.  

7.  A commenter suggested that the phrase "physically impossible" be clarified.  This was not done because decisions
will need to be made on a case-by-case basis, after considering all relevant facts.  

   {62642} 8.  A commenter requested clarification of the phrase "preexisting facilities and structures" in Sec. 
710.11.  It is impossible to give a definitive list.  However, under present interpretation, sedimentation ponds, haul
roads, off-site spoil storage facilities including head-of-hollow fills, and slurry ponds or waste impoundments are
included.  Facilities and structures not serving active mining areas after May 4, 1978, need not be reconstructed.  An
example is existing sedimentation ponds draining watersheds in which coal removal has ended, even though
reclamation is continuing.  

9.  Section 710.12 provides for applications for and approval of exemptions for small operators as set forth in Sec. 
502 of the Act.  Several comments were received that the Act does not allow for a process of applications and
Secretarial grants of the small operator exemption, but rather, creates the exemption by operation of law.  Although
the exemption is created by law, the Secretary is not prohibited from adopting an application and approval process.
Failure to provide an application and approval process would lead to impossible enforcement problems in the field. 
It would be extremely difficult for an inspector to enforce standards until all claims of right to exemption were
investigated and resolved.  Such an investigation would be practically impossible inasmuch as most of the critical
facts of interlocking ownership and coal production are beyond the inspector's reach.  Therefore, the only effective
and rational way to exercise the Department's obligations under the Act was to adopt an application and approval
process.  

10.  Several comments were received that the Act does not allow the attribution of coal produced by other mines
owned or controlled by the applicant.  This argument is not accepted.  The Act grants the exemption to "operators"
not "operations", and the legislative history makes it clear that in determining eligibility all the various patterns of
ownership are to be investigated so as to base the determination on the total production and resources of the
applicant.  

11.  A comment was received that the procedures for obtaining an exemption were too complex for some small
operators.  It is believed that this is not the case, and the Office will continue to assist any operator who seeks advice. 


12.  A commenter requested that the definition of "permittee" be changed to incorporate the idea that there had been
no change in ownership after May 2, 1977, so as to prevent the sale or transfer of a permittee's business organization
from a large operator to a small operator in order to qualify for the exemption.  This idea was accepted in part. 
Section 710.12(c)(2)(iii) was adopted to achieve that result for substantial changes in ownership, except for changes
due to death of an owner.  

13.  A comment was received that Sec.  710.12 should require that a small operator's mine be in operation prior to
August 3, 1977.  No changes were made as a result of this comment because the regulations interpret Sec.  502(c) of
the Act to also exempt operations which had permits but did not mine prior to August 3, 1977.  

14.  Comments were made that there should be a filing deadline for applications for the exemption in order to allow
orderly consideration of the applications.  This comment was accepted, and a filing date of February 3, 1978, was
included.  

15.  Comments were received that attribution should be based on ownership as well as control of coal production. 
This comment was accepted. Ownership is a clear and measurable indication of economic benefit from the
production.  

16.  Commenters suggested that a method should exist for the revocation of an exemption if it was erroneously
granted or production during the year exceeded 100,000 tons.  Language was added to make this explicit.  

17.  Comments were received that the regulations should grant exemptions only to mines operating under valid
permits and should not allow exemptions to those who mined in 1976 without permits.  No change was made as a
result of this comment because the proper test under the Act is whether or not the current permit was issued prior to
August 3, 1977.  

PART 715 - GENERAL PERFORMANCE STANDARDS  

   NOTE. - The general performance standards in this part are applicable during the initial regulatory program.  They
are based on the standards referenced in Sec.  502(b) of the Act and include requirements which are necessary to
meet those standards.  Other performance standards in Sec.  515(b) of the Act have been used as a guide whenever
possible in developing the standards to fully implement the initial program.  

1.  Several commenters objected to the requirement in Sec.  715.11(b) for all authorizations to permittees to be
maintained at or near the mine site. They suggested that only the permit and related documents be made available at
the site or at a central company office.  These suggestions were not accepted. The Act requires compliance with
applicable State and Federal laws and regulations, thus availability of other permits and related documents is
essential in determining compliance with the Act.  In order to ensure effective and efficient enforcement it is
necessary for permits and related documents to be readily available to State and Federal officials in the course of
their on-site inspections.  However, the phrase "at or near the mine site" is intended to include offices in nearby
towns.  

2.  Commenters objected to the scale requirements of the maps required by Sec.  715.11(c) as being unreasonable. 
In response to these objections, the scale requirement was changed to 1:6,000 (1 inch equals 500 feet) or larger scale. 
This scale is consistent with the smallest map scale for mine maps required by the Mining Enforcement and Safety
Administration (30 CFR 77.1200). 

3.  Many commenters suggested that a 30-day deadline for submittal of certified mine maps required by Sec. 
715.11(c) would overtax the available engineers and surveyors.  The deadline is extended to 60 days in the final
regulations to accommodate the anticipated increase in demand for engineers and surveyors.  

4.  A few commenters questioned the meaning of the phrase "where any element of the operations is regulated by a
State" in Sec.  715.11(a).  The phrase is rooted in Sec.  502(a) of the Act and is intended to be a general statement of
applicability consistent with Sec.  710.11 of these regulations.  The performance standards apply to coal mining
operations currently regulated by a State under other State or Federal statutes, including the Federal Water Pollution
Control Act and State laws governing mining.  

Section 715.12  Signs and markers.  

1.  Section 715.12, signs and markers, specifies requirements for identifying and warning signs and for markers of
permit perimeters and buffer zones within the permit area. The marking of permit boundaries, blasting areas, and
other special activity areas where caution must be exercised by the permittee and other personnel is common in many
States.  In response to the many comments received, these regulations are simplified in the interest of consistency
with State rules during the initial program.  

   The regulations seek to balance the desire to reduce cost and bother to the permittee against the need for ample
identification in the interest of citizen participation, inspection by the regulatory authority, employee guidance and
protection of the public.  Proper marking of perimeters and working areas will be particularly valuable in preventing
equipment operators from inadvertently entering areas not authorized for disturbance and should help eliminate
arguments over location of perimeters.  Many commenters objected to the number of markers required and the
specificity of spacing requirements. Others generally supported the proposed regulation in the interest of citizen
monitoring of coal mining operations.  A third principal group of commenters generally argued for giving greater
latitude to regulatory authorities in sign and marker requirements.  

2.  Commenters objected to the requirement in Sec.  715.12(b) that identification numbers of other authorizations to
mine be shown on the grounds that if all such numbers were shown signs would be very large.  In response, that
section has been revised to require only the current mining and reclamation permit number issued by the regulatory
authority applying to the posted permit.  

3.  There was general agreement among commenters that more latitude should be allowed in the type of markers and
minimum spacing for perimeter markers.  Section 715.12(c) has been modified to provide for markers as deemed
appropriate by the regulatory authority.  Many commenters questioned the practicability of maintaining markers after
May 3, 1978, in an active pit showing the boundary of coal mined.  This requirement has been deleted in view of the
availability of a certified map as required in Sec.  715.11(c).  

   {62643} 4.  Comments on buffer zone markers, Sec.  715.12(d), were similar to those on perimeter markers,
mainly arguing for greater flexibility in type and minimum spacing.  This requirement has been revised to make it
consistent with those relating to perimeter markers.  Further, it should be noted that the requirement for buffer zone
markers does not preclude mining through streams where specifically approved by the regulatory authority under the
controlled conditions established by Sec.  715.17.  

5.  A number of commenters suggested that blasting signs should only be required at the blasting areas.  This
suggestion was rejected on the grounds that all persons entering a property where blasting is carried on should be
informed of the potential hazards.  

6.Many commenters objected to the requirement in Sec.  715.12(f) for topsoil markers because topsoil storage areas
are well known to employees and disturbance of topsoil storage areas is not currently a significant problem. These
comments were rejected because these regulations require more care in topsoil handling and storage than has
previously been the practice, and the requirement represents a minor burden to the operator.  Markers, rather than
specific signs, will be required.  

Section 715.13 Postmining use of land. 

   Section 715.13, Postmining use of land, establishes criteria and procedures to determine the postmining use of the
land.  An achievable postmining land use within a permit area is essential to achieving the purposes of the Act.  The
regulations are intended to supplement existing land planning capabilities of States and local governments.  

1.  Comments objecting to the word "promptly" in paragraph (a) have resulted in a change to "in a timely manner."
The Act clearly intends for reclamation work to be carried out as an integral part of the mining operation. Section
515(b)(16) of the Act requires that under the permanent program reclamation efforts must proceed "as
contemporaneously as practicable." The words, "in a timely manner" are intended to fulfill the intent of the Act
without going as far as the permanent program requirement.  

2.  Some commenters suggested that a higher and better use cannot be the objective of reclamation.  These comments
were not accepted.  Section 515(b)(2) of the Act requires that this objective be met when the land is not returned to
its premining use.  A higher and better use determination based on the landowner input and local capability of the
land for a higher or better use is paramount in reclaiming mined lands when the land is not returned to its premining
condition.  

3.  Commenters suggested that areas within a region should be referenced as a means of approving a postmining land
use even if such use is not necessarily compatible with those of the immediately surrounding area.  The intent of the
proposed regulations was to allow consideration of land uses in areas of similar terrain and climate within the
surrounding region.  In considering a wider area, many differing postmining land uses could come into play thereby
not restricting the landowner and the regulatory authority to a set of predetermined uses for the land where, for
example, homesite development is needed.  Regardless of the reference area used, it is essential that the postmining
use be compatible with the immediately adjacent areas.  Changes have been made in Sec.  715.13(b) to incorporate
reference to the surrounding area.  

   Under Sec.  715.13(b)(3), the historic use of the land must be considered in certain circumstances.  Historic use
should usually be determined by reference to the dominant use during the preceding 20 years, or longer period if the
dominant use cannot be determined for that 20 year period. 

