[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Rules and Regulations]
[Pages 75814-75885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29150]
[[Page 75813]]
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Part II
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 780, 784, et al.
Excess Spoil, Coal Mine Waste, and Buffers for Perennial and
Intermittent Streams; Final Rule
Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 /
Rules and Regulations
[[Page 75814]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 780, 784, 816, and 817
[Docket ID No.: OSM-2007-0007]
RIN 1029-AC04
Excess Spoil, Coal Mine Waste, and Buffers for Perennial and
Intermittent Streams
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are amending our regulations concerning stream buffer zones,
stream-channel diversions, siltation structures, impoundments, excess
spoil, and coal mine waste. Among other things, this rule requires 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. We have revised the
stream buffer zone rule to more closely reflect the underlying
provisions of the Surface Mining Control and Reclamation Act of 1977
(SMCRA), to adopt related permit application requirements, to require
that disturbance of perennial and intermittent streams and their buffer
zones generally be avoided unless it is not reasonably possible to do
so, to identify exceptions to the requirement to maintain an
undisturbed buffer zone for perennial and intermittent streams, and to
clarify the relationship between SMCRA and the Clean Water Act.
DATES: This rule is effective January 12, 2009. The incorporation by
reference of the publication listed in the rule is approved by the
Director of the Federal Register as of January 12, 2009.
FOR FURTHER INFORMATION CONTACT: Dennis G. Rice, Office of Surface
Mining Reclamation and Enforcement, U.S. Department of the Interior,
1951 Constitution Avenue, NW., Washington, DC 20240. Telephone: 202-
208-2829.
You can find additional information concerning OSM, this rule, and
related documents on OSM's home page on the Internet at http://www.osmre.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What does SMCRA say about surface coal mining operations in or
near streams?
II. What provisions of SMCRA form the basis for our stream buffer
zone rules?
III. What is the history of our stream buffer zone rules?
A. Legislative History of SMCRA
B. Initial Regulatory Program
C. Permanent Regulatory Program (1979 Rules)
D. Permanent Regulatory Program Revisions (1983 Rules)
E. How has the 1983 stream buffer zone rule been applied and
interpreted?
F. What rulemaking actions have we proposed to clarify the 1983
rule?
IV. What is the relationship between SMCRA and the Clean Water Act
with respect to this rule?
V. How did we obtain public input?
VI. What general comments did we receive on the proposed rule?
A. We Should Discourage the Mining and Use of Coal as a Power
Source Because of the Role That the Combustion of Coal Plays in
Climate Change
B. We Should Withdraw the Proposed Rule and Enforce the 1983
Stream Buffer Zone, the Meaning of Which Is Clear as Written
C. We Should Not Adopt Any Rule That Facilitates Mountaintop
Mining Operations or the Filling of Streams
D. We Should Ensure the Protection of Headwater Streams by
Requiring Maintenance of an Undisturbed Buffer Between Mining
Activities and Streams
E. We Have Not Accorded Sufficient Importance to the
Environmental Protection Purposes of SMCRA
F. EPA Cannot Legally Concur With the Revised Stream Buffer Zone
Rules Because They Violate the Clean Water Act
G. The Applicability of the Final Rules Should Be Limited to
Steep-Slope Areas and Mountaintop Removal Operations
H. The Stream Buffer Zone Rule Is Unnecessary and Should Be
Removed in Its Entirety
VII. Why did we decide against applying the stream buffer zone rule
to all waters of the United States (WOTUS)?
VIII. Section-by-section analysis: How are we revising our rules?
A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans
B. Sections 780.25 and 784.16: Reclamation Plan: Siltation
Structures, Impoundments, Refuse Piles, and Coal Mine Waste
Impounding Structures
C. Sections 780.28 and 784.28: Activities in or Adjacent to
Perennial or Intermittent Streams
D. Section 780.35: Disposal of Excess Spoil (Surface Mines)
E. Section 784.19: Disposal of Excess Spoil (Underground Mines)
F. Sections 816.11 and 817.11: Signs and Markers
G. Sections 816.43 and 817.43: Diversions
H. Sections 816.46 and 817.46: Siltation Structures
I. Sections 816.57 and 817.57: Activities in or Adjacent to
Perennial or Intermittent Streams
J. Sections 816.71 and 817.71: General Requirements for Disposal
of Excess Spoil
K. What Does the Phrase ``to the extent possible'' mean in these
rules?
L. What does the phrase ``best technology currently available''
mean in these rules?
IX. Procedural Matters and Required Determinations
I. What does SMCRA say about surface coal mining operations in or near
streams?
SMCRA contains three references to streams, two references to
watercourses, and several provisions that indirectly refer to
activities in or near streams.
Section 507(b)(10) \1\ requires that permit applications include
``the name of the watershed and location of the surface stream or
tributary into which surface and pit drainage will be discharged.''
However, this provision has no relevance to mining-related activities
in or near streams or to the existing or proposed buffer zone rules.
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\1\ 30 U.S.C. 1257(b)(10). SMCRA, Pub. L. 95-87, is codified at
30 U.S.C. 1201-1328. Thus, for example, SMCRA section 102 is
codified at 30 U.S.C. 1202, SMCRA section 515 is codified at 30
U.S.C. 1265, and SMCRA section 516 is codified at 30 U.S.C. 1266.
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Section 515(b)(18) requires that surface coal mining and
reclamation operations ``refrain from the construction of roads or
other access ways up a stream bed or drainage channel or in such
proximity to such channel so as to seriously alter the normal flow of
water.''
Section 516(c) requires the regulatory authority to suspend
underground coal mining under permanent streams if an imminent danger
to inhabitants exists. However, this provision is not relevant to a
discussion of the stream buffer zone rules because, in response to
litigation concerning the 1983 version of 30 CFR 817.57, we stipulated
that ``this regulation is directed only to disturbance of surface lands
by surface activities associated with underground mining.'' In re:
Permanent Surface Mining Regulation Litigation II-Round II, 21 ERC
1725, 1741, footnote 21 (D.D.C. 1984).
Section 515(b)(22)(D) provides that sites selected for the disposal
of excess spoil must ``not contain springs, natural water courses or
wet weather seeps unless lateral drains are constructed from the wet
areas to the main underdrains in such a manner that filtration of the
water into the spoil pile will be prevented.'' In adopting this
provision, Congress could have chosen to exclude perennial and
intermittent streams (or other waters) from the scope of ``natural
water courses,'' but it did not do so. In addition, the fact that this
provision of the Act authorizes disposal of excess spoil in areas
containing natural watercourses, springs, and seeps further suggests
that Congress did not intend to prohibit placement of excess spoil in
perennial or intermittent
[[Page 75815]]
streams. The term ``natural watercourses'' includes all types of
streams--perennial, intermittent, and ephemeral. Springs and seeps are
groundwater discharges. To the extent that those discharges provide
intermittent or continuous flow in a channel, they are included within
the scope of our definitions in 30 CFR 701.5 of ``intermittent stream''
and ``perennial stream,'' respectively. The definition of
``intermittent stream,'' which is based upon technical literature,
includes any ``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.'' Furthermore, in
litigation under the Clean Water Act, the U.S. Court of Appeals for the
Fourth Circuit cited section 515(b)(22) of SMCRA as supporting the
statement in its decision that ``it is beyond dispute that SMCRA
recognized the possibility of placing excess spoil material in waters
of the United States even though those materials do not have a
beneficial purpose.'' See Kentuckians for the Commonwealth, Inc. v.
Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003).
Section 515(c)(4)(D) provides that, in approving a permit
application for a mountaintop removal operation, the regulatory
authority must require that ``no damage will be done to natural
watercourses.'' The regulations implementing this provision clarify
that the prohibition applies only to natural watercourses ``below the
lowest coal seam mined.'' See 30 CFR 824.11(a)(9). Furthermore, section
515(c)(4)(E) of the Act specifies that ``all excess spoil material not
retained on the mountaintop shall be placed in accordance with the
provisions of subsection (b)(22) of this section.'' By including this
proviso, Congress recognized that not all excess spoil generated by
mountaintop removal operations could be retained on benches or placed
within the mined-out area. And by cross-referencing section 515(b)(22),
Congress authorized placement of excess spoil from mountaintop removal
operations in natural watercourses, provided all requirements of
section 515(b)(22) are met. In the steep-slope terrain of central
Appalachia, excess spoil typically can most feasibly be placed in
valley fills.
In addition, the legislative history of section 515(f) of SMCRA
indicates that Congress anticipated that coal mine waste impoundments
would be constructed in perennial and intermittent streams:
In order to assure that mine waste impoundments used for the
disposal of liquid or solid waste material from coal mines are
constructed or have been constructed so as to safeguard the health
and welfare of downstream populations, H.R. 2 gives the Army Corps
of Engineers a role in determining the standards for construction,
modification and abandonment of these impoundments.
* * * * *
Thus, the corps' experience and expertise in the area of design,
construction, maintenance, et cetera, which were utilized for
carrying out the congressionally authorized surveys of mine waste
embankments in West Virginia following the disastrous failure of the
mine waste impoundments on Buffalo Creek, is to be applied in order
to prevent similar accidents in the future.
H. Rep. No. 95-218; at 125 (April 22, 1977) (emphasis added).
Section 515(f) provides that--
The Secretary, with the written concurrence of the Chief of
Engineers, shall establish within one hundred and thirty-five days
from the date of enactment, standards and criteria regulating the
design, location, construction, operation, maintenance, enlargement,
modification, removal, and abandonment of new and existing coal mine
waste piles referred to in section 515(b)(13) and section 516(b)(5).
Sections 515(b)(13) and 516(b)(5) concern ``all existing and new coal
mine waste piles consisting of mine wastes, tailings, coal processing
wastes, or other liquid and solid wastes and used either temporarily or
permanently as dams or embankments.'' (Emphasis added.) Sections
515(f), 515(b)(13), and 516(b)(5) do not specifically mention streams
or watercourses.
However, the reference to dams and embankments, the requirement for
the concurrence of the U.S. Army Corps of Engineers (for its expertise
in dam construction and flood control), and the legislative history
documenting that the 1972 Buffalo Creek flood was the driving force
behind adoption of those SMCRA provisions demonstrate that Congress was
aware that coal mine waste impoundments had been constructed in
perennial and intermittent streams in the past and would be constructed
there in the future. Furthermore, the fact that all three paragraphs
specifically apply to both new and existing structures (rather than to
just existing structures) implies that new structures would and could
be built in streams under SMCRA. As mentioned in the legislative
history, Congress' intent was to prevent a recurrence of the Buffalo
Creek impoundment failure and to ensure that all coal mine waste
impoundments either are or have been constructed in a manner that
protects the safety of downstream residents. There is no indication
that Congress intended to prohibit construction of those structures in
perennial or intermittent streams.
Finally, sections 515(b)(11) and 516(b)(4) of the Act govern the
construction of coal refuse piles that are not used as dams or
embankments. While those paragraphs do not mention constructing refuse
piles in watercourses, neither do they prohibit such construction.
Because of the similarity of those piles to excess spoil fills, the
regulations implementing sections 515(b)(11) and 516(b)(4) incorporate
language similar to that of section 515(b)(22)(D) for the construction
of excess spoil disposal facilities. Specifically, the regulations at
30 CFR 816.83(a)(1) and 817.83(a)(1) allow the construction of non-
impounding coal refuse piles on areas containing springs, natural or
man-made watercourses, or wet-weather seeps if the design includes
diversions and underdrains. Not all areas containing springs,
watercourses, or wet-weather seeps are perennial or intermittent
streams, but some are, which means that refuse piles may be constructed
in streams.
II. What provisions of SMCRA form the basis for our stream buffer zone
rules?
Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA served as
the basis for all three previous versions (1977, 1979, and 1983) of the
stream buffer zone rule with respect to surface mining activities.
Those sections also serve as the basis for the revised rule at 30 CFR
816.57 that we are adopting today. Section 515(b)(10)(B)(i) requires
that surface coal mining operations be conducted so as to prevent the
contribution of additional suspended solids to streamflow or runoff
outside the permit area to the extent possible using the best
technology currently available. Section 515(b)(24) requires that
surface coal mining and reclamation operations be conducted to minimize
disturbances to and adverse impacts on fish, wildlife, and related
environmental values ``to the extent possible using the best technology
currently available.''
In context, section 515(b)(10)(B)(i) provides that the performance
standards adopted under SMCRA must require that surface coal mining and
reclamation operations--
(10) minimize the disturbances to the prevailing hydrologic
balance at the mine-site and in associated offsite areas and to the
quality and quantity of water in surface and ground water systems
both during and after surface coal mining operations and during
reclamation by--
(A) * * *
[[Page 75816]]
(B)(i) conducting surface coal mining operations so as to
prevent, to the extent possible using the best technology currently
available, additional contributions of suspended solids to
streamflow, or runoff outside the permit area, but in no event shall
contributions be in excess of requirements set by applicable State
or Federal law.
* * * * *
Section 515(b)(24) requires that surface coal mining and
reclamation operations be conducted in a manner that--
To the extent possible using the best technology currently
available, minimize[s] disturbances and adverse impacts of the
operation on fish, wildlife, and related environmental values, and
achieve[s] enhancement of such resources where practicable.
The common thread in both provisions is the requirement for use of
the best technology currently available to achieve the requirements of
those provisions to the extent possible.
Paragraphs (b)(9)(B) and (11) of section 516 of SMCRA form the
basis for the stream buffer zone rule at 30 CFR 817.57, which applies
to surface activities associated with underground mines. Those
provisions of section 516 are substantively equivalent to paragraphs
(b)(10)(B)(i) and (24) of section 515 of SMCRA, respectively, except
that section 516(b)(9)(B) also includes the provisions found in section
515(b)(10)(E) regarding the avoidance of channel deepening or
enlargement. In the remainder of this preamble, we often refer only to
the section 515 paragraphs, with the understanding that, unless
otherwise stated or implied by context, references to those paragraphs
should be read as including their section 516 counterparts.
III. What is the history of our stream buffer zone rules?
A. Legislative History of SMCRA
SMCRA does not establish or require a buffer zone for streams or
other waters. In 1972, the U.S. House of Representatives passed a bill
(H.R. 6482) that included a flat prohibition on mining within 100 feet
of any ``body of water, stream, pond, or lake to which the public
enjoys use and access, or other private property.'' This prohibition
appeared in the counterpart to what is now section 522(e) of the Act.
However, the bill never became law and the provision did not appear in
subsequent versions of SMCRA legislation.
