PART 701—PERMANENT REGULATORY PROGRAM Authority: 30 U.S.C. 1201 et seq. Source: 44 FR 15316, Mar. 13, 1979, unless otherwise noted. Editorial Note: At 82 FR 54929, Nov. 17, 2017, as required by the Congressional Review Act and Public Law 115-5, the Office of Surface Mining Reclamation and Enforcement removed all amendments to part 701 made effective on Jan. 19, 2017, at 81 FR 93319-93323, Dec. 20, 2016. § 701.1 Scope. (a) This part provides general introductory material for the permanent regulatory program required by the Act. (b) The following regulations apply to the permanent regulatory program: (1) Subchapter C on State program application, approval, withdrawal, and grants, and Federal program implementation; (2) Subchapter D on surface coal mining and reclamation operations on Federal lands; (3) Subchapter E on surface coal mining and reclamation operations on Indian lands. (4) Subchapter F on criteria for designating lands unsuitable for surface coal mining operations and the process for designating these lands or withdrawing the designation by the regulatory authority; Provided, 1 1 Editorial Note: (5) Subchapter G on the process for application, approval, denial, revision, and renewal of permits for surface coal mining and reclamation operations, including the small operator assistance program, requirements for special categories of these operations, and requirements for coal exploration; (6) Subchapter J on public liability insurance and performance bonds or other assurances of performance for surface coal mining and reclamation operations; (7) Subchapter K on performance standards which apply to coal exploration, surface coal mining and reclamation operations, and special categories of these operations; (8) Subchapter L on inspection and enforcement responsibilities and civil penalties; and (9) Subchapter M on the training, examination, and certification of blasters. [44 FR 15316, Mar. 13, 1979; 44 FR 49685, Aug. 24, 1979, as amended at 44 FR 77445, Dec. 31, 1979; 49 FR 38477, Sept. 28, 1984] § 701.2 Objective. The regulations in this part give— (a) A general overview of the regulatory program to be implemented by the State or Federal regulatory authority; (b) The applicability of that program to coal exploration and surface coal mining and reclamation operations; and (c) The definitions that apply to the regulation of coal exploration and surface coal mining and reclamation operations. § 701.3 Authority. The Secretary is required by section 501(b) of the Act to promulgate regulations which establish the permanent regulatory program; by section 523 of the Act to promulgate regulations which establish the Federal lands programs; and is authorized by section 710 of the Act to promulgate regulations which establish a Federal program for Indian lands. [49 FR 38477, Sept. 28, 1984] § 701.4 Responsibility. (a) A State regulatory authority shall assume primary responsibility for regulation of coal exploration and surface coal mining and reclamation operations during the permanent regulatory program upon submission to and approval by the Secretary of a State program meeting all applicable requirements of the Act and this chapter. After approval of the State program, the State regulatory authority has responsibility for review of and decisions on permits and bonding for surface coal mining and reclamation operations, approval of coal exploration which substantially disturbs the natural land surface and removes more than 250 tons of coal from the earth in any one location, inspection of coal exploration and surface coal mining and reclamation operations for compliance with the Act, this chapter, the State program, permits and exploration approvals, and for enforcement of the State program. (b) While a State regulatory program is in effect, the Office's responsibility includes, but is not limited to— (1) Evaluating the administration of the State program through such means as periodic inspections of coal exploration and surface coal mining and reclamation operations in the State and review of exploration approvals, permits, inspection reports, and other documents required to be made available to the Office; (2) Referring to the State regulatory authority information which creates reasonable belief that a person is in violation of the Act, this chapter, the State regulatory program, a permit condition, or coal exploration approval condition, and initiating an inspection when authorized by the Act or this chapter; (3) Issuing notices of violation when a State regulatory authority fails to take appropriate action to cause a violation to be corrected; and (4) Issuing cessation orders, including imposing affirmative obligations, when a condition, practice, or violation exists which creates an imminent danger to the health or safety of the public, or is causing or could reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources. (c) The Office shall implement a Federal program in a State, if that State does not have an approved State program by June 3, 1980. The Office shall not implement a Federal program in a State for a period of up to 1 year following that date if the State's failure to have an approved program by that date is due to an injunction imposed by a court of competent jurisdiction. (d) Under a Federal program, the Office shall be the regulatory authority for all coal exploration and surface coal mining and reclamation operations in that State and shall perform the functions that a State regulatory authority would perform under an approved State program. (e) During the period in which a State program is in effect, the Office shall assume responsibility for enforcing permit conditions, issuing new or revised permits, and issuing necessary notices and orders, when required by 30 CFR part 733. (f) The Secretary shall substitute