4.  Comments suggesting that the permittee should not be held responsible for inadequate reclamation of lands by
other mine operators implies that the standard for determining the postmining land use is the use of the land
immediately before the current mining.  Section 515(b)(2) makes clear that the intent of the Act is for lands to be
restored to the capability of supporting uses which it could support prior to any mining.  The regulations require that
such lands be returned to the highest and best use possible that is compatible with surrounding areas.  Since much of
the land that previously had been mined was left in extremely poor condition and the Act does not intend this use to
be the basis for determining the postmining land use, it is intended that lands that previously had been mined will
have a postmining use that is equal to or higher or better than it was before any mining occurred.  This objective will
be based on land uses in the surrounding area.  

5.  Commenters noted that the proposed regulations did not allow impoundments of water to remain in the
postmining land use.  It is recognized that such impoundments may be a beneficial part of the postmining use and
should be permitted.  The regulations have been changed to include impoundments of water in the categories of
alternative land uses.  

6.  Some commenters objected to the requirement in Sec.  715.13(d)(6) that plans be designed by "a registered
professional engineer, or other professional, who is knowledgeable about the proposed land-use category * * * ". The
intention was to insure that the plans are designed by a competent person in accordance with high professional
standards.  The regulations have been changed slightly to permit some flexibility but maintain the high standard by
also allowing the design to be made under the supervision of the professional person.  

7.Other comments objecting to the requirement in Sec.  715.13(d)(4) and (5) for letters of commitment have been
considered.  Some clarifying language has been added, but the basic intent of the regulations remains that firm
assurances must be given before approval of the mining application that the postmining use will be successfully
completed.  Such assurances are necessary to show that there is "reasonable likelihood" of the proposed use being
achieved as required by Sec.  515(b)(2) of the Act.  

Section 715.14  Backfilling and grading.  

1.  A few commenters argued that permittees should be allowed to distribute box cut spoils on other than the mined
area and grade these spoils to blend in with the surrounding original contour.  This type of operation is permissible
under the regulations if: (1) it conforms to the other requirements such as topsoil removal and grading of the mined
area to approximate original contour; (2) the box cut spoils are also graded to approximate original contour or to the
lowest practicable grade; (3) the reclamation achieves an ecologically sound land use compatible with the
surrounding region, and (4) other provisions pertaining to spoil handling in all types of mines are met.  

   Section 515(b)(3) of the Act requires that operations be conducted in a manner that restores the approximate
original contour of the land except in mountaintop removal operations or in operations involving thick or thin
overburden.  Section 515(b)(3) of the Act requires any excess overburden to be graded and compacted (where
advisable) to attain the lowest grade possible but not exceeding the angle of repose of the spoil.  However, the
natural angle of repose of certain types of natural materials may be too steep to control erosion and increases in total
suspended solids.  Thus, the postmining slopes are likely to be reduced below the angle of repose in many situations. 
The disposal of excess material is addressed in Sec.  715.15.  

   Box cut spoils should be limited in amount and in land area affected and should be graded to blend into the
surrounding terrain.  The concept of approximate original contour allows return of all spoils to a mined area even
when the result is a higher elevation that blends with the surrounding terrain.  

2.  Several commenters suggested that the proposed regulations so restricted disturbance of land above the highwall
as to restrict the construction of support facilities above the highwall.  Since the purpose of the standard was to
minimize the area disturbed and not to limit the placement of support facilities in other than steep slope mining
(where Sec.  515(d)(3) of the Act further limits the disturbance of land above the top of the highwall), the section has
been revised to allow construction of mine support facilities above the highwall.  This change is necessitated by the
use of the term highwall in area mining as well as in steep slope situations.  

   {62644} 3.  A large number of comments reflected confusion with the determination and use of slope
measurements.  Several commenters argued that the section was overly restrictive in requiring a return to specific
slopes rather than to the approximate original contour as defined in Sec.  710.5.  Many commenters expressed
uncertainty as to the meaning of "average natural slope" and "average maximum natural slope".  Some commenters
indicated that attempts to describe natural slopes over a large area by use of a single average slope would be
difficult.  

   In view of the confusion generated by the proposed regulations, the sections dealing with slope measurements have
been revised to remove the word "average".  The regulations require that the reclaimed areas must be graded to
slopes equal to or less than "approximate premining slopes", which are those slopes determined by the regulatory
authority to be stable slopes that provide a land surface capable of supporting the approved postmining land use. 
The term "approximate premining slopes" is meant to indicate that such slopes must be selected according to the
following criteria: (1) they do not appreciably exceed the maximum slopes measured for the premining surface; (2)
they may be less steep than the natural slopes by that amount necessary to prevent slides, erosion and water
pollution, to provide adequate drainage, to cover all acid forming and other toxic materials, to permit revegetation,
and to achieve the approved postmining land use.  

   The "final graded slope", that measured after mining and grading, is not necessarily a uniform slope but is often an
overall average slope. Therefore, terraces, roads and diversion ditches may be included within the slope
measurement path provided the overall final graded slope meets the criteria set out above.  Long, uniform,
uninterrupted slopes are not generally desirable since they tend to erode more readily than do rolling, nonuniform
slopes.  Therefore, Sec. Sec.  715.14(a)(2) and 715.14(a)(3) have been revised accordingly.  

   The final regulations also reflect the fact that premining slope measurements must take into account natural
variations in slopes. In many cases it would be appropriate for the permittee to develop accurate topographic maps
for an area prior to any mining and to develop an overlay of the proposed postmining topography where that
topography blends in with the surrounding terrain, reestablishes the surface drainage system, and serves the approved
postmining land use.  Then the final graded slopes will be specifically defined on the approved postmining
topographic contour maps, where they may be reviewed as a whole.  

4.  A few commenters noted that measurement of final graded slopes after topsoil had been replaced would require
another removal of the topsoil prior to regrading if the slopes did not meet the criteria of this section. This comment
has been accepted and the section revised.  

5.  A number of commenters recommended that the regulations allow the use of topographic maps, aerial
photography, and other photogrammetric methods to measure premining and postmining slopes.  Such methods are
appropriate only when the topographic maps and photographically-produced maps are of sufficient accuracy to
ensure adequate measurements.  Thus, while maps and photographs may be used in addition to or in place of field
measurements, the maps and photographs must be established as accurate by the permittee. Commonly used
professional engineering practices are suitable for slope measurements.  While the word "surveyed" has been deleted
in the final version of the regulation to make clear that other means may suffice for slope measurement, surveys may
still be required by the regulatory authority.  

6.  Several commenters argued that any restrictions on terraces exceeded the rulemaking authority under the Act. 
This comment is not accepted. Terraces should have a well-defined role in supporting the approved postmining land
use and should not simply be left because a permittee decides that regrading is onerous.  If improperly constructed,
such terraces may impound water, provide unnecessary access to fragile areas, and cause an aesthetic blight on
slopes.  

7.  Commenters noted the desirability of allowing terraces on slopes less than 20 degrees to break up runoff over
long and otherwise uninterrupted slopes.  Although the practice of constructing diversion ditches in the form of small
terraces on moderate slopes is not uncommon, it is not appropriate to leave wide terraces on any slopes unless the
access afforded by such terraces is supportive of the approved postmining land use.  

8.  Additional commenters stated that the 20 foot terrace width and the terrace face slope of 1v:2h (50 percent) were
so restrictive as to preclude mining on steep slopes since the prescribed width was unreasonably small and the
regraded slope would make it impossible to achieve the approximate original contour in steep terrains.  The absolute
limit on terrace faces (the outslope of the terrace bench) has been modified to allow the alternative use of a stability
calculation recommended by a number of commenters.  However, since stability factors can change according to the
method of calculation, all calculations are to be based on commonly accepted professional engineering practices.  If
it becomes necessary to specify methods, the Department will do so.  Width limitations have been retained in order
that terraces will not serve as access roads unless special consideration is given to retention or construction of roads
to support the postmining land use and the roads are included in the approved postmining land use plan.  

   The definition of approximate original contour in the Act supports the concept of not restricting terraces to steep
slopes so long as the terrace is not used as an inappropriate substitute for construction of lower grades. Thus the
distinction between grading on steep and moderate slopes has been discarded.  The need to restrict terraces to those
situations where such level breaks in the terrain are truly necessary must be emphasized.  Smaller diversion ditches
are often more suitable than terraces to achieve these purposes. Further, the terraces discussed in the regulation are
those to be left after mining and regrading are completed.  During operation of the mine steeper outslopes and wider
benches may be temporarily constructed if they are safe and in compliance with the Act and regulations.  

9.The term "cut-and-fill terrace," was unclear to a number of commenters.  Cut terraces are those formed by
excavation into undisturbed strata while fill terraces are those formed by placing and compacting earth materials.  

10.  A limited number of comments recommended retention of portions of the highwall.  The recommendation was
not accepted since the Act and the legislative history indicate that no highwalls are to be left after mining is
completed.  Highwall elimination is mandated in Sec.  515(b)(3) of the Act as is attainment of the "lowest practicable
grade" in cases of inadequate overburden to fully grade to approximate original contour.  Return to the "appropriate
original contour" to "cover completely the highwall" is required in Sec.  515(d) of the Act for steep slope areas.  

11.  One commenter noted the need to ensure that regraded drainage areas be returned to stable conditions.  It is the
intent of this section, Sec.  715.17 and Sec.  715.20 to require that disturbed watersheds, including all areas disturbed
by temporary diversion, be reclaimed to conditions that approximate premining hydrologic conditions with minimal
change in water flow and water quality.  

12.  A number of commenters proposed that spoil placement on the downslope of areas with slopes less than 20
degrees should be prohibited or controlled.  Section 515(d) of the Act and Sec.  716.2 of the regulations allow the
regulatory authority to apply steep slope controls to slopes less than 20 degrees.  Such controls would include
prohibition of placement of spoil on the downslope.  

