[Federal Register Volume 79, Number 245 (Monday, December 22, 2014)]
[Rules and Regulations]
[Pages 76227-76233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29864]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

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having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

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Federal Register / Vol. 79, No. 245 / Monday, December 22, 2014 / 
Rules and Regulations

[[Page 76227]]



DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 780, 784, 816, and 817

RIN 1029-AC69
[Docket ID: OSM-2012-0010; S1D1S SS08011000 SX066A00067F 134S180110; 
S2D2S SS08011000 SX066A00 33F 13XS501520]


Excess Spoil, Coal Mine Waste, Diversions, and Buffer Zones for 
Perennial and Intermittent Streams

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE or OSM), are amending our regulations concerning stream buffer 
zones, stream-channel diversions, excess spoil, and coal mine waste to 
comply with an order issued by the U.S. District Court for the District 
of Columbia on February 20, 2014, which vacated the stream buffer zone 
rule that we published December 12, 2008. The court remanded the matter 
to us for further proceedings consistent with the decision. In relevant 
part, the Memorandum Decision stated that vacatur of the 2008 stream 
buffer zone rule resulted in reinstatement of the regulations in effect 
before the vacated rule took effect. Therefore, the rule that we are 
publishing today removes the provisions of the vacated 2008 rule and 
reinstates the corresponding regulations in effect before the effective 
date of the 2008 rule (January 12, 2009).

DATES: This regulation is effective December 22, 2014. The 
incorporation by reference of the publication listed in 30 CFR 
780.25(a)(2) and 784.16(a)(2) was approved by the Director of the 
Federal Register on December 22, 2014.

FOR FURTHER INFORMATION CONTACT: John Trelease, Division of Regulatory 
Support, (202) 208-2783, or via email at jtrelease@osmre.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Why are we publishing this rule?
II. Why are we publishing this rule as a direct final rule that 
takes effect immediately?

I. Why are we publishing this rule?

    On December 12, 2008, we published a final rule that amended our 
regulations concerning stream buffer zones, stream-channel diversions, 
siltation structures, impoundments, excess spoil, and coal mine waste. 
See 73 FR 75814-75885. This rule is known as the 2008 stream buffer 
zone (SBZ) rule or the 2008 rule. Among other changes, the 2008 rule 
revised our former regulations at 30 CFR 816.57 and 817.57, related to 
the mining activities allowed to occur through perennial or 
intermittent streams, as well as on the surface of land within 100 feet 
of a perennial or intermittent stream. Prior to the 2008 rule, these 
two provisions had previously been amended on June 30, 1983 (48 FR 
30312-30329). The 2008 rule also added requirements at 30 CFR 780.35 
and 784.19 that surface coal mining operations be designed to minimize 
the creation of excess spoil and the adverse environmental impacts of 
fills constructed to dispose of excess spoil and coal mine waste.
    A total of ten organizations challenged the validity of the 2008 
SBZ rule in two complaints originally filed on December 22, 2008, and 
January 16, 2009: Coal River Mountain Watch, et al. v. Salazar, No. 08-
2212 (D.D.C.) and National Parks Conservation Ass'n v. Salazar, No. 09-
115 (D.D.C.). The references to former Secretary of the Interior Ken 
Salazar in these case titles were subsequently replaced by references 
to his successor, Sally Jewell.
    On February 20, 2014, the court vacated the 2008 rule because 
``OSM's determination that the revisions to the stream protection rule 
encompassed by the 2008 Rule would have no effect on threatened and 
endangered species or critical habitat was not a rational conclusion'' 
and that, therefore, OSM's failure to initiate consultation on the 2008 
rule was a violation of section 7(a)(2) of the Endangered Species Act. 
National Parks Conservation Ass'n (NPCA) v. Jewell, 2014 U.S. Dist. 
LEXIS 152383 at *21 (D.D.C. Feb. 20, 2014). The court remanded the 
vacated rule to us for further proceedings consistent with the 
decision. Id. at *35. The court's decision also stated that vacatur of 
the 2008 rule would result in the reinstatement of the rule that was in 
effect before the vacated rule took effect. Id. at *31. We posted the 
court's decision on our Web site to notify the public of the ruling 
shortly after the order was released. The decision has not been 
appealed.
    Therefore, consistent with the Memorandum Decision and Order of the 
court, the rule that we are publishing today reinstates the 
corresponding provisions of the regulations that were in effect before 
the effective date of the 2008 rule (January 12, 2009), including the 
1983 version of the stream buffer zone rule. In addition, the rule that 
we are reinstating today updates 30 CFR 780.25(a)(2) and 784.16(a)(2) 
to include our current physical address and a Web site for accessing a 
document [the Soil Conservation Service's Technical Release No. 60 
(210-VI-TR60, Oct. 1985), entitled ``Earth Dams and Reservoirs''] that 
is incorporated by reference. The rule also reinstates 30 CFR 
780.25(a)(3), which was erroneously removed as part of the codification 
of the 2008 rule.
    We are reinstating 30 CFR 817.46(b)(3) as it existed prior to 
adoption of the 2008 rule, which redesignated it as paragraph (b)(2). 
Redesignated paragraph (b)(2) was erroneously removed during 
codification of a subsequent technical rulemaking in 2010 (75 FR 60272, 
Sept. 29, 2010).
    Finally, as noted above, as a result of the court's decision in 
NPCA v. Jewell, the vacatur of the 2008 rule resulted in the 
reinstatement of the rule that was in effect before the vacated rule 
took effect. This reinstatement includes 30 CFR 816.46(b)(2) and 
817.46(b)(2), which were removed by the 2008 rule. However, prior to 
the publication of the 2008 rule, these paragraphs were suspended 
effective December 22, 1986, because those paragraphs were struck down 
upon judicial review. See In re: Permanent Surface Mining Regulation 
Litigation II, Round III, 620 F. Supp. 1519, 1566-1568 (D.D.C. July 15, 
1985) and 51 FR 41961 (Nov. 20, 1986). In this final rule, we are 
adding a sentence to the end of paragraph (b)(2) in both 30

