FEDERAL REGISTER: 43 FR 41662 (September 18, 1978) DEPARTMENT OF THE INTERIOR AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM) 30 CFR Chapter VII: Subchapter G Surface Coal Mining and Reclamation Operations Permits System: Parts 770, 771, 776, 778, 778, 780, 782, 783, 784, 785, 786, 787, 788, 789, 790, 791, 792 Surface Coal Mining and Reclamation Operations Permanent Regulatory Program ACTION: Proposed rules. SUMMARY: The Office of Surface Mining Reclamation and Enforcement is seeking comments on these proposed rules which would implement a nationwide permanent program for the regulation of surface and underground mining operations by the States and the Federal Government as required by the Surface Mining Control and Reclamation Act of 1977 (SMCRA). These proposed rules are intended to strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy. * * * {Preamble: 43 FR 41687} SUBCHAPTER G SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS SYSTEM PART 770 GENERAL REQUIREMENTS FOR PERMIT SYSTEMS UNDER STATE PROGRAMS 770.5 DEFINITIONS. (1) The term ""complete application'' is defined to insure that appropriate distinction is made in this Subchapter between: (i) those permit applications which, although filed with the regulatory authority, do not contain all information needed for a final decision to approve or disapprove a permit; and, (ii) those applications which are full and complete for the purpose of a final decision by the regulatory authority. The consequences of a ""complete application'' are important, since OSM proposes that the Subchapter's time constraints for action upon an application by the regulatory authority (see Parts 787, 788) begin only with the filing of a ""complete application'' and that only a ""complete application'' may be given final consideration for approval/disapproval of a permit. See Sections 510, 514(a) of the Act. (2) The term ""general area'' is based upon the requirements of the Act at Section 507(b)(11) and 510(b)(3), that the regulatory authority conduct an assessment of the impact on the hydrologic balance of all anticipated mining in the ""general area'' around the proposed permit area, prior to issuing or denying a permit. As proposed, the term ""general area'' would, in general, be delimited according to ""catalog units'' derived from a national program administered by the Department's Office of Water Data Co-ordination (OWDC) within the U.S. Geological Survey (US GS). This program has resulted in the division of the United States into 2,100 separate geographical ""catalog units,'' with about 700 of those units located in the coal mining areas of the country. Each ""catalog unit'' represents a separate surface water sub-basin. The ""catalog units'' are based on grouping of approximately equal sized surface water sub-basins, with approximately equivalent rainfalls within regional areas. Copies of all these maps are contained in the OSM administrative record and are being published in 1:500,000 maps of each State and will shortly be released by the US GS as a 1:750,000 map of the United States. The ""catalog units'' selected are now being used as the basis for segregation of water quality and quantity data stored in the NAWDEX and WATSTORE programs of the US GS. Work is also underway to make the EPA's STORET water data storage system conformable with these units. In addition, the Geography Program of the US GS is publishing 1:250,00 land use maps of the United States which show the ""catalog unit'' boundaries for close correlation of landuse data and water data. Papers contained in the OSM Administrative record under Section 701.5 provide further detailed information on the process used to develop the ""catalog unit'' concept. As an alternative to the use of ""catalog units,'' OSM considered using approximately 350 larger full basin-sized areas. Those larger units are now used as ""accounting units'' by the USGS. This alternative has tentatively been rejected, because, the larger units would not provide sufficiently small sizes for meaningful characterization of water quality and quantity data between separate units. Another alternative considered was to segregate areas into units on the basis of the extent to which the surface waters overlay major coal seams. Due to the lack of any definite relationship between collection of data for determining surface water data characteristics and the extent of underlying coal seam locations, this alternative has also been tentatively rejected. 770.12 COORDINATION WITH REQUIREMENTS OF OTHER LAWS. Authority for this section is found in Sections 102; 201(c)(2), (6), (9), (12); 501(b); 503(a)(4), (6); 505; 508(a)(9); 510(c); 702(a), (b), (c); and 713(a) of the Act; the Endangered Species Act of 1973, 16 U.S.C. Section 1531 et seq; The Fish and Wildlife Coordination Act, 16 U.S.C. Section 661 et seq; The National Historic Preservation Act of 1966, 16 U.S.C. Section 470; Executive Order No. 11593; The Archaeological and Historic Preservation Act of 1974, 16 U.S.C. Section 461. This Section would implement the Act's mandate to avoid duplication and coordinate permit processes under State programs with permits and environmental planning processes required under other State and Federal laws. It should be noted that, for the Clean Air Act and Clean Water Act, Sections 780.14, 780.19(i), and 784.12(j) of this Subchapter also require that it be indicated in the application how the relevant requirements of those laws will be complied with during the conduct of mining operations. For the requirements of the Endangered Species Act, National Historic Preservation Act, and Archaeological and Historic Preservation Act, specific additional provisions of Subchapter G would provide more detailed co-ordination requirements in the context of preparation, review and decision of permit applications. See, e.g., Sections 779.12(b), 789.19(c), 779.20, 779.24(i), 780.13(b), 780.13(c)(13), 780.15, 780.23, 780.31, 783.12(b), 783.19(c), 783.20, 783.24, 784.16, 784.20, 784.22(b), 786.15(e) of this Subchapter. {41687} PART 771 GENERAL REQUIREMENTS FOR PERMITS AND APPLICATIONS 771.11 GENERAL REQUIREMENTS FOR PERMITS OPERATORS. Authority for this section is Sections 102; 201; 501(b); 502(d); 506(a); 515; and 516 of the Act. This Section would establish the requirement that no person conduct surface coal mining and reclamation operations without a valid permit issued under a regulatory program, on or after eight months from approval of a program, except in the limited circumstance covered by Section 771.13. Section 771.11 is proposed to implement particularly Sections 102 (b), (c), (d), (e) and 506(a) of the Act, so that mining is not conducted under regulatory programs, until after the regulatory authority has determined that the operations will be conducted in compliance with the applicable environmental protection performance standards of Subchapter K. The Office is aware that the requirement that permits be obtained within eight months from approval of a State or Federal program will make it necessary for those States which obtain approvals of State programs to process large volumes of applications in a short period of time after the date of approval. The Office recognizes the burden that this will place on the industry, the State regulatory agencies, and the public. However, this requirement is expressly mandated under Sections 502(d) and 506(a) of the Act. 771.13 CONTINUED OPERATION UNDER INTERIM PERMITS. Authority for this section is found at Sections 102 (a), (c), (d), (e); 201(c); 501(b); 502; and 506(a) of the Act. This section is proposed to implement the provision for the exception in Section 506(a), whereby a person may continue to conduct surface coal mining and reclamation operations under a permit issued under the initial regulatory program, for the time after the deadline established at Section 771.11 of this Subchapter. This limited extension of time would be available only during the time which the regulatory authority may take to complete processing and review that person's application for a permit under the permanent regulatory program. {41688} Appropriate conditions for the utilization of this exception are proposed to insure both that: (1) exceptions are not abused by persons conducting operations out of compliance with the requirements of the interim program and (2) that they do not attempt to avoid indefinitely the requirements of the permanent regulatory program. 771.15 CONTINUED OPERATIONS UNDER FEDERAL PROGRAM PERMITS. 1. Authority for this section is Sections 102; 201(c); 501(b); 504(f); 505; 515; and 516 of the Act. This section is proposed primarily to implement the provisions of Sections 504(f) and 505 of the Act, whereby persons who obtain permits under a Federal program would be allowed to continue operations under those permits after a State program is approved by the Director under Part 732 of Subchapter G, to supercede a Federal program. As provided in Section 504(f) of the Act, Section 771.15 of the regulations would authorize persons who had been issued permits by the Federal program regulatory authority to obtain a substitute permit from the State regulatory authority. In addition, the State regulatory authority could, subject to procedural safeguards, require persons continuing to operate under Federal permits to obtain revised permits, principally to incorporate additional, more stringent requirements of State laws that may not have been included in the Federal program. 2. 60-Day time limit. The Office interprets Section 504(f) of the Act to require that the regulations now being proposed specify a time limit within which persons required by the States to meet additional requirements of the State program, after withdrawal of a Federal program, must achieve compliance with the program elements involved. As proposed, Section 771.15 would generally establish a 60-day time period for those compliance obligations, with provisions for extensions of that limit based either upon a showing by the permittee that it was physically impossible to meet a 60-day limit, or, an agreement by the State regulatory authority to a longer period under an established time schedule. The Office emphasizes that the provision for a 60-day period is only tentative and specifically solicits comments on how this time limit can be alternatively established under Section 504(f) of the Act. In particular, the following alternatives for resolution of this issue will be considered: (a) Whether OSM should specify a shorter or longer general time limit than 60 days? (b) Whether OSM should specify that extensions of the time limit may not be allowed? (c) Whether OSM should restrict extensions to showings of physical impossibility only? (d) Whether OSM should require that any extension be based on an enforceable State judicial or administrative order and/or include assessment of civil penalties against the operator for the term of the extension? 3. Hearing requirement. As proposed, this Section would require that a permittee be provided with an adjudicatory hearing, if additional requirements are to be imposed under the State program. However, this decision is only tentative and the Office solicits comments on whether the hearing required by Section 504(f) of the Act may be legislative rather than adjudicatory. Additionally, the Office solicits comments on whether procedural rules for these hearings, either adjudicatory or legislative, should be specified. 771.17 COMPLIANCE WITH PERMITS. Authority for this section is Sections 102; 201(c), 501(b); 503(a); 506; 510; 515 (a), (b); and 516 (a), (b) of the Act. This section is proposed to insure that each surface coal mining and reclamation is conducted in compliance with the full range of regulatory requirements established under the Act, including this Chapter, the regulatory program, and the term and conditions included in each permit. 771.19 PERMIT APPLICATION FILING DEADLINES. This section sets forth time tables for filing permit applications with the regulatory authority under an approved regulatory program. Subsection (a) would implement the deadlines found in Sections 502(d) and 506(a) of the Act. Under Subsection (a), if an operator expects to be mining eight months or more from the time of the approval of a regulatory program, he would have to submit an application for a permit under that program no more than two months after the approval of that program by the Secretary. Under paragraph (b)(1), a general requirement for all applications is established. This period is left to the reasonable exercise of the regulatory authority's discretion, except that the regulatory program would have to insure that applications be filed far enough in advance of issuance of the permit as to allow for complete compliance with all requirements of this Subchapter. Under paragraph (b)(2), applications for permit renewals would have to be filed 120 days before the expiration of the original permit, as expressly provided for in Section 506 of the Act. Under paragraph (b)(3), applications for a revision to a permit would have to be filed at least six months before the expected revision, if possible, so as to allow for enough time for compliance with processing requirements. This six months period is based upon an estimation of the average time it would take the regulatory authority to process an application for a revision, allowing for full opportunity for the public participation required by the Act (e.g., newspaper advertisements, opportunity to submit comments/objections, informal conferences). 771.21 PERMIT APPLICATION GENERAL REQUIREMENTS FOR FORMAT AND CONTENTS. 1. Authority for this section is Sections 102; 201; 501(b) 503(a); 504; 507; 508; 510; 515 and 516 of the Act. This section would provide general requirements for all applications for permits under regulatory programs. Applications would be required to contain legal, financial and compliance information, existing site and adjacent area environmental resources information, and reclamation and operation plans. The environmental resources and reclamation and operations plan portions of applications would be required to contain written narratives, maps, cross-sections and other visual displays, cross-referenced to each other. Technical data submitted would have to be referenced and verified, so that the regulatory authority could evaluate the quality of the information. All institutions and governmental agencies consulted by the applicant in preparing the application would be listed, so that the information contained in the application can be easily checked and verified by the regulatory authority. As is indicated in subsection (a), the Office is proposing to promulgate regulations which segregates requirements for the detailed information required in permit applications into three separate parts for both surface and underground mining activities. These parts are 778 to 780 for surface mining and Parts 782 to 784 for underground mining. {41689} Parts 778 and 782 would contain detailed requirements for non-technical, legal, financial, compliance and other general information. Parts 779 and 783 would contain the requirements for information to describe the proposed permit area, mine plan area and adjacent areas, as they exist prior to mining, so that the regulatory authority is provided with an adequate base-line against which to assess the impact of the proposed operations upon those areas through the information in the operations and reclamation plan filed under Parts 780 or 784. 