[Federal Register Volume 60, Number 227 (Monday, November 27, 1995)]
[Rules and Regulations]
[Pages 58480-58492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28862]



      

[[Page 58479]]

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Part VIII





Department of the Interior





_______________________________________________________________________



Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 701, et al.



Lands Eligible for Remining; Final Rule

  Federal Register / Vol. 60, No. 227 / Monday, November 27, 1995 / 
Rules and Regulations  

[[Page 58480]]


DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 701, 773, 785, 816, and 817

RIN 1029-AB74


Lands Eligible for Remining

agency: Office of Surface Mining Reclamation and Enforcement, Interior.

action: Final rule.

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summary: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is issuing final rules at 30 CFR chapter VII implementing changes made 
to Title V of the Surface Mining Control and Reclamation Act of 1977 
(the Act or SMCRA) by the Energy Policy Act of 1992. The final rules 
are intended to provide incentives for the remining and reclamation of 
previously mined and inadequately reclaimed lands eligible for 
expenditures under section 402(g)(4) or 404 of SMCRA.

effective date: December 27, 1995.

for further information contact: Douglas J. Growitz, P.G., Office of 
Surface Mining Reclamation and Enforcement, Room 110 SIB, 1951 
Constitution Avenue, NW., Washington, DC 20240; Telephone: 202-208-
2561.

SUPPLEMENTARY INFORMATION:

I. Background.
II. Rules adopted and Responses to Public Comments on Proposed 
Rules.
III. Procedural Matters.

I. Background

    On October 24, 1992, the President signed into law the Energy 
Policy Act of 1992, Pub. L. 102-486. Section 2503 of the Energy Policy 
Act, Coal Remining, in part amended sections 404, 510, 515(b)(20), and 
701 of SMCRA in order to provide the following incentives to encourage, 
in an environmentally-sound manner, the remining of lands eligible for 
expenditures under sections 402(g)(4) and 404 SMCRA: (1) The permittee 
of such remaining operations shall not be subject to permit blocking 
under section 510(c) of SMCRA for any violation resulting from an 
unanticipated event or condition occurring on the remaining site; and 
(2) The period of responsibility for successful revegetation for such 
remining operations is reduced to five years in the West and two years 
in the East.
    The relevant portion of section 2503 provides as follows:
    Section 510 is amended by adding the following new subsection at 
the thereof:

    (e) MODIFICATION OF PROHIBITION--After the date of enactment of 
this subsection, the prohibition of subsection (c) shall not apply 
to a permit application due to any violation resulting from an 
unanticipated event or condition at a surface coal mining operation 
on lands eligible for remining under a permit held by the person 
making such application. As used in this subsection, the term 
``violation'' has the same meaning as such term has under subsection 
(c). The authority of this section and section 515(b)(20)(B) shall 
terminate on September 30, 2004.

    Section 515(b)(20) is amended to insert (A) after (20) and add the 
following new subparagraph at the end thereof:

    (B) on lands eligible for remining assume the responsibility for 
successful revegetation for a period of two full years after the 
last year of augmented seeding, fertilizing, irrigation, or other 
work in order to assure compliance with the applicable standards, 
except in those areas or regions of the country where the annual 
average precipitation is twenty-six inches or less, then the 
operator's assumption of responsibility and liability will be 
extended for a period of five full years after the last year of 
augmented seeding, fertilizing, irrigation, or other work in order 
to assure compliance with the applicable standards.

    Section 701 is amended by adding the following two new paragraphs:

    (33) the term ``unanticipated event or condition'' as used in 
section 510(e) means an event or condition encountered in a remining 
operation that was not contemplated by the applicable surface coal 
mining and reclamation permit; and
    (34) the term ``lands eligible for remining'' means those lands 
that would otherwise be eligible for expenditures under section 404 
or under section 412(g)(4).

    The purpose of section 2503 was set forth in the House of 
Representatives Report from the Committee on Interior and Insular 
Affairs on H.R. 776, the predecessor bill in the House of 
Representatives (H.R. Rep. No. 102-474, 102d Cong., 2d Sess. 85 (1992)) 
which contains the following discussion: ``The (coal remining) 
provisions of this section seek to make coal available that otherwise 
would be bypassed by providing incentives for industry to extract and 
reprocess, in an environmentally sound manner, coal that remains in 
abandoned mine lands and refuse piles. Current law reclamation 
performance standards were devised to address surface coal mining on 
undisturbed lands; the unintended result is to discourage remining. 
Remining also serves to mitigate the health, safety, and environmental 
threats posed to coal field residents by augmenting the work done under 
the Abandoned Mine Reclamation Program.''
    To implement sections 510(e) and 515(b)(20)(B) of SMCRA, OSM 
proposed rules on June 2, 1994 (59 FR 28744) which would: (1) Revise 30 
CFR 701.5, Definitions; 30 CFR 773.15, Review of Permit Applications; 
30 CFR 816.116 and 817.116, Revegetation: Standards for Success; and 
(2) add a new 30 CFR 785.25, Lands Eligible for Remining.
    Public comments were received until August 1, 1994. No public 
meetings nor hearings were requested or held. OSM received letters in 
response to the June 2, 1994, proposed rule from eight commenters 
representing industry, State regulatory authorities, Federal agencies, 
Environmental groups, and individual citizens. OSM has reviewed each 
comment carefully and has considered the commenters' suggestions and 
remarks in writing this final rule.
    OSM previously implemented another remining provision of the Energy 
Policy Act dealing with AML eligibility under a separate rulemaking (59 
FR 28136, May 31, 1994). A provision dealing with abandoned coal refuse 
sites is also being addressed under a separate rulemaking.

II. Rules Adopted and Responses to Public Comments on Proposed 
Rules

1. 30 CFR Part 701--Permanent Regulatory Program

    Section 701.5, Definitions, is being amended by adding two terms--
``lands eligible for remining'' and ``unanticipated event or 
condition''--both of which were defined in section 2503(c) of the 
Energy Policy Act.
    a. Lands eligible for remining. The definition adopted for the term 
``lands eligible for remining'' is the same as the proposal and the 
definition is section 701(34) of SMCRA. Under the final rule, ``lands 
eligible for expenditures under sections 404 or 402(g)(4) of the Act. 
Thus, the following lands would be included under this definition: 
those lands which were mined by surface coal mining operations or 
otherwise affected by surface or underground mining operations and 
which were either (1) abandoned or left in an inadequate reclamation 
status prior to August 3, 1977, and for which there is no continuing 
reclamation responsibility under State or other Federal laws; (2) 
abandoned or left in an inadequate reclamation status after August 3, 
1977 but before State received primacy under SMCRA and for which 
available bond is insufficient to provide for adequate reclamation; or 
(3) completed being mined between August 4, 1977, and November 5, 1990, 
and remain unreclaimed due to the insolvency of a surety company 
occurring during that same period.

[[Page 58481]]

    Many remining operations involve the surface mining or 
``daylighting'' of underground workings. Depending on the extent that 
overlaying or adjacent surface lands are affected by the prior 
underground workings, e.g., through subsidence, those lands may or may 
not fall within section 701(34)'s definition of ``lands eligible for 
remining.'' if, under the example above, the surface disturbances 
resulting from previous underground mining are so slight that the lands 
do not constitute ``lands eligible for remining,'' the ``daylighting'' 
of the underground workings would then not qualify for the remining 
incentives provided by sections 510(e) and 515(b)(20)(B) and 
implemented by this rulemaking.
    One commenter suggested that the definition of ``lands eligible for 
remining'' contain the phrase ``under a permit issued prior to 
September 30, 2004.'' Although OSM has not made the suggested change to 
the definition, OSM agrees that Sections 510(e) and 515(b)(20)(B) of 
SMCRA apply only to permits issued before September 30, 2004. As 
explained below, this concept is reflected in 30 CFR 773.15(b)(4) and 
in 30 CFR 816.116 and 817.116.
    b. Unanticipated event or condition. The definition adopted for 
``unanticipated event or condition'' is similar to the proposal and 
consistent with the definition in section 701(33) of SMCRA. An 
``unanticipated event or condition'' is defined in the final rule as an 
event or condition related to prior mining activity which arises from a 
surface coal mining and reclamation operation on lands eligible for 
remining and was not contemplated by the applicable permit. Pursuant to 
final Sec. 773.15(b)(4), an operator will not be permit blocked for any 
violation resulting from an unanticipated event or condition occurring 
during the term of such remining permit issued before September 30, 
2004, or any renewals thereof. The rationale for the final rules' use 
of the term ``arises from'' in lieu of the term ``encountered in'' used 
in the statutory definition is discussed later under the heading 
``Phase-out of section 510(e) permit block exemption.''
    (i) Related to prior mining activity The phrase ``related to prior 
mining'' has been added to the final definition of ``unanticipated 
event or condition'' to qualify which events or conditions could give 
rise to violations subject to the Sec. 773.15(b)(4) permit block 
exemption.
    This change is made in response to several commenters, one of which 
asserted that the proposed definition of ``unanticipated event or 
condition'' was too broad to be of practical value and asked whether an 
event or condition ``causally related'' to the unreclaimed or 
previously mined status of the area covered by the remining permit 
would qualify as unantipated. A second commenter suggested that an 
unanticipated event or condition must arise from the previously 
disturbed nature of the site. A third commenter, citing the history 
associated with the development of the remining amendments of the 
Energy Policy Act, proposed that an unanticipated event or condition 
should embody any event or occurrence that arises from the previously 
disturbed nature of the site, including acid mine discharges, despite 
substantial adherence to the permit.
    OSM agrees with these comments that only unanticipated events or 
conditions related to the previously disturbed nature of the site 
should qualify for the section 510(e) exemption. The addition of the 
qualifying phrase ``related to prior mining activity'' is consistent 
with Congressional intent to encourage remining by extending the permit 
block exemption of section 510(e) to the problem events or conditions 
occasioned by such prior mining operations. OSM does not believe, on 
the other hand, that Congress intended to exempt applicants from permit 
blocking for violations occurring on the remining site but resulting 
from conditions unrelated to previous mining activities. Applicants 
would thereby remain permit blocked for violations solely attributable 
to their own conduct.
    An example of an event or condition which might arise during a 
remining operation but not related to the prior mining activity would 
be the mining of previously undisturbed toxic coal seams located below 
previously disturbed deposits.
    An example of an event or condition which might arise during a 
remining operation and considered related to the prior mining activity 
would be the discovery of hazardous materials or substances buried in 
depressions or pits left at an abandoned site. Such an event or 
condition would be considered as related to a prior mining activity 
because without the previous mining the hazardous materials or 
hazardous substances would not have been buried at the site.\1\