[[Page 76228]]

CFR 816.46 and 817.46 acknowledging the suspension.

II. Why are we publishing this rule as a direct final rule that takes 
effect immediately?

    We are publishing this rule as a direct final rule without prior 
notice and opportunity for public comment because this rule is 
necessary to reflect the court order vacating the 2008 rule, which 
resulted in reinstatement of the regulations in effect before the 
effective date of the 2008 rule. See NPCA v. Jewell, 2014 U.S. Dist. 
LEXIS 152383 at *31 (D.D.C. Feb. 20, 2014). The court's order was 
issued on February 20, 2014.
    Section 553 of the Administrative Procedure Act requires that 
agencies provide notice and opportunity for comment on all rules, 
except ``when the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public comment are impracticable, unnecessary, or 
contrary to the public interest.'' 5 U.S.C. 553(b)(B). In this case, we 
have determined that notice and opportunity for public comment are 
unnecessary because, in NPCA v. Jewell, the court has already vacated 
the 2008 rule and stated what rules replaced the vacated provisions. In 
this rulemaking, we are merely making changes to the CFR text to 
conform to the court's order and are not exercising any discretionary 
authority. Therefore, public comment would not be useful in determining 
the content of this final rule.
    Section 553(d) of the Administrative Procedure Act also provides 
that agencies must publish a final rule ``not less than 30 days before 
its effective date, except . . . as otherwise provided by the agency 
for good cause found and published with the rule.'' 5 U.S.C. 553(d). 
For the reasons just discussed, we have determined we have good cause 
for waiver of the 30-day delay in the effective date of the rule after 
publication.

List of Subjects

30 CFR Part 780

    Incorporation by reference, Reporting and recordkeeping 
requirements, Surface mining.

30 CFR Part 784

    Incorporation by reference, Reporting and recordkeeping 
requirements, 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: December 13, 2014.
Janice M. Schneider,
Assistant Secretary--Land and Minerals Management.

    Accordingly, the Department is amending 30 CFR parts 780, 784, 816 
and 817 as set forth below.

PART 780--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENT 
FOR RECLAMATION AND OPERATION PLAN

0
1. The authority citation for part 780 continues to read as follows:


    Authority:  30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.

0
2. The part heading is revised to read as set forth above.

0
3. Section 780.10 is revised to read as follows:


Sec.  780.10  Information collection.

    (a) The collections of information contained in Part 780 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0036. The information will be 
used by the regulatory authority to determine whether the applicant can 
comply with the applicable performance and environmental standards in 
Public Law 95-87. Response is required to obtain a benefit.
    (b) Public Reporting burden for this information is estimated to 
average 28 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing the burden, to the Information Collection 
Clearance Officer, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Ave. NW., Room 203, Washington, DC 
20240; and the Office of Management and Budget, Paperwork Reduction 
Project 1029-0036, Washington, DC 20503.

