PART 710—INITIAL REGULATORY PROGRAM Authority: 30 U.S.C. 1201 et seq., Source: 42 FR 62677, Dec. 13, 1977, unless otherwise noted. § 710.1 Scope. (a) This part provides general introductory and applicability material for the initial regulatory program required by section 502 and other sections of the Act which require early implementation. The initial regulatory program is effective until permanent programs are approved in accordance with sections 503, 504, or 523 of the Act. (b) The initial regulatory program which this part introduces includes— (1) Environmental performance standards of parts 715 through 718 of this chapter. (2) Inspection and enforcement procedures of parts 720 through 723 of this chapter; and (3) Reimbursements to States of part 725 of this chapter. § 710.2 Objectives. The objectives of the initial regulatory program are to— (a) Protect the health and safety of the public and minimize the damage to the environment resulting from surface coal mining operations during the interval between enactment of the Act and adoption of a permanent State or Federal regulatory program; and (b) Coordinate the State and Federal regulatory programs to accomplish the purposes of the Act. § 710.3 Authority. (a) The Secretary is directed to implement an initial regulatory program within six months after the date of enactment of the Act in each State which regulates any aspect of surface coal mining under one or more State laws until a State program has been approved or until a Federal program has been implemented. (b) The Secretary is also authorized to regulate surface coal mining and reclamation operations on Federal Lands by the Mineral Leasing Act of February 25, 1920, as amended (30 U.S.C. 181-287) and the Minerals, Leasing Act for Acquired Lands (30 U.S.C. 351-359) and on Indian lands by various Indian lands acts. Additional regulations under these Acts are in 30 CFR part 211, 1 1 Editorial Note: § 710.4 Responsibility. (a) Under the general direction of the Assistant Secretary, Energy and Minerals, the Director is responsible for administering the initial regulatory program established by the Secretary. (b) The States are responsible for issuing permits and inspection and enforcement on lands on which operations are regulated by a State to insure compliance with the initial performance standards in parts 715 through 718 of this chapter. States are required to file copies of inspection reports with the Office. States are also responsible for assuring that permits are not issued which would be in conflict with the restriction on mining found in section 510 of the Act, particularly in regard to alluvial valley floors and prime farm lands, and section 522(e) of the Act in regard to prohibitions of mining on certain lands. § 710.5 Definitions. As used throughout the initial regulatory program the following terms have the specified meanings unless otherwise indicated: Acid drainage Acid-forming materials Alluvial valley floors Approximate original contour Aquifer Combustible material Compaction Disturbed area Diversion Downslope Embankment Essential hydrologic functions Flood irrigation Ground water Head-of-hollow fill Highwall Hydrologic balance Hydrologic regime Impoundment Intermittent or perennial stream Leachate Noxious plants Overburden Outslope Productivity Recharge capacity Roads Recurrence interval Runoff Safety factor Sediment Sedimentation pond Slope v h Soil horizons (a) A horizon. (b) B horizon. (c) C horizon. Spoil Stabilize Subirrigation Surface water Suspended solids Toxic-forming materials Toxic-mine drainage Valley fill Waste Water table [42 FR 62677, Dec. 13, 1977, as amended at 44 FR 30628, May 25, 1979] § 710.10 Information collection. The collections of information contained in §§ 710.4, 710.11, and 710.12 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. et seq. [56 FR 6227, Feb. 14, 1991] § 710.11 Applicability. (a) Operations on lands on which such operations are regulated by a State. (2) General obligations. (ii) A person conducting coal mining operations shall not engage in any operations which result in a condition or constitute a practice that creates an imminent danger to the health or safety of the public. (iii) A person conducting coal mining operations shall not engage in any operations which result in a condition or constitute a practice that causes or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources. (3) Performance standards obligations. (ii) On and after May 3, 1978, any person conducting coal mining operations shall comply with the initial regulatory program, except as provided in § 710.12 of this part. (iii) A person shall comply with the obligations of this section until he has received a permit to operate under a permanent State or Federal regulatory program. (b) Operations on Indian lands. (c) Operations on Federal lands. (2) Any person conducting coal mining operations on Federal lands on and after May 3, 1978, shall comply with the performance standards of this chapter. (d) Operations on all lands. (2) Any pre-existing, nonconforming structure or facility which is used in connection with or to facilitate mining after the effective date of these regulations shall comply with the requirements of the regulations, unless— (i) The permittee submits to the regulatory authority by March 1, 1978, a statement in writing demonstrating that it is physically impossible to bring the structure or facility into compliance by May 4, 1978. The statement shall include the steps to be taken to reconstruct the structure or facility in conformance with applicable performance standards and a schedule for reconstruction including the estimated date of completion; (ii) The regulatory authority finds in writing that it is physically impossible to bring the structure or facility into compliance by May 4, 1978; (iii) The construction work is to be performed in accordance with plans designed by a professional engineer; and (iv) The construction work is to be started and completed as soon as possible and in no event is to be started later than May 4, 1978 and completed later than November 4, 1978. (3) Notwithstanding paragraph (d)(2) of this section, any sedimentation pond, or related pre-existing, non-conforming structure or facility which is used in connection with or to facilitate mining after the effective date of these regulations shall comply with the requirements of the regulations unless— (i) The permittee submits to the regulatory authority and to the Director by May 3, 1978, a statement in writing demonstrating that it is physically impossible to bring the structure or facility into compliance by May 3, 1978. The statement shall include the steps to be taken to reconstruct the structure or facility in conformance with applicable performance standards and a schedule for reconstruction including the estimated date of completion; (ii) The