2011-05-25_REVISION - C1981018 (3)

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will not aid underground operations to stay within their permit areas, except for the surface operations and facilities associated with the mine. " This statement further confirms that `perimeter markers' are intended to aid surface operations and facilities to stay within their permit area. Nowhere in the laws or regulations is there a requirement to place markers at the approved disturbance boundary for surface or underground mines. Neither 30 CFR 817.11(d) nor CCR 407-2 4.02.3 should be misconstrued to imply such a requirement. OSM Precedent Numerous precedent setting OSM approvals of various state programs support the broader interpretation of the regulations regarding perimeter markers. For the OSM to approve a state program they must determine that the proposed regulations are as restrictive as or more restrictive than 30 CFR Chapter VII. Most states followed 30 CFR's language when addressing perimeter markers at underground mines. Others required perimeter markers be placed at the permit area boundary. This, apparently, was considered more restrictive than 30 CFR Chapter VII requirements. One example demonstrating that 30 CRF 817.11(d) and thus CCR 407-2 4.02.3 does not require marking the outer footprint of the disturbance is OSM's acceptance of Alabama's current regulations regarding placement of perimeter markers at underground coal mines. Alabama Surface Mining Commission Administrative Code Chapter 880-X-lOD, Performance Standards Underground Mining Activities 800-X-lOD-.03 Signs and Markers reads "(4) Perimeter markers. The perimeter of a permit area shall be clearly marked before the beginning of underground mining operations. " This clearly demonstrates that marking the perimeter of the permit area is an acceptable means to comply with 30 CFR Section 817.11(d). Virginia applies similar regulations concerning perimeter markers at underground coal mines: Part 817 Permanent Program Performance Standards-Underground Mining Activities "4VAC25-130-817.11. Signs and markers. (d) Perimeter markers. The perimeter of a permit area shall be clearly marked prior to the permit review conducted by the division's field enforcement personnel. The perimeter shall be clearly marked by flagging, stakes or signs. All markers shall be easily visible from adjacent markers. The approximate outer perimeter of the solid portion of any pre-existing bench shall be closely marked prior to permit review. " West Virginia does not differentiate between surface and underground mines in terms of perimeter markers. Again, markers around the permit area are required with no mention of markers along the edges of surface operations and facilities of underground coal mines. Title 38, Series 2 of the West Virginia Surface Mining Reclamation Rule states "§38-2-14. Performance Standards In addition to the requirements of the Act, the following performance standards shall be applicable to both surface and underground mining operations. ".... "14.1.b. Perimeter Marker. Prior to initial disturbance, suitable markers made of durable material shall be