    \1\ If hazardous materials or hazardous substances of any type 
are uncovered or released during remining, the operator must follow 
the requirements for notifying the National Response Center as 
required by the National Contingency Plan (40 CFR part 300). This 
would apply to the discovery or release, whether regulated under the 
statutory authority of the Toxic Substances Control Act (TSCA), the 
Resource Conservation and Recovery Act (RCRA), or the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA). 
These laws are administered by the U.S. Environmental Protection 
Agency or State environmental agencies. Additional reporting and 
notification requirements may exist under State or local laws.
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    OSM is broadly interpreting the qualifying phrase ``related to 
prior mining'' so as to afford some practical incentive to remining 
while also maintaining consistency with the provisions of the Energy 
Policy Act. Thus, for the purposes of this final rule, an event or 
condition can qualify as an ``unanticipated'' event or condition if it 
is related to prior mining at the site. One commenter asked if OSM 
meant only that acts of God could result in unanticipated events or 
conditions and requested some clarification in terms of examples. An 
act of God resulting in extreme hydrologic conditions might 
significantly vary from the permit's estimate and could reasonably 
qualify as one example of an unanticipated event or condition if the 
event or condition causing the violation is related to prior mining 
activity at the site.
    (ii) Acid mine drainage. An industry commenter asserted that any 
acid mine drainage (AMD) which occurs despite substantial adherence to 
a permit should be included in the meaning of ``unanticipated event or 
condition'' and pointed to the legislative history of the remining 
legislation to further its argument. The commenter cited first to 
strong State and industry support for the definition of ``unanticipated 
event or condition'' in H.R. 4053 (1990) which it characterized as 
addressing the issue of AMD. The commenter then cites to State and 
industry opposition to the subsequent provisions of H.R. 1078 (1991) 
which would have explicitly excluded from the definition of 
``unanticipated event or condition'' any event or condition involving 
more than a minimal amount of toxic overburden or pre-existing acid 
discharge. Industry concluded that because H.R. 4381 (1992) 
substantially carried forward the H.R. 4053 and 1078 definitions of 
``unanticipated event or condition'' but deleted the objectionable H.R. 
1078 exclusion for toxic overburden or pre-existing acid discharge, and 
that H.R. 776 (1992) incorporates that definition as the eventual 
Energy Policy Act definition, AMD should therefore be included within 
the meaning of ``unanticipated event or condition.
    OSM agrees with the commenter that the Energy Policy Act does not 
exclude AMD as a type of condition which may constitute an 
``unanticipated event or condition.'' On the other hand, although the 
Energy Policy Act does not include the AMD exclusion language of H.R. 
1078, neither does the legislative history 

[[Page 58482]]
indicate that Congress intended for all AMD to be categorically 
included within the meaning of ``unanticipated event or condition.'' 
Clearly the issues of AMD and the allowance to be given in remining to 
toxic overburden and pre-existing acid discharge were high profile and 
controversial among environmentalist, industry and regulatory 
supporters during the drafting of all the cited House Bills. The 
hearings on these Bills reflect a recognition that the definition of 
``unanticipated event or condition'' later incorporated into the Energy 
Policy Act did not address or resolve the AMD issue. (See Testimony of 
Dave Rosenbaum, Dept. Commissioner, Kentucky Natural Resources and 
Environmental Protection Cabinet, H.R. 4053, 101-72, March 13, 1990). 
Therefore, OSM concludes that AMD should be treated like any other 
condition to be evaluated on a case-by-case basis to determine whether 
it constitutes an ``unanticipated event or condition.''

2. 30 CFR Part 773--Requirements for Permits and Permit Processing

    Section 773.15, Review of Permit Applications, is being amended by 
adding two new paragraphs, (b)(4) and (c)(13). These paragraphs will 
generally correspond to proposed paragraphs (f) and (c)(13) of 
Sec. 773.15.
    (a) Sec. 773.15(b)(4). Final Sec. 773.15(b)(4) (proposed 
Sec. 773.15(f)) implements section 510(e) of SMCRA which establishes an 
exemption from the permit blocking provisions of section 510(c) of 
SMCRA. Subsequent to October 24, 1992, the final rule exempts from the 
permit-block provisions of paragraph (b) of Sec. 773.15 situations 
where an unabated violation occurring after that date is attributed to 
an unanticipated event or condition arising from a remining site under 
a permit issued before September 30, 2004, or any renewals thereof. In 
such cases, the person holding the remining permit would not be 
rendered ineligible for a new surface coal mining permit at another 
site simply because of the unabated violation at the remining site. 
Responsibility to abate the violation, however, is not affected by the 
final rule.
    (i) Sec. 773.15(b)(4)(i). Final Sec. 773.15(b)(4) has been divided 
into two paragraphs (i) and (ii). Although paragraph (b)(4)(i) was 
originally proposed as Sec. 773.15(f), OSM believes the permit block 
exemption related to unabated violations resulting from an 
unanticipated event or condition is more appropriately located in 
Sec. 773.15(b) which deals with review of violations.
Phase-In of Section 510(e) Permit Block Exemption
    Comments were received seeking clarification as to the rule's 
phase-in i.e., when must violations have occurred and when must 
remining permits have been issued to qualify for the section 510(e)'s 
permit block exemption. In addition, OSM recently approved an amendment 
to the Kentucky regulatory program which substantially tracked section 
510(e) of the Act (60 FR 33110, June 27, 1995). This amendment, Senate 
Bill 208, also focussed OSM on the need for further clarification of 
the proposed rule's section 510(e) permit block exemption as to when 
remining permits need to have been issued to have violations at the 
site qualify for that exemption.
    By its own terms, the permit block exemption in section 510(e) of 
SMCRA applies to all section 510(c) determinations that occur 
subsequent to October 24, 1992. Thus, final Sec. 773.15(b)(4)(i) 
includes the introductory phrase ``Subsequent to October 24, 1992,'' as 
identifying the date after which a determination can be made as to the 
applicability of the exemption of Sec. 773.15(b)(4).
    In partial response to comments discussed below, the final rule's 
Sec. 773.15(b)(4) permit block exemption will extend to unabated 
violations (1) occurring after section 510(e)'s October 24, 1992, 
enactment date; and (2) resulting from an unanticipated event or 
condition occurring under remining permits issued either before or 
after that same date. This clarification as to the intended reach of 
Sec. 773.15(b)(4) is consistent with OSM's approval of the Kentucky 
State program amendment substantially tracking section 510(e)'s 
provisions.
    One commenter representing several environmental associations 
stated that the goals of the October 24, 1992, amendments would be best 
served by limiting the application of the section 510(e) permit block 
exemption to violations that occur on a remined site after that date 
and under a remining permit issued in accordance with the provisions of 
the amended Act. (It also made similar comments on the Kentucky 
amendments.) In support of these positions, the commenter made a number 
of assertions. With regard to limiting the permit block exemption to 
violations that occur after October 24, 1992, the commenter asserted 
that Congress intended the remining provisions of the Energy Policy Act 
to be forward-looking in seeking to provide an incentive for future 
operations on previously mined and abandoned areas. In support thereof, 
it referenced the H.R. Rep. No. 102-474, at 85 (1992), as well as the 
existence of significant pre-Energy Policy Act mining of previously 
mined and abandoned areas. The commenter further asserted that Congress 
intended the section 510(e) permit block exemption to be narrowly 
interpreted and not used to excuse applicants who had been previously 
permit blocked because of pre-Energy Policy Act violations. It again 
referenced the House Report at 85.
    This commenter also asserted that limiting the section 510(e) 
permit block exemption to violations occurring under a remining permit 
issued in accordance with the provisions of the amended Act would 
couple existing informational requirements in part 773 with those of 
proposed Sec. 785.25 to provide a more comprehensive objective 
assessment of site conditions against which any claim of 
``unanticipated event'' could be assessed.
    Finally the commenter asserted that the Act's section 701(33) 
definition of the phrase ``lands eligible for remining'' implies a 
determination by the regulatory authority in advance of issuing a 
remining permit that the site would otherwise be eligible for AML 
expenditures.
    OSM agrees that the plain language of the section 510(e) permit 
block exemption limits its application to violations that occurred on a 
remining site after the October 24, 1992, amendment date. Inclusion of 
the statutory phrase ``(a)fter the date of enactment of this 
subsection,'' in section 510(e) of SMCRA evinces a clear Congressional 
intent that the provision be prospective from October 24, 1992, and 
relate to events occurring after that date. OSM also agrees with the 
commenter that the legislative history of the exemption supports such a 
limitation and that persons already permit-blocked under section 510(c) 
of SMCRA for violations occurring before October 24, 1992, could not 
become unblocked by enactment of section 510(e). Accordingly, the 
section 510(e) permit block exemption of final Sec. 773.15(b)(4)(i) 
will be limited to violations occurring after October 24, 1992.
    The incentive for future remining provided by the section 510(e) 
permit block exemption logically extends both to parties already 
conducting remining operations as of October 24, 1992, and those 
contemplating entirely new remining operations after that date. For the 
first group, section 510(e) provides some incentive to continue 
remining. 