a Federal program under 30 CFR part 736 for an approved State program, when required by 30 CFR part 733. (g) The Secretary shall have the responsibility for administration of the Federal lands program. The Director and other Federal authorities shall have the responsibilities under a Federal lands program as are provided for under subchapter D of this chapter. In addition, State regulatory authorities shall have responsibilities to administer the Federal lands program as provided for under cooperative agreements approved by the Secretary in accordance with 30 CFR part 745. (h) The Secretary shall have the responsibility for the administration of the Federal program for Indian lands, as provided for under subchapter E of this chapter. The Director and other Federal authorities have the responsibilities under the Indian lands program as are provided for under subchapter E of this chapter. [44 FR 15316, Mar. 13, 1979, as amended at 49 FR 38477, Sept. 28, 1984] § 701.5 Definitions. As used in this chapter, the following terms have the specified meanings, except where otherwise indicated: Acid drainage Acid-forming materials Adjacent area adjacent area Administratively complete application Affected area Agricultural activities Agricultural use Alluvial valley floors Applicant Applicant/Violator System AVS Application Approximate original contour Aquifer Arid and semiarid area Auger mining Best technology currently available Coal exploration (a) surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical, or other techniques necessary to determine the quality and quantity of overburden and coal of an area; or (b) the gathering of environmental data to establish the conditions of an area before beginning surface coal mining and reclamation operations under the requirements of this chapter. Coal mine waste Coal preparation Coal preparation plant Coal processing waste Combustible material Compaction Complete and accurate application Control controller, (a) A permittee of a surface coal mining operation; (b) An operator of a surface coal mining operation; or (c) Any person who has the ability to determine the manner in which a surface coal mining operation is conducted. Cropland Cumulative impact area (a) The proposed operation, (b) all existing operations, (c) any operation for which a permit application has been submitted to the regulatory authority, and (d) all operations required to meet diligent development requirements for leased Federal coal for which there is actual mine development information available. Disturbed area disturbed Diversion Downslope Drinking, domestic or residential water supply Embankment Ephemeral stream Essential hydrologic functions Excess spoil Existing structure Farming Federal program (a) Complete Federal program (b) Partial Federal program Flood irrigation Fugitive dust Gravity discharge Ground cover Ground water Half-shrub Head-of-hollow fill Higher or better uses Highwall Highwall remnant Historically used for cropland (a) lands that have been used for cropland for any 5 years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing through resale, lease or option the conduct of surface coal mining and reclamation operations; (b) lands that the regulatory authority determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific 5-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or (c) lands that would likely have been used as cropland for any 5 out of the last 10 years, immediately preceding such acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land. Hydrologic balance Hydrologic regime Imminent danger to the health and safety of the public Impounding structure Impoundments In situ processes Intermittent stream (a) A stream or reach of a stream that drains a watershed of at least one square mile, or (b) A stream or reach of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge. Irreparable damage to the environment Knowing knowingly Land use (a) Cropland. (b) Pastureland or land occasionally cut for hay. (c) Grazingland. (d) Forestry. (e) Residential. (f) Industrial/Commercial. (1) Extraction or transformation of materials for fabrication of products, wholesaling of products, or long-term storage of products. This includes all heavy and light manufacturing facilities. (2) Retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments. (g) Recreation. (h) Fish and wildlife habitat. (i) Developed water resources. (j) Undeveloped land or no current use or land management. Lands eligible for remining Material damage, (a) Any functional impairment of surface lands, features, structures or facilities; (b) Any physical change that has a significant adverse impact on the affected land's capability to support any current or reasonably foreseeable uses or causes significant loss in production or income; or (c) Any significant change in the condition, appearance or utility of any structure or facility from its pre-subsidence condition. Materially damage the quantity or quality of water MSHA Moist bulk density 1/3 Mulch Non-commercial building Noxious plants Occupied residential dwelling and structures related thereto means, Operator Other treatment facilities (a) To prevent additional contributions of dissolved or suspended solids to streamflow or runoff outside the permit area, or (b) To comply with all applicable State and Federal water-quality laws and regulations. Outslope Overburden Own, owner, ownership, Perennial stream intermittent stream ephemeral stream. Performance bond Permanent diversion Permanent impoundment Permit Permit area Permittee Precipitation event precipitation event Previously mined area Prime farmland Federal Register Principal shareholder Property to be mined Rangeland Reasonably available spoil Recharge capacity Reclamation Recurrence interval Reference area Refuse pile Remining