0
4. Amend Sec.  780.14 by revising paragraphs (b)(11) and (c) to read as 
follows:


Sec.  780.14  Operation plan: Maps and plans.

* * * * *
    (b) * * *
    (11) Location of each sedimentation pond, permanent water 
impoundment, coal processing waste bank, and coal processing waste dam 
and embankment, in accordance with 30 CFR 780.25, and fill area for the 
disposal of excess spoil in accordance 30 CFR 780.35.
    (c) Except as provided in Sec. Sec.  780.25(a)(2), 780.25(a)(3), 
780.35(a), 816.71(b), 816.73(c), 816.74(c) and 816.81(c) of this 
chapter, cross sections, maps and plans required under paragraphs 
(b)(4), (5), (6), (10) and (11) of this section shall be prepared by, 
or under the direction of, and certified by a qualified registered 
professional engineer, a professional geologist, or in any State which 
authorizes land surveyors to prepare and certify such cross sections, 
maps and plans, a qualified, registered, professional, land surveyor, 
with assistance from experts in related fields such as landscape 
architecture.
0
5. Amend Sec.  780.25 as follows:
0
a. Revise the section heading, paragraph (a) introductory text, 
paragraph (a)(1) introductory text, and paragraph (a)(2);
0
b. Add paragraph (a)(3);
0
c. Revise paragraph (c)(2) and remove paragraph (c)(4);
0
d. Revise paragraph (d); and
0
e. Add paragraphs (e) and (f).
    The revisions and additions read as follows:


Sec.  780.25  Reclamation plan: Siltation structures, impoundments, 
banks, dams, and embankments.

    (a) General. Each application shall include a general plan and a 
detailed design plan for each proposed siltation structure, water 
impoundment, and coal processing waste bank, dam, or embankment within 
the proposed permit area.
    (1) Each general plan shall--
* * * * *
    (2) Impoundments meeting the Class B or C criteria for dams in the 
U.S. Department of Agriculture, Soil Conservation Service Technical 
Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' 
Technical Release No. 60 (TR-60) shall comply with the requirements of 
this section for structures that meet or exceed the size of other 
criteria of the Mine Safety and Health Administration (MSHA). The 
technical release is hereby incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. TR-60 
may be viewed and downloaded from OSM's Web site at http://www.osmre.gov/programs/TDT/damsafety.shtm. It also is available for 
inspection at the OSM Headquarters Office, Office of Surface Mining

[[Page 76229]]

Reclamation and Enforcement, Administrative Record, Room 252, 1951 
Constitution Ave. NW., Washington, DC or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Each detailed design plan for a structure that 
meets or exceeds the size or other criteria of MSHA, Sec.  77.216(a) of 
this chapter shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (ii) Include any geotechnical investigation, design, and 
construction requirements for the structure;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
    (3) Each detailed design plan for structures not included in 
paragraph (a)(2) of this section shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified, registered, professional engineer, or in any State which 
authorizes land surveyors to prepare and certify such plans, a 
qualified, registered, professional land surveyor, except that all coal 
processing waste dams and embankments covered by Sec. Sec.  816.81-
816.84 of this chapter shall be certified by a qualified, registered, 
professional engineer;
    (ii) Include any design and construction requirements for the 
structure, including any required geotechnical information;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
* * * * *
    (c) * * *
    (2) Each plan for an impoundment meeting the size or other criteria 
of the Mine Safety and Health Administration shall comply with the 
requirements of Sec. Sec.  77.216-1 and 77.216-2 of this title. The 
plan required to be submitted to the District Manager of MSHA under 
Sec.  77.216 of this title shall be submitted to the regulatory 
authority as part of the permit application in accordance with 
paragraph (a) of this section.
* * * * *
    (d) Coal processing waste banks. Coal processing waste banks shall 
be designed to comply with the requirements of 30 CFR 816.81-816.84.
    (e) Coal processing waste dams and embankments. Coal processing 
waste dams and embankments shall be designed to comply with the 
requirements of 30 CFR 816.81-816.84. Each plan shall comply with the 
requirements of the Mine Safety and Health Administration, 30 CFR 
77.216-1 and 77.216-2, and shall contain the results of a geotechnical 
investigation of the proposed dam or embankment foundation area, to 
determine the structural competence of the foundation which will 
support the proposed dam or embankment structure and the impounded 
material. The geotechnical investigation shall be planned and 
supervised by an engineer or engineering geologist, according to the 
following:
    (1) The number, location, and depth of borings and test pits shall 
be determined using current prudent engineering practice for the size 
of the dam or embankment, quantity of material to be impounded, and 
subsurface conditions.
    (2) The character of the overburden and bedrock, the proposed 
abutment sites, and any adverse geotechnical conditions which may 
affect the particular dam, embankment, or reservoir site shall be 
considered.
    (3) All springs, seepage, and ground water flow observed or 
anticipated during wet periods in the area of the proposed dam or 
embankment shall be identified on each plan.
    (4) Consideration shall be given to the possibility of mudflows, 
rock-debris falls, or other landslides into the dam, embankment, or 
impounded material.
    (f) If the structure meets the Class B or C criteria for dams in 
TR-60 or meets the size or other criteria of Sec.  77.216(a) of this 
chapter, each plan under paragraphs (b), (c), and (e) of this section 
shall include a stability analysis of the structure. The stability 
analysis shall include, but not be limited to, strength parameters, 
pore pressures, and long-term seepage conditions. The plan shall also 
contain a description of each engineering design assumption and 
calculation with a discussion of each alternative considered in 
selecting the specific design parameters and construction methods.