[[Page 58483]]
For the second group, section 510(e) provides an incentive to begin 
remining new properties.
    OSM disagrees with the commenter's suggestion that the goals of the 
1992 amendments would be best served by limiting the section 510(e) 
permit block exemption to post-October 24, 1992, violations occurring 
at a remining permit issued only in accordance with the provisions of 
the amended Act, i.e., a Sec. 785.25 permit. Although the language of 
section 510(e) and its legislative history limits the exemption to 
post-October 24, 1992, violations, neither the language of section 
510(e) nor its legislative history requires that the permit be issued 
after October 24, 1992, or under Sec. 785.25 or a State program 
equivalent.
    While the commenter's suggestion of limiting the permit block 
exemption to Sec. 785.25 permits would provide enhanced information on 
site conditions, there are practical considerations which would weigh 
against such a suggestion. For primacy States, limiting the permit 
block exemption to Sec. 785.25 permits would further postpone the 
availability of the exemption until 1996 or 1997 because of the time 
normally needed to submit and gain approval of a state program 
amendment. The commenter's suggestion of limiting the permit block 
exemption to Sec. 785.25 permits would, therefore, not accommodate the 
plain language of the Act and clear legislative intent that the 
remining amendments provide a timely incentive for the remining of 
previously abandoned mine lands.
    The commenter's suggestion that the section 510(e) exemption be 
limited to Sec. 785.25 permits would also conflict with its previously 
discussed position that the section 510(e) exemption be limited to 
post-October 24, 1992, violations occurring on remining sites. For the 
remining incentive of section 510(e) to apply to violations occurring 
immediately following the October 24, 1992, enactment date, the 
underlying remining permit would have had to have been issued prior to 
that date. Accordingly, OSM does not interpret section 510(e) as 
imposing a post-October 24, 1992, limitation on when permits must have 
been issued to qualify for the permit block exemption.
    In addition, contrary to the commenter's assertion, the Act's 
section 701(33) definition for ``lands eligible for remining'' does not 
establish the requirement for a determination by the regulatory 
authority in advance of issuing a remining permit that the site would 
otherwise be eligible for AML expenditures. While final 
Sec. 773.15(c)(13) will require a ``lands eligible'' finding before 
issuance of remining permits in the future under Sec. 785.25, the 
determination of ``lands eligible'' for remining will also have to be 
made for existing permittees seeking to avail themselves under 
Sec. 773.15(b)(4)(i) of the section 510(e) permit block exemption.
    On the basis of the above discussion, the phase-in for the section 
510(e) permit block exemption at Sec. 773.15(b)(4)(i) will be tied to 
the date of violation but not to the date of permit issuance. 
Violations must have occurred after October 24, 1992, and resulted from 
an unanticipated event or condition arising from surface coal mining 
and reclamation operations on lands eligible for remining under a 
permit issued either before or after that date.
Phase-Out of Section 510(e) Permit Block Exemption
    Final paragraph (b)(4)(i) does not contain the language of proposed 
paragraph (f) that the permit block prohibition of paragraph (b) shall 
not apply ``(u)ntil September 30, 2004.'' In its place, final paragraph 
(b)(4)(i) provides that the permit block prohibitions of paragraph (b) 
shall not apply to ``* * * any violation resulting from an 
unanticipated event or condition * * * under a permit, issued before 
September 30, 2004, or any renewal thereof * * *.'' Thus final 
Sec. 773.15(b)(4)(i) provides that the permit block exemption will 
continue to be available for violations occurring on lands eligible for 
remining under a remining permit issued before September 30, 2004, or 
any renewals thereof, even if the Sec. 772.15(b)(4) determination 
occurs after that date.
    This change in the final regulatory text from the proposed rule 
implements the phase-out provision of section 510(e) and is made in 
response to comments received from industry and State regulatory 
authorities. These commenters questioned the apparent intent of the 
proposed rule language that the permit block exemption would continue 
only until September 30, 2004. The effect of such provision was seen as 
allowing a company to be permit blocked on October 1, 2004, and 
thereafter, for a violation occurring on an eligible remining site 
permitted before September 30, 2004, which had earlier been exempted 
from the permit block section. The industry commenter asserted that 
Congress could not have intended an anomalous result such that one 
violation would be excluded from causing a permit block and 
subsequently form the basis for causing a permit block. Viewing the 
whole of the language of section 510(e) and not limiting itself solely 
to the provision which provided that ``(t)he authority of (that) 
section shall terminate on September 30, 2004,'' that commenter 
asserted that what Congress intended was to provide an exemption from 
the permit blocking provisions of section 510(c) for violations 
resulting from unanticipated events or conditions under permits issued 
prior to September 30, 2004, and not to provide such an exclusion on a 
temporary basis for violations occurring prior to September 30, 2004, 
but which exemption would suddenly disappear after September 30, 2004.
    The commenter cited to the following language of section 510(e) as 
confirming this intent since it renders section 501(c) inapplicable to 
``any violation resulting from an unanticipated event of condition at a 
surface coal mining operation on lands eligible for remining under a 
permit held by the person * * *.'' (emphasis added by commenter).
    The commenter reasoned that this language clearly ties the 
exemption to the date of issuance of the remining permit, not the 
violation. Accordingly, the commenter stated that the language of 
section 510(e) terminating the authority of the section on September 
30, 2004, should be construed to foreclose the permit block exemption 
to violations under a permit issued subsequent to that date. In turn, 
the final regulatory rule language should clearly set forth that the 
exemption applies to any violation arising from an unanticipated event 
or condition at a remining operation under a permit issued prior to 
September 30, 2004.
    While OSM does not view the discerning of Congressional intent as 
to the termination of authority provisions of section 510(e) to be as 
clear-cut as portrayed by the commenter, OSM agrees with the principal 
arguments set forth above. Viewing the permit blocking exemption of 
section 501(e) as a whole, the emphasis should not be on whether the 
violation occurred before September 30, 2004, but whether the remining 
permit was issued before authority to grant such exemption terminated 
on September 30, 2004. Congress could not have reasonably intended for 
the small violation a ``now you are not permit blocked, now you are 
permit blocked'' approach. Scant incentive for remining would be 
provided if the permit block exemption for violations at a remining 
site would be temporary and expire on September 30, 2004. OSM 
interprets the termination date, September 30, 2004, 

[[Page 58484]]
as the last date upon which a remining permit may be issued for which 
violations resulting from an unanticipated event or condition may be 
excluded from future permit block determinations.
    In support of this statutory interpretation, OSM notes that by 
2004, an increasingly large proportion of remining permits will meet 
the standards of Sec. 785.25. These permits' enhanced requirements for 
site condition information and identification of event/condition-
specific mitigation measures will go far to ensure that the section 
510(e) permit block exemption will not be abused. Interpreting the 
section 510(e) permit block exemption so as to tie its termination of 
authority provision to the date of issuance of the remining permit, not 
to the date of the violation or to the date of the section 510(c) 
determination, promotes a clear Congressional intent with respect to 
the remining amendments to SMCRA to provide, in an environmentally 
sound manner, a meaningful incentive for the remining of previously 
abandoned sites. H.R. Rep. No. 102-474, at 85 (1992).
    Accordingly, final paragraph (b)(4)(i) provides that the exclusion 
will continue to be available for violations occurring on lands 
eligible for remining under a remining permit issued prior to September 
30, 2004, and any renewals thereof.
    Final paragraph (b)(4)(i) also includes the term ``and any renewals 
thereof'' to indicate that the permit block exemption will apply to 
unabated violations occurring under permits issued before September 30, 
2004, and subsequently renewed. The baseline information from which a 
Sec. 773.15(b)(4) determination will be made as to whether a violation 
results from an unanticipated event or condition also does not change 
if the violation occurs during the original permit term or its renewal. 
While the ``and renewals thereof'' provision is consistent with 
Congressional intent to provide a remining incentive for operations on 
lands eligible for remining, OSM does not anticipate many occurrences 
when a qualifying Sec. 773.15(b)(4) violation would first occur during 
the permit renewal period. In most cases, the mining on lands eligible 
for remining will be accomplished well within the original 5-year 
permit term.
    Final paragraph (b)(4)(i) uses the term ``arises from'' in lieu of 
the term ``encountered at'' used in the statutory definition of 
``unanticipated event or condition'' indicating that a violation 
resulting from an unanticipated event or condition can arise from a 
remining operation and does not have to be encountered at that remining 
operation in order to qualify for the permit block exemption. For 
further discussion of when a violation may arise away from a remining 
operation but as a result of an unanticipated event or condition 
occurring at the remining operation, see a. (ii) Abatement obligation 
continues.
    (ii) Sec. 773.15(b)(4)(ii). Final Sec. 773.15(b)(4)(ii) represents 
provisions taken from other parts of the proposed rule relocated in 
this paragraph. Final paragraph (b)(4)(ii) provides that events or 
conditions arising subsequent to permit issuance related to prior 
mining which were not identified in the permit issued under Sec. 785.25 
shall be presumed to constitute unanticipated events or conditions for 
the purposes of Sec. 773.15(b). This provision is derived from proposed 
Sec. 773.15(c)(13) and has been moved in the final rule to paragraph 
(b)(4)(ii) as proper part of the regulatory authority's 
Sec. 773.15(b)(4) determination of whether events or conditions are 
unanticipated. The ``may be presumed'' language of proposed 
Sec. 773.15(c)(13) was changed in the final rule to ``shall be 
presumed'' as discussed below in response to comments.
    The final rule drops the proposed heading for paragraph (b)(4), 
``Lands eligible for remining'' to be consistent with the format of 
other paragraphs.
Presumption of Unanticipated Event or Condition
    OSM recognizes that without a reasonable degree of certainty as to 
their regulatory application, the remining provisions proposed as 
incentives for remining operations would not serve as an effective 
incentive for remining. Thus, certain changes from the proposed to the 
final rules reflect an intent to provide such certainty for remining 
operations. Most particularly is the change from the language of 
proposed Sec. 773.15(c)(13) that events or conditions arising 
subsequent to permit issuance ``may be presumed'' to constitute 
unanticipated events or conditions to the language of final 
Sec. 773.15(b)(4)(ii) that such events or conditions arising subsequent 
to permit issuances ``shall be presumed'' to constitute unanticipated 
events or conditions. Operators will be able to rely on the provision 
that once a Sec. 785.25 permit has been issued, events or conditions 
not identified in the permit shall be presumed to constitute 
unanticipated events or conditions for the purposes of the permit block 
exemption of Sec. 773.15(b). This is primarily predicated upon the 
operator performing a due diligence investigation to determine which 
events or conditions are reasonably anticipated and then identifying 
such events or conditions in the permit application. This presumption 
could be rebutted if a permit applicant fails to identify significant 
potential environmental or safety problems related to prior mining 
activity at the site which could have been reasonably anticipated to 
occur and were known to the applicant or should have been known to the 
applicant through the due diligence investigation required under 
Sec. 785.25.
    This change of language in final Sec. 773.15(b)(4)(ii) to the words 
``shall be presumed'' is not intended to diminish the substantial 
flexibility available to, and the responsibility of, a regulatory 
authority prior to permit issuance to make its own informed judgment as 
to which events or conditions should be properly identified in the 
permit application. Final Sec. 785.25(b) requires an identification of 
potential environmental and safety problems which could be reasonably 
anticipated to occur at the site. The identification would be based on 
a due-diligence site-specific investigation. Under final 
Sec. 773.15(c)(13), the regulatory authority is required to make a 
finding for Sec. 785.25 permits that the permit application contains an 
identification of the particular environmental and safety problems 
which could reasonably be anticipated to occur at the site.
The Presumption for Permits Not Issued Under Section 785.25
    As discussed above under the Phase-in of Section 510(e) permit 
block exemption, the permit block exemption of Sec. 773.15(b)(4)(i) 
extends to permits in existence on October 24, 1992, and is not limited 
to permits solely issued under Sec. 785.25. Permits for lands eligible 
for remining not originally issued under Sec. 785.25 but subsequently 
revised and upgraded to satisfy the permit information and permit 
finding requirements of Secs. 785.25 and 773.15(c)(13) would qualify 
for the Sec. 773.15(b)(4)(ii) presumption.
    Permits for lands eligible for remining not originally issued under 
Sec. 785.25 and not subsequently revised to satisfy the permit 
information and permit finding requirements of Secs. 785.25 and 
773.15(c)(13) would not qualify for the Sec. 773.15(b)(4)(ii) 
presumption. An applicant for a new permit in such circumstances would 
have the burden of establishing that any violation which arose at one 
of these non-Sec. 785.25 permits resulted from an unanticipated event 
or condition. OSM agrees with a commenter that it is likely to be more 
difficult to establish for these permits that violations resulted from 