2. Level of detail required in applications. The Office recognizes that these regulations contain requirements that would be quite detailed and comprehensive. As a general matter, many of these requirements are expressly required by the Act, either specifically at Sections 507 or 508, or because Section 510(b) of the Act mandates that the regulatory authority have before it, prior to a final decision on an application, sufficient information upon which to assess whether the detailed requirements of the performance standards of regulatory programs can be complied with during proposed mining operations. The Office does not believe that it has discretion to waive either of these requirements. Congress has provided OSM with no authority for the issuance of variances on a general basis from the requirements of the Act. Surface Mining Regulation Litigation, 11ERC 1593, 1599 1600 (D.D.C. 1978) (disposition of motions for preliminary injunctions); Surface Mining Regulation Litigation, * * * F. Supp. * * * (D.D.C., 1978) (Disposition of Motions for Permanent Injunction) (Mem. Op. at 3, 7, 16). Where the Office has been provided with discretion as to permit application requirements, it has considered what level of detail and what quantity of information should be required, on a national basis, to be included in permit applications. Accordingly, many provisions of Parts 778 784 allow for case-by-case determination of the level of detail and quantity of data that will be needed for particular permit applications. The Office emphasizes that the requirements proposed in Parts 778 780 and 782 784 are tentative and specifically solicits comments on how these requirements can be most easily borne by the States and industry, while at the same time insuring that applications are fully adequate to fulfill the requirements of the Act. The Office is especially interested in comments regarding what level of detail should be required in certain applications by small operations and how to define ""small operator'' for those purposes. 3. Under Section 785.16 of the permit regulations, a person who qualifies may obtain a variance in steep-slope areas from the requirement to restore the land to approximate original contour. Such a person must also obtain a permit to mine under that section. Because such operations will result in ""industrial, commercial, residential, or public use (including recreational facilities),'' the full range of permit and reclamation plan requirements may be unnecessary and may be an impediment to the accomplishment of the beneficial post-mining land use when the area is small and the economics of the change marginal. OSM will consider adopting regulations providing for a simplified permit application process, which will ease the application burden on the developer, while still insuring that permits are issued in full compliance with the Act. OSM has not yet drafted proposed regulations to accomplish this. Its present analysis is that those regulations would include and exclude the following elements of the full-scale permit process. ___________________________________________________________________________________ Include Exclude Part 778 None Sections 779.18, 779.19, 779.20, 779.21 779.24(f), Part 779, except 779.26 780.14, 780.15, 780.19(d), (e)(h), 780.21(b)(3), (4), Part 780, except 780.37 Part 785 (as applicable), especially Section 785.16 ________________________________________________________________________________________ OSM solicits comments on whether such a shortened permit procedure is legal, desirable, and, if so, to what type of operations it should apply and what form the shortened permit procedure should take. 4. A concern related to the level of detail to be required in applications was that expressed by some commenters who have suggested that, for small operators, the regulatory authority itself finance and develop the application in full. This alternative has been rejected, first, because, except for the limited purposes authorized under Section 507(b)(17) of the Act and Part 795 of this Subchapter, the Act does not appear to allow for the expenditure of funds under the Act to finance the development of permit applications. Moreover, the Act contemplates that the regulatory authority will review applications developed by the applicant, thereby avoiding a conflict-of-interest in deciding whether the permit should be issued. See Sections 507, 508, 510 of the Act. 771.23 COPIES REQUIRED. As proposed, this section would leave to the discretion of the regulatory authority, either by rule or case-by-case determination, the number of copies of an application which must be filed with it. 771.25 PERMIT FEES. Authority for this section is Sections 102; 201(c); 501(b); 503(a); 504; and 507(a) of the Act. This section would implement the requirement of Section 507(a) that fees for permit applications are not to exceed the actual costs of processing, administering and enforcing such permits. The Office has considered whether Section 507(a) and other relevant sections of the Act impose a floor on the amounts of permit fees that may be charged by regulatory authorities under regulatory programs. Tentatively, the Office believes that the answer to this issue is found in the unambiguous language of Section 507(a), which provides that: ""(e)ach application for a * * * permit * * * shall be accompanied by a fee.* * *'' (emphasis added). Accordingly, Section 771.25 would require that regulatory authorities charge a minimum permit fee, determined according to the particular requirements of each regulatory program. For State programs, those requirements are specified in Subchapter C. For Federal programs, specific fee amounts and collection systems would be proposed under the particular Federal program regulations adopted pursuant to Part 736 of Subchapter C, based on the number of mines and expenses to the Office involved in specific States for which Federal programs would have to be implemented. 771.27 VERIFICATION OF APPLICATIONS. Authority for this section is found at Sections 102; 201(c); 501(b); 503(a); 504; 507, 508 and 510 of the Act. This section is proposed to insure that all applications contain only that information upon which the applicant is prepared to rely, that the applicant retain ultimate responsibility for representations made in applications, and that applicants be fully cognizant of the obligations they propose to undertake by making applications, should a permit be issued in response to the application. {41689} PART 776 GENERAL REQUIREMENTS FOR COAL EXPLORATION OPERATIONS INTRODUCTION This part is being proposed to implement the requirements of Section 512 of the Act for the regulation of coal exploration operations on non-Federal and non-Indian lands within States under regulatory programs. Part 776 generally provides for procedures and general standards for the initiation and conduct of these operations. Part 776 is complemented by Part 815 of Subchapter K, which provides proposed environmental protection performance standards applicable to these operations. {41690} The Office is proposing a two-tiered system of procedures which depends upon whether the exploration operation results in the removal of more or less than 250 tons of coal from the exploration area. Neither of the tiers provides for the implementation of a ""permit'' system, as the Office believes that Congress did not intend that a ""permit'' as defined in the Act be required for coal exploration. Although Section 512 of the Act is captioned ""Coal Exploration Permits,'' an analysis of the text of Section 512 and its legislative history reveals that Congress, in finally passing SMCRA did not appear to require ""permits'' for these operations. See H.R. Rep. 95-218, 95th Cong., 1st Sess. 61, 173 (1977). Section 512(a) of the Act generally requires persons conducting coal exploration operations to file a ""notice of intention to explore'' with the regulatory authority prior to commencing an exploration operation. While subsection 512(a), makes environmental protection standards applicable to such operations, it contains no provision, however, for mandatory regulatory action following receipt of notices of intention to explore. Instead of a uniform permit system, Congress substituted a requirement for prior approval of the regulatory authority only for coal exploration operations involving the removal of more than 250 tons of coal (Section 512(d) of the Act). This is consistent with the policy articulated by the House Committee in eliminating the general permit system to aid small operators. Under Section 512(d), the Office believes Congress did intend that larger exploration operations be carefully scrutinized by the regulatory authority prior to the initiation of those operations. To implement fully Congress' intent expressed in Sections 512(a) and (d), the Office is proposing to require, first, filing of only a notice of intention to explore for operations which will remove less than 250 tons of coal and, second, prior approval by the regulatory authority for operations removing more than that amount. Detailed explanation of the relevant sections of the proposed regulations follows. 776.4 DEFINITIONS. This section would provide a definition for special use in Part 776. The term ""reclamation'' is proposed to be specifically defined for Part 776, to distinguish it from the definition of ""reclamation'' proposed at Section 701.5 of Subchapter A which is applicable to ""surface coal mining and reclamation operations.'' The basis of the definition for ""reclamation'' for Part 776 is the Office's belief that Congress intended that this term be broadly defined to reflect the full range of responsibilities which persons subject to regulation under the Act must undertake to protect the environment. See Sections 101(c), (e); 102(c), (d); 701(27) of the Act. 776.11 GENERAL REQUIREMENTS: EXPLORATION OPERATIONS OF LESS THAN 250 TONS. Authority for this section is found at Sections 102(a), (b), (c), (d), (e), (i); 201(c); 501(b); 503(a); 504; 512(a), (b) and (d) of the Act. This section would cover exploration operations which are to remove less than 250 tons of coal and is proposed to implement the requirements of Section 512(a) of the Act. Under this section, persons would be required to file a written notice of intention to explore which would include a map, the period of time of the intended exploration, the basis of the right to enter the property for exploration and a statement of measures that will be taken by the exploring entity to protect the environment. This information is necessary so that the regulatory authority and the public will know where and how these operations will be conducted. Provision is made to insure that information entitled to confidential treatment under Section 512(b) of the Act is protected, if contained in the notices. The proposed requirement for including with the notice a statement of measures that will be taken to protect the environment is not intended to require regulatory approval like a permit application, as the operations covered by this section do not need to receive such prior approval. The statement is, instead, intended to be required for review by the regulatory authority to determine whether close surveillance of the actual operation will be needed in the field and so that the affected public is provided with an explanation of potential disruption to the environment. 776.12 GENERAL REQUIREMENTS: EXPLORATION OPERATIONS OF MORE THAN 260 TONS General requirements: Operations of more than 250 tons. I11Authority for this section is found in Sections 102(a), (b), (c), (d), (e), (i); 201(c); 501(b); 503(a); 504; 512(a), (b), (d); and 515 of the Act, the Endangered Species Act of 1977 (16 U.S.C. 1531 et seq. ), and regulations adopted under the Endangered Species Act. This section of the proposed regulations would implement the requirements of Subsection 512(a) and (d) of the Act by requiring persons who plan to undertake coal exploration operations involving more than 250 tons of coal to obtain prior, written approval from the regulatory authority. In order to obtain that approval, the filing of a written application with the regulatory authority would be required. It is intended that this application would provide sufficient information for the regulatory authority to determine whether the criteria of Section 776.13 for approval or disapproval of the application will be met. Included within the minimum types of information which would be required to be contained in applications for approval is identification of both the person making application and the agent of that person who will actually be responsible at the site of exploration, so that the regulatory authority can have a readily available contact, if problems arise with the operation in the field. The focal point of the application would be the exploration and reclamation operations plan. Information would be required in the plan to describe the existing environmental resources within the proposed exploration area, so that the regulatory authority would have a sufficient base-line upon which to assess the impacts of the proposed operations. Included within the existing site description would be information on those types of environmental resources that may be significantly affected by exploration, particularly surface water features, important fish and wildlife, special historical and cultural resources and the existing land-use of the area. To explain how the operations will be conducted, the plan would have to provide information on the method of proposed operation, estimated amounts of coal to be removed, reclamation steps to be taken, reclamation schedules to be followed and a description of the legal basis and purpose of entry into the exploration area. This information is needed so that the regulatory authority can assess whether the proposed operations would be conducted according to the environmental protection performance standards of Part 815 of Subchapter K. Under subsection 776.12(b), public participation in the process of approval and disapproval of applications regarding coal exploration and reclamation operations would have to be provided. This subsection is designed to implement Sections 102(i) and 517 of the Act by providing for fully informed decisions on applications by the regulatory authority. The required procedures are public notice of the filing of the application and the right to submit written comments on the application. The time-limits for the filing comments would be determined under the regulations of the particular regulatory program. The Office emphasizes that the specific requirements for the contents of applications for approval and public participation are tentative only and specifically solicits comments on both of these matters, particularly as to the level of detail needed for adequate plans and whether additional or alternative public participation procedures, such as opportunity for an informal conference prior to approval or disapproval of the application, should be included in the final rules. {41691} 776.13 APPLICATION: APPROVAL OR DISAPPROVAL. Authority for this section is Sections 102, 201(c), 501(b), 503(a), 512, 515, 517 of the Act; Section 4 and 7 of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ); the National Historic Preservation Act of 1966 (16 USC 470 et. seq); and regulations adopted under the Endangered Species Act. This section is proposed mainly to implement Sections 512 (a) and (d) of the Act by specifying criteria for approval or disapproval of applications for conducting coal exploration operations submitted under Section 711.12. The principal criterion would be that, from information contained in the application, the regulatory authority must find whether the operations will comply with the performance standards of Part 815. In addition, findings must be made that interests covered under the Endangered Species Act and the National Historic Preservation Act of 1966 will be adequately protected. Burden of proof. Under this subsection, the burden of proof would be placed upon the person seeking approval for several reasons. First, general principles of administrative law ordinarily provide for allocating the burden in this fashion. See, e.g., Administrative Procedures Act, 5 U.S.C. 556(d). Second, it is the party in possession of the relevant facts, in this case the applicant, that should be required to bear the burden of persuasion of those facts. Third, the Office believes that, generally under the Act, Congress intended for persons seeking to develop coal mineral resources to bear the burden of establishing that this development would be conducted so as to protect the environment adequately. See, e.g., Sections 102 (c), (d); 510(a)(b); 515(b)(A)(iii) of the Act. Under subsection 776.13(c), authority is provided for conditioning approvals in order to enable the regulatory authority to tailor environmental protection performance standards to the specifics of the particular exploring entity and site. 776.14 APPLICATIONS: NOTICE AND HEARINGS. Authority for this section is Sections 102; 201(c); 501(b); 503(a); 504; 512; and 517 of the Act. This section is proposed to provide for public notice by the regulatory authority of its approval or disapproval under Section 776.13 and for the regulatory authority to allow for a public hearing on its decisions. The time-limit for requesting and the manner for conducting the hearing, if the regulatory authority decides to allow one, would be left to the discretion of the States under State programs and to the particular requirements of a specific program under Federal programs. The Office will consider whether, alternatively, detailed requirements for the conduct of the hearings should be established in the final rules, similar to those proposed under Part 789 of this Subchapter to implement Section 514 of the Act. Accordingly, the Office specifically solicits comments on the extent to which such requirements should be included in the final rules. 