Renewable resource lands Replacement of water supply (a) Upon agreement by the permittee and the water supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the permittee and the water supply owner. (b) If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If the latter approach is selected, written concurrence must be obtained from the water supply owner. Road Safety factor Sedimentation pond Significant, imminent environmental harm to land, air or water resources (a) An environmental harm is an adverse impact on land, air, or water resources which resources include, but are not limited to, plant and animal life. (b) An environmental harm is imminent, if a condition, practice, or violation exists which— (1) Is causing such harm; or, (2) May reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under section 521(a)(3) of the Act. (c) An environmental harm is significant if that harm is appreciable and not immediately reparable. Siltation structure Slope e.g., Soil horizons (a) A horizon. (b) E horizon. (c) B horizon. (d) C horizon. Soil survey Special bituminous coal mines (a) Surface mining takes place on a relatively limited site for an extended period of time. The surface opening of the excavation is at least the full size of the excavation and has a continuous border. (b) Excavation of the mine pit follows a coal seam that inclines 15° or more from the horizontal, and as the excavation proceeds downward it expands laterally to maintain stability of the pitwall or as necessary to accommodate the orderly expansion of the total mining operation. (c) The amount of material removed from the pit is large in comparison to the surface area disturbed. (d) There is no practicable alternative to the deep open-pit method of mining the coal. (e) There is no practicable way to reclaim the land as required in subchapter K. Spoil Stabilize State program Steep slope Subirrigation Substantially disturb Successor in interest Surface mining activities Suspended solids Temporary diversion Temporary impoundment Topsoil Toxic-forming materials Toxic mine drainage Transfer, assignment, or sale of permit rights Unanticipated event or condition, Underground development waste Underground mining activities (a) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance, and reclamation of roads, above-ground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities including hoist and ventilating ducts, areas utilized for the disposal and storage of waste, and areas on which materials incident to underground mining operations are placed; and (b) Underground operations such as underground construction, operation, and reclamation of shafts, adits, underground support facilities, in situ processing, and underground mining, hauling, storage, and blasting. Undeveloped rangeland Upland areas Valley fill Violation, (1) A failure to comply with an applicable provision of a Federal or State law or regulation pertaining to air or water environmental protection, as evidenced by a written notification from a governmental entity to the responsible person; or (2) A noncompliance for which OSM has provided one or more of the following types of notice or a State regulatory authority has provided equivalent notice under corresponding provisions of a State regulatory program— (i) A notice of violation under § 843.12 of this chapter. (ii) A cessation order under § 843.11 of this chapter. (iii) A final order, bill, or demand letter pertaining to a delinquent civil penalty assessed under part 845 or 846 of this chapter. (iv) A bill or demand letter pertaining to delinquent reclamation fees owed under part 870 of this chapter. (v) A notice of bond forfeiture under § 800.50 of this chapter when— (A) One or more violations upon which the forfeiture was based have not been abated or corrected; (B) The amount forfeited and collected is insufficient for full reclamation under § 800.50(d)(1) of this chapter, the regulatory authority orders reimbursement for additional reclamation costs, and the person has not complied with the reimbursement order; or (C) The site is covered by an alternative bonding system approved under § 800.11(e) of this chapter, that system requires reimbursement of any reclamation costs incurred by the system above those covered by any site-specific bond, and the person has not complied with the reimbursement requirement and paid any associated penalties. Violation, failure or refusal, (1) A failure to comply with a condition of a Federally-issued permit or of any other permit that OSM is directly enforcing under section 502 or 521 of the Act or the regulations implementing those sections; or (2) A failure or refusal to comply with any order issued under section 521 of the Act, or any order incorporated in a final decision issued by the Secretary under the Act, except an order incorporated in a decision issued under section 518(b) or section 703 of the Act. Violation notice violation Water table Willful willfully (1) Intentionally, voluntarily, or consciously; and (2) With intentional disregard or plain indifference to legal requirements. [44 FR 15316, Mar. 13, 1979] Editorial Note: For Federal Register www.govinfo.gov. Effective Date Note: In § 701.5, the definition of Affected area, Surface coal mining operations, § 701.11 Applicability. (a) Any person who conducts surface coal mining operations on non-Indian or non-Federal lands on or after 8 months from the date of approval of a State program or implementation of a Federal program shall have a permit issued pursuant to the applicable State or Federal program. However, under conditions specified in 30 CFR 773.4(b) of this chapter, a person may continue operations under a previously issued permit after 8 months from the date of approval of a State program or implementation of a Federal program. (b) Any person