Sec.  780.28  [Removed]

0
6. Remove Sec.  780.28.

0
7. Revise Sec.  780.35 to read as follows:


Sec.  780.35  Disposal of excess spoil.

    (a) Each application shall contain descriptions, including 
appropriate maps and cross section drawings, of the proposed disposal 
site and design of the spoil disposal structures according to 30 CFR 
816.71-816.74. These plans shall describe the geotechnical 
investigation, design, construction, operation, maintenance, and 
removal, if appropriate, of the site and structures.
    (b) Except for the disposal of excess spoil on pre existing 
benches, each application shall contain the results of a geotechnical 
investigation of the proposed disposal site, including the following:
    (1) The character of bedrock and any adverse geologic conditions in 
the disposal area,
    (2) A survey identifying all springs, seepage, and ground water 
flow observed or anticipated during wet periods in the area of the 
disposal site;
    (3) A survey of the potential effects of subsidence of the 
subsurface strata due to past and future mining operations;
    (4) A technical description of the rock materials to be utilized in 
the construction of those disposal structures containing rock chimney 
cores or underlain by a rock drainage blanket; and
    (5) A stability analysis including, but not limited to, strength 
parameters, pore pressures and long-term seepage conditions. These data 
shall be accompanied by a description of all engineering design 
assumptions and calculations and the alternatives considered in 
selecting the specific design specifications and methods.
    (c) If, under 30 CFR 816.71(d), rock-toe buttresses or key-way cuts 
are required, the application shall include the following:
    (1) The number, location, and depth of borings or test pits which 
shall be determined with respect to the size of the spoil disposal 
structure and subsurface conditions; and
    (2) Engineering specifications utilized to design the rock-toe 
buttress or key-way cuts which shall be determined in accordance with 
paragraph (b)(5) of this section.

PART 784--UNDERGROUND MINING PERMIT APPLICATIONS-MINIMUM 
REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN

0
8. The authority citation for part 784 continues to read as follows:

    Authority:  30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.


0
9. Section 784.10 is revised to read as follows:


Sec.  784.10  Information collection.

    (a) The collections of information contained in Part 784 have been 
approved by Office of Management and

[[Page 76230]]

Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1029-
0039. The information will be used to meet the requirements of 30 
U.S.C. 1211(b), 1251, 1257, 1258, 1266, and 1309a. The obligation to 
respond is required to obtain a benefit.
    (b) Public reporting burden for this information is estimated to 
average 513 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.

0
10. Amend Sec.  784.16 as follows:
0
a. Revise the section heading, paragraph (a) introductory text, 
paragraph (a)(1) introductory text, and paragraph (a)(2);
0
b. Revise paragraph (c)(2) and remove paragraph (c)(4);
0
c. Revise paragraph (d); and
0
d. Add paragraphs (e) and (f).
    The revisions and additions read as follows:


Sec.  784.16  Reclamation plan: Siltation structures, impoundments, 
banks, dams, and embankments.