[[Page 58485]]
unanticipated events or conditions than for future permits issued or 
revised in accordance with Sec. 785.25 which will have identified 
reasonably anticipated problems and for which the Sec. 773.15(b)(4)(ii) 
presumption applies.
    Several comments to the proposed rule were received regarding 
application of the ``unanticipated event or condition'' language. One 
industry group asserted that events or conditions should be considered 
unanticipated for the purposes of the section 510(e) exemption if the 
operator substantially adheres to its operation and reclamation plans. 
The industry commenter stated that this was Congress' initial 
understanding of such events or conditions and cited statements made by 
Rep. Rahall both in introducing H.R. 4053 (101st Cong., 1990), an early 
predecessor to the Energy Policy Act, and later in hearings on that 
bill. Rep. Rahall is quoted as stating that H.R. 4053's provision were 
intended to free a qualified operator from responsibility to address an 
event or condition encountered during a remining operation that was not 
originally anticipated under an approved reclamation plan. Furthermore, 
the H.R. 4053 provisions were stated as intending to provide the 
regulatory authority with some ``wiggle room'' as to what constitutes 
an unanticipated event or condition.
    OSM agrees with the commenter's position but not for the reasons 
asserted. OSM agrees that where a permit applicant diligently conducted 
an investigation to identify conditions that are reasonably 
anticipated, and references such conditions in the permit application, 
the operator should be able to have a degree of comfort that he will 
not be permit blocked for violations resulting from non-identified 
conditions which occur despite compliance with the operation and 
reclamation plans. This is the presumption set forth in 
Sec. 773.15(4)(ii). A permit not predicated upon such complete 
information, however, will not be entitled to the presumption.
    OSM does not agree with the commenter that the legislative history 
of the Energy Policy Act mandates that an event or condition that 
occurs despite an operator's adherence to its operations and 
reclamation plans should always constitute an ``unanticipated event or 
condition'' for the purposes of the section 510(e) exemption. Rep. 
Rahall's referenced introduction to H.R. 4053 would have tied reduced 
operator liability to full compliance with the reclamation plan but 
only with regard to providing operators a date-certain release of their 
reclamation bond. While earlier H.R. 2791 (101st Cong., 1989) did 
contain specific provisions terminating (all) operator liability for 
compliance with all the requirements of the permit and reclamation 
plan, such provisions were not carried forward to H.R. 4053 (1990), 
H.R. 1078 (102nd Cong., 1991), H.R. 4381 (102nd Cong., 1992), H.R. 776 
(102nd Cong., 1992), or to the Energy Policy Act of 1992.
Penalties To Be Assessed
    One commenter suggested that OSM has discretion not to require a 
civil penalty for violations tied to unanticipated events or 
conditions. The commenter further suggested that OSM should adopt a 
policy whereby civil penalties are not assessed for violations arising 
from unanticipated events or conditions. OSM finds no basis in the 
Energy Policy Act or its legislative history to support either 
suggestion.
Delinquencies Not Covered by Exemption
    In the preamble to the proposed rule OSM posed the question of 
whether the nonpayment of delinquent penalties assessed after a notice 
of violation or a failure-to-abate cessation order based on an ``on the 
ground'' violation resulting from an unanticipated event or condition 
should be covered by the Energy Policy Act permit block exemption. OSM 
stated in the proposed rule that it intended that such delinquencies, 
which are violations themselves, would be covered by the exemption if 
they were construed as ``resulting from an unanticipated event or 
condition at a surface coal mining operation.'' OSM sought comments on 
this issue but no comments were received.
    Upon consideration, OSM concludes that the non-payment of 
delinquent civil penalties assessed because of an unabated violation 
resulting from an unanticipated event or condition should not be 
construed as resulting from the underlying unanticipated event or 
condition. OSM has reached this conclusion because non-payment of 
penalties is a violation solely within an operator's control and is 
independent of the underlying on-the-ground violation caused by the 
unanticipated event or condition. This construction of the permit block 
exemption will still afford substantial incentive for remining while 
limiting the exemption to unabated violations resulting from events or 
conditions which could not reasonably have been anticipated at the time 
of the remining permit's issuance.
Abatement Obligation Continues
    Another commenter asked whether an operator cited for a violation 
related to an unanticipated event or condition occurring on land 
eligible for remining would have an obligation to reclaim or resolve 
such violation even though the operator would not be permit blocked 
because of it. Nothing in the Energy Policy Act nor this final 
rulemaking insulates the operator from his existing responsibilities to 
abate his violations whether or not they stem from anticipated or 
unanticipated events or conditions. Neither is that operator insulated 
from other enforcement actions stemming from these unabated violations.
    A third commenter questioned particular preamble discussion in the 
proposed rule and asked that the final rule clarify that a violation 
occurring off the remining site that results directly from an 
unanticipated event or condition occurring on the remining site is also 
subject to the permit-block exemption. The commenter correctly noted 
that the Energy Policy Act requires only that the unanticipated event 
or condition, not necessarily the violation itself, be at a surface 
coal mining operation on lands eligible for remining. In response to 
this comment and consistent with substantial preamble discussion in the 
proposed rule and as discussed elsewhere in this final preamble, OSM 
confirms that a violation that occurs off-site but as a direct result 
of an unanticipated event or condition occurring on the remining site 
is also covered by the Sec. 773.15(b)(4) permit block exemption.
    As discussed in the proposed rule, if a mining operator on a 
previously undisturbed site contributes to a violation occurring on 
that site but originating from an unanticipated event or condition on 
an adjacent or nearby remining operation, and if the operator of the 
previously undisturbed site did not abate the violation, he would be 
permit blocked. On the other hand, if the operator of the previously 
undisturbed site did not contribute to the unabated violation occurring 
on his site, he would not be permit blocked.
    OSM's proposed rule sought comments on this and other possible 
examples of interplay between remining operations and adjacent 
operations which needed to be explained in the final rulemaking. Two 
commenters responded. The first stressed that the operator of a 
previously undisturbed site should not be held responsible for any 
condition on his own site that originated from a nearby remining 
operation, whether the originating event 