regulatory authority finds in writing that it is physically impossible to bring the structure or facility into compliance by May 3, 1978; (iii) The construction work is to be performed in accordance with plans designed by a professional engineer; (iv) The construction work is to be started and completed as soon as possible and in no event is to be started later than June 3, 1978 and completed later than November 4, 1978; and (v) The Director approves of any schedules which contain an estimated date of completion beyond October 3, 1978. (4) The Director shall be deemed to have approved such schedules referred to in paragraph (d)(3)(v) of this section, unless written disapproval is received by the operator on or before June 3, 1978. (e) Satisfying Permanent Program Performance Standards in lieu of Initial Program Performance Standards. [42 FR 62677, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978, as amended at 43 FR 5001, Feb. 7, 1978; 43 FR 8091, Feb. 27, 1978; 49 FR 38477, Sept. 28, 1984; 56 FR 6227, Feb. 14, 1991; 59 FR 43419, Aug. 23, 1994] § 710.12 Special exemption for small operators. (a) As used in this section— (1) Permittee (2) Renewed permit (b) If a person is an eligible permittee under paragraph (c) of this section and intends to conduct surface coal mining operations on or after May 3, 1978, that permittee may receive from the Director a limited exemption from the performance standards of this chapter. The exemption shall not— (1) Include the Special Performance Standard of § 716.2(a)(1) of this chapter regarding the handling of spoil; (2) Apply to surface coal mining operations to be conducted under a permit or renewed permit issued on or after August 3, 1977; (3) Include any general or special performance standard with which a permittee is required to comply by a State; (4) Relieve the permittee of the general obligations imposed by § 710.11(a) of this part regarding conditions or practices creating imminent danger or causing significant, imminent environmental harm; or (5) Relieve the permittee of any obligations under State law, regulation or permit. (c) A permittee is eligible for an exemption under this section— (1) If the actual and attributed production of that permittee is estimated by the Director not to exceed 100,000 tons of coal during the year ending on December 31, 1978; and (2) If that permittee— (i) Was in existence on July 31, 1976, and during the year ending on July 31, 1977, the actual and attributed production of that permittee was 100,000 tons of coal or less from all surface and underground coal mining operations; or (ii) Came into existence after July 31, 1976, and prior to May 2, 1977, and the actual and attributed production from all surface and underground coal mining operations of that permittee in the average calendar month was an amount of coal which when multiplied by 12 yields a product of 100,000 tons or less. (iii) And, in the case of a business organization, has not undergone a substantial change in ownership since May 2, 1977, other than a substantial change due to the death of an owner. (d) Application for an exemption under this section shall be submitted to the Director of the Office by March 1, 1978 with a copy to the State regulatory authority. (e) The request for exemption shall be in the form of an affidavit under oath and shall include— (1) The name and address of the permittee and of persons who control the permittee by reason of stock ownership or otherwise. (2) The name, location, Mining Enforcement and Safety Administration identification numbers, and permit numbers of the surface coal mining operations for which exemption is sought, including a statement of the dates each permit was issued or renewed and will expire. (3) The date and method by which the permittee was created if the permittee is not an individual. (4) A listing of all surface and underground coal mining operations showing— (i) Actual production for the year ending July 31, 1977, attributed to the permittee and the inclusive dates of operation. (ii) Estimated production for the year ending December 31, 1978, attributed to the permittee and the anticipated dates of operation. (5) A copy of coal severance tax returns for coal produced during the year ending on July 31, 1977. (6) A copy of a notice the permittee has published in a local newspaper of general circulation in the area of each mine for which an exemption is sought once a week for two weeks stating— (i) That an application for a small operator exemption will be filed, which if granted would exempt the operator from certain environmental protection performance standards in the Act; (ii) The name and address of the permittee; (iii) The location of the surface coal mining operations to which the exemption will apply; and (iv) That public comments may be submitted to the Director, Office of Surface Mining Reclamation and Enforcement. (f) Production from the following operations shall be attributed to the permittee— (1) All coal produced by operations beneficially owned entirely by the permittee, or controlled by reasons of ownership, direction of the management, or in any other manner by the permittee. (2) The pro rata share, based upon percentage of beneficial ownership, of coal produced by operations in which the permittee owns more than a 5-percent interest. (3) All coal produced by persons who own more than 5 percent of the permittee or who directly or indirectly control the permittee by reason of stock ownership, direction of the management or in any other manner. (4) The pro rata share of coal produced by operations owned or controlled by the person who owns or controls the permittee. (g) The Director shall grant the request for an exemption if, upon the basis of the request and any State regulatory authority or public comments, or any other information, he finds that— (1) The permittee has satisfied his burden of proof by demonstrating eligibility for the exemption; and (2) The exemption will not be inconsistent with State law, regulation or permit terms. (h) Any person aggrieved by the decision of the Director under this section may appeal within 20 days from receipt of that decision to The Office of Hearing and Appeals under 43 CFR part 4. The Office of Hearings and Appeals and the Secretary shall have the authority to stay the exemption pending the outcome of the appeal. (i) The exemption shall be effective on the date approved. It shall remain in effect until expiration or renewal of the State permit to which it applies, December 31, 1978, or until revoked, whichever is earlier. (j) The Director shall revoke the exemption upon finding that the exemption was erroneously issued or that the exempted operation has or will produce more than 100,000 tons of coal per year. [42 FR 62677, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978, as amended at 43 FR 5001, Feb. 7, 1978]