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 K – Permanent Program Performance Standards: Parts 810, 811, 812, 815, 816, 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 827, 828 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 41734} SUBCHAPTER K – PERMANENT PROGRAM PERFORMANCE STANDARDS Parts 810 – 828 contain the minimum performance standards which must be contained in a State program in order for the program to be approved by the Secretary. These performance standards also represent the minimum standards which will be contained in a Federal program adopted for non-Federal and non-Indian lands within a State. Parts 810 – 812 discuss matters of general applicability throughout the Subchapter. Parts 815 - 828 contain the standards for coal exploration, the different methods of coal mining, those special mining situations identified in the Act as having to meet separate or additional performance standards requirements, coal processing facilities operated independent of mines and in situ processing. The manner in which this Subchapter is to be utilized in developing a State or Federal program is contained in Subchapters C and D, respectively. All operations discussed in Subchapter K will be subject to permit requirements at least as stringent as those contained in Subchapter G upon implementation of a State or Federal Program. All these operations will also be subject to bonding requirements which meet the standards of Subchapter J. Inspection of operations and enforcement of applicable performance standards are governed by Subchapter L and any additional requirements of the approved State program or the applicable Federal program. The drafters of Subchapter K considered a great deal of technical literature, all existing State regulatory schemes for coal mining, experiences under OSM's interim regulatory program, the legislative history of the Act, experience and expertise of other government agencies, and comments received on prepublication drafts of this Subchapter, in arriving at the version of the proposed rules published today. These sources are detailed in the separate discussions of the various parts of this Subchapter set forth below. This Subchapter contains minimum performance standards applicable to all persons engaged in coal exploration or surface coal mining and reclamation operations, including the surface effects of underground mining, in situ processing and coal processing facilities operated independent of mines, to the extent the activities occur on non-Federal and non-Indian lands in a State with an approved State program or in which a Federal program has been implemented. Additional and more stringent requirements may be found in the State or Federal program, in other State laws or in conditions imposed on the operator by the regulatory authority in the permit. {41735} In developing these performance standards, the Office of Surface Mining has attempted to strike a reasonable balance. We have weighed the additional cost and inconvenience to the operator against the necessity to protect against long term environmental damage and potential harm to the public. We believe the obligations imposed by the performance standards are reasonable and necessary to accomplish the intended goals of the Act. The proposed rules published today contain the minimum performance standards which would be in effect under an approved State program or a Federal program. In drafting this Subchapter, consideration was given to organizing each related group of Sections in a format different from that contained in the version published today. This alternative format would have set forth the standards much as they are proposed today and then have followed each related group of Sections with two additional provisions. The first additional provision would have set forth the minimum objectives to be achieved if a State wished to adopt different detailed requirements from those proposed in the OSM regulations. The second additional provision would have set forth any regional variations which would apply to the performance standard. The alternative format was rejected primarily because the drafters believe that a more meaningful range of regional variations and criteria for evaluating alternative State proposals can be achieved by eliciting comments to the single standard proposed. OSM encourages the public, in reviewing Subchapter K, to suggest regional variations and criteria for evaluating State suggestions for each of the many standards contained in this Subchapter. Those comments which will be most helpful are those which contain proposed language for the rules and which are accompanied by technical or other literature supporting the proposal. After these regulations are adopted in final form, additional regional variations for alternative means of obtaining the goals of these performance standards can be authorized by amendment to Subchapter K either on OSM's initiative or in response to a petition for rulemaking under Section 700.12 of this Chapter of regulations, or in the rulemaking proceeding which will accompany approval of a State program or adoption of a Federal program. Each Part in this Subchapter is organized to parallel the applicable topics as they are contained in the Act. OSM considered organizing Parts 816 and 817 differently. This alternative organization would have set forth the performance standards in a manner which paralleled the most common logical mining sequence, dividing each Part into subparts for site preparation, mining, reclamation and permanent abandonment of the minesite. The prepublication drafts distributed by OSM on July 21, 1978, contained Part 816 organized in this alternative fashion. Many comments were received both from within OSM and from the public, objecting to the awkwardness and confusion generated by the logical mining sequence. Most commenters agreed that it would not assist the mine operator to comply with the standards nor would it aid enforcement. After consideration of these comments, the logical mining sequence was abandoned for the topical format contained in these proposed rules. One significant issue OSM intends to address in its final rules, and which is not adequately treated in the proposed rules published today, is pre-existing non-conforming structures. Public comment on this issue is encouraged. The following are the structures which might be found on a minesite, either completed or in construction, at the time these regulations go into effect: Roads and associated structures; Impoundments; Sedimentation ponds; Fills; Berms; Benches; Waste banks; Waste dams; Discharge structures; Diversions; Highwalls; Rail loops; Rail sidings; Rail spurs; Refuse areas; Shafts; Spoil piles; Utility lines; Terraces; Drains; Wells; Exploration holes; Boreholes; Barricades; Fences; Bridges; Culverts; Storage areas; Mine buildings; Tipples; Storage or repair facilities; Surge ponds; Processing plants; Slurry pipelines; Conveyors; and other manmade structures or areas disturbed by mining. Non-compliance on the effective date of a State or Federal program might be regulated in any one or more of the following alternative manners: (a) The regulatory authority might require that the structure be brought into compliance or demolished as soon as possible, based on a proposed reconstruction or demolition plan submitted by the operator with the permit application and approved by the regulatory authority as consistent with sound engineering practices and the purposes of the Act. (b) The regulatory authority might require stabilization of the area and cessation of operations until the structure is brought into compliance. (c) The regulatory authority might grant a variance for the structure, to the extent it was completed or non-complying construction was committed to, prior to the effective date of the State or Federal program. (d) The regulatory authority might grant a variance for the structure, to the extent it was completed or non-complying construction was committed to, on the date these regulations become effective. Different structures may require different treatment, depending on the feasibility of reconstruction or modification and the environmental effect of the noncompliance and of reconstruction or modification. The public should frame their comments on this issue in terms of the particular structures for which a recommended alternative is proposed. In addition, technical literature and other background material would be useful to the office in evaluating the comments. OSM has not decided whether to promulgate separate rules for each type of pre-existing nonconforming structure, or a single general rule to cover this subject. However, OSM currently believes that these structures should be required to comply with the requirements of this Subchapter before a permit