776.15 COAL EXPLORATION OPERATION COMPLIANCE DUTIES. Authority for this section is Sections 102; 201(c); 501(b); 503(a); 504; 512; 515; 517; 518; and 521 of the Act. Subsection 776.15(a) is proposed to establish the enforceable legal requirements that will be applicable to persons conducting coal exploration operations under regulatory programs. Subsection 776.15(b) is proposed to implement the provisions of Section 512(c) of the Act. Under this subsection, persons conducting coal exploration operations are subject to the full range of sanctions available for violations of applicable legal standards under Section 518 of the Act and the regulations in Subchapter L of this Chapter. Those sanctions include civil penalties for violations of the Act and the regulations or issuance of notices and orders under Section 521 of the Act or a State program. In addition, criminal penalties may be imposed. The standards for acceptable minimum requirements for State program provisions for these sanctions are contained at Part 842 of Subchapter L. 776.17 PUBLIC AVAILABILITY OF INFORMATION. Authority for this section is in Sections 102; 201(c); 501(b); 503(a); 512; and 517 of the Act. This section is proposed principally to implement the provisions of Sections 504; 512(b) and 517(f) of the Act. Under Section 517(f) of the Act, a general rule is established for information obtained by the regulatory authority. It requires that all such information is ordinarily to be made reasonably available for public inspection and copying, in keeping with the purposes of the Act as expressed at Section 102(i) of the Act. Given this rule, information obtained by the regulatory authority for coal exploration activities conducted under Parts 776 and 815 should generally be made available to the public. A specific exception to this rule is required by Section 512(b) of the Act, which provides for the confidential treatment of certain information submitted to the regulatory authority for the purposes of protecting a private entity's competitive rights. Section 776.15 is proposed to protect precisely the type of information protected by the statute. In addition, a provision is proposed for administrative procedures to identify and segregate from non-protected information that information which is entitled to protection under Section 512(b) of the Act. {41691} PART 778 SURFACE MINING PERMIT APPLICATION MINIMUM REQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE AND RELATED INFORMATION INTRODUCTION Part 778 is intended to set forth the minimum requirements under regulatory programs for non-technical information in permit applications. Information which would be submitted in permit applications under Part 778 would be primarily for the purpose of enabling the regulatory authority and interested members of the public to ascertain the particular nature of the entity which will mine the coal and those entities which have other financial interest and public record ownership interests in both the mining entity and the property which is to be mined. In addition, certain other nontechnical information needed for processing and approval/disapproval of the application would also be required. 778.5 DEFINITIONS. Authority for this section is Sections 102; 201(c); 501(b); 503(a); and 507(b)(4) of the Act. This section provides the definition of the term ""principal shareholder'' which is used in several places in Part 778. The definition is based upon the use of the term ""shareholder'' in Section 507(b)(4) of the Act, which specifies that permit applications are to identify persons ""owning of record 10 percent or more of any class of voting stock.'' This would be set forth in Section 778.5, in order to avoid repetition of the entire phrase through the rest of the text of the regulations. 778.11 APPLICABILITY. Authority for this section is Sections 102(a); 201(c); 501(b); 503(a); 504; 507(b), (e), (f); 508(a); 510(a), (b), and (c) of the Act. This section explains that Part 778 would apply to permit applications for surface coal mining activities under regulatory programs and not for underground coal mining activities. The corresponding part for underground mining is Part 782 of this Subchapter. 778.12 GENERAL. {41692} Authority for this section is Sections 102(a); 201(c); 501(b); 503(a); 507(b), (e), (f); 508(a); 510(a), (b), and (c) of the Act. 778.13 IDENTIFICATION OF INTERESTS. Authority for this section is, in general, Sections 102(a), (b), (c), (d), (e); 201(c); 501(b); 503(a) and 504 of the Act. The information to be required in applications under Subsection 778.13(a) would be based upon the requirements of Section 507(b)(1) of the Act. Subsection 778.13(a), as proposed, would call for three additional items of information: First, the equitable owner of record of the property to be mined would have to be named in the application, in order to enable the regulatory authority to locate easily such owners if their interests would be adversely affected by the proposed operations and, in the event of a violation of applicable regulations during the mining process, to locate potentially responsible parties. This requirement should not pose an additional burden on applicants as equitable owners of record could be identified by the same process of searching public property records and at the same time as for legal owners of record which is expressly required by Section 507(b)(1). Second, the resident agent of the applicant within the state of proposed operations would have to be identified, so that the regulatory authority would have readily identifiable and locatable individual for the purpose of accepting service of legal process during the permit application stage or the operating phase. Most States have similar requirements as a pre-requisite for businesses organized outside the State to conduct business. It should not pose an additional burden on permit applicants. Third, in order to aid in locating and discussing permit applications and problems which may arise during the conduct of mining operations, the regulatory authority would have to be provided with the telephone number of the entities to be listed in subsection (a). Subsection 778.13(b) is proposed to implement Section 507(b)(4) of the Act. Subsection 778.13(c) is proposed to implement Section 507(b)(1)(F) of the Act. Subsection 778.13(d) is based upon Section 507(b)(4) of the Act. It would require identification of both, any existing or prior coal mining permits held by the applicant anywhere in the United States and any pending permit applications. Identification of those permits or applications would be required to aid the regulatory authority in contacting those other permit-issuing authorities in other locations. As the applicant will already have that information in its possession, these requirements should pose no additional burdens. In addition to requiring identification of prior permits and pending applications of the applicant, Subsection 778.13(d) would also require the same information for the entities to be listed in the application under Section 507(b)(4) of the Act and paragraph 778.13(b)(3) of this Subchapter. Those entities are persons who are in a position to exercise significant control over the conduct of an applicant's business affairs and who could be responsible for violations of law incurred by the applicant, for which the applicant is responsible under Section 510(c) of the Act. As a result, information about those persons' histories of compliance with permit obligations would be relevant and useful to the regulatory authority. Because that information would be in the possession of persons who would be closely associated with the applicant, requiring the applicant to produce that information should not pose a significant burden on the industry. Subsection 778.13(e) is proposed to implement Section 507(b)(2) of the Act. The term ""contiguous to'' would be used in this section to limit the area around the proposed permit area for which owners of record must be identified, in accordance with the legislative history of Section 507(b)(2). Subsection 778.13(f) is proposed to aid the regulatory authority in coordinating review of the permit application with the Mine Safety and Health Administration (MSHA), so that any potential conflicts between the regulatory requirements of the Mine Health and Safety Act and the Surface Mining Control and Reclamation Act could be resolved. In addition, identification of the MSHA number will be important in the case of a proposed new coal mine which might constitute a ""new source'' under the Clean Water Act, 33 U.S. Code 1251, et seq. 778.14 COMPLIANCE INFORMATION. Authority for this section is, in general, Sections 102; 201(c); 501(b); 503(a), 504 and 507(b) of the Act. Subsection 778.14(a) is proposed to implement Section 507(b)(5) of the act. Subsection 778.13(b) is proposed to implement the requirement under that section of the Act for ""a brief explanation of the facts involved.'' As the Office interprets this provision of the Act, the information regarding suspension, revocation or forfeiture of a permit or mining-related bond or similar security would be relevant to a possible determination, under the provisions of Section 510(c), that a permit not be issued if the applicant has a past history of a pattern of non-compliance with the Act, resulting in substantial and irreparable environmental harm. The information which would be required under Subsection 778.13(b) is designed to insure that a complete understanding of the background of each suspension revocation or forfeiture could be obtained by the regulatory authority. Subsection 778.14(c) is proposed to provide for the submission to the regulatory authority of the facts needed for determining whether the applicant has met the criteria of Section 510(c) of the Act regarding non-abated violations of any State or Federal air, water or other environmental protection statutes with respect to coal mining operations. As proposed, the list of violations would be limited to those which have been incurred by the applicant in a three (3) year period prior to the date of the application, as specified in Section 510(c) of the Act. In addition, Subsection 778.14(c) would require certain information regarding the origin and subsequent history of each violation identified, so that the regulatory authority can obtain a full and complete understanding of the current status of those violations, prior to making the determination required under Section 510(c) of the Act. 778.15 ENTRY AND RIGHT OF ENTRY AND OPERATION INFORMATION. This section is based upon Sections 102; 201(c); 501(b); 503(a); 507(b)(9); and 510(b)(6) of the Act. Subsection 778.15(a) is proposed to implement Section 507(b)(9) of the Act, requiring that the application contain a statement of the documents upon which the applicant bases the legal right to enter and commence mining operations on the permit area and a statement whether that right is the subject of pending court litigation. In addition, the regulatory authority may require copies of those documents in order to resolve a dispute of fact about whether a legal right claimed by the applicant exists. Of course, because of the proviso clause in paragraph 507(b)(9) of the Act, such a determination of fact would not mean that the regulatory authority was making a legal determination about the right to entry. The Office has considered whether to require submission with the application of copies of these documents in all cases, as opposed to the routine requirement for a summary description of the documents. Tentatively, the former alternative has been rejected because of the costs of obtaining verbatim copies of these documents in cases where they would not be needed by the regulatory authority because no property dispute existed. Subsection 778.15(b) is proposed to implement Section 510(b)(6) of the Act, so that the regulatory authority is provided with the information necessary to make the finding required by that section of the Act. 778.16 RELATIONSHIP TO AREAS DESIGNATED UNSUITABLE FOR MINING. {41693} The authority for this section is Sections 102; 201(c); 501(b); 503(a); 504; 510(b)(4); 522 (a), (c), (e)(5), of the Act. Under Section 510(b)(4) of the Act, the regulatory authority is required to make a finding, prior to the issuance of a permit, that the proposed permit area is not within an area designated unsuitable for surface coal mining under Subsection 522 (a) and (d) of the Act. In addition, Section 510(b)(4) precludes the issuance of a permit where a proceeding has been commenced under a process inaugurated under Section 522 (a) and (d) of the Act, to determine whether the proposed permit area is unsuitable. Subsection 778.16(a) is proposed to provide the regulatory authority with information in the application regarding such unsuitability determination or related pending proceeding. Subsection 778.16(b) is proposed to provide the regulatory authority with information upon which it can determine whether an applicant is entitled to an exemption under Section 510(b)(4) of the Act from the general requirements of Section 510(b)(4), where the applicant can prove that it has made substantial legal and financial commitments prior to January 4, 1977, in relation to the proposed operations. The substantive standards upon which the regulatory authority would decide the issue of entitlement to this exemption are proposed in Subchapter F relating to designation of areas unsuitable to mining. Subsection 778.16(c) is proposed to provide the regulatory authority with the information necessary to allow for the surface mining of coal under the exemption to the general preclusion of mining within 300 feet of an occupied dwelling under Section 522(e)(5) of the Act and Part 761 of Subchapter F. 778.17 PERMIT TERM INFORMATION. Authority for this section is Sections 102; 201(c); 501(b); 503(a); 504; 506(c); and 507(b)(8) of the Act. Subsection 778.17(a) is proposed to implement the requirements of Section 507(b)(8) of the Act. A regulatory authority would need this information, in general, to establish the term of the permit, pursuant to the requirements of Section 506(c) of the Act and proposed Subsection 786.11(b) of this Subchapter. In addition, this information, together with the mapping information required under Parts 779 and 780 of the proposed mine plan area, would be used by the regulatory authority to delineate ""permit areas'' within the ""mine plan area,'' for each phase of the proposed operations over the estimated life of the mine. Under Section 506(c) of the Act, a permit may be issued for a term beyond the standard maximum of five (5) years, based upon a demonstration that the applicant meets certain special criteria. Subsection 778.17(b) is proposed in order to make a determination of whether an applicant meets those criteria, as provided in Subsection 786.11(a) of this Subchapter. Particular use of this section would also be intended under applications for concurrent surface and underground mining operations, pursuant to the requirements of Section 515(b)(16) of the Act and Section 785.18 of this Subchapter. 