[[Page 58486]]
or condition is anticipated or not. OSM agrees that the liability of 
operators for events or conditions originating on a nearby remining 
site should not be a function of whether or not the originating event 
or condition was anticipated. As discussed above, an operator of a 
previously undisturbed site would be responsible for events or 
conditions on his site that originated from a nearby site only if his 
operation contributed to that event or condition.
    The same commenter asserted that operators should not be held 
responsible for correcting conditions that are caused by or stem from 
existing abandoned mine lands. SMCRA, as amended by the Energy Policy 
Act, provides, under restricted circumstances, for an exemption to the 
permit block provisions of section 510(c) and for reduced periods of 
responsibility for successful revegetation. These amended SMCRA 
sections (510(e) and 515(b)(20)(B)) do not, however, provide exemption 
from other existing regulatory standards as the commenter would 
suggest. OSM's position on this issue is also consistent with the 
second commenter who correctly noted that an operator is responsible 
for meeting effluent limits where runoff from other sites is commingled 
with runoff from his own site.
    c. Section 773.15(c)(13). A new final Sec. 773.15(c)(13) will 
require the regulatory authority to make three findings in order to 
issue permits under new 30 CFR 785.25: (1) The permit application 
contains lands eligible for remining; (2) The permit application 
identifies potential environmental and safety problems reasonably 
anticipated to occur at the site; and (3) The permit application 
contains mitigation plans to address the identified potential 
environmental and safety problems in order to ensure that the required 
reclamation can be accomplished.
    (i) Comparison of proposed and final Sec. 773.15(c)(13). Final 
Sec. 773.15(c)(13) differs from proposed paragraph (c)(13) in the 
following ways: Final paragraph (c)(13) does not contain the references 
to parts 779, 780, 783, and 784 found in the proposal. These parts are 
included implicitly in the phrase ``Any application for a permit under 
this section shall be made according to all requirements of this 
subchapter applicable to surface coal mining and reclamation 
operations'' contained in proposed and final Sec. 785.25(b). The 
proposed reference to these Parts at Sec. 773.15(c)(13) was therefore 
duplicative of Sec. 785.25 provisions. The final rule also does not 
contain the proposed requirement that the regulatory authority set a 
threshold beyond which conditions or events arising subsequent to the 
issuance of the remining permit may be presumed to constitute 
unanticipated events or conditions for the purposes of Sec. 773.15(f). 
As will be discussed later under the analysis for final rule 
Sec. 785.25, the majority of the environmental, industry, and 
regulatory commenters strongly opposed the proposed threshold. In lieu 
of requiring the regulatory authority to set some threshold, OSM will 
instead at paragraph (c)(13)(ii) require the regulatory authority to 
make a permit finding, based on permit information required in new 
Sec. 785.25(b)(1), that the application identifies the potential 
environmental and safety problems related to prior mining activity 
which could reasonably be anticipated to occur at the site.
    Final Sec. 773.15(c)(13)(iii) requires the regulatory authority to 
make a finding based on the permit information required in new 
Sec. 785.25(b)(2) that the application contains sufficient mitigation 
plans for each of the previously identified environmental or safety 
problems to ensure that the required reclamation can be accomplished. 
This required finding as to the sufficiency of the mitigation plans is 
expected to increase the likelihood that the targeted environmental or 
safety problems will be fully reclaimed by the operator. Such 
reclamation would not require a subsequent draw on the Abandoned Mine 
Reclamation funds and thus could extend the reach of these limited 
monies.

3. 30 CFR Part 785--Requirements for Permits for Special Categories of 
Mining

    The final rule adds a new 30 CFR 785.25, Lands eligible for 
remining.
    Final Sec. 785.25 (a) identifies this section as containing the 
permitting requirements necessary for the regulatory authority to make 
a Sec. 773.15(b)(4) determination. Paragraph (a) also requires that any 
person who submits a permit application to conduct a surface coal 
mining operation on lands eligible for remining must comply with the 
provisions in paragraphs (b) and (c).
    Final Sec. 785.25(b) prescribes that a Sec. 785.25 permit 
application comply with all applicable 30 CFR subchapter G permitting 
requirements for surface coal mining and reclamation operations. 
Paragraph (b)(1) requires that the application identify potential 
environmental and safety problems at the proposed site related to past 
mining which could be reasonably anticipated to occur based on all 
available data, including visual observations at the site, a record 
review of past mining at the site, and sampling tailored to current 
site conditions. Paragraph (b)(2) requires that the application 
describe the mitigative measures which will be taken to ensure that the 
requisite reclamation of the previously identified environmental and 
safety problems can be achieved.
    Final Sec. 785.25(c) provides that the requirements of this section 
shall not apply after September 30, 2004.
    (i) Comparison of proposed and final Sec. 785.25. The final rule 
differs from proposed Sec. 785.25 in the following ways: First, the 
language of proposed paragraph (a) applying this section to any person 
who conducts or intends to conduct a surface coal mining operation on 
lands eligible for remining has been replaced in final paragraph (a)(1) 
with more direct language obligating such persons to comply with this 
section's requirements. Final paragraph (a)(2) also includes new 
language to reflect the rule's reorganization from one in which the 
regulatory authority's section 510(e) permit block exemption 
determination was based on a threshold set by that authority in 
proposed Sec. 773.15(c)(13) to one in which the permit block exemption 
determination is based foundationally on the site condition information 
contained in a Sec. 785.25 permit application and the permit finding 
requirements of Sec. 773.15(c)(13).
Reasonably Anticipated Problems
    The proposed Sec. 785.25(b)(1) requirement for an identification of 
all potential environmental and safety problems associated with the 
site has, in response to comments, been eliminated in favor of the 
final Sec. 785.25(b)(1) which requires identification of all reasonably 
anticipated environmental and safety problems which might occur at the 
site. Proposed paragraph (b)(1) would have required an open-ended 
quantitative risk analysis. From the data gained from this analysis and 
the data provided under other specific permitting sections, the 
regulatory authority would have, under proposed Sec. 773.15(c)(13), set 
a threshold beyond which subsequent conditions or events may be 
presumed to be unanticipated for the purposes of the section 510(e) 
permit block exemption.
    Final Sec. 785.25(b)(1) requires a due-diligence investigation by 
the applicant tailored to each remining site from which the applicant 
is expected to generate a list of environmental and safety problems 
related to past mining which could be reasonably anticipated to occur 
at the site. The due-diligence investigation requires a review of all 
available data including visual observations, a review of records 

[[Page 58487]]
associated with past mining, and necessary environmental sampling. The 
list of problems will be the basis of the regulatory authority's 
finding in final Sec. 773.15(c)(13) and any subsequent 
Sec. 773.15(b)(4) permit block exemption determination.
    Although the proposed rule's risk analysis/threshold approach may 
have proven to be the most protective of the environment in its 
determination of anticipated events or conditions, OSM's preamble to 
the proposed rule reflected the agency's reservation as to the 
practicability of its implementation. These reservations were confirmed 
by the weight of comment response.
    Two commenters provided qualified endorsement of the proposed risk 
analysis/threshold approach. The first commenter supported that 
approach because it required consideration of the previous disturbed 
character of the land, which was felt to be lacking under existing 
regulations. In suggesting an alternative expression of probability, 
the commenter was, however, careful to exclude from consideration 
events or conditions which might be deemed highly unlikely to occur.
    The second commenter was concerned that the proposed requirement to 
establish maximum impacts would dramatically increase the risk of 
permit block to the point where remining would not occur and could 
limit the flexibility of regulators to account for site-specific 
conditions. This commenter felt that restructuring the proposed rule's 
threshold should be based instead on considerations of events or 
conditions that could be ``reasonably foreseen based on available 
information'' and allowing for the use of ``best professional judgement 
by the applicant and regulator'' would significantly improve the 
proposed rule's ability to meet the intent of the Energy Policy Act to 
provide specific incentives for remining.
    Three commenters, including environmental and industry 
associations, strongly opposed the risk analysis/threshold approach of 
proposed Secs. 785.25(b)(1) and 773.15(c)(13). They characterized its 
components--the probability and maximum degree of impact analyses, the 
identification of all potential problems, and the setting of a 
threshold--all to be unrealistic, too costly and time-consuming, an 
invitation to litigation, and lacking readily-available supporting 
technical methodology for conducting the requisite undertakings. One of 
these commenters questioned the statutory basis for the proposal's 
reliance on the aforementioned component parts as creating an all-
inclusive term seen as expanding the limited standards set by Congress 
for the term ``unanticipated event or condition.''
    All three commenters represented that existing regulatory 
permitting requirements provided sound basis upon which to assess and 
characterize pre-mining site conditions. The commenter representing the 
industry association suggested that a ``good faith'' listing of 
potential problems could be made on the basis of such baseline 
information. The whole of the industry's comment seemed to indicate 
that this information must necessarily include sound site-specific data 
on hydrology, soils, geology, etc.
    The commenter representing the environmental association also 
submitted that, based on visual inspection and proper sampling tailored 
to the site and a record review of prior mining at the site, potential 
problems could be reasonably anticipated. Such site-specific 
investigations were characterized as necessary for establishing a 
comprehensive, objective assessment of site conditions from which a 
reclamation plan could be developed and against which any later claims 
of ``unanticipated event'' could, in turn, be assessed.
    In response to the objections posed by these commenters to the risk 
analysis/threshold approach of the proposed rule, the final rule will 
reflect many of the commenters' suggestions for an alternative approach 
for determining when an event or condition is unanticipated. Final 
Sec. 785.25(b)(1) will require site-specific development of baseline 
data based on visual inspection, environmental sampling, and a review 
of records of past mining to identify potential problems related to 
prior mining activity at the site which could reasonably be anticipated 
to occur. A requirement for these site-specific investigations could be 
construed to exist already as part of the permanent program 
regulations. OSM believes, however, that the potential for 
environmental problems occurring is particularly high at remining 
sites. Therefore, these investigations have sufficient importance that 
they should be expressly required by rule as preconditions to all 
Sec. 785.25 remining operations.
    OSM submits that the final rule's approach of identifying 
``reasonably anticipated'' potential problems will be as effective as 
the proposed rule's approach of identifying (all) potential problems in 
providing a level of protection commensurate with a reasonable 
expectation that certain environmental and safety problems might occur. 
The final rule's reliance upon more of reasonably anticipated standard 
for identifying potential problems will also substantially reduce the 
information gathering burden associated with the analyses that would 
have been required under the proposed rule.
Degree of Variance from Anticipated Problem
    OSM intends that the final Sec. 785.25(b)(1) identification of 
potential problems reasonably anticipated to occur will extend not only 
to an identification of the type of such problems but also the degree 
of such problems, e.g., that AMD is anticipated at a rate of 150 
gallons per minute (gpm).
    The allowable degree of variance from an anticipated problem is an 
issue indirectly raised by associations representing both environmental 
and industry interests. The commenter representing the environmental 
association opposed the risk analyses required under the proposed rule. 
This commenter asserted that with adequate data collection, potential 
problems can be reasonably anticipated and there should be very few 
instances where an ``unanticipated'' event or condition occurs.
    Such statement suggests, for instance, that if any AMD is 
identified as a potential problem, then the eventual amount or degree 
of AMD experienced is immaterial for the purposes of qualifying for the 
section 510(e) permit block exemption. All such experienced AMD, 
however large the amount, would be considered anticipated and the 
operator would not qualify for the exemption.
    The industry association commenter also opposed the risk analyses 
required under the proposed rule, but addressed the issue of degree of 
unanticipated problem somewhat differently. This commenter focussed on 
the difficulties in accurately predicting the likelihood of potential 
problems occurring and the associated maximum degree of impact. Even 
with good baseline data, there appeared to be too many variables to 
accurately assess a potential problem's maximum degree of impact. This 
commenter's solution was for the applicant to provide a list of 
potential problems that it could in ``good faith'' identify. Any 
problem that then arose from the previous disturbed nature of the site, 
including AMD, despite the operator's substantial adherence to the 
permit, would be considered to be unanticipated.
    Such statement suggests that if any AMD is identified as a 
potential 