who conducts surface coal mining operations on Federal lands on or after 8 months from the date of approval of a State program or implementation of a Federal program for the State in which the Federal lands are located shall have a permit issued pursuant to part 740 of this chapter. However, under conditions specified in § 740.13(a)(3) of this chapter, a person may continue such operations under a mining plan previously approved pursuant to 43 CFR part 3480 or a permit issued by the State under the interim State program after 8 months after the date of approval of a State program or implementation of a Federal program. (c) Any person who conducts surface coal mining operations on Indian lands on or after eight months from the effective date of the Federal program for Indian lands shall have a permit issued pursuant to part 750 of this chapter. However, a person who is authorized to conduct surface coal mining operations may continue to conduct those operations beyond eight months from the effective date of the Federal program for Indian lands if the following conditions are met: (1) An application for a permit to conduct those operations has been made to the Director within two months after the effective date of the Federal program for Indian lands and the initial administrative decision on that application has not been issued; and (2) Those operations are conducted in compliance with all terms and conditions of the existing authorization to mine, the requirements of the Act, 25 CFR part 216, and the requirements of all applicable mineral agreements, leases or licenses. (d) The requirements of subchapter K of this chapter shall be effective and shall apply to each surface coal mining and reclamation operation for which the surface coal mining operation is required to obtain a permit under the Act, on the earliest date upon which the Act and this chapter require a permit to be obtained, except as provided in paragraph (e) of this section. (e)(1) Each structure used in connection with or to facilitate a coal exploration or surface coal mining and reclamation operation shall comply with the performance standards and the design requirements of subchapter K of this chapter, except that— (i) An existing structure which meets the performance standards of subchapter K of this chapter but does not meet the design requirements of subchapter K of this chapter may be exempted from meeting those design requirements by the regulatory authority. The regulatory authority may grant this exemption only as part of the permit application process after obtaining the information required by 30 CFR 780.12 or 784.12 and after making the findings required in 30 CFR 773.15; (ii) If the performance standard of subchapter B of this chapter is at least as stringent as the comparable performance standard of subchapter K of this chapter, an existing structure which meets the performance standards of subchapter B of this chapter may be exempted by the regulatory authority from meeting the design requirements of subchapter K of this chapter. The regulatory authority may grant this exemption only as part of the permit application process after obtaining the information required by 30 CFR 780.12 or 784.12 and after making the findings required in 30 CFR 773.15; (iii) An existing structure which meets a performance standard of subchapter B of this chapter which is less stringent than the comparable performance standards of subchapter K of this chapter or which does not meet a performance standard of subchapter K of this chapter, for which there was no equivalent performance standards in subchapter B of this chapter, shall be modified or reconstructed to meet the performance and design standard of subchapter K of this chapter pursuant to a compliance plan approved by the regulatory authority only as part of the permit application as required in 30 CFR 780.12 or 784.12 and according to the findings required by 30 CFR 773.15; (iv) An existing structure which does not meet the performance standards of subchapter B of this chapter and which the applicant proposes to use in connection with or to facilitate the coal exploration or surface coal mining and reclamation operation shall be modified or reconstructed to meet the performance and design standards of subchapter K prior to issuance of the permit. (2) The exemptions provided in paragraphs (e)(1)(i) and (e)(1)(ii) of this section shall not apply to— (i) The requirements for existing and new coal mine waste disposal facilities; and (ii) The requirements to restore the approximate original contour of the land. (f)(1) Any person conducting coal exploration on non-Federal and non-Indian lands on or after the date on which a State program is approved or a Federal program implemented, shall either file a notice of intention to explore or obtain approval of the regulatory authority, as required by 30 CFR part 772. (2) Coal exploration performance standards in 30 CFR part 815 shall apply to coal exploration on non-Federal and non-Indian lands which substantially disturbs the natural land surface 2 months after approval of a State program or implementation of a Federal program. (Pub. L. 95-87, 30 U.S.C. 1201 et seq. [44 FR 15316, Mar. 13, 1979, as amended at 44 FR 77446, Dec. 31, 1979; 48 FR 6935, Feb. 16, 1983; 48 FR 44391, Sept. 28, 1983; 48 FR 44779, Sept. 30, 1983; 49 FR 38477, Sept. 28, 1984; 54 FR 13822, Apr. 5, 1989; 65 FR 79663, Dec. 19, 2000] Effective Date Note: A document published at 44 FR 67942, Nov. 27, 1979, temporarily suspended § 701.11(d)(1) and (2), which were redesignated as paragraphs (e)(1) and (2) at 49 FR 38477, Sept. 28, 1984, insofar as it may be read to retain discretion in the regulatory authority to grant an exemption from reconstruction of existing structures after making the findings in 30 CFR 773.15.