13.  Some commenters suggested that the criteria specified in Sec.  515(d)(4) of the Act for determination of "any
lesser slope" as a steep slope should be related to the region or State rather than to the "surrounding area". In Sec. 
515(d) of the Act, the term "region or State" is used.  The intent of the section is to provide the regulatory authority a
basis for selecting lower slopes that complement the land use, blend in with surrounding terrain and minimize
erosion in highly erodible soils.  In light of this, the proposed phrase is retained since it appears to better suit the site-
specific requirements important to identifying lesser slopes.  In response to comments, the word "geology" has been
added to the factors to be considered when determining less steep slopes.  

14.  The terrace section has been revised to add the criteria of stability and minimization of erosion to the proposed
paragraph.  It is recognized that the stability provided by a bench is not truly mass stability but rather temporary
drainage and erosional stability.  One commenter recommended that culverts be allowed temporarily for vehicular
traffic.  This comment again points out that many people view terraces as a means of access rather than for
temporary control of erosion.  Such measures as the use of terraces to control drainage are permitted when approved
by the regulatory authority.  

   {62645} 15.  A number of recommendations were received to add a section that addressed the backfiling and
grading requirements for previously mined lands. The commenters suggested that such a section was necessary to
address the problem of grading to approximate original contour when much of the previous mining deposited spoil
and wastes on the downslope and insufficient material is available for grading.  Commenters indicated that in such
cases it would be desirable to encourage remining of poorly reclaimed areas since the current regulations would
ensure an improvement of land quality, and perhaps water quality, over and above that left by the previous mining. 
Arguments for an additional section have merit in view of one of the purposes of the Act, to promote the reclamation
of mined areas left without adequate reclamation.  The regulations have been revised to reflect the reality that
sufficient spoil or topsoil may not be available to achieve postmining conditions which meet all the land
configuration and revegetation requirements.  Such operations are required to retain all overburden and spoil
material on the bench and to grade completely to eliminate the highwall and maintain a stable slope.  The entire
mining area must be stabilized and revegetated.  The provision has been added to Sec.  715.14(b)(1).  

16.  Several commenters argued that the proposed mountaintop removal provisions would permit midwestern
operations to remove an entire coal seam from a hill and not return the land to the approximate original contour. 
Such changes in land form and use are allowed only when the provisions of Sec.  515(c) of the Act are met.  In
accordance with the Act, the paragraph has been amended to indicate that the exception is given only in cases where
certain land planning requirements and stringent performance standards are met.  It may be authorized in lieu of the
approximate original contour.  

17.  Comments were received indicating that in mountaintop removal operations the slopes were too restrictive. 
Other commenters objected that the static safety factor of 1.5 was an uncertain measure of mass stability.  The safety
factor is an appropriate measure of mass stability that has been accepted by the Corps of Engineers, MESA, and
other agencies.  Greater slopes may be used if the safety factor is achieved and erosional stability is assured. 
Regulatory authorities may specify higher safety factors when necessary, and permittees will be responsible for
design and construction that provides more stability.  

18.  Extensive comments indicated concern over the apparent restrictions on large impoundments in Sec.  715.14(e). 
In view of the numerous comments in favor of such impoundments, the Department has taken guidance from the Act
for review of proposals for impoundments and placed the language of Sec.  515(b)(8) of the Act in Sec.  715.13
because it involves hydrologic criteria. Further reference is made to large impoundments both in this section and in
Sec.  715.13 of this part.  The revised portion makes clear that it will be necessary to grade areas involved in such
impoundments to an appropriate contour and that all highwalls must be eliminated.  Section 715.17(i) includes water
quality and other criteria that must be met.  It also makes clear, as a few commenters pointed out, that acidforming
and toxic-forming materials cannot be inundated by waters in these impoundments without first independently
meeting the requirements for burial or neutralization of paragraph (j) of this section. 

19.  Comments received on the proposal for small depressions generally expressed the concern that the one cubic
yard limitation was overly restrictive.  Since a paragraph addressing permanent impoundments is now incorporated
in the regulations, the limit remains appropriate to distinguish between surface manipulations that assist with
revegetation and erosion control by impounding small amounts of water in confined areas and those impoundments
that may adversely affect the area and which must therefore receive special consideration by the regulatory authority. 
Contour furrowing, chiseling, and other normal agricultural methods of manipulating the surface are permitted even
if the long linear furrow exceeds 1 cubic yard in size.  This section does not refer to depressions that may be caused
by subsidence of underground mines. Subsidence will be addressed in the permanent regulatory program.  

20.  Several comments related to Sec.  715.14(f)-(h) dealing with thin and thick overburden.  A few commenters
suggested the word "transport" be deleted to avoid movement of material such as first cut spoils back into the mine
area.  It is appropriate to indicate that materials may have to be transported to achieve backfilling and grading.  

21.  Some concern was expressed over the distinction between thin and thick overburden.  In particular, reviewers
were concerned that not all operations meeting the criteria for thick and thin overburden needed a modification of the
requirement to achieve the approximate original contour. The regulations have been revised to require that whether
thin or thick overburden conditions exist, operations must achieve approximate original contour whenever possible.  

22.  A number of commenters indicated that the angle of repose is not always stable. It is recognized that the average
angle of repose of earth material is not always stable in terms of erosion.  Thus, a minor change in wording has been
made to clarify that the objective is mass and erosion stability.  The word "reshaping" has been changed to the phrase
"grading or backfilling" to conform to the Act. A few commenters said the 1v :2h (50 percent) slope requirement for
highwall slopes in areas of thin overburden was too steep and recommended 1v :3h .Regulatory authorities are
encouraged to require more stringent grades wherever necessary.  

23.One commenter recommended substitution of the phrase "postmining land use" for "ecologically sound land use". 
Since the latter phrase is from the Act, and implies more than "postmining land use", it has been retained.  In
response to a request to permit offsite disposal of spoil, it is noted that such disposal is governed by Sec.  715.15 and
may be done only when the disposal area is under the appropriate control of the regulatory authority.  

24.  Many requests were received to increase the 6-inch criterion for regrading rills and gullies to 12 inches, to delete
the requirement entirely, or to provide substitute language indicating regrading would be required when the gully was
of sufficient size to preclude successful establishment of the postmining land use.  Other commenters sought
assurance that regrading would not be the only means of satisfying the requirement.  Many argued that returning to
regrade would increase erosion.  In view of the difficulty of distinguishing between a natural rill or shallow channel
through which overland flow is conducted, the requirement is revised to 9 inches which is an acceptable measure of
difference between small rills and gullies requiring stabilization.  However, the regulatory authority may reduce the
size criterion where shallower gullies are disruptive to the postmining land use or if they cause excessive erosion and
sedimentation.  The value of 9 inches has been successfully used in at least one State to distinguish between those
erosional features requiring repair and features that approximate natural drainage channels in highland (divide) areas. 
The intent of the provision is to allow stabilization through means other than regrading if such methods promise
equal or better results.  Thus the use of straw, or the use of small equipment to fill and regrade in a manner that
disturbs little additional area may be permissible.  This intent has been clarified by changing the title of this section
to Regrading or stabilizing rills and gullies. Rills and gullies formed along disturbed and reclaimed drainage ways
will be permitted if vegetation has first been established.  

25. Several commenters suggested that the treatment and burial requirements of Sec.  715.14(j)(1) were duplicative
since treatment to neutralize potential toxicity did not necessarily have to be followed by burial.  The regulation has
been modified to require treatment to neutralize when necessary. Materials that are adequately treated need not be
buried.  Others commented that treatment was difficult and burial should suffice.  Still others commented that burial
with impermeable materials would not permit compliance with the requirement of Sec.  715.17 to restore the
approximate premining recharge capacity. The two requirements are compatible in most instances.  

   {62646} 26.  Substantial comment related to the specific burial depth for acid-forming, toxic-forming or
combustible materials.  Recommendations ranged from the deletion of a specific value to substitution of a depth of
10 feet.  A number of commenters cited a report that concluded that 2 feet was an adequate burial depth.  However,
investigation of that conclusion indicated that burial at 2 feet represented a minimum amount of material over coal
wastes and had not been tested for success over time.  Review of State requirements indicates that 4 feet is usually
considered adequate to cover toxic or acid-forming materials. There is limited research which shows 4 feet to be
inadequate to prevent upward migration of salts in the semi-arid to arid climates or to protect deep rooting plants
which are part of the revegetation plan.  The regulation has been revised slightly to reduce the amount to 4 feet.  A
qualifying phrase has been placed in the regulation to address thicker amounts where necessary to guard against salt
migration and against exposure by erosion and to provide an adequate plant growth substrata.  Minor editing has
been done to facilitate references to the minimization of water pollution while addressing the covering of wastes.  

27.  A number of commenters suggested that coal preparation wastes or coal conversion facility wastes should be
excluded from consideration in this paragraph of the regulation.  Concern was expressed that the regulation might
require routine treatment and burial of such materials.  This is not the case unless such materials are used in
backfilling and grading operations conducted on a mined site.  Thus, the proposed requirements to analyze, and treat
or bury such wastes is appropriate.  Existing analyses and permits showing proof of compliance with the
requirements of this section would be acceptable demonstrations for the purposes of paragraph (j)(3) (as proposed)
as a few commenters recommended.  It is necessary to ensure that waste disposal in mine areas are handled in a
manner that does not adversely affect the hydrologic balance, especially as the balance relates to water quality. 
Thus, wastes have not been deleted from this section. 

28.  In response to several comments, the purposes of covering acid-forming and toxic-forming materials have been
clarified to conform to Sec.  510(b)(10) of the Act.  Water contact with toxic producing deposits must be prevented
as must sustained combustion, and adverse effects on vegetation must be minimized.  Thus, impoundments may not
be used to neutralize acid-forming or toxic-forming materials by inundation.  