B. Initial Regulatory Program
As part of the regulations implementing the initial regulatory
program under SMCRA, we adopted the concept of a 100-foot buffer zone
around intermittent and perennial streams as a means ``to protect
stream channels from abnormal erosion'' from nearby upslope mining
activities. See 30 CFR 715.17(d)(3) and 42 FR 62652 (December 13,
1977). The regulation reads as follows:
No land within 100 feet of an intermittent or perennial stream
shall be disturbed by surface coal mining and reclamation operations
unless the regulatory authority specifically authorizes surface coal
mining and reclamation operations through such a stream. The area
not to be disturbed shall be designated a buffer zone and marked as
specified in Sec. 715.12.
The rule does not specify the conditions under which the regulatory
authority may authorize operations within the buffer zone.
C. Permanent Regulatory Program (1979 Rules)
The original version of our permanent program regulations, as
published on March 13, 1979, included more extensive stream buffer zone
rules at 30 CFR 816.57 (for surface mining operations) and 817.57 (for
underground mining operations). Specifically, the 1979 version of
section 816.57 provided that no land within 100 feet of a perennial
stream or a stream with a biological community shall be disturbed by
surface mining activities, except in accordance with Sec. Sec. 816.43-
816.44 [the stream diversion regulations], unless the regulatory
authority specifically authorizes surface mining activities closer to
or through such a stream upon finding that the original stream channel
will be restored; and during and after the mining, the water quantity
and quality from the stream section within 100 feet of the surface
mining activities shall not be adversely affected. Paragraph (c) of the
1979 rule provided that a biological community existed if the stream at
any time contained an assemblage of two or more species of arthropods
or molluscan animals that were adapted to flowing water for all or part
of their life cycle, dependent upon a flowing water habitat,
reproducing or could reasonably be expected to reproduce in the water
body where they are found, and longer than 2 millimeters at some stage
of the part of their life cycle spent in the flowing water habitat.
The counterpart regulation for underground mining at 30 CFR 817.57
was identical except that it substituted the term ``surface operations
and facilities'' for ``surface mining activities'' and clearly
indicated that the restrictions were limited to ``surface areas.''
The preamble to the 1979 rules explains that the purpose of the
revised rules was to implement paragraphs (b)(10) and (b)(24) of
section 515 of the Act. 44 FR 15176, March 13, 1979. It states that
``[b]uffer zones are required to protect streams from the adverse
effects of sedimentation and from gross disturbance of stream
channels,'' but that ``if operations can be conducted within 100 feet
of a stream in an environmentally acceptable manner, they may be
approved.'' Id. In addition, it states that ``[t]he 100-foot limit is
based on typical distances that should be maintained to protect stream
channels from sedimentation,'' but that, while the 100-foot standard
provides a simple rule for enforcement purposes, ``site-specific
variation should be made available when the regulatory authority has an
objective basis for either increasing or decreasing the width of the
buffer zone.'' Id.
D. Permanent Regulatory Program Revisions (1983 Rules)
In 1983, we revised the stream buffer zone rules to delete the
requirement that the original stream channel be restored, to replace
the biological community criterion for determining which non-perennial
streams must be protected under the rule with a requirement for
protection of all intermittent streams, and to add a requirement for a
finding that the proposed mining activities will not cause or
contribute to a violation of applicable state or federal water quality
standards and will not adversely affect the environmental resources of
the stream. See 48 FR 30312, June 30, 1983.
In 1983, we also adopted revised performance standards for coal
preparation plants not located within the permit area of a mine. We
decided not to apply the stream buffer zone rule to those preparation
plants. See 30 CFR 827.12 and the preamble to those rules at 48 FR
20399, May 5, 1983.
The preamble to the 1983 stream buffer zone rules reiterates the
general rationale for adoption of a stream buffer zone rule that we
specified in the preamble to the 1979 rules. It identifies the reason
for replacing the biological community threshold with the intermittent
stream threshold as a matter of improving the ease of administration
and eliminating the possibility of applying the rule to ephemeral
streams and other relatively insignificant water bodies:
The biological-community standard was confusing to apply since
there are areas with ephemeral surface waters of little biological
or hydrologic significance which, at some time of the year, contain
a biological community as defined by previous
[[Page 75817]]
Sec. 816.57(c). Thus, much confusion arose when operators attempted
to apply the previous rule's standards to springs, seeps, ponding
areas, and ephemeral streams. While some small biological
communities which contribute to the overall production of downstream
ecosystems will be excluded from special buffer-zone protection
under final Sec. 816.57(a), the purposes of Section 515(b)(24) of
the Act will best be achieved by providing a buffer zone for those
streams with more significant environmental-resource values.
48 FR 30313, June 30 1983. The preamble further states that ``[i]t
is impossible to conduct surface mining without disturbing a number of
minor natural streams, including some which contain biota'' and that
``surface coal mining operations will be permissible as long as
environmental protection will be afforded to those streams with more
significant environmental-resource value.'' Id. It further provides
that the revised rules ``also recognize that intermittent and perennial
streams generally have environmental-resource values worthy of
protection under Section 515(b)(24) of the Act.'' Id. at 30312. In
addition, the preamble notes that ``[a]lthough final Sec. 816.57 is
intended to protect significant biological values in streams, the
primary objective of the rule is to provide protection for the
hydrologic balance and related environmental values of perennial and
intermittent streams.'' Id. at 30313. It further states that ``[t]he
100-foot limit is used to protect streams from sedimentation and help
preserve riparian vegetation and aquatic habitats.'' Id. at 30314.
We also stated that we removed the requirement to restore the
original stream channel in deference to the stream-channel diversion
requirements of 30 CFR 816.43 and 817.43 and to clarify that there does
not have to be a stream diversion for mining to occur inside the buffer
zone. Id.
Finally, the preamble states that we added the finding concerning
``other environmental resources of the stream'' to clarify ``that
regulatory authorities will be allowed to consider factors other than
water quantity and quality in making buffer-zone determinations'' and
``to provide a more accurate reflection of the objectives of Sections
515(b)(10) and 515(b)(24) of the Act.'' Id. at 30316.
Revised 30 CFR 816.57(a) (1983) provided that ``[n]o 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 rule further provided that the regulatory
authority may authorize such activities only upon finding that 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 if there will be a temporary or permanent
stream-channel diversion, it will comply with Sec. 816.43.
The 1983 version of the stream buffer zone rule for underground
mining at 30 CFR 817.57 is identical except for substitution of the
term ``underground mining activities'' for ``surface mining
activities.''
The National Wildlife Federation challenged this regulation as
being inconsistent with sections 515(b)(10) and (24) of the Act,
primarily because it deleted the biological community threshold for
stream protection. However, the court rejected that challenge, finding
without elaboration that the ``regulation is not in conflict with
either section 515(b)(10) or 515(b)(24).'' In re: Permanent Surface
Mining Regulation Litigation II--Round II, 21 ERC 1725, 1741-1742
(D.D.C. 1984).
The court also noted that the Secretary had properly justified the
rule change on the grounds that the previous rule was confusing and
difficult to apply without protecting areas of little biological
significance. Unfortunately, the new criterion (intermittent streams)
has proven as difficult to apply as the biological community standard
that it replaced. The definition of ``intermittent stream'' in 30 CFR
701.5 has two parts, separated by an ``or.'' The first part defines all
streams with a drainage area of one square mile as intermittent. This
part of the definition is the aspect that was litigated and upheld for
its clarity of application. However, the second part of the definition
includes all streams and stream segments that are below the local water
table for part of the year and that derive at least part of their flow
from groundwater discharge. This part of the definition has been more
difficult to apply in practice. In fact, some States use biological
criteria for making that determination.