778.18 PERSONAL INJURY AND PROPERTY DAMAGE PROTECTION INSURANCE INFORMATION. Authority for this section is Sections 102; 201(c); 501(b); 503(a); 504; and 507(f) of the Act. Under Section 507(f) of the Act, an applicant for a permit is required to have certain personal injury and property damage insurance or self-insurability capabilities. Substantive criteria implementing that section of the Act under these regulations are proposed at Section 806.13 of Subchapter J. Section 778.18 is proposed to insure that the regulatory authority would be provided with evidence establishing that the applicant has complied with the requirements of Section 806.13, as required by the Act. 778.19 IDENTIFICATION OF OTHER LICENSES AND PERMITS. Authority for this section is Sections 102; 201(c); 501(b); 503(a); 504; 505; 508(a)(9); 510(c); 702; and 713(a) of the Act. This section is proposed in order to provide the regulatory authority with a complete description of all permits and licenses needed by the applicant to conduct the operations in question under Federal and State laws other than the Act. This information would be needed so that the regulatory authority could insure that the operations, as proposed, would not be inconsistent with the requirements of those other statutes and laws, to enable the regulatory authority to utilize the expertise of other governmental agencies involved in reviewing and approving the proposed operations, and to avoid duplication of effort in the collection and analysis of technical information which may have already been collected or analyzed by another permitting or licensing agency. 778.20 IDENTIFICATION OF LOCATION OF PUBLIC OFFICE FOR FILING OF APPLICATION. Authority for this section is Sections 102 (a) and (i); 201(c); 501(b); 503(a); 504; 507(b)(6) and 507(e) of the Act. Under Section 507(b)(6) of the Act, the applicant must identify, in the permit application, the location of where the application will be made available for public inspection as required under Section 507(e) of the Act. Section 778.20 is proposed to implement section 507(b)(6). 778.21 NEWSPAPER ADVERTISEMENT AND PROOF OF PUBLICATION. Authority for this section is Sections 102; 201(c); 501(b); 503(a); 504; 507(b)(6); 507(e); and 513(a) of the Act. Under Section 507(b)(6) of the Act, the applicant is required to set forth in the permit application a copy of the newspaper advertisement announcing the filing of the permit application. The minimum standards for acceptable newspaper advertisements would be provided at Section 787.11 of this Subchapter. Section 778.21 is proposed to implement the requirement of Section 507(b)(6) that a copy of the newspaper application and proof of publication of same be set forth in the permit application. However, inasmuch as Sections 507(b)(6) and 513(a) of the Act do not require completion of publication of the newspaper advertisement until, at a minimum, four (4) weeks after the application has been filed, Subsection 778.21(b) would require only that the copy of the advertisement and proof of publication be filed after the last date of required newspaper publication. As proposed, copies of the advertisement and proof of publication are to be filed within one week after the last date of newspaper publication. One commenter suggested that this be changed to four weeks, because of alleged delays experienced by the commenter in obtaining proofs of publication from newspapers in rural areas. The office has decided not to adopt this suggestion yet, as it is not clear whether the commenter's experience represents general experience of the industry. Comment is specifically solicited on this problem. {41693} PART 779 SURFACE MINING PERMIT APPLICATIONS MINIMUM REQUIREMENTS FOR INFORMATION ON ENVIRONMENTAL RESOURCES IN THE PERMIT AND ADJACENT AREAS INTRODUCTION This Part is proposed to establish the minimum requirements for regulatory program provisions on the information on environmental resources within a proposed mine plan area and adjacent area which must be assembled and submitted to the regulatory authority for surface mining activities. This Part corresponds to Part 783 for underground mining activities. It would provide for submission to the regulatory authority of enough information to enable it to determine, together with the information required under Part 780, what impacts the proposed operations would have on areas within the mine plan area and adjacent areas and whether those operations will be conducted according to the requirements of Part 816 of Subchapter K. {41694} The general structure of this Part has been prepared to describe these information requirements in the following format: Section 779.11: General pre-mining environmental assessment requirements; Section 779.12: Environmental resource data; Section 779.13: General requirements for geology and hydrology; Section 779.14: Descriptions of geologic features; Section 779.15: Groundwater hydrology and geology; Section 779.16: Surface and groundwater information; Section 779.16: Surface and groundwater information; Section 779.17: Alternative water supply information; Section 779.18: Climatological and air quality data; Section 779.19: Vegetation data; Section 779.20: Fish and wildlife resources; Section 779.21: Overburden analysis and topsoil mixtures; Section 779.22: Land use descriptions; Section 779.23: Preparation of maps, plans and cross-sections; Section 779.24: General map requirements; Section 779.25: Cross-section, maps and plans; Section 779.26: Soil resources descriptions. 779.11 GENERAL REQUIREMENTS. Authority for this section is Sections 102; 201(c); 501(b); 503; 507 (b), (c), (d); 508(a); 510(b); 515; and 522(e) (3), (4), and (5) of the Act; the Endangered Species Act of 1973; Fish and Wildlife Co-ordination Act of 1966; Executive Order 11593; and the Archeological and Historic Preservation Act of 1974. This section presents general requirements for permit applicants to present adequate descriptions of the existing pre-mining environmental resources within and around the proposed mine plan area. This information will enable the regulatory authority to determine whether the applicant can comply with Part 816 of Subchapter K and whether reclamation of those areas will be feasible. 779.12 GENERAL ENVIRONMENTAL RESOURCES INFORMATION. 1. Authority for this section is found in Sections 102; 201(c); 501(b); 503; 507; 508; 508(a)(5); 510 and 522 of the Act. 2. Paragraph (a) would require identification of lands to be mined over the life of the mining operation and the timing of mining as it progresses. Specific authority for this is Sections 507(b)(8) and 508(a)(1) of the act. Paragraph (b) would aid in a similar determination as to Part 816 in general and for determining performance bond requirements under Subchapter J. 3. Paragraph (b) would require identification of the location of certain important cultural, pre-cultural, and natural phenomena in the proposed mine plan area and adjacent areas. Specific authority for this paragraph is Sections 102, 201; 507(b)(13), 508(a)(10), (14); 515(b) (23) and 522(e) of the Act and the National Historic Preservation Act. One commenter has suggested that ""paleontological'' descriptions be deleted from this paragraph, because the word was not specifically referenced in the Act. This requirement has not been deleted, because one of the Act's purposes is to broadly protect all ""environmental'' resources. 4. Paragraph (c) would require the applicant to reveal any interest in lands adjacent to the area to be covered by the proposed mine plan area. Specific authority for this paragraph is Section 508(a)(11) of the Act. 779.13 DESCRIPTION OF HYDROLOGY AND GEOLOGY: GENERAL REQUIREMENTS. 1. Authority for this section is Sections 102; 201(c); 501(b); 503; 507(b); 508(a); and 515(b) of the Act. This Section would require that all applications contain a statement of the geology, hydrology, and water quality and quantity for all lands within and adjacent to the proposed mine plan area, in accordance with the more detailed requirements of sections 779.14 119.17 of this Part. 2. Paragraph (a) would require that information on adjacent areas be provided by the regulatory authority to the extent that it is available. Paragraph (b) would require that, to the extent this information is not available from a State or Federal agency at the time of the filing of an application, the applicant must gather and submit enough data to provide the information. The Office recognize that this will place a burden on applicants for those areas which have not been studied by government agencies, but it is the applicant who is seeking permission to mine. Congress clearly intended that no permits issue until the hydrologic consequences are known. Section 510(b)(3) of the Act. The applicant could choose to wait until a government agency can provide the data, but if he desires not to wait, it is the view of the Office that he must procure the necessary data. This burden may be lessened for some operators by Section 507(c) of the Act, which provides financial assistance for the requirements of this Section of the regulations to applicants whose production will not exceed 100,000 tons per year. 3. Paragraph (c) of Section 779.13 would require that no permit be approved until the information required by paragraphs (a) and (b) is available for incorporation into the application. Section 507(b)(11) of the Act is the principle authority for the requirements of paragraphs (a) (c). The information required in this Section will enable the regulatory authority to determine whether the applicant can comply with the requirements of Sections 816.13 15, 816.31 816.39, 816.41 816.57; 816.71 816.73, 816.81 816.88, and 816.91 816.93 of Subchapter K. The technical literature used to develop sections 779.13 779.17 was the same as that used for those sections of Subchapter K, plus additional materials noted below. 779.14 GEOLOGY DESCRIPTION. 1. Authority for paragraphs (a) and (b)(1) is Sections 102; 201; 507(b)(11), (14) and (15); and 508(a)(12), (13), and (14) of the Act. Authority for paragraph (b)(2) is Sections 102; 201; 507(b)(15); and 508(a)(12) (14) of the Act. These paragraphs implement the requirements of the Act for geologic information needed for each application. 2. The information to be required under paragraphs (a) and (b)(1) of this Section will enable the regulatory authority to determine whether the applicant can comply with the performance standards of Sections 816.13 816.15, 816.31 816.39, 816.41 816.45; 816.59; 816.61 68; 816.71 73; 816.79; 816.91 816.93 and 816.99 of Subchapter K. Paragraph (b)(2) allows a waiver of the requirements of paragraphs (a) and (b)(1), upon request of the applicant, where the regulatory authority already has at its disposal sufficient test or core boring data about the proposed mine plan area to make further data collection unnecessary. 2. Additional technical literature relied upon for development of this Section was: (i) Laboratory Methods Recommended for Chemical Analysis of Mined-Land Spoils and Overburden in Western United States; U.S. Dept. of Agriculture, Agriculture Handbook, No. 525 (1977). (ii) Field and Laboratory Methods Applicable to Overburdens and Minesoils; U.S. Environmental Protection Agency, (1978), (EPA 600/2 78 054). (iii) Dollhopf, D. J., et al., 1977, Selective Placement of Coal Stripmine Overburden in Montana, USBM contract report H0262032, Mont. Agri. Exp. Stat., Recl. Res. Prog., Mont. St. Univ., Bozemen, Montana. {41695} (iv) Rolston and Wiram, 1978, The Need for Selective Placement of Overburden and Equipment Considerations, Amer. Min. Cong. Jour., Vol. 64, No. 1, pp. 18 24. {41695} 3. Analytical requirements for determining overburden characteristics are highly variable and may demand regional and local specialization. (Dollhopf, 1977; Ralston, 1978; USDA, 1977; US EPA, 1978). In the west, emphasis must be directed toward the identification of undesirable acidic and alkaline soil (Dollhopf, 1977, pp. 48 51 and Rolston, 1978, p. 18). In eastern and Midwestern States, strata may contain high percentages of pyritic material (Ralston, 1978, p. 18). These problem materials can have a direct adverse impact on local and regional surface and groundwater quality and the establishment of a vegetative cover, if not properly handled. 