[[Page 58488]]
problem and it occurs despite the operator's substantial adhereance to 
its operation and reclamation plans, the actual amount or degree of the 
post-treatment problem is immaterial for the purposes of qualifying for 
the section 510(e) permit block exemption. All such AMD, however small 
the amount, would be considered unanticipated and the operator would 
qualify for the exemption.
    OSM rejects both environmental and industry comments regarding the 
degree of problem anticipated and experienced at the remining site. 
Because the AMD problem is recognized as the largest deterrant to 
remining, and some AMD can be anticipated from many remining sites, the 
environmental approach would substantially narrow the remining 
inceptive which OSM believes Congress intended in providing the section 
510(e) exemption. Conversely, the industry approach would substantially 
broaden the incentive beyond which OSM believes Congress intended for 
this exemption.
    The final rule seeks to implement the ``(reasonably) anticipated 
event or condition'' language of section 510(e). The rule's reliance 
upon the permit information and permit finding requirements of 
Secs. 785.25 and 773.15(c)(13) maps a middle course between the 
environmental and industry approaches and provides a flexibility which 
accounts for the realities of remining operations where environmental 
and safety problems may reasonably be anticipated only in terms of 
degrees or relative amounts.
    Under the final rule it falls to the regulatory authority to 
determine whether the degree of problems experienced in excess of that 
which was originally anticipated and identified in the permit would 
qualify as unanticipated for the purposes of the section 510(e) 
exemption. For example, if on the basis of available baseline 
information required under existing permit application rules and the 
site-specific investigations required by new Sec. 785.25, the operation 
and reclamation plans reasonably anticipate an AMD discharge of 150 gpm 
to occur with mitigation plans set forth to handle that amount, a later 
occurence of a discharge of 1500 gpm may reasonably be said to have not 
been contemplated by those plans and, therefore, qualifies as an 
unanticipated event or condition for the purposes of the 
Sec. 773.15(b)(4) (section 510(e)) exemption. This fact-specific 
inquiry would be made by the regulatory authority on a case-by-case 
basis. Regardless of the level of discharge, the operator would, 
however, be responsible for abating any violation related to the 
discharge and providing appropriate treatment.
    There can be no hard and fast rules for what degree of variance 
from the permit estimate reasonably qualifies as an unanticipated event 
or condition. The final rule recognizes that each site has its unique 
characteristics and must be investigated accordingly. The final 
decision as to whether an event or condition was unanticipated will be 
made by the regulatory authority conducting the Sec. 773.15(b) permit 
review.
Required Mitigation Measures
    Final Sec. 785.25 differs from the proposed rule in that paragraph 
(b)(2) requires a description of the mitigation measures which will be 
taken to ensure that the reclamation required by the applicable 
requirements of the regulatory program can be met rather than the 
description required by proposed paragraph (b)(2) of how such measures 
will meet applicable performance standards. This change focuses the 
required description on ensuring that the applicant is prepared to 
reclaim the reasonably anticipated potential environmental and safety 
problems identified in paragraph (b)(1).
Phase-Out of Section 785.25 Requirements
    Final Sec. 785.25 also differs from the proposal in that a new 
paragraph (c) has been added providing that the requirements of that 
section shall not apply after September 30, 2004. The effect of this 
provision will be that no Sec. 785.25 remining permits will be issued 
after September 30, 2004. This is consistent with OSM's interpretation 
of the Energy Policy Act amendments to SMCRA as allowing violations 
resulting from an unanticipated event or condition arising on lands 
eligible for remining under a permit issued before September 30, 2004, 
and any renewals thereof, to be eligible for the permit block exemption 
of section 510(e).

4. 30 CFR Part 816--Permanent Program Performance Standards-Surface 
Mining Activities and Part 817--Permanent Program Performance 
Standards-Underground Mining Activities

    The final rule amends paragraphs (c)(2) and (c)(3) of Secs. 816.116 
and 817.116, Revegetation: Standards for Success, by adding paragraphs 
(c)(2)(ii) and (c)(3)(ii) which implement section 515(b)(20)(B) of 
SMCRA. Paragraph (c)(2) deals with areas receiving more than 26.0 
inches of average annual precipitation. Final paragraph (c)(2)(i) is 
identical to former paragraph (c)(2), with the addition of a reference 
to the exception to the regular five-year revegetation responsibility 
period provided at final paragraph (c)(2)(ii) for lands eligible for 
remining included in permits issued before September 30, 2004, and any 
renewals thereof. Final paragraph (c)(2)(ii) reduces the revegetation 
responsibility period to two years for lands eligible for remining 
included in such permits. Final paragraph (c)(2)(ii) also provides that 
to the extent that the success standards for certain lands previously 
disturbed by mining are established by Secs. 816/817.116(b), the lands 
shall equal or exceed those standards during the growing season of the 
last year of the responsibility period. Because OSM anticipates that in 
most cases the post-mining land use for lands eligible for remining 
will be as specified in paragraph (b)(5), final paragraph (c)(2)(ii) 
merely includes the paragraph (b)(5) success standards. This does not 
preclude the regulatory authority from prescribing paragraph (c)(2)(ii) 
two-year success standards when the post-mining lands use is grazing, 
crop, or pastureland.
    Final paragraph (c)(3) relates to areas of less than 26.0 inches of 
annual average precipitation and incorporates language similar to 
paragraph (c)(2) except that the period of responsibility has been 
reduced from ten years to five years.
    The changes in these periods of responsibility for revegetation are 
mandated by section 515(b)(20)(B) of SMCRA as amended by section 
2503(b) of the Energy Policy Act.
    a. Comparison of proposed and final Secs. 816.116 and 817.116. The 
format of the proposed rule apparently created some confusion for 
commenters with respect to distinguishing between the responsibility 
periods for revegetation and success standards for revegetation 
intended by the proposed rule for lands eligible for remining. The 
final rule seeks to clarify this situation for lands eligible for 
remining by placing the requirements for both responsibility periods 
for revegetation and success standards for revegetation in one 
paragraph, either (c)(2)(ii) for areas of more than 26.0 inches of 
average annual precipitation or (c)(3)(ii) for areas of 26.0 inches or 
less average annual precipitation.
    Each of these paragraphs also contain the statement that if the 
success standards are established by paragraph (b)(5), then the lands 
eligible for remining shall equal or exceed these standards during the 
growing season of the last year of the responsibility period (paragraph 
(c)(2)(ii)) or of the last two 