Industry also challenged 30 CFR 817.57(a) to the extent that it
included all underground mining activities. However, industry withdrew
its challenge when the Secretary stipulated that the rule would apply
only to surface lands and surface activities associated with
underground mining. See footnote 21, id. at 1741.
E. How has the 1983 stream buffer zone rule been applied and
interpreted?
Historically, we and the State regulatory authorities have applied
the 1983 stream buffer zone rule in a manner that allowed the placement
of excess spoil fills, refuse piles, slurry impoundments, and
sedimentation ponds in intermittent and perennial streams. However, as
discussed at length in the preamble to the January 7, 2004 proposed
rule (69 FR 1038-1042), which we never finalized, there has been
considerable controversy over the proper interpretation of both the
Clean Water Act and our 1983 rules as they apply to the placement of
fill material in or near perennial and intermittent streams. As
evidenced by past litigation and the comments that we received on the
proposed rule that we published on August 24, 2007, some
interpretations of our 1983 rule are at odds with the underlying
provisions of SMCRA.
We first placed our interpretation of the 1983 stream buffer zone
rules in writing in a document entitled ``Summary Report--West Virginia
Permit Review--Vandalia Resources, Inc. Permit No. S-2007-98.''
According to our annual oversight reports for West Virginia for 1999
and 2000, that document stated that the stream buffer zone rule does
not apply to the footprint of a fill placed in a perennial or
intermittent stream as part of a surface coal mining operation. On June
4, 1999, in West Virginia Highlands Conservancy v. Babbitt, Civ. No.
1:99CV01423 (D.D.C.), the plaintiffs challenged the validity of that
document, alleging that it constituted rulemaking in violation of the
Administrative Procedure Act. In an order filed September 23, 1999, the
court approved an unopposed motion to dismiss the case as moot.
In a lawsuit filed in the U.S. District Court for the Southern
District of West Virginia in July 1998, plaintiffs asserted that the
stream buffer zone rule allows mining activities through or within the
buffer zone for a perennial or intermittent stream only if the
activities are minor incursions. They argued that the rule did not
allow substantial segments of the stream to be buried underneath excess
spoil fills or other mining-related structures. On October 20, 1999,
the district court ruled in favor of the plaintiffs on this point,
holding that the stream buffer zone rule applies to all segments of a
stream, including those segments within the footprint of an excess
spoil fill, not just to the stream as a whole. The court also stated
that the construction of fills in perennial or intermittent streams is
inconsistent with the language of 30 CFR
[[Page 75818]]
816.57(a)(1), which provides that the regulatory authority may
authorize surface mining activities within a stream buffer zone only
after finding that the proposed activities ``will not adversely affect
the water quantity and quality or other environmental resources of the
stream.'' See Bragg v. Robertson, 72 F. Supp. 2d 642, 660-663 (S.D. W.
Va., 1999).
The U.S. Court of Appeals for the Fourth Circuit ultimately
reversed the district court on other grounds (lack of jurisdiction
under the Eleventh Amendment to the U.S. Constitution) without reaching
the merits of the district court's holding on the applicability of the
stream buffer zone rule. Bragg v. West Virginia Coal Association, 248
F.3d 275, 296 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).
In a different case, the same district court stated that SMCRA and
the stream buffer zone rule do not authorize disposal of overburden in
streams: ``SMCRA contains no provision authorizing disposal of
overburden waste in streams, a conclusion further supported by the
buffer zone rule.'' Kentuckians for the Commonwealth, Inc. v.
Rivenburgh, 204 F. Supp. 2d 927, 942 (S.D. W. Va. 2002).
The U.S. Court of Appeals for the Fourth Circuit subsequently
rejected the district court's interpretation, stating that ``SMCRA does
not prohibit the discharge of surface coal mining excess spoil in
waters of the United States.'' Kentuckians for the Commonwealth, Inc.
v. Rivenburgh, 317 F.3d 425, 442 (4th Cir. 2003). The court further
stated that ``it is beyond dispute that SMCRA recognizes the
possibility of placing excess spoil material in waters of the United
States even though those materials do not have a beneficial purpose.''
Id. at 443.
The court explained the basis for its statements as follows:
Section 515(b)(22)(D) of SMCRA authorizes mine operators to
place excess spoil material in ``springs, natural water courses or
wet weather seeps'' so long as ``lateral drains are constructed from
the wet areas to the main underdrains in such a manner that
filtration of the water into the spoil pile will be prevented.'' 30
U.S.C. Sec. 1265(b)(22)(D). In addition, Sec. 515(b)(24) requires
surface mine operators to ``minimize disturbances and adverse
impacts of the operation on fish, wildlife, and related
environmental values, and achieve enhancement of such resources
where practicable,'' implying the placement of fill in the waters of
the United States. 30 U.S.C. Sec. 1265(b)(24). It is apparent that
SMCRA anticipates the possibility that excess spoil material could
and would be placed in waters of the United States, and this fact
cannot be juxtaposed with Sec. 404 of the Clean Water Act to
provide a clear intent to limit the term ``fill material'' to
material deposited for a beneficial primary purpose.
Id. at 443.
The preamble to the proposed rule that we published on January 7,
2004, but which we never adopted in final form, contains additional
discussion of litigation and related matters arising from the 1983
stream buffer zone rules. See especially Part I.B.1. at 69 FR 1038-
1040.
F. What rulemaking actions have we proposed to clarify the 1983 rule?
On January 7, 2004 (69 FR 1036), we proposed to revise our stream
buffer zone rules to retain the prohibition on disturbance of land
within 100 feet of a perennial or intermittent stream, but alter the
findings that the regulatory authority must make before granting a
variance to this requirement. The revised rule would have replaced the
Clean Water Act-oriented findings in the 1983 rule with a SMCRA-based
requirement that the regulatory authority find in writing that the
activities will, to the extent possible, use the best technology
currently available to prevent additional contributions of suspended
solids to the section of stream within 100 feet downstream of the
mining activities and outside the area affected by mining activities;
and minimize disturbances and adverse impacts on fish, wildlife, and
other related environmental values of the stream. The proposed rule
also would have required that operations be designed to minimize the
creation of excess spoil.
Numerous commenters asked us to consider other alternatives to the
proposed rule. Some commenters also asked that we prepare an
environmental impact statement (EIS) on the proposed action. On June
16, 2005 (70 FR 35112), we announced our intent to prepare an EIS on
the proposed rule changes. We also stated that we intended to consider
additional alternatives and to publish a new proposed rule to coincide
with the release of a draft EIS.
On August 24, 2007 (72 FR 48890), we published a new, extensively
revised proposed rule and a notice of availability of the draft EIS.
That proposed rule replaced the one we published on January 7, 2004.
The August 24, 2007, proposed rule forms the basis for the final rule
that we are adopting today. This final rule is intended to clarify the
scope and meaning of the stream buffer zone rule, consistent with
underlying statutory authority, and to ensure that regulatory
authorities, mine operators, other governmental entities, landowners,
and citizens all can have a common understanding of what the stream
buffer zone rule does and does not require. The final rule also
includes additional permitting requirements intended to ensure that
operations are designed to minimize the creation of excess spoil and to
require consideration of alternatives to the disposal of excess spoil
and coal mine waste in perennial or intermittent streams or their
buffer zones to minimize the adverse impacts on fish, wildlife, and
related environmental values to the extent possible using the best
technology currently available.
