FEDERAL REGISTER: 45 FR 83166 (December 17, 1980) DEPARTMENT OF THE INTERIOR AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM) 30 CFR Part 716 Steep-Slope Mining Variance From Approximate Original Contour; Final Rulemaking ACTION: Final rules. SUMMARY: The Office of Surface Mining proposed rules on October 24, 1979 (44 FR 61312) to provide for interim program variances from the requirement to return mined land in steep slope areas to the approximate original contour. The Office requested written comments and requested interested persons to testify at a public hearing held in Washington, D.C., on November 16, 1979. These final rules are a result of all comments received. EFFECTIVE DATE: This rule becomes effective January 16, 1981. FOR FURTHER INFORMATION CONTACT: Alan Palisoul, OSM, U.S. Department of the Interior, Washington, D.C. 20240, (202) 343-2084. SUPPLEMENTARY INFORMATION: BACKGROUND Section 716.2(e) amends OSM's interim program regulations published at 42 FR 62639 et seq. (December 13, 1977). These regulations implement section 515(e) of the Surface Mining Control and Reclamation act (the Act) and provide for a limited variance from the requirements of section 515(d)(2) of the Act to return land mined on steep slopes to its approximate original contour. The preamble to the proposed regulation (44 FR 61312-14, October 24, 1979) is hereby incorporated by reference. That preamble sets forth the bases and purposes and statutory authority for this final rule. The reader is also referred to the preambles to the draft and final permanent program (43 FR 41713-15, 41790-91, September 18, 1978, and 44 FR 15083-84, 15290-92, March 13, 1979, respectively) which are also hereby incorporated by reference. As noted in those documents, 30 CFR 716.2(c) closely parallels the variance procedure and performance standards in the permanent regulatory program at 30 CFR 785.16 and 30 CFR 826.15, with the exception described below. The requirement for third-party letters of financial commitment assuring that post-mining land uses will be developed as planned has been deleted. This was done in response to District Court rulings in re Permanent Surface Mining Regulation Litigation, Civ. No. 79-1144 (D.D.C. Feb. 26, 1980). The permittee instead must submit to the regulatory authority information which shows that any necessary public facilities are likely to be provided and must present a plan which is financially feasible. Additional discussion of this issue is found below. The words "for surface mines" have been deleted from Sec. 716.2(e) of the proposed regulation. OSM, in reviewing the regulation after this comment period, realized that these words were confusing in that they seemed to limit the application of this regulation. Section 716.2(e)(1) states that it applies to "surface coal mining operations," which is defined in section 701(28) of the Act to cover, among other things, the surface impacts incident to underground coal mines. Other less significant differences from the variance provisions in the permanent program are itemized in the preamble to the proposed rulemaking at 44 FR 61313. In the preamble accompanying the proposed rule, OSM specifically requested comments on the available legislative history and on OSM's construction of the Surface Mining Control and Reclamation Act. In particular, OSM invited comments on its preliminary conclusion that "Congressional intent was not definitely established by the use of the phrases 'State program' and 'Federal program' and is more forcefully demonstrated by the central theme of the Act that the interim program be no more stringent than the permanent program." 44 FR 61312, October 24, 1979. Comments received from States, industry and environmental organizations fully supported OSM's decision to resolve the conflicts in the statute and legislative history by providing a steep-slope variance in the interim program. OSM believes that strictly defined and regulated variances from steep-slope approximate original contour requirements provide significant environmental and safety benefits. Sediment loads may, in some cases, be reduced or more easily controlled, revegetation processes eased, the choice of land uses increased, and desirable wildlife habitats created. COMMENTS ON THE PROPOSED RULES 1. Several commenters expressed the opinion that this variance should be available for reclamation of non-steep- slope areas as well as steep-slope areas. The District Court has ruled in In re Permanent Surface Mining Regulation Litigation, Civ. No. 79-1144 (D.D.C. Feb. 26, 1980) at 69-79 that section 515(e) of the Act is limited to steep-slope areas. By its terms section 515(e) of the Act clearly establishes a variance only from the requirement in section 515(d)(2) to restore mined land to its approximate original contour. Since 515(d)(2) applies only to steep-slopes, the variance must be limited to steep-slope mining. For more detailed treatment of this issue, the reader is referred to the preamble discussion of 30 CFR 785.16 and 30 CFR 826.15, 44 FR 15083-84 and 15291. 