    (a) General. Each application shall include a general plan and a 
detailed design plan for each proposed siltation structure, water 
impoundment, and coal processing waste bank, dam, or embankment within 
the proposed permit area.
    (1) Each general plan shall--
* * * * *
    (2) Impoundments meeting the Class B or C criteria for dams in the 
U.S. Department of Agriculture, Soil Conservation Service Technical 
Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' 
Technical Release No. 60 (TR-60) shall comply with the requirements of 
this section for structures that meet or exceed the size or other 
criteria of the Mine Safety and Health Administration (MSHA). The 
technical release is hereby incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. TR-60 
may be viewed or downloaded from OSM's Web site at http://www.osmre.gov/programs/TDT/damsafety.shtm. It also is available for 
inspection at the OSM Headquarters Office, Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, Room 252, 1951 
Constitution Ave. NW., Washington, DC or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Each detailed design plan for a structure that 
meets or exceeds the size or other criteria of MSHA, Sec.  77.216(a) of 
this chapter shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (ii) Include any geotechnical investigation, design, and 
construction requirements for the structure;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
* * * * *
    (c) * * *
    (2) Each plan for an impoundment meeting the size of other criteria 
of the Mine Safety and Health Administration shall comply with the 
requirements of Sec. Sec.  77.216-1 and 77.216-2 of this title. The 
plan required to be submitted to the District Manager of MSHA under 
Sec.  77.216 of this title shall be submitted to the regulatory 
authority as part of the permit application in accordance with 
paragraph (a) of this section.
* * * * *
    (d) Coal processing waste banks. Coal processing waste banks shall 
be designed to comply with the requirements of 30 CFR 817.81 through 
817.84.
    (e) Coal processing waste dams and embankments. Coal processing 
waste dams and embankments shall be designed to comply with the 
requirements of 30 CFR 817.81 through 817.84. Each plan shall comply 
with the requirements of the Mine Safety and Health Administration, 30 
CFR 77.216-1 and 77.216-2, and shall contain the results of a 
geotechnical investigation of the proposed dam or embankment foundation 
area, to determine the structural competence of the foundation which 
will support the proposed dam or embankment structure and the impounded 
material. The geotechnical investigation shall be planned and 
supervised by an engineer or engineering geologist, according to the 
following:
    (1) The number, location, and depth of borings and test pits shall 
be determined using current prudent engineering practice for the size 
of the dam or embankment, quantity of material to be impounded, and 
subsurface conditions.
    (2) The character of the overburden and bedrock, the proposed 
abutment sites, and any adverse geotechnical conditions which may 
affect the particular dam, embankment, or reservoir site shall be 
considered.
    (3) All springs, seepage, and ground water flow observed or 
anticipated during wet periods in the area of the proposed dam or 
embankment shall be identified on each plan.
    (4) Consideration shall be given to the possibility of mudflows, 
rock-debris falls, or other landslides into the dam, embankment, or 
impounded material.
    (f) If the structure meets the Class B or C criteria for dams in 
TR-60 or meets the size or other criteria of Sec.  77.216(a) of this 
chapter, each plan under paragraphs (b), (c), and (e) of this section 
shall include a stability analysis of the structure. The stability 
analysis shall include, but not be limited to, strength parameters, 
pore pressures, and long-term seepage conditions. The plan shall also 
contain a description of each engineering design assumption and 
calculation with a discussion of each alternative considered in 
selecting the specific design parameters and construction methods.

0
11. Revise Sec.  784.19 to read as follows:


Sec.  784.19  Underground development waste.

    Each plan shall contain descriptions, including appropriate maps 
and cross section drawings of the proposed disposal methods and sites 
for placing underground development waste and excess spoil generated at 
surface areas affected by surface operations and facilities, according 
to 30 CFR 817.71 through 817.74. Each plan shall describe the 
geotechnical investigation, design, construction, operation, 
maintenance and removal, if appropriate, of the structures and be 
prepared according to 30 CFR 780.35.

0
12. Amend Sec.  784.23 by revising paragraphs (b)(10) and (c) to read 
as follows:


Sec.  784.23  Operation plan: Maps and plans.

* * * * *
    (b) * * *
    (10) Location of each sedimentation pond, permanent water 
impoundment, coal processing waste bank, and coal processing waste dam 
and embankment, in accordance with 30 CFR 784.16 and disposal areas for 
underground development waste and excess spoil, in accordance with 30 
CFR 784.19;
* * * * *
    (c) Except as provided in Sec. Sec.  784.16(a)(2), 784.16(a)(3), 
784.19, 817.71(b), 817.73(c), 817.74(c) and 817.81(c) of this chapter, 
cross sections, maps and plans required under paragraphs (b)(4), (5), 
(6), (10) and (11)

[[Page 76231]]

of this section shall be prepared by, or under the direction of, and 
certified by a qualified, registered, professional engineer, a 
professional geologist, or in any State which authorizes land surveyors 
to prepare and certify such cross sections, maps and plans, a 
qualified, registered, professional, land surveyor, with assistance 
from experts in related fields such as landscape architecture.