29.  Commenters on proposed Sec.  715.14(k) on grading along the contour felt that the use of bulldozers running
perpendicular to the slope created sufficient cleat marks to retain water and minimize erosion and topsoil slippage. 
Such treatments are valid on steep slopes where contour furrowing is not possible.  However, contour furrowing is
preferred if physically safe.  In accord with recommendations received, the requirement to obtain approval from the
regulatory authority is deleted.  The permittee is allowed to use an alternative method of operation if he can show (1)
that work along the contour would be hazardous to equipment operators and (2) that erosion is minimized.  

30.  Several commenters suggested that a section be added on keeping regrading operations current.  The
requirement to insure that all reclamation efforts proceed as contemporaneously as practicable with the surface coal
mining operations is part of the permanent regulatory program under Sec.  515(b)(16) of the Act and has not been
included in the initial regulations.  However, State requirements still apply and the provision of Sec.  715.13(a) to
restore disturbed areas in a timely manner must be complied with.  

31.  A reviewer noted that the section should address the need to return the topography to total stability in the
erosional sense.  That requirement is embodied in the definition of approximate original contour and Sec.  715.17 on
hydrologic balance.  

32.One comment included a query as to the meaning of the phrase "unacceptably steep" slopes used in Sec. 
715.14(a)(2).  The measure of unacceptability is to be related as a minimum to the requirements of this part
regarding land use, postmining slopes, erosion, and revegetation.  

Section 715.15 Excess spoil and wastes. 

   Comments on this section were directed at three principal issues the reviewers felt had not been adequately
resolved.  Those issues are the applicability of the proposed section to operations other than steep slope and
mountaintop removal operations during the initial regulatory program, the inclusion of coal refuse in the proposed
regulations, and details contained in the regulations regarding the valley or head-of-hollow fills.  

1.  Commenters suggested that during the initial program the regulation of excess spoil placement should be limited
to mountaintop removal operations under the terms of the Act.  Proper placement of excess spoil is critical to
achieving the environmental protection standards that are a part of the initial regulatory program specified in Sec. 
502(c) of the Act.  If excess materials are improperly placed across drainage channels and provide inadequate
drainage and stability, disturbance to the hydrologic balance may be great.  The legislative history of the Act does
not indicate that excess spoil regulations are to be divided into mountaintop or steep slope areas and other areas of
more moderate slopes.  Therefore, in order to properly implement Sec.  515(b)(10) of the Act, excess spoils must be
regulated in the initial program, regardless of their origin.  Further, excess wastes and spoils are also regulated under
Sec.  515(b)(3) of the Act.  This, the initial program must provide regulatory control over their placement.  

2.  A large number of commenters recommended that waste materials be defined and removed from the section
because they believe waste material handling is regulated separately in the permanent program.  The commenters
further recommended that disposal of waste materials and preparation plant refuse be subject to MESA regulations in
30 CFR 77.214 and 77.215, indicating in their comments that various sections of the Act "require" incorporation by
reference of existing regulations.  [*] ese recommendations are accepted in part, and wastes have been deleted from
Sec.  715.15(a).  The initial regulatory program still only regulates toxic-forming and acid-forming wastes and
proper reclamation of wastes produced from coal preparation facilities where they are used in backfilling or grading
of mined areas, placed in impoundments or used in construction of dams.  However, complete controls over
placement of mine wastes, tailings, coal processing wastes, and other wastes excess to achieving the approximate
original contour will not be addressed until the permanent regulatory program with the exception that they are not
allowed in valley or head-of-hollow fills.  A definition of wastes that are to be controlled under the provisions of this
part has been added to Sec.  710.5.  This prohibition is necessary to keep such materials out of drainage channel in
situations other than those covered in Sec.  715.18.  

3.  Commenters reviewing Sec.  715.15 were dissatisfied with the detailed nature of the regulations, preferring
instead regulations that set objectives or final quantitative standards.  The comments addressed Sec.  715.15 as a
whole but were particularly directed at paragraph (b), valley and head-of-hollow fills.  Specifications for rock
underdrains and the 4-foot thickness of individual lifts were objected to.  Many commenters referred to consultant
studies, a number of which were provided to the Department.  Most commenters wanted the flexibility to be able to
meet objectives by designing structures suitable to their specific sites.  

   The Department has reviewed the studies and plans submitted and consulted with those who have made studies of
head-of-hollow fills and has determined that:  

     (a) Main underdrains are safe when they are sized, at a minimum, to the proposed criteria.  

     (b) Head-of-hollow fills should be constructed to keep water out of the system since significant drainage
into the fills will ultimately cause clogging of drains.  When upstream drainage is directed into a fill constructed with
a drain through the entire height of the fill, the stream gradient may increase through the upstream portion of the fill
and decrease in the downstream portion.  If there is an area where the gradient is decreased, the sediment transport
capacity will also be decreased resulting in settling of fines within the drain.  More importantly, if water infiltrates
into the fill, and then flows toward the rock drain, sediment in proximity to the rock drain will be moved to clog the
drain.  Obviously, the more water transported into the drain, the greater likelihood for clogging.  Therefore
underdrains are generally for emergency, not routine, use.  

     (c) To meet the requirement of placement in a controlled manner for concurrent compaction, spoil must be
placed in lifts, or reworked to form lifts that provide for visual inspection for voids, inspection for intrusion of
improperly sized material into drains, and for compaction.  

   The regulations are adequately supported by ongoing studies. Detailed regulations specifying the method of
construction are necessary if completed head-of-hollow fills are to meet all the requirements of the Act and
regulations.  It should be noted that brief inspections of large fills cannot begin to serve as proof of long-term
stability.  Such proof will come only with time and further inspections.  

   {62647} 4.  Paragraphs (a) and (b) of Sec.  715.15 have been reorganized in order to avoid cross references
between paragraphs and to attempt to have the requirements follow a time sequence.  A few of the specific
paragraphs moved are discussed later in this section.  

5. Comments were received regarding the minimum size of the underdrain and the restrictions on the size of rock in
the underdrain.  No alternative sizes were offered.  The recommendations were to delete the table and rely on site
specific engineering designs, or to add the alternative of allowing the permittee to submit engineering data that
substantiate an alternative underdrain system provides adequate drainage to attain a minimum static stability safety
factor of 1.5.  Other commenters provided similar recommendations for language such as allowing an alternative of
"sound engineering practice" or using "recognized hydraulic and hydrologic criteria," and using safety factors of 1.5
for static conditions and 1.0 for earthquake loading.  A few commenters recommended that the rock core be
constructed through the entire fill, in an attempt to drain the upstream water through the rock core and the fill.  One
commenter recommended that all types of materials are acceptable for use in drains.  

   The rock drain criteria in the proposed regulations do represent the sound engineering practice currently found to
result in what appear to be stable, well drained head-of-hollow fills.  The methods used to obtain and place the
materials are left to the permittee.  The sizes specified are not particularly large considering the amount of material
involved in the fill. While a larger core can be constructed, subsequent portions of the regulation forbid reliance on
this core to transmit water from upstream drainage areas through the pile.  As noted earlier, such practices tend to
wash fine materials into and plug the rock drains which, in time, will lead toward failures unless remedial measures
are taken.  The rock drain criteria have been amended slightly to prohibit the use of acid-forming or toxic-forming
materials in the rock drain as was recommended by a few commenters.  Similarly, the concern expressed that shales
may not be durable is addressed by the addition to the paragraph. Obviously, it is necessary to construct a rock drain
that is expected to perform properly for as long as the fill is in place.  

6.  Many commenters indicated that the 4-foot lift requirement was excessive and represented a proposal that went
far beyond normal regulations in specifying engineering methods.  As in the case of underdrains, the recommended
alternatives to specifying a 4-foot lift were principally those of allowing sound engineering practices to be applied on
a site-by-site basis.  Proposals for valley fills and head-of-hollow fills were submitted showing that a few operators
wished to allow the end dump procedure of constructing valley fills. They felt the 4-foot lift requirement prevented
this.  One commenter requested that the end dump method be specifically prohibited.  One commenter suggested that
the fills be divided into structural components and fill components, each with a different stability safety factor.  

   The purpose in proposing the 4-foot lift was: (1) To ensure that spoil is transported and placed in a controlled
manner for concurrent compaction in order to assure mass stability and to prevent mass movement, (2) to ensure that
the rock underdrain was not contaminated by fines as occurs when fill materials are merely dumped in an
uncontrolled manner, and (3) to provide for inspection and elimination of large voids.  The 4-foot lift method
requires either initial placement in lifts of approximately 4 feet thickness or redistribution of fill materials after
placement in thicker lifts.  Some compaction will be provided by the selective dumping procedures and the
redistribution procedures.  When directed by site specific designs to achieve proper stability, thinner lifts and
additional compaction may be required. Large fills on otherwise undisturbed land have too great a potential for
failure to allow for uncontrolled placement.  The purpose of careful construction of valley and head-of-hollow fills is
to produce a fill that will not require maintenance.  Other such fills constructed for highways, railroads, and buildings
are not only carefully engineered, but also watched and maintained for their lifetime. On the other hand, fills of spoil
from coal mines are the long-term responsibility of the landowner who may not have equipment available for long-
term maintenance or repair, and thus it is reasonable to establish the key design criteria for such fills.  Permittees
may use more stringent design criteria as well as differing types of procedures and equipment to achieve the drain
size and to place fill in not more than 4-foot lifts.  Material larger than 4 feet will be permitted, provided that such
material does not constitute a significant percentage of the fill.  

   The lift section has been revised slightly to make clear that the function of construction in lifts is to avoid
contamination of the rock drains, to prevent formation of voids, and to achieve the appropriate design density. The
section has been further modified to insure that all excess spoil material will not be randomly placed.  

   The Department will continue to cooperate with industry, consultants, and Federal and State agencies to monitor
the long-term stability of valley and head-of-hollow fills so as to refine the criteria for their construction.  Further,
the Department has the authority, under Sec.  711 of the Act to concur with recommendations of regulatory agencies
for departures in individual cases, on an experimental basis, from the performance standards of this chapter.  