779.15 GROUNDWATER HYDROLOGY AND GEOLOGY. (1) Authority for this Section is Sections 102; 201(c); 501(b); 503(a); 507(b), 508(a), 510(b)(3) and 515 of the Act. This Section would require a full description of the groundwater hydrology for the proposed mine plan area and areas beyond the plan area which will probably be affected by the proposed operation. Information collected pursuant to this Section will enable the regulatory authority to determine whether the applicant can comply with Sections 816.13 816.15, 816.31 38, 816.41 816.59, 816.71 816.73; 816.79; 816.81 88; and 816.91 816.93 of Subchapter K. (2) The occurrence and movement of groundwater in coal producing areas is a very complicated question. Groundwater resources are largely dependent on regional and local geologic conditions; multiple aquifers may exist, each having distinct water bearing characteristics. The chemical quality of the groundwater may change significantly in both unconfined and confined aquifer systems (USGS Professional Paper 427, 1970). In areas where multiple aquifers exist, the mining operations can easily cause aquifers containing usable water to be polluted by an aquifer containing water of inferior quality, through creating inter-aquifer connections from rock fracturing. Grim & Hill, 1924. Therefore, groundwater resources must be evaluated to determine: (a) Location and extent of aquifers; (b) Water bearing characteristics of aquifers; (c) Chemical quality of the water contained in each aquifer that may be affected by the mining operation; (d) Directions of groundwater movement in aquifers; (e) Recharge and discharge areas for groundwater systems. (3) The occurrence and movement of groundwater is controlled by regional and local geologic conditions; therefore, geologic data coupled with hydrologic data must be carefully evaluated. The following data are believed to be necessary: (a) Geologic mapping (b) Maps showing location of water wells and springs; (c) Depth to water below land surface in wells; (d) Chemical analyses of water from wells and springs; (e) Yield characteristics of wells; (f) Well construction data (depth, perforated intervals, etc.); and (g) Drillers' logs. 4. In areas where historic groundwater data are not adequate to evaluate the groundwater resources, the regulatory authority may need to require test drilling to provide adequate hydrologic data. These test holes may be necessary for determining water quality in aquifers, location of aquifers, transmissivity and other parameters as required. Technical literature used to develop this section included that literature used to develop Sections 779.14, 816.13 816.15, 816.41 816.57, 816.71 816.73, 816.79, 816.81 816.88, and 816.91 816.93, and, in addition, the following: 1. Hem, John D., Study and Interpretation of the Chemical Characteristics of Natural Water, USGS WSP 1473, 2nd Edition, 1970, 363 p. 2. Groundwater Subgroup of Water Work Group, Northern Great Plains Resource Program, Shallow Groundwater in Selected Areas in the Fort Union Coal Region, USGS Open-file Report 74-48, 1974. 3. U.S. Geological Survey Professional Paper 427, 1970; Hydrologic Influences of Strip-mining. 779.16 SURFACE AND GROUNDWATER INFORMATION. 1. Authority for this Section is Sections 102; 201(c); 501(b); 503(a); 507(b)(10) (15); 508(a)(12) (13); 510(b)(3) and 515(b) of the Act. Information collected pursuant to this section would enable the regulatory authority to determine whether the applicant can comply with performance standard of Sections 816.13 816.15, 816.31 816.39, 816.41- 816.59, 816.71 816.73, 816.79, 816.81 816.88, 816.91 816.93, and 816.133 of Subchapter K. Under this section, the applicant would identify surface and groundwater information to establish baseline conditions and to determine specific requirements necessary to successfully minimize adverse impacts to the hydrologic balance of the mining area. 2. Parameters that would be required to be monitored under this section should be regarded as a minimum listing, based on those polluting substances for which specific effluent limits are being proposed at Sections 816.41-816.42 of Subchapter K. Minimum pre-operation sampling frequencies of specific substances and water flow data are being proposed by expected variations in the components to be monitored. Seasonal variations as a minimum should be elucidated, and in some instances diurnal cycles of certain parameters may need to be determined. This monitoring should last for a minimum of one year, and two years or more may need to be specified by the regulatory authority in some instances, depending upon the amount of historical information. Sampling locations, techniques, preservation, and analyses are other considerations that require proper attention to obtain valid, representative information. 3. Analytical procedures and techniques to be followed in obtaining this water quality information are those contained in the following publications. American Waterworks Association, 1977, Standard Methods for the Examination of Water and Wastewaters. U.S. Environmental Protection Agency, T3Manual of Methods for Chemical Analyses of Water and Wastes (EPA 625/6-74-003), and the EPA National Water Quality Analysis Regulations at 40 CFR 136. 4. Models. Based upon a preliminary review of technical literature, the office believes that it may be useful to specify that applications be required to contain the results of mathematical modeling of ground and surface water for water quantity (flows) and for total suspended solids/sediment, total dissolved solids, iron, total manganese and acid as these parameters must be evaluated for impact of the proposed operations, prior to issuance of a permit on the hydrologic balance. ""Modeling'', in this context, would mean a "". . . system of postulates, data, and inferences presented as a mathematical description'' of the way in which proposed surface coal mining and reclamation operations would impact on ground and surface water. (Webster). The literature reviewed suggests that techniques are now available to model, in a sufficiently predictive manner, the quality and quantity of surface and ground waters through and around coal-mined areas. These techniques should be expected to be improved with the collection across the country of site- specific baseline data. Although the output of the available models may not be of high accuracy in all cases, the offices not aware of any other equally well-organized mechanism available for predicting cumulative hydrologic impacts over substantial lengths of time. {41696} Technical literature reviewed included: (a). EPA, 1976, ""Proceedings of the Conference on Environmental Modeling and Simulation,'' EPA 600/9 76 018; (b). R. W. Nelson, ""Identification and Evaluation of Specific Techniques and Computer Models Useful in the Analysis of Subsurface Contaminant Migration Outline of Study II for the Physical and Life Sciences Technology Section, Research Dept., Atlantic Richfield Hanford, Co.; (c). Nelson, R. W., ""Evaluating the Environmental Consequences of Ground Water Contaminations,'' Computer Services Corp. (Richland, Washington); (d). Konilcow and Bredihoeft, 1974, ""Modeling Flow and Chemical Quality Changes in an Irrigated Stream Aquifer System.'' AGU, Water Resources Research; (e). Gillham and Faroodelen, 1974, ""Sensitivity-Analysis of Input Parameters in Numerical Modeling of Steady-State Regional Ground Water Flow,'' AGU, Water Resources Research; (f). Gilhar, 1974, ""Stochistic Analysis of Phrestic Aquifers,'' AGU, Water Resources Research; (g). Kunkel, 1973, ""Data Requirements for Modeling a Ground Water System in an Arid Region,'' USGS WRT 4 73; (h). Zand, et al., 1976, ""Static Transport and Modeling of Water Quality in a Small Stream,'' Vol. 4; No. 2, Mar.-Apr., 1976, USGS Research, p. 233 240. (i). Gelhas, L. W. and J. L. Wilson, 1974. ""Ground Water Quality Modeling,'' U12, No. 6, Ground Water; (j). Hundoon, 1974, ""Finite Difference As Applied to the Solution of Ground Water Flow Problems,'' Wyoming Water Resources Research Institute, Laramie, Wy.; (k). Prickett and Lonnquist, 1971, ""Selected Digital Computer Techniques for Ground Water Resource Evaluation,'' Illinois State Water Survey, Urbana, Ill.; (l). US EPA and the National Water Well Association, 1976. ""Proceedings of the Third National Ground Water Quality Symposium,'' Special Issue, Vol. 14, No. 6, Nov.-Dec., 1976; (m). Meyer, C. F. and D. C. Kleinecke, 1968, ""Development of Capabilities for Mathematical Modeling of Ground Water Flow By Use of Digital Computers; TEMPO-General Electric Co., Santa Barbara, 68TMP 96; (n). Bachmad, et al. 1978, ""Utilization of Numerical Ground Water Models For Water Resources Management,'' EPA Rpt. 60018 78 012; (o). De Wiest, R. J. M., 1968, ""Geohydrology,'' John Wiley & Sons, N.Y. Chapter 8; (p). Davis, and De Wiest, 1969, ""Hydrology,'' John Wiley & Sons, N.Y.; (q). Poluhainous-Kuching, P., 1972, ""Theory of Ground Water Movement,'' translated by De Wiest, Princeton Univ. Press, Princeton, N.J., Chapters VI and XVI; (r). Karplus, W. J. 1958, ""Analogy Simulation-Solution of Fluid Problems,'' McGraw Hill, N.Y., Part 2. The Office has not, however, yet formulated the text of specific regulations to address water modeling. It specifically solicits comments on this matter, particularly on the following questions: 1. Whether applicable models have been calibrated and/or verified for use in coal mining situations? 2. What are the costs of using those models in field situations? 3. What levels of accuracy may be expected to be obtained with available models? Following a final review of the literature and any comments received, the office may propose, as part of the final regulations, specific provisions regarding models. 779.17 ALTERNATIVE WATER SUPPLY INFORMATION. Authority for this Section is Sections 102; 201; 507(b)(11); 508(a)(13); 510(b)(3) and 717(b) of the Act. As proposed, this Section would require identification of water sources that could be used to replace water supply rights which would be damaged by the proposed mining operation, as is required under proposed Section 816.54 of the performance standards. 779.18 CLIMATOLOGICAL DATA. Authority for this Section is Sections 102; 201; 501(b); 503(a); 507(b)(12); and 508(a)(5) of the Act. Here climatological data concerning temperature, precipitation, and air quality would be required, if requested by the regulatory authority. These data may be needed by the regulatory authority, in evaluating whether the applicant will be able to comply with the performance standards of Sections 816.21-.24; 816.31-.38; 816.41-.50; 816.56; 816.65; 816.71 816.73; 816.81 816.88; 816.91 816.97; 816.100 816.117, and 816.133 of Subchapter K. 779.19 VEGETATION DATA. (1) Authority for this Section is Sections 102; 201; 501(b); 503; 504; 508(a)(2)(B C); 508(a)(3), (4), (5); 510(b)(2); 515(b)(2); and 515(b)(19) of the Act. This Section would require submission of the location of the proposed vegetation reference area; and, if required by the regulatory authority, a vegetation map of the proposed mine plan area, the proposed reference area, and certain adjacent areas. A vegetation map and description may be required in the permit application by the regulatory authority for the following reasons: (i) To assist in evaluation of the natural vegetative capability of the site and to determine if the operations will be conducted in accordance with Sections 816.45 816.46, 816.97, 816.111 816.117, and 816.133 of Subchapter K. (ii) To quantitatively characterize the vegetation in the reference area and permit area for establishing comparability of the permit area. (iii) To identify those species of vegetation that may contribute to important post-mining land use values of the permit area, by serving as seed sources for revegetating the land or as important habitat types for fish and wildlife. (iv) To help in evaluating the present and potential productivity of the site, which must be described in the application under Sections 508(a)(2)-(4) and 515(b)(2) of the Act. (v) To establish premining site conditions for wildlife and fish habitats. (2) Technical literature used in the formulation of this Section was: 1. Curtis, J. T., (1959), ""The Vegetation of Wisconsin, An Ordination of Plant Communities,'' Univ. of Wisconsin Press, Madison, 657 p. 2. Goff, F. G., (1967), ""Methods Used in Field Investigations of Vegetation and Soils in Milfred, C. J. et al, Soil Resources and Forest Ecology of Menoninee County, Wisconsin,'' Bulletin 55, Univ. of Wisconsin Geological and Natural History Survey, p. 187 189. 3. Daubenmire, R. F., (1968), ""Plant Communities, A Textbook of Plant Synecology,'' Harper and Row, New York, 300 p. 4. Kuchler, A. W., (1964), ""Potential Natural Vegetation of the Coterminous Untied States'' (Map and Manual), N. York, Am. Geographic Society, 116 p. 5. ....., (1967), ""Vegetation Mapping,'' New York, Ronald Press Co., 472 p. 6. Braun, E. L., (1950), ""Deciduous Forests of Eastern North America,'' Philadelphia, Blakiston Co. 7. Radford, A. E., (1977), ""Natural Area and Diversity Classification System, A Standardized Scheme for Basic Inventory of Species Community and Habitat Diversity,'' Univ. of N. Carolina Student Stores, Chapel Hill, 70 p. 8. Wharton, C. H., (1978), ""Natural Environment of Georgia,'' Atlanta, Georgia, Dept. of Natural Resources, 227 p. 9. Carter, V. A., et al., (1977), ""Wetland Classification and Mapping in Western Tennessee,'' Proceedings of 2nd Annual William T. Pecora Memorial Symposium, Oct. 25 29, 1976, Sioux Falls, pp. 213 234. 10. Carter, V., and Burbank, J. H., (1978), ""Wetland Classification System for the Tennessee Valley Region,'' TVA Tech. Note, B 24 FFWD, Morris, TN. (In press). 11. Soc. of American Foresters (1940), ""Forest Cover Types of Eastern United States,'' Washington, DC, Report of Committee on Forest Types, p. 39. 12. Costin, H. J., (1958), ""Study of Plant Communities,'' W. H. Freeman & Co., San Francisco. 13. Davis, J. A., (1977), New York Fish and Game Journal Soc., 24 No. 2, An Ecosystem Classification of New York State For Natural Resource Management, p. 129 143. 14. Giles, R. H., (1969), ""Wildlife Management Techniques,'' Wildlife Society, Washington, D.C., Chap. 12 13, p. 119 232. 15. Benton, A. H. and Werner, W. E., (1965), Manual of Field Biology and Ecology, 4th Edition, Minneapolis, Burgess Pub. Co. 16. Pfister, R. D., et al., (1977), ""Forest Habitat Types of Montana,'' USDA - Forest Service, General Technical Report No. INT 34, 174 p. 17. Daubenmire, R. A., (1973), ""Comparison of Approaches to the Mapping of Forest Land for Intensive Management,'' Forestry Chronical 49:87-91. 18. Daubenmire, R. and Daubenmire, J. B., (1968), ""Forest Vegetation of Eastern Washington and Northern Idaho,'' Washington Agricultural Experiment Station Technical Bulletin 60, 104 p. 19. Deitschman, G. H., (1973), ""Mapping of Habitat Types Throughout a National Forest,'' USDA Forest Service General Technical Report INT 11, 14 p., 1973. {41697} 20. Cowardin, L., et al., (1977), ""Classification of Wetland and Deep Water Habitats of the United States'' (An Operational Draft), Fish and Wildlife Service, Dept. of Interior. 21. Wielgolaski, F. A., (1972), ""Vegetation Types and Plant Biomass in Tundra,'' Arct. Alp. Reg. 4:289 306. 22. Arkley, R. J., (1972), ""Factor Analysis of Ecosystem Components for the Barrow Intensive Site,'' 1970, p. 121 127, in S. Bowen (ed) Proc., 1972, U.S. Tundra Biome Symposium, U.S. Tundra Biome, 211 p. 23. Billings, W. D. and H. A. Nooney, (1968), ""Ecology of Arctic and Alpine Plants,'' Biol. Rev. 43:481 530, 1968. 24. Frances, C. J., (1978), American Birds, Vol. 32, No. 1, ""Understanding Quantitative Surveys of Vegetation.'' 25. Zedler, P. H., and F. G. Goff, (1973), ""Size-Association Analysis of Forest Successional Trend in Wisconsin,'' Ecol. Monogr. 43:(1);77 94. 26. Anclair, A. N., and Cottam, H., (1971), ""Dynamics of Black Cherry ( Pinnas serotina Erhr.) in Southern Wisconsin Oak Forest,'' Ecol. Monogr. 41(2):153 177. (3) Vegetation maps, if required, should be of a scale of 1:24,000 or larger. Mapping units should be chosen using recent aerial photographs, to delineate homogeneous vegetative areas, but units selected should be field checked for accuracy, before transfer to the map. Submitted with application. (4) Quantitative vegetation sampling, on the ground, is useful in establishing species frequency, density and productivity for vegetation map units. Quantitative sampling techniques differ from rangeland to forest to tundra. The following references from the foregoing list are believed to be most useful in describing quantitative techniques: Numbers 1 4; 6 8; 10 13; 15, 16, 18, 20 26. 