The revised stream buffer zone rule that we are adopting today
attempts to minimize disputes and misunderstandings associated with
application of the 1983 rule. The revised rule distinguishes between
those situations in which maintenance of an undisturbed buffer between
mining and reclamation activities and a perennial or intermittent
stream constitutes the best technology currently available to implement
the underlying statutory provisions (sections 515(b)(10)(B)(i) and (24)
and 516(b)(9)(B) and (11) of SMCRA) and those situations in which
maintenance of a buffer is neither feasible nor appropriate.
IV. What is the relationship between SMCRA and the Clean Water Act with
respect to this rule?
In this final rule, we are adding paragraph (f) of sections 780.28
and 784.28 and paragraph (d) of sections 816.57 and 817.57 to clarify
the relationship between SMCRA and the Clean Water Act with respect to
activities conducted in or near perennial and intermittent streams. We
are adopting these paragraphs to address concerns arising from the fact
that this final rule removes language that previously appeared in
sections 816.57(a) and 817.57(a) that specifically prohibited the
conduct of mining activities within 100 feet of a perennial or
intermittent stream unless the regulatory authority found that those
activities would not cause or contribute to the violation of applicable
State or Federal water quality standards and would not adversely affect
the water quantity and quality or other environmental resources of the
stream. We are removing that requirement because its language more
closely resembles the Clean Water Act than the underlying provisions of
SMCRA. See Parts II, VIII.C., and VIII.I. of this preamble for further
discussion of sections 780.28, 784.28, 816.57, and 817.57 and the
provisions of SMCRA
[[Page 75819]]
that provide the basis for the stream buffer zone rule.
None of the revisions to the stream buffer zone rule or other
elements of this final rule affect a mine operator's responsibility to
comply with effluent limitations or other requirements of the Clean
Water Act. The requirements of the Clean Water Act have independent
force and effect regardless of the terms of the SMCRA permit. The
independent effect of the Clean Water Act is recognized in section
702(a) of SMCRA, which provides that--
Nothing in this Act shall be construed as superseding, amending,
modifying, or repealing the * * * [t]he Federal Water Pollution
Control Act [Clean Water Act] [citations omitted], the State laws
enacted pursuant thereto, or other Federal laws relating to the
preservation of water quality.
30 U.S.C. 1292(a).
In interpreting this statutory provision with respect to effluent
limitations adopted as part of our initial regulatory program, the U.S.
Court of Appeals for the D.C. Circuit held that ``where the Secretary's
regulation of surface coal mining's hydrologic impact overlaps EPA's,
the Act expressly directs that the Federal Water Pollution Control Act
and its regulatory framework are to control so as to afford consistent
effluent standards nationwide.'' In re Surface Mining Regulation
Litigation, 627 F.2d 1346, 1367 (D.C. Cir. 1980).
In today's final rule, we are adding paragraph (f)(2) of sections
780.28 and 784.28 and paragraph (d) of sections 816.57 and 817.57(d) to
reiterate and further clarify this relationship between SMCRA and the
Clean Water Act. The new rules emphasize that issuance of a SMCRA
permit is not a substitute for the reviews, authorizations, and
certifications required under the Clean Water Act and does not
authorize initiation of surface coal mining operations for which the
applicant has not obtained all necessary authorizations,
certifications, and permits under the Clean Water Act.
Consistent with the approach described above, our existing
regulations at 30 CFR 816.42 and 817.42 provide that discharges of
water from areas disturbed by surface or underground mining activities
shall be made in compliance with all applicable State and Federal water
quality laws and regulations and with the effluent limitations for coal
mining promulgated by the U.S. Environmental Protection Agency set
forth in 40 CFR part 434. Nothing in the final rule that we are
adopting today would alter or affect the requirements of 30 CFR 816.42
or 817.42.
SMCRA and the Clean Water Act provide for separate regulatory
programs with different purposes and very different permitting
requirements and procedures. In addition, SMCRA and the Clean Water Act
differ considerably with respect to jurisdiction. For example, unlike
SMCRA, the Clean Water Act does not directly regulate groundwater. The
Clean Water Act focuses primarily on regulating discharges of
pollutants into waters of the United States, whereas SMCRA regulates a
broad universe of environmental and other impacts of surface coal
mining and reclamation operations. As stated in the legislative history
of SMCRA:
Statutory authority to regulate the adverse environmental
effects of surface and underground coal mining under the Federal
Water Pollution Control Act [Clean Water Act], as amended, is
limited to the treatment or removal of any pollutants into the
waters of the United States. * * * The Federal Water Pollution
Control Act, as amended, can deal only with a part of the problem.
The FWPCA does not contain the statutory authority for the
establishment of standards and regulations requiring comprehensive
preplanning and designing for appropriate mine operating and
reclamation procedures to ensure protection of public health and
safety and to prevent the variety of other damages to the land, the
soil, the wildlife, and the aesthetic and recreational values that
can result from coal mining. The statute also lacks the regulatory
authority to deal with the discharge of pollutants from abandoned
surface and underground coal mines.
H. Rep. No. 94-1445 at 90-91 (1976), emphasis in original.
Section 508(a)(9) of SMCRA requires that each permit application
include ``the steps to be taken to comply with applicable air and water
quality laws and regulations and any applicable health and safety
standards.'' Our regulations at 30 CFR 780.18(b)(9) and 784.13(b)(9)
similarly require that each permit application include:
A description of steps to be taken to comply with the
requirements of the Clean Air Act (42 U.S.C. 7401 et seq.), and the
Clean Water Act (33 U.S.C. 1251 et seq.), and other applicable air
and water quality laws and regulations and health and safety
standards.
In keeping with section 508(a)(9) of SMCRA, today's rule also
includes new provisions in paragraph (f)(1) of sections 780.28 and
784.28 reiterating that every permit application must identify the
authorizations that the applicant anticipates will be needed under
sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341,
1342, and 1344, and describe the steps that the permit applicant has
taken or will take to procure those authorizations.
The Clean Water Act establishes a comprehensive program designed to
``restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.'' 33 U.S.C. 1251(a). To achieve this goal, it
prohibits the discharge of pollutants into navigable waters except as
in compliance with specified provisions of the Clean Water Act,
including a provision that allows for discharges authorized by a
National Pollutant Discharge Elimination System (NPDES) permit. 33
U.S.C. 1311(a) and 1342(a). At 33 U.S.C. 1362(7), the Clean Water Act
defines ``navigable waters'' as ``waters of the United States,'' a term
which the Corps and EPA define at 33 CFR 328.3 and 40 CFR 232.2,
respectively. The proper scope of that definition has been extensively
litigated and EPA and the Corps have issued supplemental guidance to
reflect the outcome of that litigation.
The Clean Water Act authorizes the discharge of pollutants into
waters of the United States under two different permit programs.
Section 404 authorizes discharges of dredged or fill material, while
section 402 applies to all other pollutants. 33 U.S.C. 1344, 1342.
Section 404 is primarily administered by the Corps, with the exception
of those States and Indian tribes that have assumed the program
pursuant to section 404(g). In both cases, EPA provides input and has
oversight authority and responsibilities. Section 402 (NPDES) permits
are issued by EPA or states and Indian tribes that EPA has authorized
to administer the NPDES program under section 402(b).