2. A number of commenters said that the proposed regulation should include agricultural use in addition to industrial, commercial, residential, and public uses as a basis for granting the variance. As was pointed out in the preamble to the proposed rule, 44 FR 61313, section 515(e)(2) of the Act makes no reference to agricultural use. A useful comparison is section 515(c), which authorizes a variance for mountaintop removal operations. This section establishes industrial, commercial, residential, public, and agricultural uses as acceptable post-mining land uses. The omission of agricultural use from section 515(e) is therefore considered a significant expression of Congressional intent. Accordingly, these comments were rejected. 3. Several comments were received concerning the requirements in the proposed regulation dealing with backfilling and eliminating the highwall. One comment suggested that the proposed Sec. 716.2(e)(4)(i) be changed so as to eliminate the requirement that backfilling be done in a manner which results in a static factor of safety of 1.3. The commenter desired a more general guide, suggesting "maintain stability." OSM rejects this suggestion. The Secretary's discretion to impose both specific performance standards and design criteria has been upheld. See In re Permanent Surface Mining Regulation Litigation, Civ. No. 79-1144 (D.D.C. May 16, 1980) at 39-40. Moreover, the suggested standard is too general. The commenters did not stipulate how or for how long one would have to maintain stability. Such an amorphous standard affords no useful guidance to the operator or the regulatory authority as to how they can determine when the requisite stability has been attained. In addition, the factor of safety of 1.3 is a value that is within the standard established and accepted in the construction/engineering profession. Lambe and Whitman state that "a safety factor of at least 1.5 is commonly employed" when one is dealing with homogeneous intact soils in which the strength parameters have been chosen from good laboratory tests and pore pressure data has been estimated carefully. (Lambe, T.W. and Whitman, R.V., "Soil Mechanics," John Wiley and Sons, Inc., New York, p. 373, 1969.) Meyerhof lists "values of minimum overall safety factors which range from a low of 1.3 to a high of 5.0 depending on the type of anticipated failure. "Values of minimum partial safety factors" are also presented which show safety factors of 1.3 to 1.5 for earthworks and earth retaining structures for which both cohesion and frictional properties are known. (Meyerhof, G.G., "Safety Factors in Soil Mechanics," Canadian Geotechnical Journal, Vol. 7, No. 4, p. 351, 1970.) The U.S. Mining Enforcement and Safety Administration required a safety factor ranging from 1.3 to 1.5 for new coal refuse embankments, a standard continued by its successor agency, the U.S. Mine Safety and Health Administration. (U.S. Mining Enforcement and Safety Administration, "Engineering and design manual -- coal refuse disposal facilities," Washington, D'Appolonia Consulting Engineers, Inc., Pittsburgh, pp. 5.143, 5.144, 1975.) The Canada Department of Energy, Mines and Resources indicates a safety factor of 1.3 for "Case II -- where it is anticipated that persons or property would not be endangered by a failure." (Canada Department of Energy, Mines and Resources, "Tentative design guide for mine waste embankments in Canada," Technical Bulletin, TB 145, Ottawa, Mines Branch Mining Research Centre, p. 5- 27, 1972.) It is therefore the opinion of OSM that the requirement of a static factor of safety of 1.3 is necessary and realistic. {83167} Another commenter suggested that highwalls be left to serve as windbreaks and nesting sites for western wildlife and raptors. This comment is rejected because it is contrary to the Congressional intent expressed in section 515(b)(3) of the Act that all operations be backfilled to restore the approximate original contour except as specifically provided otherwise, Moreover, even when exceptions to approximate original contour are provided, all highwalls must be backfilled (Section 515(e)(1)). Another comment suggested allowing slopes of 2:1. Even though the commenter did not fully describe the slope desired, this comment was rejected. The regulation does not specify the grade of slope because the major concern is stability, which is better provided by use of a static safety factor. 