779.20 FISH AND WILDLIFE RESOURCES. (1) Authority for this Section is Sections 102; 201; 501(b); 503; 506; 507(b)(11); 508(a); 510(b); and 515(b) of the Act. Paragraph (a) of this section would require the results of animal population studies to be submitted in the application. Paragraph (b) would require that the populations shall be studied in the degree of detail specified by the regulatory authority, according to two general types of sources for that information: The first source would be data which may already exist for the immediate or general area of the proposed operations as published in professional journals or other readily available scientific publications. The second source would be from field collection, under guidelines from the regulatory authority, after consultation with State or Federal fish and wildlife agency staffs. This would include original field studies, to the degree necessary to fill gaps in the scientific knowledge obtainable from the literature. The information to be required by this Section will enable the regulatory authority to determine whether the applicant will be able to comply with Section 816.97 of the performance standards. Guidance for baseline data collection under this Section may be found in ""A Systems Approach to Baseline Studies,''; James B. State, et al. U.S. Fish and Wildlife Service, Western Energy and Land Use Team, Fort Collins, Colorado, Publication O.B.S. 78- 21 (1978). (2) Alternatives : In drafting this Section and section 780.15 of this paragraph the following alternative methods for permit information regarding fish & wildlife were considered: (i) Group ""A'': (1) In all cases, require a detailed survey of every fish and wildlife species present in the mine plan area and adjacent area, including population densities for each species and plans for protection; (2) Require specific species inventory, habitat discussion and protection plans for species selected by a regulatory authority, after consultation with local fish and wildlife agencies; (3) Require no detailed data in permit applications, except for an inventory and a plan for protecting any endangered or species existing in the area and any additional information as required by the Endangered Species Act; (ii) Group B: (4) For all mines require a detailed inventory and a protection plan for all species; and (5) Only for mines producing more than 100,000 tons annually, require a detailed inventory and a protection plan for all species. Fish and wildlife habitat can be temporarily damaged or completely destroyed by certain mining practices. In particular, construction of haul roads, sedimentation ponds and coal processing waste banks, as well as the primary stripping activity itself, can disturb nesting and breeding habitat, destroy food forage and disrupt the biological chain. (See technical literature cited for section 816.97). Consequently, the proposed regulations have been drafted to require that fish and wildlife habitat, in general, be protected and that features disrupted by mining activities, such as mining through a stream bed, be returned to its approximate original condition following mining. ""Group A'' Alternative 1 of Group ""A'' would require an in-depth survey of all fish and wildlife within the mine plan area and adjacent area. Such a survey would include identification of each and every species, data on each population, discussion of habitat requirements, and a proposed program for achieving complete or better recovery of the existing habitat and species population following mining. Such a survey would have to be conducted by a qualified fish and wildlife research team for each species. Alternative 2 of Group ""A'' would permit the collection of necessary data with less elaborate field analysis and interpretation. Alternative 3 of Group ""A'' would be to permit applicants to establish little or no fish and wildlife data base, except in those situations in which endangered species would be involved. The Office has tentatively decided to select alternative two, requiring in-depth field surveys, if no previous literature on fish and wildlife in the vicinity of the operation is available. The first alternative was rejected because of the office's understanding that there exists for many species and areas, published data that can be used, in lieu of a full field survey to develop information for permit applications. The third alternative was rejected because the Act requires protection broadly of fish and wildlife, not just endangered species. {41698} ""Group B'' Alternatives 4 and 5 involve consideration of what requirements should be established for small operators. The first assumption is that small operators would not be exempt from these application requirements. Detailed fish & wildlife inventory data would be used to define potential stresses on the ecological chain. A protection plan would be required under section 780.15, so that reclamation efforts would be established to provide maximum use of the land and establishment of adequate vegetative cover conducive to supportive habitat. Through proper backfilling and grading of affected areas and stream channels, deteriorated habitat could be regenerated to support fish and wildlife Alternative 5 was considered as another choice in that detailed inventories and protection plan under Pact 780 would be required for only mines of production of over 100,000 tons per year. This alternative was not selected, because it is believed that even small mines can significantly and adversely affect fish & wildlife. The Office however, has not yet decided which of alternatives 4 or 5 to hereby select and specifically solicits comments on both. 779.21 ANALYSES OF SELECTED OVERBURDEN TOPSOIL MIXTURES. Authority for this Section is Sections 102; 201(c); 501(b); 503(a); 507(b); 508(a); 510(b); and 515(b) of the Act. This Section would require that applications contain the results of analyses, trials and tests required by the regulatory authority, where the applicant is proposing to use selected overburden materials instead of, or as a supplement to, topsoil in the proposed reclamation process. This information would be necessary to enable the regulatory authority to determine whether the applicant can comply with Section 816.22 of Subchapter K. 779.22 LAND USE DESCRIPTION. (1) Authority for this Section is Sections 102; 201(c); 501(b); 503; 504; 507(b)(14); 508(a)(2), (3), (4), (5), (8), (10), (13), (14); 510(b); and 515(b)(2) and (10) of the Act. This Section would require applicants to describe the pre- mining land-use conditions of the lands within the proposed mine plan and adjacent areas. Paragraph (a) states the general requirement. Paragraph (b) would require description of the existing land uses and of historical land uses, if the pre-mining use is changed within 5 years prior to the beginning of the proposed mining operation. Paragraph (c) would require a description of the capability of the land, prior to mining, to support a variety of uses, a description of the pre-mining productivity of the land, and details of whether the land has been previously mined. The information required under this Section would enable the regulatory authority to determine whether the applicant would be able to comply with Section 816.133 of Subchapter K. (2) Technical literature used in developing this Section was: 1. Toth, R. Criteria in Land Planning and Design. Landscape Architecture 62(1), 1971. 2. Moore, G. T., Emerging Methods in Environmental Design and Planning. M.I.T. Press, Cambridge, Mass. 1968. 3. Johnson, A. H., Berger, J., and McHarg, I. L., Landscape Analysis for Ecologically Sound Land Use Planning. Department of Landscape Architecture and Regional Planning. University of Penna., Phila. Pa. 1978. 4. Thurow, C., Toner, W. and Erley, D., Performance Controls for Sensitive Lands. American Society of Planning Officials Planning Advisory Service. Report Nos. 307, 308. Am. Soc. of Planning Officials, Chicago, Ill. 1975. 5. McHarg, I. L., Design with Nature, Natural History Press. Garden City, New York, 1969. (3) The information to be required by this section would result in a report of a synthesis of the premining conditions as part of the comprehensive reclamation planning process, including the economic, engineering and legal factors which must be melded into a complete reclamation plan. The landscape can be thought of as being composed of elements or components_(e.g., soils, geology, vegetation, hydrology, fish and wildlife, physiography (topography) and land use.) Each landscape element may provide opportunities or constraints for certain land uses. Areas which are most suitable for specific uses will have the greatest number of opportunities provided by the landscape and the least number of, or least severe, constraints imposed by the landscape for that particular use. (References 2, 3, 4) By using an approach of combined analysis of opportunities and constraints, the environmental impacts of the planned uses can be minimized, and the best fit between the land use and the conditions of each specific reclamation site achieved. For example, areas where there is frequent flooding for extended periods provide an obvious constraint to subdivision housing. This property of the landscape lowers the inherent suitability of such areas for that use. This could be ameliorated, by using flood proofing and special construction techniques in engineering foundation structures. However, costs, both economic or ecological, will be incurred for construction and maintenance. This same area may provide little constraint for a golf course, park or agricultural use. The most cost-effective and least environmentally damaging land uses can be identified and developed to a large degree, by the landscape's characteristic properties and capabilities. (Reference 5) 779.23 MAPS, PLANS AND CROSS-SECTIONS: PREPARATION. Authority for this Section is Sections 102; 201(c); 501(b); 503; 504; 507(b) (10), (13), (14), (15); 508(a)(5); and 510(b) of the act. Paragraph (a) of this section would require that maps, plans and cross-sections, to be supplied in the application. Through section 779.25, be prepared by, or under the direction of, certain qualified professionals, so that the quality of these documents can be assured. Paragraph (b) of section 779.23 would require that maps be at an appropriate scale and contain all of the information typical of USGS topographical maps, so that complete information about the area can be obtained by the regulatory authority. Through years of map making and usage, the USGS 7 « minute maps have developed as the standard for mapping topography and geology. They show enough detail, in general, to provide a baseline for reestablishing the premining topography. High quality map information is necessary to help the regulatory authority evaluate the applicants' ability to comply with essentially all of the performance standards in Part 816. 779.24 MAPS: GENERAL REQUIREMENTS. This Section has 13 paragraphs, all of which implement particular requirements of the Act. Specific authority of the Act for each paragraph includes, but is not limited to: (a) Section 507(a)(1). (Ownership of the surface and subsurface estates would have to be established.) (b) Section 507(b)(9). (A map showing the areas that the operator can legally mine is needed to determine the maximum extent of the proposed mining operations.) (c) Sections 507(b)(8); 508(a)(1). (The total impact of the operation on the environment cannot be assessed without knowing the total area to be mined, when and where it is to be done, and any additional areas expected to be mined.) (d) Sections 507(b)(13) and 522(e)(5). (Identification of structures and their use is need to determine the impact of mining on other functions in the community.) (e) Sections 507(b)(13); 508(a)(2); 515(b)(2). (Disruption or potential disruption by the operations of various pipelines, railroads, utilities, irrigation works, wells, etc. must be established, to prevent problems to the surrounding public community and establish any need for relocation or rebuilding of these facilities.) (f) Sections 507(b)(13); 508(a)(2)(C); 515(b)(9). (Areas selected as the standard for reference when revegetation is being evaluated must be located so that a determination of their suitability and representativeness may be established). (g) Sections 507(b)(11) and (13); 508(a)(13); 515(b)(10). (Surface water flow and users in the affected area need to be established to determine the interruptions that will be caused by mining and the corrections that will be need both during and after mining). (h) Sections 507(b)(13); 522(e)(4). (Locations of highways and roads on or near the mine need to be established, to prevent disruption of traffic flows, hazards to travelers, and provide for the proper restoration of traffic flow and access after mining). {41699} (i) Sections 507(b)(13); 508(a)(10), (14); 522(e)(3). (The area affected may include sites of recreation, scientific or social significance that must be evaluated to determine whether they should be saved, how the mining should proceed around the site, precautions needed at the site, and reclamation procedures needed to maintain the values associated with the site). (j) Sections 507(b)(13); 508(a)(10), (14); 515(b)(23); 522(e)(5). (Cemeteries must be identified to plan their relocation or avoidance and prevent exposing mine workers to health hazards). (k) Section 522(e). (Areas that are established or are being considered for inclusion in National Wild and Scenic River Systems or National Trails System must be located to avoid damage to these irreplaceable national resources). (l) Sections 507(b)(13) and (14); 508(a)(14). (The location and depth of water, gas and oils is needed to establish premining data on their condition and to be sure they are avoided or properly accounted for during mining). (m) Section 508(a)(14). 