Section 401 of the Clean Water Act requires that each applicant for
a federal license or permit submit a certification from the state in
which the discharge originates. The certification must state that the
discharge will comply with federal and state water quality
requirements. 33 U.S.C. 1341(a)(1). ``No license or permit shall be
granted until the certification required by this section has been
obtained or has been waived'' and ``[n]o license or permit shall be
granted if certification has been denied by the State.'' Id. Section
401(d) further provides that the state certifications ``shall become a
condition on any Federal license or permit subject to the provisions of
this section.'' Id. at 1341(d).
Section 402 of the Clean Water Act governs discharges of pollutants
other than dredged or fill material. 33 U.S.C. 1342. Permits issued
under this section are known as NPDES permits. They typically contain
technology-based numerical standards called effluent limitations that
restrict the amount of specified pollutants that may be
[[Page 75820]]
discharged. 33 U.S.C. 1311, 1362(11). EPA has developed industry-wide
technology-based wastewater effluent limitations for surface coal
mining and reclamation operations. Those effluent limitations are
codified in 40 CFR part 434. NPDES permits also must include any more
stringent limitations necessary to meet state water quality standards.
33 U.S.C. 1311(b)(1)(C), 1342(a). EPA may authorize states to issue
NPDES permits, but EPA retains authority to enforce the requirements of
the Clean Water Act.
Section 404 of the Clean Water Act authorizes the Secretary of the
Army, through the Corps, to regulate discharges of dredged and fill
material through a permitting process. 33 U.S.C. 1344. On May 9, 2002
(67 FR 31129-31143), the Corps and EPA adopted a revised definition of
``fill material'' in 33 CFR 323.2(e) and 40 CFR 232.2, respectively,
that includes ``overburden from mining or other excavation
activities.'' In the same rulemaking, the Corps and EPA also adopted a
revised definition of ``discharge of fill material'' in 33 CFR 323.2(f)
and 40 CFR 232.2, respectively. The revised definition provides that
``[t]he term generally includes, without limitation, the * * *
placement of overburden, slurry, or tailings or similar mining-related
materials.'' Therefore, any mining overburden or coal mine waste used
to replace any waters of the United States, or portion thereof, with
dry land or to change the bottom elevation of any waters of the United
States, or portion thereof, is classified as fill material for purposes
of the Clean Water Act.
To implement section 404, the Corps may issue either individual
permits under 33 CFR parts 320 through 328 or general permits under 33
CFR part 330. See 33 U.S.C. 1344(a) and (e). Both individual and
general permits must comply with guidelines issued by EPA under section
404(b)(1), 33 U.S.C. 1344(b)(1). Those guidelines, which are codified
at 40 CFR part 230, are referred to as the ``404(b)(1) Guidelines.''
The 404(b)(1) Guidelines generally prohibit the permitting of projects
where there ``is a practicable alternative to the proposed discharge
which would have less adverse impact on the aquatic ecosystem, so long
as the alternative does not have other significant adverse
environmental consequences.'' 40 CFR 230.10(a). Under 40 CFR
230.10(a)(2), ``[a]n alternative is practicable if it is available and
capable of being done after taking into consideration cost, existing
technology, and logistics in light of overall project purposes.''
The guidelines specify that the Corps must ensure that the proposed
fill will not cause significantly adverse effects on human health or
welfare, aquatic life, and aquatic ecosystems. 40 CFR 230.10(c)(1)
through (c)(3). To comply with this requirement, the Corps must make a
written determination of the effects of a proposed activity ``on the
physical, chemical, and biological components of the aquatic
environment.'' 40 CFR 230.11. See also 33 CFR 320.4(b)(4) and
325.2(a)(6) for requirements for individual permits.
The 404(b)(1) Guidelines also provide that ``no discharge of
dredged or fill material shall be permitted unless appropriate and
practicable steps have been taken which will minimize potential adverse
impacts of the discharge on the aquatic ecosystem.'' 40 CFR 230.10(d).
One way the Corps can reduce the potential adverse impacts associated
with filling activity is to require compensatory mitigation. See 33 CFR
325.4(a)(3) and 320.4(r) for individual permits and General Condition
20 (72 FR 11193, March 12, 2007) for nationwide permits under 33 CFR
part 330. This differs substantially from SMCRA, which provides no
authority to require compensatory mitigation.
Section 404(e) of the Clean Water Act authorizes the Corps to
``issue general permits on a State, regional, or nationwide basis for
any category of activities involving discharges of dredged or fill
material if the Secretary [of the Army] determines that the activities
in such category are similar in nature, will cause only minimal adverse
environmental effects when performed separately, and will have only
minimal cumulative adverse effects on the environment,'' provided the
general permit is based upon the guidelines developed under section
404(b)(1) of the Clean Water Act.
The Corps has exercised its authority under section 404(e) to issue
general nationwide permits (NWPs) for surface coal mining operations
under SMCRA (NWP 21), coal remining activities under SMCRA (NWP 49),
and underground coal mining activities under SMCRA (NWP 50). Those
permits apply only if the activities are authorized under a SMCRA
permit or an application for the activities is being processed as part
of an integrated permit processing procedure. See 72 FR 11092, 11184,
and 11191, March 12, 2007. In issuing NWPs 21, 49, and 50, the Corps
has determined that the activities covered by those permits are in
compliance with the 404(b)(1) Guidelines. That is, the Corps has
determined that these activities will cause only minimal adverse
environmental effects when performed separately and will have only
minimal cumulative adverse effects on the environment.
As the Corps states in the preamble to the most recent version of
its general permits--
When we issue the NWPs, we fully comply with the requirements of
the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance
of general permits under section 404. For the section 404 NWPs, each
decision document contains a 404(b)(1) Guidelines analysis. Section
230.7(b) of the 404(b)(1) Guidelines requires only a ``written
evaluation of the potential individual and cumulative impacts of the
categories of activities to be regulated under the general permit.''
Since the required evaluation must be completed before the NWP is
issued, the analysis is predictive in nature. The estimates of
potential individual and cumulative impacts, as well as the
projected compensatory mitigation that will be required, are based
on the best available data from the Corps district offices, based on
past use of NWPs.
72 FR 11094, March 12, 2007.
In the preamble to NWP 21, the Corps states that ``the analyses and
environmental protection performance standards required by SMCRA, in
conjunction with the pre-construction notification requirement, are
generally sufficient to ensure that NWP 21 activities result in minimal
individual and cumulative adverse impacts on the aquatic environment.''
72 FR 11114. The most critical element in the Corps' determination that
NWP 21 meets the Clean Water Act requirements for general permits is
the fact that NWP 21 requires a preconstruction notification from the
applicant, followed by a review of the project by the Corps, and then a
written determination from the Corps before the activities covered by
NWP 21 may be initiated. As the Corps states in the preamble--
We believe our process for NWP 21 ensures that activities
authorized by the NWP result in no more than minimal adverse impacts
to the aquatic environment because each project is reviewed on a
case-by-case basis and the district engineer either makes a minimal
impacts determination on the project or asserts discretionary
authority and requires an individual permit. Also, because of the
case-by-case review and the requirement for written verification, we
do not agree that it is necessary to prohibit discharges of dredged
or fill material into perennial streams.
* * * * *
The pre-construction notification requirements of all NWPs
allows for a case-by-case review of activities that have the
potential to result in more than minimal adverse effects to the
aquatic environment. If the adverse effects on the aquatic
environment are more than minimal, then the district engineer can
either add special conditions to the NWP authorization to ensure
that the activity results in no more than minimal adverse
environmental effects
[[Page 75821]]
or exercise discretionary authority to require an individual permit.