4. Some commenters objected to the requirement in Sec. 716.2(e)(3)(i) that the permitted demonstrate that the proposed land use be "likely to occur," stating that the Act speaks in terms of potential use, suitable for, and planned use. One commenter supported the proposed requirement, citing the potential for evasion. OSM has decided to retain the "likely to occur" requirement because it interprets the Act to require some assurances that the enumerated uses will result. Section 515(e)(1) states that the variance is "for the purposes set forth in paragraph (3) * * *" (improved watershed, equal or better economic or public use). Section 515(e)(3)(B) requires that the post-mining use be designed and certified by a professional engineer to "assure the stability, drainage, and configuration necessary for the intended use of the site." Section 515(e)(2) requires that surface owners knowingly request in writing that "such a variance be granted so as to render the land, after reclamation, suitable for an industrial, commercial, residential, or public use (including recreational facilities) * * *." Section 515(e)(4) allows for placement of spoil off the bench "as is necessary to achieve the planned post-mining land use." Looking at these explicit variance provisions in conjunction with the express requirement of section 515(b)(3) that all operations at a minimum must "* * * restore the approximate original contour * * *," it is clear that Congress intended that the proposed uses would occur if there were to be any deviations from the AOC. In this regard, it should be noted that OSM intends that the failure of a person to comply with the terms of a variance as provided in the regulations or the variance itself be deemed a violation of the Act which shall subject such person to appropriate enforcement action by OSM and/or the regulatory authority. On a related issue, commenters stated that the Sec. 716.2(e)(3)(iii) requirement that the permittee meet all of the postmining land use requirements of 30 CFR 715.13 should be changed. In particular, most felt that the third- party letters of financial commitment (section 715.13(d)(3) and (4)) would be impossible to obtain, unduly severe and unnecessary in that they are more than the Act requires. In In re Permanent Surface Mining Regulation Litigation Civ. No. 79-1144 (D.D.C. Feb. 26, 1980), the District Court remanded an identical requirement at 30 CFR 816.133(c)(4) of the permanent program for being beyond the scope of the statute (Id at 62). In addition, the Court held that 30 CFR 816.133(c)(9), which requires a firm written commitment to convert lands to crop production, exceeds the statutory standard. This is the same requirement as appears at 30 CFR 715.13(d)(9). OSM has not made a final decision on whether to appeal this part of the District Court's ruling. In any event, the ruling does not bind or affect the interim program since it was not challenged in the litigation over those regulations. (In re Surface Mining Regulation Litigation, 452 F. Supp. 327, 456 F. Supp. 1301 (D.D.C. 1978). Nonetheless, OSM has decided to modify the proposed postmining land use requirements of the interim program to prevent imposition of unnecessary burdens and to conform with the remand of related requirements in the permanent program litigation. Specifically, third-party letters of commitment required by Sec. 715.13(d)(3) and (4) do not have to be provided by permittees. However, the permittee will still be required to demonstrate to the regulatory authority financial feasibility and that necessary public facilities are likely to be provided. All other postmining land use requirements, however, have been retained. Comments were received stating that these remaining postmining land use requirements at Sec. 716.2(e)(3) are more than section 515(e) of the Act requires and that they were developed with mountaintop removal operations in mind. OSM rejects these comments for the following reasons. First, these requirements are necessary for the regulatory authority to make the determination whether or not the operation will leave the land suitable for the proposed use. In addition, section 515(e)(3)(B) requires that the potential use be designed and certified by a professional engineer. This section expresses a specific Congressional mandate that postmining land uses be properly carried out whenever variances are granted. The comment that the Sec. 715.13(d) regulations were designed solely for mountaintop removal operations is inaccurate. In fact, Sec. 715.13(d) clearly states that "Proposals to remove an entire coal seam running through the upper part of a mountain, ridge, or hill must also meet these criteria." This clearly encompasses a greater range of operations than merely mountaintop removal. 5. One commenter recommended that Sec. 716.2(e)(3)(iv)(A) and (B), which establishes specific criteria for measuring improvement of the watershed, be changed to incorporate more general criteria. The commenter felt that OSM should not limit the watershed improvement criteria. OSM agrees with this comment and does not intend that this regulation restrict the possible ways of improving watershed control. The regulation does, however, establish two specific criteria by which improvement can be measured. The proposed rule has been changed to allow the regulatory authority to use any other criterion in granting the variance. {83168} A number of commenters suggested that the watershed control improvement be measured against the condition of the area if it had been mined and returned to its "approximate original contour," rather than against the area's pre-mined condition. These commenters argued that the section 515(e) variance is a variance