779.25 CROSS-SECTION MAPS AND PLANS. Authority for this Section is Sections 102, 201, 501(b), 503, 504, 507(b)(11); 508(a) and 515(b) of the Act. Information which would be required under this section would provide the regulatory authority with complete information about the proposed mining site, so that the applicants ability to comply with the performance standards of Part 816 could be properly evaluated. (1) Under paragraph (a), the coal seams to be extracted, their nature, depth and thickness would be determined, to establish the amount of material to be removed, the hydrologic effects of removing the seam, and the nature of the final pit floor. From this data the reclamation requirements will be established. (2) Under paragraph (b), crop lines would be described, to establish the limits of the proposed mining operations. The strike and dip of the seams are useful in estimating the probable extent of the surface operations and the mining method to be used. (3) The Act does not allow surface mining to take place closer than 500 feet for underground workings without special approval. Under paragraph (c) maps locating the underground workings would provide a basis for assessing the potential physical and environmental hazards of mining in their vicinity. The safe distance for mining near these hazards could then be established. (4) Under paragraph (d), the premining subsurface hydrologic regime would be established, to determine the changes that mining would cause to the hydrologic balance, to help plan corrections for negative impacts, and set standards for post mining groundwater flows. (5) Surface water systems, both natural and man-made, would be located under paragraph (e), to help establish water table data, recharge relationships, interruptions to both natural and artificial water courses, possible relocation routes, and post-mining flow paths. (6) The discharge of industrial waste on or near the mine needs to be established, to determine the effect on groundwater and surface water during and after mining. Under paragraph (f), that information would provide baseline data for original non-mine pollution levels, and allow for the design of systems to control industrial waste flows. (7) Under paragraphs (g) and (h), previous surface mining activities would be shown, to establish what areas where disturbed by operations other than the proposed one, to locate areas to be handled under abandoned mined lands funds, to assess the present environmental damage of the old workings, and to properly establish reclamation criteria based on the natural condition of the land, not the present disturbed condition. (8) Environmental control facilities would be identified under paragraph (h) to anticipate, minimize, or avoid the interruption of their operation. (9) The requirement of paragraph (i) is found generally in section 515(b) (14) of the Act. Under this paragraph, slope measurements could be made from topographic maps. However this paragraph would allow for the use only of maps with 10 feet minimum contour intervals, where slopes are over 20 degrees, and only maps of 5 feet maximum intervals, where slopes are less than 20 degrees. This requirement is based on a need for more detail of slope data than is found on standard 7.5 minute USGS maps. USGS maps commonly use 20 degree intervals in steep slope areas and 10 degree intervals in less steep areas. This reduces knowledge of vertical variation over substantial horizontal distances, thereby reducing knowledge of the ""approximate original contour'' which Congress mandated to be reconstructed in most cases. The Office does not believe that the use of more detailed maps for slope measurements will create substantial burden for the industry. Indeed, the use of shorter contour intervals on mining plan maps is already widespread in the industry. (See Memorandum to OSM Administrative Record on ""Mine Plans Submitted to EPA, Region 8, Denver, Colorado''). (10) In addition to being required by the Act, the paragraphs of Section 779.25 would require information which will enable the regulatory authority to evaluate the applicants' ability to comply with the following Sections of Part 816 of Subchapter K. (a) 816.61-.68; 816.121-.126; 816.99 (b) 816.50-.55 (c) 816.61-.68; 816.50-.55; 816.121-.126 (d) 816.50-.55; 816.61-.68 (e) 816.41-.59; 816.33 .34 (f) 816.41, .42, .52, .55 (g) 816.21-.25; 816.32; 816.41-.57; 816.111-.117 (h) 816.21-.25; 816.32; 816.41-.57; 816.71-.73; 816.81-.93; 816.111-.116 (i) 816.102. 779.26 SOIL RESOURCES DESCRIPTION. Authority for this Section is Sections 102; 201; 501(b); 503, 504 and 507(b)(11); 508(a); and 515(b) of the Act. This Section would require the submission of a description of the soil resources of the mine plan area, through a soil survey, to enable the regulatory authority to make determinations under sections 515(b)(2), (4), (5), and (6) of the Act. These determinations would be related to enforcement of the performance standards of Section 816.22(b), (c), and (e), 816.111-816.116 and 816.133 of Subchapter K. {41700} PART 780 SURFACE MINING PERMIT APPLICATION MINIMUM REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN INTRODUCTION Part 780 is proposed to establish the heart of the permit application; the mining operations and reclamation plan. The regulatory authority will utilize this information, together with the description of the existing environmental resources obtained under Part 779 to predict whether the lands to be mined can be reclaimed and if the operations can be conducted in compliance with the environmental protection performance standards of Part 816, Subchapter K. 780.11 OPERATION PLAN: GENERAL REQUIREMENTS. Authority for this Section is Sections 102; 501(b); 503; 507(b); 508(a); 510(b); and 515(b) of the Act. This Section would require that each application contain a description of the proposed mining operations, including a narrative of mining methods and procedures proposed to be used in the operation of the mine. Paragraph (2) of this Section would require the narrative to explain the construction, modification, use and maintenance and removal of certain mine operation facilities. The requirements of this Section are designed to aid the regulatory authority in determining whether the applicant can meet the following performance standards of Subchapter K: Sec. 780.11(a)(1) Sec. 816.62 Sec. 780.11(a)(2)(ii) Sec. 816.39 Sec. 780.11(a)(iii) Secs. 816.46, 816.48 and 816.91 Sec. 780.11(a)(iv) Secs. 816.21-816.24, 816.71-816.73, 816.100-816.106 Sec. 780.11(a)(2)(v) Secs. 816.32-816.36 and 816.59 Sec. 780.11(a)(2)(vi) Secs. 816.81-816.88 and 816.91-816.93 Sec. 780.11(a)(2)(vii) Sec. 816.39 Sec. 780.11(a)(2)(viii) Secs. 816.41-816.46, 816.50 and 816.56 702 780.12 OPERATIONS PLAN: BLASTING. Authority for this Section is Sections 507(g) and 508(a)(13) of the Act. This Section requires that each application for a surface mining permit provide a narrative description of the blasting operations to be used in the proposed mining operations. Specific information about the types and amounts of explosives, their handling and use are required in paragraphs (a)-(g). This is necessary for the proper evaluation by the regulatory authority of the possible environmental and public safety consequences of the use of explosives during the proposed mining operation and are needed to determine whether the applicant can meet the performance standards found in Sections 816.41, 816.60 and 816.61-816.68 of subchapter K. 780.13 OPERATIONS PLAN: MAPS AND PLANS. Authority for this Section is Sections 102; 201(b); 501(b); 503; 504; 507(b); 507(g); 508(a); 517; and 522(e)(4) of the Act. In addition to the narrative plans to be required by the preceding Sections, this Section of Part 780 would require each application to include maps and plans relevant to the proposed operation. Some of these maps and plans would have to be prepared by specified professionals as required under Sections 507 and 508 of the Act. Accurate maps and plans are needed by the regulatory authority to properly determine whether the planned operation should be approved, modified, or disapproved. The requirements of this Section are designed to aid the regulatory authority in determining whether the applicant can meet numerous performance standards. The Subsection of 780.13 and the performance standards are designed to provide information as follows: Sec. 780.13(a) Secs. 816.21-816.24, 816.31-816.32, 816.36; 816.38-816.39; 816.41; 816.43-46; 816.49; 816.56; 816.59; 816.71- 816.73; 816.79; 816.81; 816.83; 816.87-816.77; 816.91; 816.101; 816.121-816.124; and 816.133. Sec. 780.13(b) Sec. 816.124. Sec. 780.13(c)(1) Sec. 816.39. Sec. 780.13(c)(2) Secs. 816.21-816.24; 816.21-816.24; 816.31-816.32; 816.43-816.46; 816.56; 816.71-816.73; 816.81; 816.83; 816.91-816.93; and 816.99-816.101. Sec. 780.13(c)(13) Secs. 816.36; 816.39; 816.81; 816.91; and, 816.95. Sec. 780.13(c)(4) Secs. 816.21-816.24; 816.71-816.73; 816.81-816.88; and 816.101-816.105. Sec. 780.13(c)(5) Secs. 816.43-816.50; 816.55; 816.83; and, 816.91. Sec. 780.13(c)(6) Sec. 816.95. Sec. 780.13(c)(7) Secs. 816.39; 816.81; 816.83; 816.86; and 816.91. Sec. 780.13(c)(8) Sec. 780.13(c)(9) Sec. 780.13(c)(10) Secs. 816.46; 816.49; 816.91-816.93. Sec. 780.12(c)(11) Secs. 816.56; 816.73-816.76; 816.81; 816.91; 816.100-816.106; and 816.133. Sec. 780.13(c)(12) Secs. 816.41-816.42; 816.52; 816.95; and 816.97. Sec. 780.13(c)(13) Sec. 816.133. 702 780.14 AIR POLLUTION CONTROL PLAN. Section 780.14 of the proposed regulations would establish the permit application requirements, so that the regulatory authority is provided with comprehensive and reliable information on the air quality impact of the proposed surface coal mining operation. This Section is intended to assure that proposed surface coal mining operations meet all national ambient air quality standards and any other applicable Federal or State air quality standards. In general, the proposed regulations are structured on both a regional and a projected production level basis. This is proposed, in part, because of the current status of technical literature and air quality regulations in the field. The regulations also recognize the potential variations in air quality impact depending upon climate, geology and operating characteristics of surface coal mining operations in different parts of the country. Legal authority : Permit application regulations for air quality are supported by Sections 102, 201(c), 501(b), 503(a) and (b), 507(b), 508(a)(9), 515(b)(4), and 515(b)(24) of the Act. Specifically, Congress in Section 515(b)(4) of the Act provides that all operators shall: (S)tabilize and protect all surface areas including spoil piles affected by the surface coal mining and reclamation operation to effectively control erosion and attendant air and water pollution. (Emphasis added) Thus, if a surface area is affected by surface coal mining and reclamation operations, the operator must effectively control attendant air pollution. The phrase ""surface coal mining and reclamation'' operation is broadly defined in the Act to mean surface mining operations and all operations necessary and incident to reclamation. Section 701(28), 30 U.S.C. Section 1291. The office believes that haul roads and access roads must be controlled because the definition of the phrase ""surface coal mining.'' includes not only activities conducted on the surface of lands in connection with the surface mine, but also haul roads and access roads. To implement this performance standard Congress has required that each permit application contain the steps to be taken to comply with applicable air quality laws and regulations. Section 508(a)(9), 30 U.S.C. 1258. The surface mining permit cannot be approved unless the regulatory authority finds in writing that the permit application meets requirements of the Act including the requirement to effectively control air pollution from all surface areas. Sections 515(b)(1)-(2), 30 U.S.C. Sections 1260(b)(1)-(2). The permit application requirements listed in Subsections 780.14(a), (b) and (c) are the first critical steps in the process of assuring that all surface coal mining operations effectively control air pollution from all surface areas. {41701} Technical literature : The following technical literature, State laws and regulations and other materials support the Sections of the regulations. Literature Support 1. Axetell, Survey of Fugitive Dust from Coal Mines, EPA-908/1-78-003 PEDCO Environmental, Inc., February, 1978. 2. Cook, Fugitive Dust from Western Surface Coal Mines, Mathtech, Inc., Oct., 1976. 3. Evaluation of Fugitive Dust Emissions from Mining, T1 EPA-68-02-1321 PEDCO Environmental, Inc., June, 1976. 4. Bass, Impact of Significant Deterioration Proposals upon Western Surface Coal Mining Operations, PB- 253, 254, FEA May, 1976. 5. Air Quality Effects Analysis of Falkirk Mine, North Dakota State Department of Health, June, 1977. 6. Mann, Compilation of Air Pollutant Emission Factors, Second Edition, 11.2 Fugitive Dust Sources, December, 1975. 7. Craig, Guide for Wind Erosion Control on Cropland in the Great Plains States, U.S. Depart. of Agriculture, July, 1964. 8. A Review of State Regulations for Controlling Fugitive Dust Emissions, PEDCO Environmental Specialists, August, 1976. 9. Applicant Information for Air Pollution Emission Permits Coal Mine Operations, Colorado Department of Health. 10. Identification of a Feasible Regulation for Controlling Localized Fugitive Dust Emissions, PEDCO Environmental, Inc., AP42 (undated). 11. Environmental Assessment of Surface Mining Methods: Head of Hollow Fills and Mountaintop Removal, Skelly and Loy Interim Report, March, 1977. 12. EPA memorandum on Fugitive Dust from Surface Mines, dated May 15, 1978 (Note: Table of Typical Fugitive Dust Control Measures Observed at Western Coal Mines.) 13. Kimball, Particulate Emissions Control Mining and Processing, EPA draft memorandum, undated. 14. Draft Environmental Statement, Southwestern Wyoming Coal, Vol. 1 and 2, Department of the Interior, April, 1978. 15. Nehring, Coal Development and Government Regulation in the Northern Great Plains: A Preliminary Report, R-1981-NSF/RC, August 1976. 21. Where We Agree, Report of the National Coal Policy Project, Center for Strategic and International Studies, Georgetown University (1978). 22. The Clean Air Act, as amended (42 U.S.C. 1857 et seq). 23. 40 C.F.R. Sec. 50.8. 24. 40 C.F.R. Sec. 51, Appendix B. 25. 40 C.F.R. Sec. 60.250. 26. Dvorak, The Environmental Effects of Using Coal for Generating Electricity, (Draft) Argonne National Laboratory, Argonne, Illinois, March 1977. 27. Pomerance, Statement on behalf of Friends of the Earth Public Meeting on Preliminary Proposed Draft Regulations, Washington, D.C., August 3, 1978. 28. Lippmann, Handbook of Physiology Section 9: Reactions to Environmental Agents, Ks, American Physiological Society 1977. 29. Quality Assurance Requirements for Prevention of Significant Deterioration, Air Monitoring EPA (1978). 30. Task Group on Lung Dynamics Committee, Health Physics (1966). 31. Assemblage of Data on Air Quality in Central and Southern Utah and Assessing the Impact of Coal Development in this Region on the Air Quality, Aerovironment, Inc. 32. Air Quality Criteria for Particulate Matter, HEW (1969). 33. Morrow, Airborne Contaminants Environmental Sciences on Interdisciplinary Monograph (1973). Regional Separation: The proposed regulations separate surface coal mining operations into two regions. For operations west of the 100th meridian west longitude, the regulations have been refined to distinguish between operations with projected production levels exceeding 1 million tons of coal per year and those operations with lesser production levels. The regulations recognize, however, that surface coal mining activities may have production levels less than 1 million tons per year, but the overall air quality impact may be more significant than the impact from a single large mine when mining operations are aggregated with other major emitting facilities in the air quality control region or adjacent regions. In this instance, the regulatory authority is given the discretion to require the same air quality review as that required for single mining operations exceeding 1 million tons of coal per year. In any event a monitoring program and fugitive dust plan would be required. For operations east of the 100th meridian west longitude, the regulations give the State regulatory authority the discretion to call for an air quality review and monitoring program if the proposed surface coal mining operations, in conjunction with other existing or proposed major emitting facilities would cause or contribute to levels of air pollution in excess of any national ambient air quality standards or other applicable Federal or State air quality standards. Structure of regulations. Each subsection of the permit application regulations addressing air quality would be broken down into three separate components. The components include: (a) an air quality review which normally would include air pollution diffusion modeling; (b) an ambient air quality monitoring program to accurately ascertain the air quality on a continuing basis in the vicinity of the surface coal mining operation; and (c) a plan and commitment to employ fugitive dust control practices. Within the constraint of having to meet national ambient air quality standards and any other applicable Federal or State air quality standards, surface coal mining operators are given the flexibility to select from a wide variety of effective control techniques which are, in part, listed in Sections 816.95(b) and (c) of the performance standards. Existing operations with production levels in excess of 1 million