7.  A few commenters either objected to the size limits for terraces or recommended the addition of an alternative
allowing the regulatory authority discretion to approve design criteria that would produce fill terraces with a
minimum static safety factor of 1.5.  One commenter recommended that terraces be allowed only when approved by
the regulatory authority.  One commenter stated that terraces are not stabilizing features but rather assist with erosion
control.  One commenter stated that a 1v :2h slope could cause significant erosion problems and recommended that
the slopes should be based on site specific calculations taking into account runoff and flow velocity instead. Another
commenter proposed that permittee innovation be allowed.  One commenter recommended use of a slope of 1v :5h
for drainage. 

   The purposes of the dimensional limits on terraces were to create a reasonably accessible land form that supported
postmining land uses and to provide erosional stability.  Since terraces themselves are not stabilizing features in
terms of mass stability of the entire fill, application of stability safety factors to them should not be a substitute for
determining the stability of the fill material as a whole.  The recommendation to substitute a minimum factor of
safety to control these terraces has not been accepted. Terraces are often used on valley fills and head-of-hollow fills
to break up otherwise uninterrupted slopes.  Nonetheless, terraces, and the other types of fills addressed in this
section, should be reviewed for suitability by the regulatory authority so as to avoid construction in a manner
incompatible with the postmining land use approved under Sec.  715.13.  

8.  Many comments were received regarding the proposed diversion of water from above and around head-of-hollow
and valley fills.  Commenters suggested that drainage need not be diverted away from the valley or head-of-hollow
fill.  Some pointed out that if water were diverted, additional disturbance of land would take place.  A few
commenters recommended requiring the underdrains to extend through the fill to the top and thus direct drainage to
and through the rock core.  Commenters pointed out that disposal sites near the ridge top of a valley did not
necessarily increase stability and were not necessary to reduce the drainage area upstream of the fill.  One comment
on paragraph (a) recommended that water should be allowed to infiltrate and percolate through fills so as to filter the
water.  One commenter asked that water be allowed to be impounded above the fill areas.  

   It is inappropriate to promote drainage through infiltration into a large fill area which is placed off the mined area,
especially when the fill is located in an area that is naturally more susceptible to erosion than other areas such as a
stream channel.  Direction of water into head-of-hollow and valley fills can only result in future instability of the fill
and will eventually clog the rock drain causing overland flow or will cause infiltration of runoff water into the pile
followed by piping and outslope erosion along the face of the fill.  Head-of-hollow sites are to be selected as high as
possible in the drainage watershed to reduce the need for large diversions.  It is correct that such areas may not be
the most stable of all areas in the drainage channel.  If stability considerations force the location of the fill down the
stream channel such that a valley fill is required, the diversions must be relatively larger.  

   {62648} Infiltration of water through fills will not improve water quality. Impoundments of water above large fills
could, if breached, cause serious infiltration and erosion problems if diversion structures are not adequate to handle
the flow.  In some instances, it may be appropriate for a regulatory authority to approve such impoundments.  With
the exception of adding some clarifying examples to paragraphs relating to siting of fills in the form of language
obtained from the Act, the regulations have not been modified in regard to drainage requirements.  

9.Comments on the 1v :2h slope requirements for outslopes of fills were generally directed at increasing the slope
wherever a minimum static stability safety factor of 1.5 could be met or allowing a steeper slope where consistent
with physical conditions, climate, or variables other specified variable.  On the other hand, one commenter
recommended that the slope be reduced to about vv :4h to prevent slides.  Based upon the results to date of ongoing
assessments of head-of-hollow and valley fills, it is believed that the proposed regulations appropriately specify the
maximum slope permissible for such fills based on erosion, access, and secondary stability factors.  

10.  Some comments were received on the proposed Sec.  715.15(a)(3) regarding the 1v :5.5h slope criteria for, as
well as the use of, keyway cuts and rocktoe buttresses.  Commenters indicated that the 1v :5.5h slope was too gentle
to automatically require keyway cuts or rocktoe buttresses and that 1v :2h was a more appropriate criterion.  A few
commenters stated that keyway cuts did not necessarily add to stability and that bedrock could be quite deep on
occasion.  Others recommended substitution of the minimum static stability safety factor of 1.5 as the criterion. 
Another commenter stated that the keyway cuts and rocktoe buttresses were uneconomical.  

   The proposed slope is overly restrictive as an absolute requirement that rocktoe buttresses must be employed. 
However, there are inadequate data to show that a 1.5 factor of safety for stability will ensure both the mass stability
and erosional stability of the fill or that such a factor can be translated into a land use evaluation.  The slope value of
1v :2.8h in the final regulations was derived from the use of the word downslope in the Act in Sec.  515(b)(2) and
Sec.  515(d) (steep slope).  The keyway cuts and rocktoe buttresses were given as examples of methods, and the
permittee was given the option of choosing other structures that would stabilize fills.  

11.  A major difficulty in the proposed regulations was identified by commenters since no definition of valley or
head-of-hollow fill was provided. As a result, it was reasoned, what was basically a head-of-hollow fill could be
constructed in compliance with paragraph (a) of the proposed section and without regard for the requirements of
paragraph (b).  In order to clarify the intent of the section, definitions of "valley fill" and "head-of-hollow fill" have
been added to Sec.  700.5.  The intent of the regulation is to require that all fills that encroach upon or obstruct any
natural stream channel, other than those channels on highland areas such as natural rills and gullies, meet the
requirements of Sec.  715.15(b).  Further, the proposed regulations inadvertently omitted the requirement for
removal of organic material and topsoil, the requirement for rocktoe buttresses and the requirement for design by a
registered professional engineer.  

12.  A few commenters recommended that the requirement to remove all organic material and to remove topsoil
should be limited to removal of that necessary to ensure stability, and they recommended that variances to the
requirement to remove organic material and topsoil should be granted in mountainous terrain.  Variances to the
requirement are not appropriate since organic material does not promote stability of the fill if it is left along the
boundary between the fill and the natural surface.  The Act also requires removal of topsoil in separate layers unless
"other strata" are shown to be more suitable.  To clarify the topsoil removal requirement, the reference to topsoil in
Sec.  715.15 has been amended to refer to Sec.  715.16 to make clear that the "other strata" provisions of Sec. 
715.16 do apply to areas receiving fill material. However, the completed fill area is like any other mined area and
must be topsoiled and revegetated in compliance with the regulations.  

13.  One commenter inquired as to what the criteria for approval of disposal areas by the regulatory authority were. 
The criteria include those standards listed in those sections following Sec.  715.15(a)(1) and (b)(1).  These standards
include considerations of stability, the existence of stream channels, the relationship of the disposal area to the mine
area in terms of requirements for haul roads and resulting land disturbance.  Clarifying language has been added to
the final regulations.  

14.  One commenter recommended that "moderate slope" be defined as any slope less than about 9 percent. 
Stability, in this case, is related to a combination of slope, geologic climate and hydrologic conditions and therefore
particular slope limitation has not been identified except that the steep slope concept has been used for toe
stabilization.  

15.  A number of commenters recommended that compaction be required "as necessary." Compaction may not be
required in cases involving selected materials placed on low slopes and graded to approximate original contour.  In
cases of valley and head-of-hollow fills, some compaction is necessary.  The language of the proposed regulations
has been slightly amended to reflect the fact that compaction is required to the degree necessary to assure mass
stability and to prevent mass movement in the case of fills that do not encroach upon or obstruct drainage.  Such
language, in part, is compatible with Sec.  515(b)(3) of the Act for fills in other than valleys and head-of-hollows. 
These latter fills must undergo the concurrent compaction appropriate for each site.  

16.  A few commenters indicated that the requirement for control of total suspended solids should be rephrased to
minimize increases in accordance with Sec.  515(a)(10) of the Act.  The requirement has been rephrased to eliminate
hydrologic requirements since all activities must comply with Sec.  715.17 which adequately controls total
suspended solids from disturbed areas.  

17.  A few commenters recommended that other qualified personnel in addition to the registered professional
engineer should be authorized to provide certification.  One commenter recommended that quarterly certification not
be required.  Certification of the design of the spoil disposal area by a registered professional engineer is required
because of the engineering aspects of the design problem.  Sections 715.15(a)(6) and (9), as proposed, have been
modified in the final regulations to show that the registered professional engineer must provide certification of the
design while inspections may be made and certified by registered engineers or other qualified professional
specialists.  The quarterly inspection requirements during construction have been reduced for fills other than valley
and head-of-hollow fills.  

Section 715.16  Topsoil handling .  

1.  Several commenters questioned whether the general requirement to remove the topsoil from areas to be mined
meant that even topsoil on undisturbed lands must be removed.  The section has been revised to clarify the intent to
require topsoil removal prior to disturbance of an area.  Thus, prior to operations listed in paragraph (a), topsoil must
be removed.  

2.  Some commenters argued that in cases where removal of topsoil results in erosion that may cause air or water
pollution, the regulatory authority should not be allowed to limit the size of the area from which topsoil is removed. 
The size of the area must be considered as one variable that may be controlled to minimize disturbance to the
hydrologic balance.  Therefore, the requirement has been retained. 

   {62649} 3.  Several commenters suggested that Sec.  715.16(a)(2) be clarified. One commenter argued that the
requirement to separate and segregate soil horizons is beyond the scope of Sec.  515(b)(5) of the Act.  The final
regulations require removal of at least the A-horizon or at least 6 inches of soil where the A-horizon is less than 6
inches thick.  This is necessary for the land to be restored to a condition at least capable of supporting its premining
use.  The regulatory authority may require separation of the B-horizon if necessary to obtain soil productivity.  

4.  Pursuant to several comments, Sec.  715.16(a)(3) has been added to provide guidance in obtaining soil
productivity consistent with postmining land uses and to require adequate depth to ensure proper root development
of vegetation.  This is appropriate to be included under the mandate to maintain land capability and productivity.  