from the approximate original contour requirement, and that improvement should therefore be based on the normal reclamation condition. OSM rejects this idea for two reasons. First, OSM is not aware of any method which would provide an accurate calculation of such a hypothetical situation. In the preamble to the proposed rule, OSM asked for comments on the practicality of this test, but received none. Secondly, the Act requires complete protection of the hydrologic balance with AOC. Therefore, AOC should result in a watershed at least as good as the premining watershed. Another commenter suggested that the test should be either pre-mined condition or the condition if returned to approximate original contour, whichever would be less restrictive. As stated above, the Act requires full protection of the hydrologic balance in any case. Because of this, OSM does not have the freedom to choose a lesser degree of protection. The rules will insure that the watershed will be restored to a condition as good or better than if the variance was not granted, as OSM believes is necessary and as it believes was intended by section 515(e)(3)(C). Some commenters objected to that part of the regulation which requires watershed improvement on "adjacent lands." Their position is that the regulation would be outside the scope of the Act in that it would make the operator responsible for areas outside of his operating area and (in many cases) control. An operator is responsible for any area affected by his activity, even if it is outside the operating area. OSM recognizes that the term "adjacent area" many encompass a large or smaller area than that which the Act was intended to cover. Accordingly, OSM has changed the phrase "adjacent lands" in Sec. 716.2(e)(2)(i) and (3)(iv) to "the area." This is the term used in section 515(e) of the Act, and makes clear OSM's intent that the watershed be improved. 6. One commenter suggested that the landowner should be allowed to specify the land form and vegetative cover which he desires and that these should become part of the mining and reclamation plan. OSM cannot accept this proposal because the Act is specific about the reclamation required. Reclamation is either to restore the approximate original contour or, in conjunction with a variance, to achieve one of four acceptable alternative postmining land uses. Of course, the landowner is provided opportunity to negotiate the type of postmining land use within the range of alternatives available at such time as he requests a variance. 7. One commenter suggested deleting the requirements that (1) the surface owner request the variance separately from any consent given for the operation; and (2) such request show an understanding that the variance could not be granted without the surface owner's consent. This suggestion is not accepted because OSM feels that these requirements are integral parts of the showing, required by section 515(e)(2) of the Act, that the request is knowing. 8. Some commenters suggested that Sec. 716.2(e)(5) should allow the permittee to demonstrate that the postmining use is proceeding as approved, in lieu of the review by the regulatory authority. OSM accepts this suggestion by adding the phrase "* * * unless the permittee affirmatively so demonstrates." OSM rejects the suggestion that it drop the word "ensure" from this same subsection because section 515(e)(6) requires that the regulatory authority review the variance to make sure it is proceeding in accordance with the terms of the plan. One commenter requested that there be no review where the surface owner had specified the land form. This is rejected for the same reasons that the suggestion that the surface owner be allowed to specify the land form was rejected in paragraph 6 above. 9. A number of minor editorial comments were received. Those which were accepted have been incorporated into the regulation. Note. -- The Department of the Interior has determined that this document is not a significant rule and does not require a Regulatory Analysis under Executive Order 12044 and 43 CFR Part 14. Section 501(a) of the Surface Mining Control and Reclamation Act of 1977 exempts this action from the environmental Impact Statement requirement of the National Environmental Police Act of 1969. DRAFTING INFORMATION These regulations were drafted primarily by Richard M. Hall, Assistant Director for Inspection and Enforcement, and Alan Palisoul, Enforcement Specialist, Division of Enforcement. Dated: December 11, 1980. Joan M. Davenport, Assistant Secretary, Energy and Minerals. Accordingly, Sec. 716.2 of 30 CFR is amended by adding a new paragraph (e) to read as follows: Sec. 716.2 [Amended] (e) Variances from approximate original contour restoration requirements. (1) This subsection applies to surface coal mining operations on steep slopes where the operation is not to be reclaimed to achieve the approximate original contour and is not a mountaintop removal operation. (2) The objective of this subsection is to allow for a variance from the approximate original contour