Sec.  784.28  [Removed]

0
13. Remove Sec.  784.28.

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

0
14. The authority citation for part 816 is revised to read as follows:

    Authority:  30 U.S.C. 1201 et seq.; and sec 115 of Pub. L. 98-
146.

0
15. Section 816.10 is revised to read as follows:


Sec.  816.10  Information collection.

    (a) The collections of information contained in part 816 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0047. The information will be 
used by the regulatory authority to monitor and inspect surface coal 
mining activities to ensure that they are in compliance with the 
Surface Mining Control and Reclamation Act. Response is required to 
obtain a benefit.
    (b) Public Reporting Burden for this information is estimated to 
average 1 hour per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing the burden, to the Information Collection 
Clearance Officer, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Ave. NW., Room 203, Washington, DC 
20240; and the Office of Management and Budget, Paperwork Reduction 
Project (1029-0047), Washington, DC 20503.

0
16. In Sec.  816.11, revise paragraph (e) to read as follows:


Sec.  816.11  Signs and markers.

* * * * *
    (e) Buffer zone markers. Buffer zones shall be marked along their 
boundaries as required under Sec.  816.57.
* * * * *

0
17. Amend Sec.  816.43 as follows:
0
a. Revise paragraph (a)(3);
0
b. Remove paragraph (a)(4) and redesignate paragraph (a)(5) as 
paragraph (a)(4);
0
c. Revise paragraphs (b)(1) and (b)(4); and
0
d. Remove paragraph (b)(5).
    The revisions will read as follows:


Sec.  816.43  Diversions.

    (a) * * *
    (3) Temporary diversions shall be removed promptly when no longer 
needed to achieve the purpose for which they were authorized. The land 
disturbed by the removal process shall be restored in accordance with 
this part. Before diversions are removed, downstream water-treatment 
facilities previously protected by the diversion shall be modified or 
removed, as necessary, to prevent overtopping or failure of the 
facilities. This requirement shall not relieve the operator from 
maintaining water-treatment facilities as otherwise required. A 
permanent diversion or a stream channel reclaimed after the removal of 
a temporary diversion shall be designed and constructed so as to 
restore or approximate the premining characteristics of the original 
stream channel including the natural riparian vegetation to promote the 
recovery and the enhancement of the aquatic habitat.
* * * * *
    (b) * * *
    (1) Diversion of perennial and intermittent streams within the 
permit area may be approved by the regulatory authority after making 
the finding relating to stream buffer zones that the diversion will not 
adversely affect the water quantity and quality and related 
environmental resources of the stream.
* * * * *
    (4) The design and construction of all stream channel diversions of 
perennial and intermittent streams shall be certified by a qualified 
registered professional engineer as meeting the performance standards 
of this part and any design criteria set by the regulatory authority.
* * * * *

0
18. Amend Sec.  816.46 by redesignating paragraphs (b)(2) through 
(b)(5) as paragraphs (b)(3) through (b)(6), respectively, and by adding 
a new paragraph (b)(2) to read as follows:


Sec.  816.46  Hydrologic balance: Siltation structures.

* * * * *
    (b) * * *
    (2) All surface drainage from the disturbed area shall be passed 
through a siltation structure before leaving the permit area, except as 
provided in paragraph (b)(5) or (e) of this section. The requirements 
of this paragraph are suspended effective December 22, 1986, per court 
order.
* * * * *

0
19. Revise Sec.  816.57 to read as follows:


Sec.  816.57  Hydrologic balance: Stream buffer zones.

    (a) No land within 100 feet of a perennial stream or an 
intermittent stream shall be disturbed by surface mining activities, 
unless the regulatory authority specifically authorizes surface mining 
activities closer to, or through, such a stream. The regulatory 
authority may authorize such activities only upon finding that--
    (1) Surface mining activities will not cause or contribute to the 
violation of applicable State or Federal water quality standards, and 
will not adversely affect the water quantity and quality or other 
environmental resources of the stream; and
    (2) If there will be a temporary or permanent stream-channel 
diversion, it will comply with Sec.  816.43.
    (b) The area not to be disturbed shall be designated as a buffer 
zone, and the operator shall mark it as specified in Sec.  816.11.