[[Page 58489]]
consecutive years of the responsibility period (paragraph (c)(3)(ii)). 
This reformatting change should make clear that the final rule is not 
intended to vary the success standards for revegetation of the existing 
rules.
Phase-In for Reduced Revegetation Responsibility Periods
    Final Secs. 816/817.116 (c)(2)(ii) and (c)(3)(ii) tie the reduced 
revegetation responsibility periods for lands eligible for remining to 
permits issued before September 30, 2004, and any renewals thereof. 
Because the statutory language of section 515(b)(20)(B) does not 
contain the triggering language of section 510(e): ``[a]fter the date 
of enactment of this subsection,'' OSM is interpreting final Secs. 816/
817.116(c)(2)(ii) and (c)(3)(ii) as requiring existing permits to 
obtain a permit revision to qualify for the rule's reduced revegetation 
responsibility periods. This permit revision would require a 
Sec. 773.13(c)(13)(i) finding by the regulatory authority that the 
permit covers lands eligible for remining. Permits issued under new 
Sec. 785.25 would also require a similar Sec. 773.13(c)(13)(i) finding. 
Whether for existing permits or those issued under Sec. 785.25, the 
reduced revegetation responsibility periods would apply only to lands 
within the permit found to be eligible for remining.
    OSM is aware that, for existing operations on lands eligible for 
remining which have ceased mining and have already begun reclamation, 
the above interpretation of final Secs. 816/817.116 would allow for 
reduced revegetation responsibility periods without operating as an 
incentive for future remining. This interpretation is, however, 
permissible under the language of section 515(b)(20)(B), whose only 
qualification for the reduced revegetation responsibility periods is 
that the affected land be eligible for remining, and is structurally 
consistent with OSM's implementation of the Energy Policy Act's other 
remining provision at section 510(e) (Sec. 773.15.(b)(4)(i)).
Phase-Out for Reduced Revegetation Responsibility Periods
    Because final Secs. 816/817.116(c)(2)(ii) and (c)(3)(ii) tie the 
reduced revegetation responsibility periods to remining permits issued 
before September 30, 2004, or any renewals thereof, the reduced 
revegetation responsibility provisions will not cease to be operative 
on September 30, 2004, for permits issued before that date as would 
have been the case under the proposed rule. Under the final rule, as 
long as the permit was issued before September 30, 2004, the reduced 
revegetation responsibility periods could extend beyond that date 
through the prescribed duration of the remining permit or any renewals 
thereof.
    This change was made in response to commenters who recommended that 
the period of responsibility should apply to any remining permit issued 
prior to September 30, 2004, even if the mining and/or period of 
responsibility extended past that date.
    Both the reduced revegetation responsibility period provisions of 
section 515(b)(20)(B) and the permit block exemption provisions of 
section 510(e) are tied to lands eligible for remining. The same 
provision in section 510(e) terminates the authority for both sections 
on September 30, 2004. This termination provision suggests that 
Congress intended sections 510(e) and 515(b)(20)(B) to operate in 
tandem, providing structurally consistent incentives for remining 
operations on lands eligible for remining.
    Interpreting the phase-out provisions of section 515(b)(20)(B) as 
ending the reduced responsibility periods on September 30, 2004, would, 
for remining operations existing on that date, render the shortened 
responsibility period meaningless. A reduced two or five-year period 
which runs past September 30, 2004, would be transformed on October 1, 
2004, into a five and ten-year period. Thus no relief would be afforded 
operations who would otherwise rely upon that statutory provision. Such 
an interpretation would, particularly for potential remining operations 
in the arid West and less so for those in the East, provide severely 
limited incentive for remining. For instance, assuming one year would 
be spent permit processing, one-half a year for preparing the site, one 
and one-half years for actual remining, seven years to satisfy the 
five-year responsibility period resulting in bond release, a Western 
operator would then have had to have begun the permitting process in 
September of 1994 to have availed himself of a section 515(b)(20)(B) 
incentive if that incentive ended on September 30, 2004. If this 
hypothetical remining schedule were in any way delayed, the operator 
would run the risk of exceeding the 2004 barrier and being held to the 
standard ten-year responsibility period.
    Rather than such an interpretation, OSM interprets consistently the 
permit block exemption of section 510(e) and the reduced responsibility 
provisions of section 515(b)(20)(B) by tying both to a remining permit 
issued before September 30, 2004, or any renewals thereof. In other 
words, the reduced responsibility period can extend beyond that date if 
the permit is issued before September 30, 2004.
    One commenter correctly noted that the Energy Policy Act amendments 
to section 515(b)(20) ``abridged the duration of the period of 
responsibility, but did not alter the provisions relating to 
demonstrating achievement of the revegetation standards.'' On the other 
hand, several commenters suggested that OSM incorrectly interpreted the 
requirements of the Energy Policy Act in the proposal with regard to 
what the commenters referred to as ``success standards'' for 
revegetation. Another commenter asked whether ``both ground cover and 
productivity must meet standards for both years of the two-year 
maintenance period * * *.''
    In response to both groups of comments, OSM stresses that the 
Energy Policy Act only reduces the ``periods of responsibility'' for 
revegetation from five to two years for areas of more than 26.0 inches 
of average annual precipitation and from ten to five years for areas of 
26.0 inches or less average annual precipitation. The Energy Policy Act 
amendments to SMCRA do not prescribe any changes to revegetation 
standards, success standards, or productivity standards. All of these 
standards are unaffected by both the proposed and final rule. Thus, in 
the proposal as well as the final rule, OSM has adopted the success 
standards of the existing rules. OSM recognizes that the success 
standard applicable to remining sites will likely be that of existing 
30 CFR 816.116(b)(5) and 817.116(b)(5).
    Several commenters noted two editorial problems at Secs. 816/
817.116(c)(2) of the proposal: (1) Remining was misspelled; and (2) The 
word ``not'' was inadvertently omitted. The text has been corrected to 
read ``In areas of more than 26.0 inches of annual average 
precipitation, the period of responsibility shall continue for a period 
of not less than: * * * (ii) Two full years for lands eligible for 
remining * * *.''

5. Other Comments

    One commenter stated that parts 816 and 817 should require that 
rivers and streams within 20 miles of a remining site be capable of 
sustaining fish populations and that wetlands destroyed during remining 
must be replaced and added to. These comments go well beyond the 
proposed rule and are not accepted.
    Two commenters recommended that the final rule provide for a date-
certain bond release. One commenter stated that for operators with 
previous 

[[Page 58490]]
reclamation success on remined lands there would be little additional 
risk for bond releases tied to time versus bond releases tied to 
success standards. The other commenter stated that H.R. 4053, a 
predecessor to the Energy Policy Act, contained language relating to 
``date-certain release of an operator's bond'' and this language 
established requisite Congressional intent in the Energy Policy Act for 
a date-certain bond release. This language was not, however, carried 
forward into H.R. 4381 (1992), H.R. 776 (1992), or the Energy Policy 
Act. No provisions in the Energy Policy Act can be construed to 
authorize a date-certain bond release and OSM rejects this 
recommendation.
    One commenter recommended that adoption of final rules should be 
delayed until all aspects of incentives dealing with abandoned coal 
refuse sites have been worked out. The incentives and requirements for 
removal and/or reprocessing of material at abandoned coal refuse sites 
are mandated by section 2503(e) of the Energy Policy Act and are being 
developed under a separate rulemaking. The statutory authority and the 
subject matter for both the coal refuse and the current rulemaking are 
sufficiently distinct and independent of each other so that there is no 
need nor advantage gained by delaying this rule until resolution of all 
coal refuse issues.
    Another commenter suggested the use of negotiated compliance 
schedules to address abatement of unanticipated events prior to issuing 
a violation. This suggested procedure was not included in the proposal 
and, therefore, is beyond the scope of this rulemaking.
    Several commenters recommended inclusion in the final rule of 
additional incentives which they felt would encourage remining. The 
commenters provided no legal basis for the following recommendations: 
(1) Creating minimum requirements for information on environmental 
resources. This is based on the commenter's assertion that remining 
operations are intended to mitigate or correct adverse effects of 
mining while operations on previously undisturbed areas are intended to 
prevent adverse effects; (2) Promulgating a new standard that would 
encourage the most environmentally effective use of spoil as opposed to 
current standards which require spoil to be used for highwall 
elimination as a first priority; (3) Providing a bonding advantage for 
remining operations; (4) Reducing the potential for bond forfeiture 
resulting from unanticipated events or conditions by allowing the AML 
program and not the operator to be responsible for final abatement of 
preexisting conditions. OSM does not accept these comments. The 
recommended incentives were not included in the proposal and are beyond 
the scope of this rulemaking.

III. Procedural Matters

Federal Paperwork Reduction Act

    The collections of information contained in this rule have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq and assigned clearance numbers 1029-0040 and 1029-0041.

Executive Order 12778; Civil Justice Reform Certification

    This rule has been reviewed under the applicable standards of 
section 2(b)(2) of Executive Order 12778, Civil Justice Reform (56 FR 
55195). In general, the requirements of section 2(b)(2) of Executive 
Order 12778 are covered by the preamble discussion of this final rule. 
Additional remarks follow concerning individual elements of the 
Executive Order:
    A. What is the preemptive effect, if any, to be given to the 
regulation?
    The rule would have the same preemptive effect as other standards 
adopted pursuant to SMCRA. To retain primacy, States have to adopt and 
apply standards for their regulatory programs that are no less 
effective than those set forth in OSM's rules. Ordinarily, any State 
law that is inconsistent with, or that would preclude implementation of 
a new Federal rule, would be subject to preemption under SMCRA section 
505 and implementing regulations at 30 CFR 730.11. However, any State 
law which provides for more stringent land use and environmental 
controls and regulation of coal exploration and surface mining and 
reclamation operations than do the provisions of the Act and any rules 
issued pursuant thereto, shall not be construed as inconsistent with 
those rules. Because the current amendments to SMCRA contained in the 
Energy Policy Act are intended to ease certain requirements of the Act, 
these rules will not preempt more stringent State laws.
    B. What is the effect on existing Federal law or regulation, if 
any, including all provisions repealed or modified?
    This rule modifies the implementation of SMCRA, as described 
herein, and is not intended to modify the implementation of any other 
Federal statute. The preceding discussion of this rule specifies the 
Federal regulatory provisions that are affected by this rule.
    C. Does the rule provide a clear and certain legal standard for 
affected conduct rather than a general standard, while promoting 
simplification and burden reduction?
    The standards established by this rule are as clear and certain as 
practicable, given the complexity of the topics covered and the 
mandates of SMCRA.
    D. What is the retroactive effect, if any, to be given to the 
regulation?
    This rule implements portions of the Energy Policy Act that were 
effective on October 24, 1992. Although this rule may be considered 
retroactive to the extent it covers actions occurring October 24, 1992, 
the Energy Policy Act requires such effects. OSM also recognizes that 
the rule may allow revisions to existing permits to change revegetation 
responsibility periods. This impact was explained above.
    E. Are administrative proceedings required before parties may file 
suit in court? Which proceedings apply? Is the exhaustion of 
administrative remedies required?
    No administrative proceedings are required before parties may file 
suit in court challenging the provisions of this rule under section 
526(a) of SMCRA, 30 U.S.C. 1276(a).
    Prior to any judicial challenge to the application of the rule, 
however, administrative procedures must be exhausted. In situations 
involving OSM application of the rule, applicable administrative 
procedures may be found at 43 CFR part 4. In situations involving State 
regulatory authority application of provisions equivalent to those 
contained in this rule, applicable administrative procedures are set 
forth in the particular State program.
    F. Does the rule define key terms, either explicitly or by 
reference to other regulations or statutes that explicitly define those 
items?
    Terms which are important to the understanding of this rule are set 
forth in 30 CFR 700.5 and 701.5.
    G. Does the rule address other important issues affecting clarity 
and general draftsmanship of regulations set forth by the Attorney 
General, with the concurrence of the Director of the Office of 
Management and Budget, that are determined to be in accordance with the 
purposes of the Executive Order?
    The Attorney General and the Director of the Office of Management 
and Budget have not issued any guidance on this requirement.