72 FR 11114.
Furthermore, at 72 FR 11117, the Corps states that--
The Corps does not assume that other state or Federal agencies
conduct a review that is comparable to the section 404(b)(1)
Guidelines. Although analysis of offsite alternatives is not
required in conjunction with general permits, each proposed project
is evaluated for onsite avoidance and minimization, in accordance
with general condition 20, and is not authorized under the NWP if
the adverse impacts to waters of the United States are more than
minimal.
At 72 FR 11094, the Corps explains that--
NWPs 21, 49, and 50 are a special case, in that they authorize
activities for which review of environmental impacts, including
impacts to aquatic resources, is separately required under other
Federal authorities (e.g., Surface Mining Control and Reclamation
Act (SMCRA) permits for coal mining activities). The Corps believes
it would be unnecessarily duplicative to separately require the same
substantive analyses through an individual permit application as are
already required under SMCRA. However, through the pre-construction
notification review process, the district engineer will consider the
analyses prepared for the SMCRA permit and exercise discretionary
authority to require an individual permit in cases where the
district engineer determines, after considering avoidance and
reclamation activities undertaken pursuant to SMCRA, that the
residual adverse effects are not minimal. The project sponsor is
required to obtain written verification prior to commencing work.
Thus, the Corps uses SMCRA permit application data and analyses as
a starting point to determine whether a proposed operation qualifies
for authorization under NWP 21, but it does not rely upon that
information exclusively. Nor does the Corps presume that issuance of a
SMCRA permit is evidence of compliance with Clean Water Act
requirements. See 72 FR 11115, which states that--
The Corps understands coal mining is covered by many
environmental regulations; however the Corps has determined that
SMCRA, in its current form, does not remove the need, either legally
or substantively, for independent authorization under Section 404 of
the Clean Water Act. Consequently, this NWP does not duplicate the
SMCRA permit process.
The principles in the preceding discussion concerning NWP 21 also
apply to NWPs 49 and 50. See 72 FR 11148-49 and 11151-52.
The preamble to General Condition 27, which applies to NWPs 21, 49,
and 50, describes the Corps' decisionmaking process as follows:
In reviewing the PCN [preconstruction notification] for the
proposed activity, the district engineer will determine whether the
activity authorized by the NWP will result in more than minimal
individual or cumulative adverse environmental effects or may be
contrary to the public interest. * * * If the district engineer
determines that the activity complies with the terms and conditions
of the NWP and that the adverse effects on the aquatic environment
are minimal, after considering mitigation, the district engineer
will notify the permittee and include any conditions the district
engineer deems necessary. The district engineer must approve any
compensatory mitigation proposal before the permittee commences
work. * * *
If the district engineer determines that the adverse effects of
the proposed work are more than minimal, then the district engineer
will notify the applicant either: (1) That the project does not
qualify for authorization under the NWP and instruct the applicant
on the procedures to seek authorization under an individual permit;
(2) that the project is authorized under the NWP subject to the
applicant's submission of a mitigation plan that would reduce the
adverse effects on the aquatic environment to the minimal level; or
(3) that the project is authorized under the NWP with specific
modifications or conditions. Where the district engineer determines
that mitigation is required to ensure no more than minimal adverse
effects occur to the aquatic environment, the activity will be
authorized within the 45-day PCN period. The authorization will
include the necessary conceptual or specific mitigation or a
requirement that the applicant submit a mitigation plan that would
reduce the adverse effects on the aquatic environment to the minimal
level. When mitigation is required, no work in waters of the United
States may occur until the district engineer has approved a specific
mitigation plan.
72 FR 11195-1196, March 12, 2007.
The preamble also notes that, before beginning any activities
covered by the preconstruction notification, the person submitting the
notification must obtain a state water quality certification under
section 401 of the Clean Water Act in those states that do not issue an
unconditional certification for the nationwide permits.
As the preceding discussion demonstrates, we believe that
maintaining the distinction between the SMCRA and Clean Water Act
regulatory programs is both administratively and legally appropriate.
We do not believe the requirements of this final rule are duplicative
of requirements under the Clean Water Act. However, consistent with
section 713(a) of SMCRA, we encourage SMCRA regulatory authorities and
the agencies administering the Clean Water Act to share permit
application data and environmental analyses to streamline the
permitting processes under SMCRA and the Clean Water Act.
V. How did we obtain public input?
We published the proposed rule on which this final rule is based on
August 24, 2007, (72 FR 48890-48926). In response to requests from the
public, we held public hearings on the proposed rule in Charleston,
West Virginia; Hazard, Kentucky; Knoxville, Tennessee; and Washington,
Pennsylvania on October 24, 2007. We also held public meetings in Big
Stone Gap, Virginia on October 24, 2007, and in Alton, Illinois on
November 1, 2007. In addition, we extended the comment period, which
was originally scheduled to close October 23, 2007, until November 23,
2007. See 72 FR 57504, October 10, 2007.
Approximately 750 persons attended the public hearings and
meetings. Of the attendees, 212 provided testimony, with 21 supporting
the proposed rule and the remainder opposed. In addition to the
testimony offered at the hearings and meetings, we received more than
43,000 written or electronic comments on the proposed rule. In general,
most commenters opposed the proposed rule, primarily because they
viewed the rule as facilitating mountaintop mining and construction of
excess spoil fills in streams. Commenters representing the coal
industry generally supported the proposed rule, except for the proposed
revisions to (1) apply the buffer zone requirement to waters of the
United States rather than to perennial and intermittent streams and (2)
require an analysis of alternatives for disposal of excess spoil and
coal mine waste. Comments from state regulatory authorities and other
governmental entities were mixed in terms of support for or opposition
to the rule.
In developing the final rule, we considered all comments that were
germane to the proposed rule. In the remainder of this preamble, we
summarize the comments received and discuss our disposition of those
comments.
VI. What general comments did we receive on the proposed rule?
A. We Should Discourage the Mining and Use of Coal as a Power Source
Because of the Role That the Combustion of Coal Plays in Climate Change
Many commenters expressed opposition to the use of coal as a fuel
for the generation of electricity, expressing concern about its role in
climate change. We acknowledge the commenters' concerns. However,
regulations adopted under SMCRA are not the appropriate venue to
address climate change issues. Coal-fired power
[[Page 75822]]
plants produce more than half of the electricity used in the United
States and the use of coal as a fuel for power generation is likely to
increase. Nothing in SMCRA authorizes us to regulate electric power
generation facilities or to adopt regulations or take other actions for
the purpose of reducing the use of coal for the generation of
electricity or to require carbon sequestration. Indeed, in SCMRA,
Congress repeatedly mentions the importance of coal to the Nation,
including the continued production of coal as an energy source. Section
101(b) of SMCRA states that ``coal mining operations presently
contribute significantly to the Nation's energy requirements.'' Section
101(d) refers to ``the expansion of coal mining to meet the Nation's
energy needs'' and section 101(j) notes that ``surface and underground
coal mining operations * * * contribute to the economic well-being,
security, and general welfare of the Nation.'' Section 102(f) specifies
that one of the purposes of SMCRA is to ``assure that the coal supply
essential to the Nation's energy requirements and to its economic and
social well-being is provided.'' That paragraph also provides that one
of the purposes of SMCRA is to ``strike a balance between protection of
the environment and agricultural productivity and the Nation's need for
coal as an essential source of energy.'' Taken together, these passages
and the other purposes of SMCRA listed in section 102 indicate that the
regulatory provisions of SMCRA were enacted not to discourage the
production or use of coal but rather to ensure that coal is mined in a
manner that respects property rights and minimizes adverse impacts on
land and water resources and communities. As stated in section 102(a)
of SMCRA, in enacting SMCRA, Congress intended to ``establish a
nationwide program to protect society and the environment from the
adverse effects of surface coal mining operations.'' (Emphasis added.)