0
20. In Sec.  816.71, revise paragraphs (a) through (d) to read as 
follows:


Sec.  816.71  Disposal of excess spoil: General requirements.

    (a) General. Excess spoil shall be placed in designated disposal 
areas within the permit area, in a controlled manner to--
    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on surface and ground waters;
    (2) Ensure mass stability and prevent mass movement during and 
after construction; and
    (3) Ensure that the final fill is suitable for reclamation and 
revegetation compatible with the natural surroundings and the approved 
postmining land use.
    (b) Design certification. (1) The fill and appurtenant structures 
shall be designed using current, prudent engineering practices and 
shall meet any design criteria established by the regulatory authority. 
A qualified registered professional engineer experienced in the design 
of earth and rock fills shall certify the design of the fill and 
appurtenant structures.
    (2) The fill shall be designed to attain a minimum long-term static 
safety factor of 1.5. The foundation and abutments of the fill must be 
stable under all conditions of construction.
    (c) Location. The disposal area shall be located on the most 
moderately

[[Page 76232]]

sloping and naturally stable areas available, as approved by the 
regulatory authority, and shall be placed, where possible, upon or 
above a natural terrace, bench, or berm, if such placement provides 
additional stability and prevents mass movement.
    (d) Foundation. (1) Sufficient foundation investigations, as well 
as any necessary laboratory testing of foundation material, shall be 
performed in order to determine the design requirements for foundation 
stability. The analyses of foundation conditions shall take into 
consideration the effect of underground mine workings, if any, upon the 
stability of the fill and appurtenant structures.
    (2) Where the slope in the disposal area is in excess of 2.8h:1v 
(36 percent), or such lesser slope as may be designated by the 
regulatory authority based on local conditions, keyway cuts 
(excavations to stable bedrock) or rock toe buttresses shall be 
constructed to ensure stability of the fill. Where the toe of the spoil 
rests on a downslope, stability analyses shall be performed in 
accordance with Sec.  780.35(c) of this chapter to determine the size 
of rock toe buttresses and keyway cuts.
* * * * *

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

0
21. The authority citation for part 817 continues to read as follows:

    Authority:  30 U.S.C. 1201 et seq.

0
22. Section 817.10 is revised to read as follows:


Sec.  817.10  Information collection.

    (a) The collections of information contained in Part 817 have been 
approved by Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0048. The information will be 
used to meet the requirements of 30 U.S.C. 1211, 1251, 1266, and 1309a 
which provide, among other things, that permittees conducting 
underground coal mining operations will meet the applicable performance 
standards of the Act. This information will be used by the regulatory 
authority in monitoring and inspecting underground mining activities. 
The obligation to respond is required to obtain a benefit.
    (b) Public reporting burden for this information is estimated to 
average 4 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.

0
23. In Sec.  817.11, revise paragraph (e) to read as follows:


Sec.  817.11  Signs and markers.

* * * * *
    (e) Buffer zone markers. Buffer zones required by Sec.  817.57 
shall be clearly marked to prevent disturbance by surface operations 
and facilities.
* * * * *

0
24. Amend Sec.  817.43 as follows:
0
a. Revise paragraph (a)(3);
0
b. Remove paragraph (a)(4) and redesignate paragraph (a)(5) as 
paragraph (a)(4);
0
c. Revise paragraphs (b)(1) and (b)(4); and
0
d. Remove paragraph (b)(5).
    The revisions will read as follows:


Sec.  817.43  Diversions.

    (a) * * *
    (3) Temporary diversions shall be removed promptly when no longer 
needed to achieve the purpose for which they were authorized. The land 
disturbed by the removal process shall be restored in accordance with 
this part. Before diversions are removed, downstream water-treatment 
facilities previously protected by the diversion shall be modified or 
removed, as necessary, to prevent overtopping or failure of the 
facilities. This requirement shall not relieve the operator from 
maintaining water-treatment facilities as otherwise required. A 
permanent diversion or a stream channel reclaimed after the removal of 
a temporary diversion shall be designed and constructed so as to 
restore or approximate the premining characteristics of the original 
stream channel including the natural riparian vegetation to promote the 
recovery and the enhancement of the aquatic habitat.
* * * * *
    (b) * * *
    (1) Diversion of perennial and intermittent streams within the 
permit area may be approved by the regulatory authority after making 
the finding relating to stream buffer zones called for in 30 CFR 817.57 
that the diversions will not adversely affect the water quantity and 
quality and related environmental resources of the stream.
* * * * *
    (4) The design and construction of all stream channel diversions of 
perennial and intermittent streams shall be certified by a qualified 
registered professional engineer as meeting the performance standards 
of this part and any design criteria set by the regulatory authority.
* * * * *

0
25. Amend Sec.  817.46 by redesignating paragraphs (b)(2) through 
(b)(5) as paragraphs (b)(4) through (b)(7), respectively, and by adding 
new paragraphs (b)(2) and (b)(3) to read as follows.