Regulatory Flexibility Act

    The Department of the Interior has determined that the final rule 
will not have a significant economic effect on a substantial number of 
small entities under the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq. This determination is based on the findings that the regulatory 

[[Page 58491]]
additions in the rule will not change costs to industry or to the 
Federal, State, or local governments. Furthermore, the rule produces no 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of United States enterprises to compete with 
foreign/based enterprises in domestic or export markets.

Executive Order 12866

    This final rule has been reviewed under Executive Order 12866.

National Environmental Policy Act

    OSM has prepared an environmental assessment (EA) of this final 
rule and has made a finding that it will not significantly affect the 
quality of the human environment under section 102(2)(C) of the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). 
The EA and finding of no significant impact are on file in the OSM 
Administrative Record, Room 101, 1951 Constitution Avenue, NW., 
Washington, DC.

Author

    The principal author of this final rule is: Douglas J. Growitz, 
P.G., Hydrologist, Branch of Research and Technical Standards, Office 
of Surface Mining Reclamation and Enforcement, Room 110 SIB, 1951 
Constitution Avenue, NW., Washington, DC 20240, Telephone: 202-208-
2561.

List of Subjects

30 CFR Part 701

    Law enforcement, Surface mining, Underground mining.

30 CFR Part 773

    Administrative practice and procedure, Surface mining, Underground 
mining.

30 CFR Part 785

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining.

30 CFR Part 816

    Environmental protection, Reporting and recordkeeping requirements, 
Surface mining.

30 CFR Part 817

    Environmental protection, Reporting and recordkeeping requirements, 
Underground mining.

    Dated: October 11, 1995.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.

    Accordingly, 30 CFR parts 701, 773, 785, 816 and 817 are amended as 
set forth below:

PART 701--PERMANENT REGULATORY PROGRAM

    1. The authority citation for part 701 is revised to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., as amended; Pub. L. 100-34; 
and Pub. L. 102-486.

    2. Section 701.5 is amended by adding alphabetically definitions of 
``lands eligible for remining'' and ``unanticipated event or 
condition'' as follows:


Sec. 701.5  Definitions.

* * * * *
    Lands eligible for remining means those lands that would otherwise 
be eligible for expenditures under section 404 or under section 
402(g)(4) of the Act.
* * * * *
    Unanticipated event or condition, as used in Sec. 773.15 of this 
chapter, means an event or condition related to prior mining activity 
which arises from a surface coal mining and reclamation operation on 
lands eligible for remining and was not contemplated by the applicable 
permit.
* * * * *

PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING

    3. The authority citation for part 773 is revised to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., as amended, Pub. L. 100-34; 
16 U.S.C. 470 et seq.; 16 U.S.C. 1531 et seq.; 16 U.S.C. 661 et 
seq.; 16 U.S.C. 703 et seq.; 16 U.S.C. 668a; 16 U.S.C. 469 et seq.; 
16 U.S.C. 470aa et seq.; and Pub. L. 102-486.

    4. Section 773.15 is amended by adding new paragraphs (b)(4) and 
(c)(13) to read as follows:


Sec. 773.15  Review of permit applications.

    (b) * * *
    (4)(i) Subsequent to October 24, 1992, the prohibitions of 
paragraph (b) of this section regarding the issuance of a new permit 
shall not apply to any violation that:
    (A) Occurs after that date;
    (B) Is unabated; and
    (C) Results from an unanticipated event or condition that arises 
from a surface coal mining and reclamation operation on lands that are 
eligible for remining under a permit:
    (1) Issued before September 30, 2004, or any renewals thereof; and
    (2) Held by the person making application for the new permit.
    (ii) For permits issued under Sec. 785.25 of this chapter, an event 
or condition shall be presumed to be unanticipated for the purposes of 
this paragraph if it:
    (A) Arose after permit issuance;
    (B) Was related to prior mining; and
    (C) Was not identified in the permit.
    (c) * * *
    (13) For permits to be issued under Sec. 785.25 of this chapter, 
the permit application must contain:
    (i) Lands eligible for remining;
    (ii) An identification of the potential environmental and safety 
problems related to prior mining activity which could reasonably be 
anticipated to occur at the site; and
    (iii) Mitigation plans to sufficiently address these potential 
environmental and safety problems so that reclamation as required by 
the applicable requirements of the regulatory program can be 
accomplished.
* * * * *

PART 785--REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING

    5. The authority citation for part 785 is revised to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., as amended; Pub. L. 100-34; 
and Pub. L. 102-486.

    6. Section 785.25 is added to read as follows:


Sec. 785.25  Lands eligible for remining.

    (a) This section contains permitting requirements to implement 
Sec. 773.15(b)(4). Any person who submits a permit application to 
conduct a surface coal mining operation on lands eligible for remining 
must comply with this section.
    (b) Any application for a permit under this section shall be made 
according to all requirements of this subchapter applicable to surface 
coal mining and reclamation operations. In addition, the application 
shall--
    (1) To the extent not otherwise addressed in the permit 
application, identify potential environmental and safety problems 
related to prior mining activity at the site and that could be 
reasonably anticipated to occur. This identification shall be based on 
a due diligence investigation which shall include visual observations 
at the site, a record review of past mining at the site, and 
environmental sampling tailored to current site conditions.
    (2) With regard to potential environmental and safety problems 
referred to in paragraph (b)(1) of this section, describe the 
mitigative measures that will be taken to ensure that the applicable 
reclamation requirements of the regulatory program can be met.
    (c) The requirements of this section shall not apply after 
September 30, 2004.

[[Page 58492]]


PART 816--PERMANENT PROGRAM PERFORMANCE STANDARDS--SURFACE MINING 
ACTIVITIES

    7. The authority citation for part 816 is revised to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., as amended; sec 115 of Pub. 
L. 98-146, 30 U.S.C. 1257; Pub. L. 100-34; and Pub. L. 102-486.

    8. Section 816.116 is amended by revising paragraphs (c)(2) and 
(c)(3) to read as follows:


Sec. 816.116  Revegetation: Standards for success.

* * * * *
    (c) * * *
    (2) In areas of more than 26.0 inches of annual average 
precipitation, the period of responsibility shall continue for a period 
of not less than:
    (i) Five full years, except as provided in paragraph (c)(2)(ii) of 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazing land, pasture land, or cropland shall equal or 
exceed the approved success standard during the growing season of any 2 
years of the responsibility period, except the first year. Areas 
approved for the other uses identified in paragraph (b) of this section 
shall equal or exceed the applicable success standard during the 
growing season of the last year of the responsibility period.
    (ii) Two full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. To 
the extent that the success standards are established by paragraph 
(b)(5) of this section, the lands shall equal or exceed the standards 
during the growing season of the last year of the responsibility 
period.
    (3) In areas of 26.0 inches or less average annual precipitation, 
the period of responsibility shall continue for a period of not less 
than:
    (i) Ten full years, except as provided in paragraph (c)(3)(ii) 
below. Vegetation parameters identified in paragraph (b) of this 
section shall equal or exceed the approved success standard for at 
least the last two consecutive years of the responsibility period.
    (ii) Five full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. To 
the extent that the success standards are established by paragraph 
(b)(5) of this section, the lands shall equal or exceed the standards 
during the growing seasons of the last two consecutive years of the 
responsibility period.
* * * * *

PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND 
MINING ACTIVITIES

    9. The authority citation for part 817 is revised to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., as amended; sec. 115 of Pub. 
L. 98-146, 30 U.S.C. 1257; Pub. L. 100-34; and Pub. L. 102-486.

    10. Section 817.116 is amended by revising paragraphs (c)(2) and 
(c)(3) to read as follows:


Sec. 817.116  Revegetation: Standards for success.

* * * * *
    (c) * * *
    (2) In areas of more than 26.0 inches of annual average 
precipitation, the period of responsibility shall continue for a period 
of not less than:
    (i) Five full years, except as provided in paragraph (c)(2)(ii) of 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazing land, pasture land, or cropland shall equal or 
exceed the approved success standard during the growing season of any 2 
years of the responsibility period, except the first year. Areas 
approved for the other uses identified in paragraph (b) of this section 
shall equal or exceed the applicable success standard during the 
growing season of the last year of the responsibility period.
    (ii) Two full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. To 
the extent that the success standards are established by paragraph 
(b)(5) of this section, the lands shall equal or exceed the standards 
during the growing season of the last year of the responsibility 
period.
    (3) In areas of 26.0 inches or less average annual precipitation, 
the period of responsibility shall continue for a period of not less 
than:
    (i) Ten full years, except as provided in paragraph (c)(3)(ii) of 
this section. Vegetation parameters identified in paragraph (b) of this 
section shall equal or exceed the approved success standard for at 
least the last two consecutive years of the responsibility period.
    (ii) Five full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. To 
the extent that the success standards are established by paragraph 
(b)(5) of this section, the lands shall equal or exceed the standards 
during the growing seasons of the last two consecutive years of the 
responsibility period.
* * * * *
[FR Doc. 95-28862 Filed 11-24-95; 8:45 am]
BILLING CODE 4310-05-M