5.  Numerous commenters suggested selected overburden materials rather than all overburden should be recognized
as permissible substitutes for topsoil.  This suggestion was accepted and the section revised.  Some commenters
suggested that mixing topsoil and overburden sometimes produces a soil medium more suitable for land use
capability and productivity than topsoil. This suggestion was adopted and the section modified to permit such mixing
in proper cases.  Alternative strata may be used when topsoil is either of inadequate quality or quantity.  

6.  Several commenters argued that if available topsoil is inadequate, the use of overburden should be allowed
without being subject to all the analyses required by Sec.  715.16(a)(4)(i).  It is not the intent of the regulations to
require the analyses to be performed again if they have been previously performed.  With the exception of the
potential acidity analysis, all measurements are necessary for soil analyses.  Thus, with the deletion of acidity, all
analyses must be represented in the supporting data submitted to the regulatory authority.  Demonstrations of
suitability may be based on previously performed analyses and field trials if they are adequate.  

7. Numerous commenters argued that it is sometimes unnecessary to scarify regraded land before the topsoil is
replaced to prevent slippage, and therefore the proposed regulation should be amended.  Although such treatment is
generally the most effective, the section has been changed to eliminate the need to scarify in all instances.  However,
measures necessary to eliminate slippage must be undertaken in all cases.  

8.  Several commenters suggested that topsoil should not be redistributed at a uniform thickness in all cases.  They
argued that topsoil should be redistributed in a manner that creates a thickness suitable for the approved postmining
land use.  This comment has been accepted and the section has been revised accordingly.  

9.  Commenters suggested that the fixed 30 day standard for additional protection of topsoil stockpiles did not
provide sufficient flexibility for varying climatic and operational conditions.  The suggestion has been accepted and
the section revised.  It is essential to minimize loss of the stored topsoil from erosion by providing continuing
protection of the stockpiles, and thus initial placement must protect against wind and water erosion.  For example, a
vegetative cover may be required immediately after a portion of the topsoil pile is in place, if the growing season
permits or if required for stability.  

10.  Several commenters suggested that Sec.  715.16(a) should be modified to allow removal of topsoil that is in
storage before redistribution occurs.  Although the removal prohibition tends to protect the soil from contamination
and destruction of soil texture, it is recognized that in some cases soil removal may be necessary.  Therefore, the
section has been revised to allow removal before redistribution if prior regulatory authority approval is obtained. 
However, such redistribution should be minimized since it should be possible to replace soil material on disturbed
areas and to stockpile new soil to avoid excessive handling.  

Section 715.17 Protection of the hydrologic system.  

1.  Many commenters were in disagreement with the level of detail proposed in the regulations.  These commenters
recommended the detail be deleted in favor of statements of objectives.  In light of the testimony presented before
Congress during deliberations over the Act, the requirements of the Act and State regulations on the subject, some
details are required to ensure that all surface coal mining and reclamation operations are conducted in an
environmentally acceptable manner.  The fact that a standard can be met easily is not cause to delete it.  Thus,
national standards are set which may be easily met in some operations than in others.  Further, State regulatory
agencies can set more stringent standards to suit site specific situations.  

2.  Comments on the introductory paragraph to the hydrologic provisions consistently argued that the phrase "prevent
long-term changes in the hydrologic balance" was not consistent with the Act.  A few commenters pointed out that
the definition of "hydrologic balance" in Sec.  710.5 could be combined with the proposed requirements of Sec. 
715.17 to require a permittee to prevent long-term changes to precipitation and evaporation as well as changes
brought about by operations not related to mining.  In view of these comments, the language in the first paragraph of
the hydrologic balance section has been modified to require that permittees plan and conduct operations in order to
prevent adverse changes in the hydrologic balance as a result of their operations.  Thus, the definition of hydrologic
balance remains as that proposed, but changes in the hydrologic balance demonstrated to not be a result of the
mining and reclamation operation are not the responsibility of the permittee under Sec.  715.17.  

   The objective of this section is to have the permittee research and understand the hydrologic balance in the affected
area as well as to understand the effect of mining on that balance so that operations are planned and conducted to
minimize disturbances both on- and off-site.  Since the hydrologic balance may be restored only after long periods of
time, it is necessary for the permittee to project long-term trends toward restoring the balance.  For example, ground
water quality may deteriorate as water infiltrates spoils but such ground water will not be discharged until a gradient
is reestablished towards points of discharge.  It may take many years to reestablish the gradient.  Thus the permittee
must plan operations to control ground water quality and flow, to minimize the impact on the hydrologic balance,
and to prevent adverse changes over the long term.  

3.  Commenters recommended the deletion of the references to the types of changes in the hydrologic system that
were to be regulated.  They argued that the introductory paragraph of Sec.  715.17 should be limited to the specific
language of the Act.  However, to inform the permittee of his responsibilities, it is necessary to provide examples of
those types of changes to the hydrologic system that are to be regulated.  Section 515(b)(10)(G) of the Act provides
adequate authority for establishing additional standards necessary to protect the hydrologic balance.  

4.  Many commenters addressed the relationship of the proposed quantitative limits on discharges to existing point
source discharge standards promulgated by the EPA.  Commenters proposed incorporation by reference of EPA's
National Pollutant Discharge Elimination System (NPDES) regulations, arguing that Sec.  702 of the Act does not
allow more stringent standards, that the proposed standards lack technical justification, and that there should be only
one set of regulations for water discharges from coal mines.  Other commenters expressed strong support for the
proposed limitations and, in several instances, recommended broadening the standards to include sulfate, total
dissolved solids, settleable solids, alkalinity-acidity, selenium, zinc, sodium, and arsenic. Several commenters
indicated disagreement with the proposed regulations in terms of the implied responsibility of permittees to treat
discharges that contain concentrations in excess of required limits as a result of natural or manmade conditions
existing upstream from the permit area.  

   The Department has discussed the pertinent regulations and statutes with the Environmental Protection Agency and
has received that Agency's written concurrence with the sections of these regulations which relate to water quality
standards promulgated under the authority of the Federal Water Pollution Control Act as amended (33 U.S.C.  Sec.
Sec.  1251-1378).  Both agencies will strive to minimize duplicative efforts in standards setting, permit issuance,
inspections, and enforcement.  Therefore, these regulations incorporate those effluent limitations currently
promulgated by the EPA and further refine the standards to meet the requirements of the Act to minimize
disturbances to the prevailing hydrologic balance.  Because the Surface Mining Control and Reclamation Act of
1977 is broadly intended to protect society and the environment from the adverse effects of coal mining, these
regulations must address the complete set of impacts on the hydrologic system brought about by mining.  This set
consists of changes to all water flow and quality, and the location and role of water, regardless of how it may be
affected by coal mining.  Contrary to the claim of some commenters, Sec.  702 of the Act does not prohibit more
comprehensive or stringent standards when needed to carry out the purposes of the Act.  The purpose of Sec.  702 is
to avoid weakening existing standards.  

   {62650} The extension of effluent limitations to discharges from disturbed areas after final grading is necessary to
ensure protection of the hydrologic balance, including the quality and quantity of surface water, until reclamation is
completed.  There is no basis in the Act to distinguish between phases in mining and reclamation operations for the
purpose of justifying less stringent requirements.  Much work has been done by EPA to identify effluent limitations
for coal mines, and it is believed that these limitations presently reflect an initial evaluation of the best technology
currently available to prevent additional contributions of suspended solids to streamflow or to runoff outside the
permit area.  If, during the initial stages of reclamation, contaminants increase in runoff from a mine site, the Act
provides a strong mandate to protect the hydrologic balance.  If, on the other hand, contaminants decrease during
reclamation, the permittee should have no problem in meeting the effluent limitations. 

   In developing the standards for discharges from the disturbed areas of a surface mining operation, various State
regulatory agencies were consulted as to their practices and professional judgments concerning the extension of
effluent limitations to discharges from lands that had been regraded and planted but which had not yet been released
from bond obligations or other permit requirements.  It was found that States extend effluent limitations or water
quality criteria to all phases of coal mining and reclamation operations.  The termination of such requirements is
normally tied to release of further permittee responsibility for mining and reclamation and this is often at the time of
final bond release. The effluent limitations will apply to all surface mining operations conducted within "disturbed
areas" until such time as the requirements of this chapter are met for achieving successful reclamation.  

   It is recognized that additional field data are necessary before any additional quantitative water effluent limits
which may be necessary to meet the requirements of the Act are established.  The Office will cooperate with
interested persons and agencies in obtaining these data as expeditiously as possible.  

       The proposed table for effluent limitations has been modified by adding one footnote which makes clear the
intent to allow permittees to raise the pH of certain discharges to facilitate meeting the manganese standards. Since
the higher pH will be quickly reduced by receiving waters, there will be no harm to water uses.  In addition high
concentrations of manganese will generally occur in areas where streams are not excessively alkaline, and thus
adverse impacts from excessive alkalinity are not likely to occur.  If this practice is found to have adverse impacts on
water quality the standard will be changed.  

5.  A number of recommendations were made to better clarify footnote 1 of the table in Sec.  715.17(a).  The
footnote has been revised to read "based on representative sampling" since it is impractical to further specify the
number of samples or duration of sampling appropriate for each discharge.  Sampling, as used in this context, refers
to the process of acquiring an example of the effluent and is not to be interpreted in a statistical sense.  Sample
frequency can range from a single grab sample to a composite sample that extends over a number of hours depending
on the discharge characteristics and the purpose of the sample.  Enforcement actions can be brought on the basis of a
single sample.  

6.  Several commenters asked that the terms "maximum allowable" and "consecutive discharge days" used in the
table of effluent limitations in Sec.  715.17(a) be clarified.  "Maximum allowable" is to be determined from a
representative sampling as discussed above which accurately represents the character of the discharge and the
potential adverse effects of the discharge on the receiving waters and on use of the water both on-site and off-site.
"Consecutive discharge days" is intended to provide a measurement of the actual impact of discharges rather than an
average of discharge quality which may be reduced by having no discharge on certain days.  The footnote reference
to "representative sampling" again allows the actual sampling schedule to range from a single sample to continuous
samples, whichever is necessary to accurately characterize the discharge.  

