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common for surface facilities and operations at these mines to be present on only a small portion <br />of the permit area and are not of a continuously advancing nature. <br />The difference between 30 CFR Sections 816.11(d) and 817.11(d) can be attributed to Section <br />516 of SMCRA. <br />Nowhere in the laws or regulations is there a requirement to place markers at the approved <br />disturbance boundary for surface or underground mines. Neither 30 CFR 817.11(d) nor CCR <br />407-2 4.02.3 should be misconstrued to imply such a requirement. <br />The preamble to 30 CFR 816.11 and 817.11, (44 FR 15137-8, 15262, March 13, 1979), discusses <br />the development of these regulations. It confirms the requirement for perimeter markers being <br />701(17) of SMCRA (definition of "permit area"). The preamble to 817.11 also confirms the <br />influence of Section 516 of SMCRA on the variance in language between 816 and 817. 30 <br />CFR 817.11(d) originally read essentially the same as 816.11(d). Changes to the wording of <br />817.11(d) were not intended to make this section more restrictive than 816.11(d) nor change its <br />intent. These changes are intended to avoid needless markers over areas without surface <br />operations. It was recognized that "Surface perimeter markers above underground workings <br />will not aid underground operations to stay within their permit areas, except for the surface <br />operations and facilities associated with the mine. " This statement further confirms that <br />`perimeter markers' are intended to aid surface operations and facilities to stay within their <br />permit areas. <br />OSM Precedent <br />Numerous precedent setting OSM approvals of various state programs support the broader <br />interpretation of the regulations regarding perimeter markers. For the OSM to approve a state <br />program they must determine that the proposed regulations are as restrictive as or more <br />restrictive than 30 CFR Chapter VII. <br />Most states followed 30 CFR's language when addressing perimeter markers at underground <br />mines. Others required perimeter markers be placed at the permit area boundary. This, <br />apparently, was considered more restrictive than 30 CFR Chapter VII requirements. <br />One example demonstrating that 30 CRF 817.11(d) and thus CCR 407-2 4.02.3 does not require <br />marking the outer footprint of the disturbance is OSM's acceptance of Alabama's current <br />regulations regarding placement of perimeter markers at underground coal mines. Alabama <br />Surface Mining Commission Administrative Code Chapter 880-X-IOD, Performance Standards <br />Underground Mining Activities 800-X-10D-.03 Signs and Markers reads "(4) Perimeter <br />markers. The perimeter of a permit area shall be clearly marked before the beginning of <br />underground mining operations. " This clearly demonstrates that marking the perimeter of the <br />permit area is an acceptable means to comply with 30 CFR Section 817.11(d). <br />Virginia applies similar regulations concerning perimeter markers at underground coal mines: <br />Part 817 Permanent Program Performance Standards-Underground Mining Activities