tons per year include Utah International Navajo mine; Decker Mine No. 1; Peabody Black Mesa; Amax Belle Agriculture; Western Energy Coalstrip; Arch Minerals Seminoe No. 1; Pacific Power and Light Dave Johnson; Arch Minerals Seminoe No.2; Peabody Kayenta; Kemmerrer Sorensen; Peabody Big Sky; and Knife River Beulah. The Office proposes mandatory air quality review to assure that such operations do not result in air pollution in excess of national ambient air quality standards for total suspended particulate matter and other applicable Federal and State air quality standards. Western surface coal mining operations can create air quality problems principally from increased fugitive dust levels. (Literature Support items 1, 2, 3, 4, 5, 6, 10, 15, 26). In particular, in March of 1978, EPA released a report prepared by PEDCO Environmental, Inc., entitled ""Survey of Fugitive Dust from Coal Mines'' (""PEDCO Report''). This study shows that western coal mines are ""major emitting facilities'' (Section 169 of the Clean Air Act defines ""major emitting facility'' to include 29 industrial sources and any other source with the potential to emit two hundred fifty tons per year of any air pollutant.) PEDCO evaluated five western surface coal mines for the purpose of determining emission factors for 12 mining operations. Upwind and downwind ambient sampling was performed to develop emission factors for each mining operation. PEDCO said the general ranking of sources in decreasing order is Haul roads; Open storage piles; Dragline; Exposed areas; Fly-ash dump; Front end loader; Topsoil removal; Blasting; Truck dump; Drilling; Shovel/Truck loading; Train loading. Haul roads were found to be the largest source and generally responsible for twice as much emission as the next source. At a production rate of 1 million tons of coal per year, PEDCO estimated 1750 ton/yr. of particulate matter would be emitted from a surface coal mine. (PEDCO Report at 69.) {41702} PEDCO also performed size distribution analyses of the measured particulate matter to allow for assessments of health effects. Particulate less than 10 microns in size is generally considered to be respirable and thus more dangerous to public health. Air Quality Criteria for Particulate Matter, U.S. Department of Health, Education and Welfare, Washington, D.C., Publication Number A-49. January 1969, Lippmann (1977); Task Group on Lung Dynamics Committee (1966); Morrow, (1973). Fifteen percent of the particulate matter was less than 10 microns in size. (PEDCO Report at 56.) Thus, even a small western surface mine emits 265 ton/yr. of respirable particulate matter. It appears that when surface coal mines are aggregated in a region, the air quality impact could be more pronounced. For instance, the Department of the Interior Draft Environmental Statement for development of coal in southwestern Wyoming analyzes 4 proposed surface coal mines for that region. North Block (1.4 million tons/yr.), Twin Creek (2.5 million tons/yr.), South Haystack (3.0 million tons/yr.) and Black Butte (6.3 million tons/yr.) would, according to PEDCO, combine to increase particulate matter emissions by 7450 tons/yr. Total respirable particulate matter would exceed 1000 tons/yr. The existing and private production plus the proposed four surface mines are projected to produce approximately 30 million tons of coal per year by 1985. This corresponds to an increase of 18,000 tons of particulate matter per year of which approximately 2,700 tons would be respirable. The PEDCO study included locating high volume samplers approximately 10, 20, 30, and 40 m. downwind of the source. PEDCO also attempted to develop a ""fallout function'' to assess the deposition rate of the emissions with distance from the sources. However, emission rates did not consistently decrease with distance from the source. Therefore, a published fallout factor was used in developing the emission factors. PEDCO views the emission factors to be valid for air quality impact assessments within 5 km. from the source. According to the consultant, where important air quality impacts occur at greater than a 5 km. distance from the mining operation other emission factors must be adapted. PEDCO did not perform any remote ambient air quality sampling simultaneously. However, other studies have explicitly analyzed the remote ambient air quality impact of western surface mines and concluded that national primary and secondary ambient air quality can be exceeded. Bass, Impact of Significant Deterioration Proposals upon Western Surface Coal Mining Operations, PB 253, 254 FEA May (1976). For example the proposed surface coal mines for southwestern Wyoming, (North Block (1.4 million tons per year), Twin Creek (2.5 million tons per year), South Haystack (3 million tons per year), Long Canyon (2 million tons per year), and Black Butte (6.3 million ton per year) are projected to exceed the 24 hour primary national ambient air quality standard out to 1.2 miles, (NB3-2) 1.4 miles (TC3-5), 2.4 miles (SH3-2), 2.4 miles (LC 3-2) and 3.8 miles (BB3-2) respectively. (Southwestern Wyoming EIS). Thus, additional control measures may be necessary to assure that the surface mining proceeds without jeopardizing air quality standards. The Office considered lowering the mandatory air quality review below 1 million tons of coal per year for western surface coal mines. Section 169 of the Clean Air Act defines a ""major emitting facility'' to include sources with the potential to emit two hundred and fifty tons per year of any pollutant. Using PEDCO's emission factor of 1.2 lb/ton of coal mined, any western coal mine operation with a production level exceeding 425,000 tons per year should require an air quality review. However, the Department recognizes that to some extent portions of the fugitive dust will fall out in the permit area. The Office considered mandatory air quality review for surface coal mines with production exceeding 3 million tons/yr. and 5 million tons/yr. However, one million tons per year of coal production from a western mine appears to be the most appropriate starting point since such an operation can result in 1,750 tons of particulate matter per year of which 15 percent or 265 tons per year can be respirable. This total emission rate, over six times the Congressional cutoff for a major emitting facility is proposed as a necessary starting point to analyze the air quality impact of large western surface mines. Regarding application of the regulations in the east and Midwest, the PEDCO report explicitly states that the developed emission factors are limited to western surface coal mines. (PEDCO report at 68). However, other studies have evaluated the fugitive dust emissions from eastern and midwestern mines. (Literature support items 3, 6, 8, 11, 26). Moreover, Peabody Coal Company, owner of some of the largest surface coal mines in the Midwest and east (River King, Illinois (6.4 million tons/yr.) and Sinclair, Kentucky (3.5 million tons/yr.) has agreed that fugitive dust can be a problem locally in all coal regions. Report of the National Coal Policy Project, Where We Agree, (1978). To assure that State regulatory authorities have the discretion to address such air quality problems in the midwest and east, the Department has proposed in Section 780.14(c) that the regulatory authority can require an air quality review if it determines that the proposed operation in conjunction with other major emitting facilities would cause or contribute to air pollution in excess of any applicable Federal or State air quality standards. Authority for this Subsection of the regulations is explicitly found in Sections 508(a)(9) and 515(b)(4) of the Act. Alternatives Considered: 1. Exempt fugitive dust from regulation under the Surface Mining Act. Advantages: (a) Most States are not prepared for sophisticated surface mining air quality review and monitoring. (b) The coal industry will support such a regulation. Disadvantages: (a) Conflicts with 515(b)(4) of the Surface Mining Act. (b) Massive amounts of particulate matter will be emitted into the ambient air thereby degrading air quality beyond Clean Air Act standards necessary to protect public health and welfare. (c) The failure to monitor air quality will possibly mask an air quality problem. 2. Require Best Management Practices to control fugitive dust with the goal or standard of ""avoiding a public nuisance'' or ""good housekeeping.'' Advantages: (a) Avoids sophisticated surface mining air quality review and monitoring. (b) [Missing text] (c) May be consistent with 515(b)(4) of the Surface Mining Act. Disadvantages: (a) No assessment of the public health and welfare problems resulting from particulate matter emissions. (b) No firm air quality standard to measure compliance. 3. Require air pollution assessments, monitoring and control as necessary to achieve and maintain ambient air quality standards and other applicable Federal or State air quality standards. Advantages: (a) Particulate matter emission control is required to the level necessary to protect public health and welfare from adverse air quality impacts (presently may exclude PSD standards). (b) May be consistent with 515(b)(4) of the Surface Mining Act. Disadvantages: (a) Requires monitoring and air quality review which is probably presently beyond the capability of most States. 4. Require air pollution assessments, monitoring and control as necessary to achieve and maintain ambient air quality standards, prevention of significant deterioration standards and other applicable Federal and State air quality standards. {41703} Advantages: (a) Consistent with 515(b)(4) of the Surface Mining Act and Section 127 of the Clean Air Act. (b) Implements clear congressional intent embodied in the Clear Air Act and Surface Mining Act. (c) Assures full panoply of air quality review, monitoring and control. Disadvantages: (a) May be inconsistent with EPA's ""fugitive dust exemption'' for surface coal mines. (b) Requires monitoring and air quality review which is probably presently beyond the capability of most States. Option 1 was rejected because it is inconsistent with the Surface Mining Control and Reclamation Act's mandate to regulate attendant air pollution from all surface areas. Option 2 was rejected because it fails to provide a meaningful standard to protect public health and welfare from the air pollution impacts of surface coal mining operations. Option 4 was rejected because, for the present, EPA may not have included surface coal mining operations in Prevention of Significant Deterioration Regulations. See 40 C.F.R. Sections 51.24(b)(6), 51.24(l), 51.24(k)(5). Option 3 was selected for the foregoing reasons. 780.15 FISH AND WILDLIFE PLAN. Authority for this Section is sections 102; 205; 501; 503; 504; 507(b); 508(a); and 515(b)(2), (10), (17), (19), (23), (24) of the Act, the Endangered Species Act of 1973; and the Fish and Wildlife Coordination Act. This Section would require applicants for a permit to explain how they plan to minimize adverse impacts of the proposed operation to fish, wildlife and related environmental values. Subsection (a) would require a narrative statement on this subject. Subsection (b) would require the applicant to explain how the best technology currently available will be used, if needed, to minimize impacts of the operation after revegetation of the mine plan area. Subsection (c) would require copies of statements from applicable State and Federal fish and wildlife agencies which have reviewed the proposed impact control measures and monitoring plans. Subsection (d) would require a narrative statement on specific measures, techniques, and monitoring methods to be used to protect or enhance three categories of organisms or habitats where they exist in the proposed permit area. These statements are necessary to allow the regulatory authority to objectively determine whether the proposed mining operation will adversely affect fish and wildlife resources and whether the applicant can comply with the performance standards of Section 816.97 of Subchapter K. Under this section the person contemplating surface mining activities would specify how the best technology currently available will be applied to ensure that the best interests of fish and wildlife and related environmental values will be accommodated in mining and reclamation activities. It provides some latitude for the applicant, if he determines that achievement of fish and wildlife is not practicable, to show why, and to show how what he does propose, will minimize adverse impacts on those resources. State and Federal wildlife agencies are provided an opportunity to comment on the plan's adequacy. The plan would explain how the applicant will provide for the preservation of (1) threatened or endangered species and their habitats (2) eagles, migratory birds and game animals protected by State or Federal law and (3) unique habitats such as wetlands, riparian areas, and nesting, nursery or wintering areas. For discussion of this on the specifics of the plan, depending on the size of the mine, see the preamble to section 779.20. Technical literature: Guidance on mitigation of surface mining impacts on fish and wildlife may be found in the document, ""An Environmental Guide to Western Surface Mining Part II: Impact, Mitigation and Monitoring,'' FWS/OBS 78/05 Draft, which assembles information about the effects of surface coal mining on fish and wildlife and recommends ways for mitigating anticipated adverse impacts and for monitoring mitigation success and impact effects. The manual was written for the Western Energy and Land Use Team (WELUT) of the U.S. Fish and Wildlife Service to allow for reasonable decisions for the protection of fish and wildlife resources when drafting federal coal lease stipulations for surface mine development projects. Direct and indirect effects of 36 activities associated with surface mining are traced to the point of ecological impact. Existing stipulations with respect to each activity are evaluated and an approach for developing site-specific stipulations is recommended. Another publication, ""A Systems Approach to Ecological Baseline Studies,'' FWS/OBS78/21, 1978, defines and standardizes a holistic approach to ecological baseline studies for energy conversion projects in the western United States. The manual was written for WELUT as part of EPA's Interagency Energy/Environmental Research and Development Program. Using a detailed, step-by-step approach, the manual recommends a general process for baseline study design. To help bridge the gap between the general case and the particular, examples from various development projects are included which demonstrate the application of the techniques described. Additional alternatives considered: One commenter has said the proposed regulations give too much discretionary power to the regulatory authority. According to this commenter without assured input from State wildlife agencies, resource management agencies and citizens, it is more than likely that fish and wildlife will not be protected. Specifically, endangered, rare, critical, and protected species may need special mention to protect species integrity. OSM, however, proposes that the regulatory authorities be largely responsible for assuring that rare and endangered species and migratory species receive full and adequate protection. The Office has proposed a method to ensure that fish and wildlife values are addressed. Moreover State wildlife agencies will have the opportunity to assume a role of monitoring the impacts of surface mining. OSM further proposes that, beyond th