7.  Many commenters questioned the technical justification for the more restrictive total suspended solids standard
for mines in the interior western United States.  Other commenters supported this standard.  It is recognized that the
EPA has proposed more stringent effluent limitations for total suspended solids than those required by these
regulations on September 19, 1977.  While the proposed EPA limitations have not been formally adopted, the
regulations in Sec.  715.17 are technically defensible based on self-monitoring data reported to the EPA.  Therefore,
the footnote has not been changed.  The self-monitoring data show that the industry can meet these requirements.  As
noted in the preamble to the proposed regulations, these controls on total suspended solids are necessary to minimize
overall disturbances of the hydrologic balance in areas where erosion is extensive, water quality is critical, and soils
are irreplaceable.  

   Commenters suggested other reasons for changing the proposed effluent limitations.  Some comments stressed the
desirability of a single permit.  Some industry comments stated that EPA was adequately regulating point source
discharges and that there was no basis in the Act for effluent limitations in OSM regulations.  A number of
commenters indicated a desire to allow States the flexibility to establish other standards.  One commenter indicated
the effluent limitations were unrealistic, and anther suggested that the effluent limitations should be mandatory only
in the western United States. All comments have been considered.  The regulations published today are supported by
the discussion in previous paragraphs.  Reduction of the number of permits is desirable whenever permissible.  

   It is the intent of the regulations to encourage monitoring only those parameters determined by the regulatory
authority to be present in concentrations that may exceed the applicable Federal or State regulations.  As an example,
manganese is less often expected to occur in high concentrations in alkaline discharges.  However, since manganese
does occur in some alkaline discharges, and, in fact, may be more likely than iron, it is listed as an effluent limitation. 
It is the intent of the regulations to allow the permittee to provide data to the regulatory authority to show that
manganese is naturally and consistently below the effluent limitations and to then allow the regulatory authority to
reduce monitoring requirements for manganese to whatever frequency it deems necessary to ensure compliance.  

8.  Two commenters recommended that alternatives to discharges through settling ponds should be provided.  This
recommendation has not been accepted, but provisions dealing with diversions and sedimentation ponds have been
revised to provide acceptable alternatives to large sedimentation ponds. The general requirement to discharge
through ponds is retained in order to ensure that the standards of Sec.  515(b)(10)(B) of the Act are met, and to
facilitate monitoring of operations and the determination of reclamation success.  One commenter asked if water
pumped from a pit is a discharge subject to these regulations.  These regulations apply to any water discharge from
the mine pit.  

9.  Many comments were directed to the proposal in Sec.  715.17(a)(1) to require treatment of runoff from
precipitation events equal to and less than the 25-year 24-hour precipitation events.  These comments generally
recommend a reduction in the precipitation event to that of the 10-year 24-hour event, as required by the EPA,
although other commenters suggested the use of other precipitation events.  Because more recent designs of water
pollution control facilities have been based on a 10-year 24-hour event, the section has been revised.  It should be
noted that this requirement may be revised in the permanent regulatory program if it is found that the hydrologic
balance is not adequately protected by stream dilution or other factors occurring at flows from larger storms. 
Retention of the current EPA requirement will however facilitate a "phase-in" period for mine operations.  

   {62651} 10.  In response to several comments, the regulations require application of the effluent limitations only to
discharges from the disturbed area and not to discharges from areas the permittee has not disturbed through mining
and reclamation.  The term "disturbed area" used in Sec.  715.17 has been carefully defined to exclude areas in
which the disturbance is limited to diversion ditches, sedimentation ponds, or access and haul roads when they are
constructed, operated, and maintained in accordance with these regulations. Effluent limitations do not apply to
discharges from undisturbed areas. However, permittees will be required to remove temporary structures in the
"nondisturbed" areas and to reclaim the affected land.  

11.  A number of comments objected to the proposed provisions of Sec.  715.17(a)(2).  Several argued that the
tonnage limit was too high.  Others recommended that treatment facilities should be required where water discharges
may violate applicable standards.  One commenter suggested that manual treatment procedures be allowed as well as
automatic devices.  Automatic neutralization processes are necessary where discharges of acid water are likely. The
requirement for automatic neutralization devices remains also for purposes of avoiding untreated discharges during
nonworking hours.  Manual systems are appropriate only for small and infrequent discharges as may occur from the
disturbed area of small mines.  However, the section has been revised to allow manual treatment if the regulatory
authority finds that manual treatment will ensure consistent compliance with the applicable effluent limitations and
with the water quality standards of the receiving stream.  

12.  A number of comments objected to the proposed requirements of Sec.  715.17(b) for surface-water monitoring. 
Some commenters noted that the requirement for daily sampling exceeds current EPA standards.  Other commenters
suggested requiring samples at weekly or quarterly intervals.  Some commenters proposed more stringent or different
requirements than those proposed.  These included recommendations that the ability to require lesser measurements
be deleted, that the results be recorded, and that the permittee provide a description of the surface waters.  Finally,
other comments expressed unqualified support for the monitoring section.  

   Section 715.17(b) was intended to allow the regulatory authority sufficient latitude to approve and require
monitoring standards according to the requirements of a specific discharge.  Because the comments indicate that the
intent of the monitoring section was unclear, this section has been revised. The final regulations clarify that
monitoring requirements must be tailored to the discharge.  A surplus of data will not serve any purpose.  The section
continues to require the permittee to prepare and implement a plan that adequately monitors all surface water
discharges from the disturbed area. Discharges from mines which have highly variable concentrations of potential
contaminants should be monitored on a daily basis.  Similarly, discharges with highly variable flows must be
routinely monitored.  On the other hand, discharges which are shown to naturally have constant or low levels of
contaminants may be monitored on a weekly, biweekly, or monthly basis.  

   Based on comments from reviewers, a paragraph has been added to the regulations to address monitoring
requirements that will reflect the expected quality and quantity of surface water flow from a disturbed area after
grading and stabilization.  Commenters have argued that measurement of water quality and flow downstream of a
water treatment facility such as a sedimentation pond will not necessarily reflect the postmining character of the
flow.  After revegetation it may be desirable, especially in the western States, to maintain total suspended solids
concentrations equal to those measured prior to mining, but higher than those required by the effluent limitations, in
order to lessen the potential for stream channel scour.  Such scour is possible when the carrying capacity of
discharged water is increased.  The permittee is encouraged to monitor inflow to treatment facilities in order to
measure the efficiency of the facilities and to ensure meeting the requirements regarding minimization of the
disturbance to the prevailing hydrologic balance.  Monitoring of undisturbed reference basins may also be useful for
providing a basis for general comparison of water quantity and quality measured on the disturbed area.  

13.  Several commenters argued that monitoring requirements should be limited to discharges from the active pit. 
This comment has been rejected because of the statutory obligation to minimize adverse environmental impact from
all phases of mining. Other commenters argued that use of the term "equipment" in Sec.  715.17(b)(1) suggested an
"instream" monitoring device requirement.  It is recognized that the use of such devices is sometimes inappropriate. 
While in some cases staff gauge readings can adequately measure small flows, recording flumes will be necessary at
other locations.  In-stream probes will be adequate only when analytical accuracy and precision requirements are
met.  Submissions of data will be no less frequent than 60 days after sample collection in order to adequately
represent water quality and quantity to the regulatory authority.  

14.  Numerous commenters suggested that the requirement of Sec.  715.17(c) for diverting and conveying overland
flow away from the disturbed area was inappropriate.  One commenter pointed out that in some cases diversions
themselves can be more harmful to the environment than allowing overland flow to enter the disturbed area.  Many
recommended that the construction of diversions should be required at the discretion of the regulatory authority.  A
few commenters suggested that this requirement should be eliminated.  Because diversions represent an important
environmental protection tool, they are appropriately included in the regulations; however, diversions may not be
required in all cases, and, therefore, the regulations have been revised.  Use of diversions will be required where
necessary to prevent water pollution. Diversions must be properly constructed so as to remain stable during runoff
events.  To further encourage the proper use of diversions, other portions of this section have undergone minor
revisions.  

15.  A number of commenters argued that the requirement in Sec.  715.17(c) to "prevent" acid and other toxic mine
drainage should be modified since Sec.  515(b)(10) of the Act requires only that disturbances to the prevailing
hydrologic balance be minimized.  In light of this, the regulations have been revised to directly correspond with Sec. 
515(b)(10)(B) of the Act.  

16.  Commenters recommended that the 10-year recurrence interval design criteria required by Sec.  715.17(c)(1) for
temporary diversions was inappropriate.  Recurrence intervals of 1 year and 5 years were suggested as were other
criteria.  The requirement to safely pass the peak runoff from a 10-year precipitation event, or larger event where
appropriate, is not unreasonable and represents an acceptable level of environmental protection and safety for
temporary diversions of overland flow.  Use of a recurrence interval unmodified by a time factor reflects the fact that
runoff amounts can be larger from 6-hour storms occurring when the ground is frozen than the runoff amounts
caused by a 12-hour storm after a summer drought.  Depending upon the intensity, form, and duration of the
precipitation, and the condition of soils, runoff may not increase directly with the size of the precipitation event.  

17.  Many commenters questioned the reasonableness of requiring that permanent diversions of overland flow be
capable of safely passing the peak runoff from a precipitation event with a 100-year recurrence.  Some recommended
that a shorter recurrence interval be used or flexibility be maintained to cope with diverse conditions as long as
diversion designs are approved by the regulatory authority.  Permanent diversions are of sufficient long-term concern
that a requirement to size such diversions to safely pass the peak runoff from a 100-year precipitation event, or larger
event as necessary, is reasonable because of the measure of environmental protection and public safety this design
provides.  One commenter suggested that a specific storm duration be attached to the 100-year precipitation event. 
Based on the long-term concerns associated with permanent diversions, the requirement to safely pass the peak
runoff is again justified.  It is recognized that the calculation of channel gradient, roughness, size, and routing to
safely pass flows will be based on the premining capacity of the natural system to pass flows.  The permittee will not
be expected to divert flows in a manner that necessarily reduces natural flooding downstream.  
   {62652} Two commenters argued that permanent diversions of overland flow should not be allowed.  Their
recommendation was to assure that the design of the mine operation minimize the need for permanent diversions. 
Temporary diversions are preferable to permanent diversions in the vast majority of cases; thus, permanent
diversions must be approved by the regulatory authority.  