restoration requirements on steep slopes to -- (i) Improve watershed control of the area; and (ii) Allow the land to be used for an industrial, commercial, residential, or public use, including recreational facilities. (3) The regulatory authority may grant a variance from the requirement for restoration of the affected lands to their approximate original contour only if it first finds, in writing, on the basis of a showing made by the permittee, that all of the following requirements are met: (i) The permittee has demonstrated that the purpose of the variance is to make the lands to be affected within the permit area suitable for an industrial, commercial, residential, or public use postmining land use and that the proposed industrial, commercial, residential, or public use is likely to occur. (ii) The proposed use, after consultation with the appropriate landuse planning agencies, if any, constitutes an equal or better economic or public use. (iii) The permittee has demonstrated that compliance with the requirements for acceptable alternative postmining industrial, commercial, residential or public land uses of 30 CFR 715.13 has been achieved except for the requirement at Sec. 715.13(d)(3) and (4) to provide letters of commitment. The permittee must demonstrate to the regulatory authority that necessary public facilities are likely to be provided and that the plan is financially feasible. (iv) The permittee has demonstrated that the watershed of the area will be improved as compared to the condition of the watershed before mining. The watershed will be deem improved only if -- {83169} (A) There will be a reduction in the amount of total suspended solids or other pollutants discharged to ground or surface waters from the area as compared to such discharges; or, there will be reduced flood hazards or more even flow within the watershed containing the area due to reduction of the peak flow discharges from precipitation events or thaws; or any other criterion authority in the granting of the variance. While improving one or more variables, the permittee must also at least maintain the variables not improved at their premining levels; (B) The total volume of flows from the proposed affected lands, during every season of the year, will not vary in a way that adversely affects the ecology of any surface water or any existing or planned use of surface or ground water; and (C) The appropriate State environmental agency approves the plan. (v) The permittee has demonstrated that the owner of the surface of the lands within the permit area has knowingly requested, in writing, as a part of the application, that a variance be granted. The request shall be made separately from any surface owner consent given for the operation and shall show an understanding that the variance could not be granted without the surface owner's request. (vi) The proposal is designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site. (vii) All other requirements of the Act and these regulations will be met by the proposed operations. (4) Every permittee who obtains a variance under this subsection shall: (i) Backfill completely the highwall with spoil material, in a manner which results in a static factor of safety of at least 1.3 using general geotechnical analysis. (ii) Improve the watershed control of the area by reducing the peak flow from precipitation or thaw or reducing the total suspended solids or other pollutants in the surface water discharge during precipitation or thaw or by attaining the criteria approved by the regulatory authority in the granting of the variance. While improving one or more variables, the permittee must also at least maintain the variables not improved at their premining levels. The total volume of flow during every season of the year shall not vary in a way that adversely affects the ecology of any surface or ground water. (iii) Disturb land above the highwall only to the extent that the regulatory authority deems appropriate and approves as necessary to facilitate compliance with the provisions of this section. The regulatory authority may authorize such a disturbance above the highwall if it finds the disturbance is necessary to -- (A) Blend the solid highwall and the backfilled material; or (B) Control surface runoff; or (C) Provide access to the area above the highwall. (iv) Place off the mine bench no more than the amount of spoil necessary to achieve the postmining land use, ensure the stability of spoil retained on the bench, and meet all other requirements of the Act and Parts 710 through 725 of this chapter. All spoil not retained on the bench shall be placed in accordance with the Act and these regulations. (5) The regulatory authority shall review every variance granted pursuant to this subsection not more than three years from the date of issuance of the permit to ensure that the proposed alternative postmining use is proceeding in accordance with the terms of the approved plan, unless the permittee affirmatively so demonstrates. [FR Doc. 80-39186 Filed 12-16-80; 8:45 am] BILLING CODE 4310-05-M