Sec.  817.46  Hydrologic balance: Siltation structures.

* * * * *
    (b) * * *
    (2) All surface drainage from the disturbed area shall be passed 
through a siltation structure before leaving the permit area, except as 
provided in paragraph (b)(5) or (e) of this section. The requirements 
of this paragraph are suspended effective December 22, 1986, per court 
order.
    (3) Siltation structures for an area shall be constructed before 
beginning any underground mining activities in that area, and upon 
construction shall be certified by a qualified registered professional 
engineer, or, in any State which authorizes land surveyors to prepare 
and certify plans in accordance with Sec.  784.16(a) of this chapter, a 
qualified registered professional land surveyor, to be constructed as 
designed and as approved in the reclamation plan.
* * * * *

0
26. Revise Sec.  817.57 to read as follows:


Sec.  817.57  Hydrologic balance: Stream buffer zones.

    (a) No land within 100 feet of a perennial stream or an 
intermittent stream shall be disturbed by underground mining 
activities, unless the regulatory authority specifically authorizes 
underground mining activities closer to, or through, such a stream. The 
regulatory authority may authorize such activities only upon finding 
that--
    (1) Underground mining activities will not cause or contribute to 
the violation of applicable State or Federal water quality standards 
and will not adversely affect the water quantity and quality or other 
environmental resources of the stream; and
    (2) If there will be a temporary or permanent stream-channel 
diversion, it will comply with Sec.  817.43.
    (b) The area not to be disturbed shall be designated as a buffer 
zone, and the operator shall mark it as specified in Sec.  817.11.

0
27. In Sec.  817.71, revise paragraphs (a) through (d) and add a new 
paragraph (k) to read as follows:


Sec.  817.71  Disposal of excess spoil: General requirements.

    (a) General. Excess spoil shall be placed in designated disposal 
areas within the permit area, in a controlled manner to--

[[Page 76233]]

    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on surface and ground waters;
    (2) Ensure mass stability and prevent mass movement during and 
after construction; and
    (3) Ensure that the final fill is suitable for reclamation and 
revegetation compatible with the natural surroundings and the approved 
postmining land use.
    (b) Design certification. (1) The fill and appurtenant structures 
shall be designed using current, prudent engineering practices and 
shall meet any design criteria established by the regulatory authority. 
A qualified registered professional engineer experienced in the design 
of earth and rock fills shall certify the design of the fill and 
appurtenant structures.
    (2) The fill shall be designed to attain a minimum long-term static 
safety factor of 1.5. The foundation and abutments of the fill must be 
stable under all conditions of construction.
    (c) Location. The disposal area shall be located on the most 
moderately sloping and naturally stable areas available, as approved by 
the regulatory authority, and shall be placed, where possible, upon or 
above a natural terrace, bench, or berm, if such placement provides 
additional stability and prevents mass movement.
    (d) Foundation. (1) Sufficient foundation investigations, as well 
as any necessary laboratory testing of foundation material, shall be 
performed in order to determine the design requirements for foundation 
stability. The analyses of foundation conditions shall take into 
consideration the effect of underground mine workings, if any, upon the 
stability of the fill and appurtenant structures.
    (2) When the slope in the disposal area is in excess of 2.8h:lv (36 
percent), or such lesser slope as may be designated by the regulatory 
authority based on local conditions, keyway cuts (excavations to stable 
bedrock) or rock toe buttresses shall be constructed to ensure 
stability of the fill. Where the toe of the spoil rests on a downslope, 
stability analyses shall be performed in accordance with Sec.  784.19 
of this chapter to determine the size of rock toe buttresses and keyway 
cuts.
* * * * *
    (k) Face-up operations. Spoil resulting from face-up operations for 
underground coal mine development may be placed at drift entries as 
part of a cut and fill structure, if the structure is less than 400 
feet in horizontal length, and designed in accordance with Sec.  
817.71.

[FR Doc. 2014-29864 Filed 12-19-14; 8:45 am]
BILLING CODE 4310-05-P