18.  Some commenters argued that Sec.  715.17(c)(3) was not consistent with the Act.  In light of this, the section has
been revised to more closely reflect the requirements of the Act with regard to additional contributions of suspended
solids to streamflow and runoff outside the permit area.  The intent of the requirement remains to minimize
additional contributions of suspended sediment to the surface water system.  Under Sec.  715.17(b)(1)(iii) it may be
necessary for the regulatory authority to require monitoring to determine seasonal variations in suspended solids
prior to construction of a diversion or upstream from a diversion.  

   Section 715.17(c) is expanded to further delineate sediment-control and erosion-control measures that might be
used with the overland flow diversion structures. One commenter suggested that in addition to total suspended solids,
total dissolved solids in diverted overland flow should also be controlled. This suggestion is not accepted.  The
principal water quality parameter of concern with respect to such diversions is the total suspended solids, and if
designed, constructed, and maintained properly such diversions do not represent a significant additional source of
total dissolved solids.  

   19.  Commenters recommended deleting any reference in Sec.  715.17(c)(4) to required compliance with
applicable water quality standards or effluent limitations as outlined in paragraph (a).  The principal concern of the
commenters was the appropriateness of applying effluent limitations to diverted but uncontaminated overland flow
and also to the potential inequities of forcing a permittee to treat upstream water pollution for which the permittee is
not responsible.  This point is well made, and Sec.  715.17(c)(4) is deleted.  

20.  Several commenters argued that in no case would it be advisable to divert surface water into underground mine
workings in the interest of abating water pollution or eliminating public hazards resulting from underground mining. 
This comment is accepted, and Sec.  715.17(n) has been added to prohibit diversion of surface waters into
underground mine workings.  It is recognized that flooding of underground mines has the potential to reduce the
formation of acid and the subsequent formation of iron and other metallic compounds.  If such flooding is
appropriate, adequate water can be obtained from sources other than another mine.  The permittee has the
responsibility of minimizing disturbances not only to water quality but also water flow and must comply with these
requirements at the permit area.  

21.  A number of commenters indicated that no permanent diversions of intermittent or perennial streams should be
allowed.  There appears to be no adequate basis for establishing such a nationally applicable regulation to that effect,
but the regulatory authority shall assess the appropriateness of such diversions and shall restrict them when
necessary.  Since the Department wishes to encourage the use of diversions of overland flow away from the disturbed
area to the highest degree environmentally acceptable, ephemeral streams have been deleted from Sec.  715.17(d)(1). 
Imposition of overly restrictive design criteria on temporary diversions of ephemeral streams is not compatible with
the more important need to control discharges from the disturbed area.  

22.  Commenters objected to the requirement in Sec.  715.17(d)(1)(i) to maintain the average stream gradient.
Although it is not necessary to maintain the exact gradient of an entire stream channel, it is, however, necessary to
reproduce the combination of the average gradient, channel configuration, channel roughness, and channel bank
stability in order to minimize disturbances to the sediment transport process.  In effect, the gradient must be
reestablished to the degree necessary to allow natural fluvial processes to continue as one commenter recommended. 
Thus, the requirement to maintain the average stream gradient for diversions that are to remain in place after
operations are completed was retained.  Section 715.17(d) reflects the relationship between the channel gradient and
control of total suspended solids by requiring maintenance of the gradient to the extent necessary to ensure
compliance with the Act.  

23.  One commenter suggested that the design criteria for diversions proposed in Sec.  715.17(d)(i), (ii) and (iii)
were not appropriate for the western States since natural erosional processes there were sufficiently active to make
such control unnecessarily strict.  This comment is not accepted. Design criteria are equally appropriate for western
mines where erosion potential is high.  One reviewer indicated that control over total suspended solids given by
Federal and State standards referred to in the proposed regulations should be adequate and that further statements
relating to construction and operation of diversions is not necessary.  Total suspended solids are not adequately
addressed in all cases by existing regulations, nor did the Congress indicate such a belief. Therefore, control over
total suspended solids in diversions is retained.  

24.  A number of comments were received on the 10-year and 100-year recurrence interval configurations proposed
for temporary and permanent diversions, respectively.  The terms "peak runoff" and "recurrence interval" are
retained as opposed to specifying a time period since the intent of Sec.  715.17(d)(1)(ii) is to design the diversion
channels to safely pass maximum runoff amounts that may occur in one region perhaps as a 6-hour storm and other
areas as a 24-hour storm.  It will be necessary for a permittee to identify the peak runoff expected in a 10-year and
100-year period either from extrapolation of flow records or of rainfall records and accepted runoff estimates.  The
10-year and 100-year intervals for design are retained since the 10-year limit is consistent with general practice and
affords an effective level of environmental protection, and the 100-year period is generally accepted as a basis for
design of permanent diversions of intermittent and small perennial streams.  One recommendation to employ
"prudent and sound engineering" as a substitute for design criteria was not adopted since the design criteria given by
the regulations are minimal and sufficient incentives are available to promote additional prudent and sound
engineering.  

25.  Numerous commenters objected to the appropriateness and dimensions of a buffer zone.  Strong support for the
requirement was voiced by some commenters.  Many commenters expressed concern that the sign requirements for
buffer zones would create a visual eyesore.  Proposed Sec.  715.17(d)(3) provided exceptions to buffer zones when
mining in intermittent or perennial streams was approved by the regulatory authority.  Thus, existing rights to mine
coal as evidenced in approved permits will not be adversely affected.  Sign requirements have been reassessed in this
section and in Sec.  715.12 by allowing a permittee to use means of marking buffer zones other than signs. The
paragraph has been amended slightly to take into account the approval authority of the regulatory authority to
specifically review and evaluate proposals to conduct any operations within 100 feet of a perennial or intermittent
stream. Thus, if operations can be conducted within 100 feet of a stream in an environmentally acceptable manner,
they may be approved.  This concept does permit the use of erosion and drainage control measures near the stream
channel if approved by the regulatory authority.  These exemptions are necessary if the environmental impacts are to
be minimized or prevented.  The 100-foot limit is based on typical distances that should be maintained to protect
stream channels from abnormal erosion.  Site-by-site distance determinations would be impractical and very difficult
to enforce.  

26.A few commenters recommended that the provisions for protection of fish and wildlife habitat be strengthened. 
Fish and wildlife resources are protected by these regulations during the initial program.  Additional measures will
be considered for the permanent program under the authority of Sec.  515(b)(24) of the Act.  

   {62653} 27.  The proposed regulations pertaining to criteria for settling ponds received considerable public
comment.  Many commenters felt that settling pond criteria should not be specified and that flexibility should be
maintained with respect to requiring settling ponds and "credits" for the use of other sediment control technologies. 
The "credits" refer to demonstrations that alternative means of sediment control and pond design could be
substituted. Sedimentation ponds represent the best technology currently available to control suspended solids as
required in the Act.  However, as addressed in the final regulations, the required sediment storage volume of 0.2
acre-feet for each acre disturbed within the upstream drainage area may be reduced in an amount equal to the
sediment removed by alternate sediment management practices.  Other comments questioned the requirement to
construct settling ponds prior to any mining in a given drainage area.  This requirement has been maintained based
on the statutory requirement of Sec.  515(b)(10)(B)(ii) of the Act.  Sections 715.17(a) and 715.17(e) have been
reorganized to clarify the required timing for construction of settling ponds.  One commenter suggested that an
exemption to the requirements of Sec.  715.17(e) be granted for drainage areas less than 100 acres. Although no
acreage limitation is specified, a small area exemption does appear in Sec.  715.17(a).  It is, however, unlikely that
exemptions would be given for drainage areas as large as 100 acres.  It is also unlikely that any single, contiguous
permit area, regardless of size, would be allowed to use the exemption.  Use of the exemption does not reduce
requirements for compliance with the effluent limitations.  

28.  One commenter noted that confusion exists with regard to the application of Sec.  715.17(e) to coal waste slurry
ponds.  The final regulations have sought to clearly specify the application of the criteria in Sec.  715.17(e) to
sediment control ponds.  Coal waste slurry ponds are regulated by Sec.  715.18; hence Sec.  715.17(e) does not
provide design criteria or operational requirements for coal waste slurry ponds.  Disposal of coal waste slurry also is
regulated by other provisions of this title which are the responsibility of the Mining Enforcement and Safety
Administration.  

29.  With regard to Sec.  715.17(e)(1), considerable comment was received that the storage volume requirements of
sedimentation ponds were inflexible and arbitrary.  A frequent comment was that settling pond sizing should be
based on recognized design criteria approved by the regulatory authority and also on expected site-specific erosion
rates.  Although the storage volume requirement section has been revised in the final regulations, specific minimum
storage volume requirements are necessary in order to minimize the disturbance to the hydrologic system, to provide
the industry with specific minimum requirements for acceptable sediment control, and to facilitate determinations of
compliance on the part of the regulatory authority.  It may be necessary to apply better technology under site-specific
conditions.  

30.  Numerous commenters suggested that the minimum storage volume of settling ponds as required by Sec. 
715.17(e) was excessive and that the summing of volumes to control drainage from the 10-year 24-hour precipitation
event, plus 0.2 acre-feet of storage for each acre of upstream disturbed area, plus storage necessary to meet effluent
standards, was inappropriate.  Settling pond volume, which includes both a settling volume and a sediment storage
volume, is appropriate for these regulations.  As the regulations have been revised, a minimum pond surfa