There is no indication that Congress intended that the Act operate as a
means of regulating the burning and use of coal as opposed to the
manner and locations in which coal is mined.
The lack of regulatory authority does not mean that we are
indifferent to the potential problems posed by climate change from
greenhouse gas emissions like carbon dioxide. In cooperation with
industry, academia, conservation organizations, individual landowners,
and others, we developed the Appalachian Regional Reforestation
Initiative, which encourages both the reclamation of mined lands in a
manner that is favorable to tree growth and the planting of trees as
part of the mine reclamation process. Young forests, especially
robustly growing young hardwood forests like those found on reclaimed
minesites that use the forestry reclamation approach encouraged under
the Appalachian Regional Reforestation Initiative, are generally
recognized as an effective means of removing carbon dioxide from the
atmosphere.
B. We Should Withdraw the Proposed Rule and Enforce the 1983 Stream
Buffer Zone, the Meaning of Which Is Clear as Written
Many commenters argued that we should withdraw the proposed rule
and instead fully implement and enforce the 1983 version of the stream
buffer zone rule at 30 CFR 816.57 and 817.57. According to the
commenters, there is no need to clarify the meaning of the 1983 rule
because the plain language of that rule precludes the construction of
excess spoil and coal mine waste fills in perennial and intermittent
streams. The commenters stated that the proposed rule is a reversal of
the 1983 rule, not a clarification, because it specifies that excess
spoil fills, refuse piles, and certain other activities conducted in
the stream as part of surface coal mining operations are not subject to
the prohibition on disturbance of the stream buffer zone.
We disagree with the commenters' interpretation of the 1983 rule.
Historically, both the 1983 rule and its state counterparts have been
applied in a manner that has allowed the construction of fills in
perennial and intermittent streams as part of surface coal mining
operations, provided those fills comply with all other applicable
requirements of the SMCRA regulatory program and with all pertinent
requirements under the Clean Water Act. In other words, the 1983 stream
buffer zone rule applied only to activities within 100 feet of a
perennial or intermittent stream. It did not apply to activities
planned to occur in intermittent or perennial streams. Maintaining a
100-foot buffer zone to protect the stream's water quality and
environmental resources makes sense only if the stream segment adjacent
to the buffer zone is to remain intact. This historical interpretation
and application of the stream buffer zone rule is in harmony with a
statement of the U.S. Court of Appeals for the Fourth Circuit in
Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443
(4th Cir. 2003) (``it is beyond dispute that SMCRA recognized the
possibility of placing excess spoil material in waters of the United
States''). Several industry commenters stated that to apply the rule in
any other way would be nonsensical and that applying the rule to
activities that are designed to take place in stream channels would
seriously impair the viability of coal mining in central Appalachia.
The historical application of the 1983 rule closely resembles the
revised stream buffer zone rules that we are adopting today.
Consequently, the revised rules are in fact a clarification of the 1983
rule, not a reversal of that rule.
C. We Should Not Adopt Any Rule That Facilitates Mountaintop Mining
Operations or the Filling of Streams
Many commenters objected to the proposed rule based on the
perception that the rule would facilitate mountaintop removal
operations and other large-scale surface mines and related mining
techniques currently used to extract coal from the mountainous regions
of central Appalachia. The commenters cited the damage that those
operations allegedly cause to streams, hardwood forests, fish and
wildlife, water supplies, and the landscape and culture of Appalachia
as justification for prohibiting that type of mining. We understand the
commenters' concerns.
However, the perception that the proposed rule or this final rule
would remove an obstacle to mountaintop removal operations or other
large-scale mining operations is inaccurate. As we explained in the
preamble to the proposed rule, our changes to the stream buffer zone
rule are intended to clarify when and how that rule applies, consistent
with the historical application of the 1983 rule under both SMCRA and
the Clean Water Act. Our revisions are not intended to restrict coal
removal. Nor are they intended to promote or discourage any particular
method of mining, including mountaintop removal.
In enacting SMCRA, Congress did not ban mountaintop removal
operations or the construction of excess spoil fills in streams.
Indeed, section 515(c) of SMCRA specifically authorizes the use of
mountaintop removal methods to recover coal seams in steep-slope areas,
and section 515(b)(22)(D) allows the construction of excess spoil fills
in areas that ``contain springs, natural water courses, or wet weather
seeps'' if a proper drainage system is installed. As stated in section
102(f), two of the Act's purposes are to ``assure the coal supply
essential to the Nation's energy requirements and to its economic and
social well-being is provided'' and to ``strike a balance between
protection of the environment and agricultural productivity and the
Nation's need for
[[Page 75823]]
coal as an essential source of energy.'' When Congress wanted to place
certain lands off-limits to coal mining, in whole or in part, or to
prohibit certain types of mining, in whole or in part, it did so by
including provisions in the Act to that effect. See, e.g., section 522
[``Designating Areas Unsuitable for Surface Coal Mining''], section
510(b)(5) [alluvial valley floors west of the hundredth meridian], and
section 516(c) [underground coal mining under urbanized areas].
Otherwise, SMCRA and its implementing regulations establish how coal is
to be mined, not whether it may be mined. The regulations that we are
adopting today are consistent with the statute in that they are
intended to minimize the adverse impacts of surface coal mining
operations on fish, wildlife, and related environmental values without
prohibiting the use of specific methods of mining or the recovery of
coal from lands that have not been designated as unsuitable for surface
coal mining operations.
Most fill material placed in streams in connection with coal mining
is a result of the need to dispose of excess spoil generated by mining
operations conducted in areas consisting of steep slopes and narrow
valleys. To remove coal by surface mining methods, the formerly solid
rock strata overlying the coal seam must be broken up into fragments
and excavated. The broken rock fragments (referred to as spoil) are
separated by numerous voids, resulting in a significant increase in
volume over the volume of solid rock in place before mining. The
increase in volume varies considerably depending upon the nature of the
rock and the mining method, but the industry average is about 25
percent. Returning all spoil to the mined-out area in steep-slope
terrain would create highly unstable conditions and in most cases is
physically impossible. Consequently, some spoil must be permanently
placed outside the mined-out area in engineered fills, typically in the
upper reaches of valleys adjacent to the mine. As defined in 30 CFR
701.5, spoil not needed to restore the approximate original contour and
disposed of in locations other than the mined-out area is considered
``excess spoil.''
The central Appalachian coalfields are characterized by highly
eroded plateaus dissected by numerous narrow, deeply incised valleys
with steep side slopes. In this region, even small valleys may contain
intermittent and perennial streams. For example, in a study conducted
in West Virginia, the United States Geological Survey found that, on
average, perennial streams begin in watersheds as small as 40.8 acres
and intermittent streams in watersheds as small as 14.5 acres. See
Katherine S. Paybins, Flow Origin, Drainage Area, and Hydrologic
Characteristics for Headwater Streams in Mountaintop Coal-Mining Region
of Southern West Virginia, Water Resources Investigations Report 02-
4300, U.S. Geological Survey, 2003, p. 1. Consequently, the
construction of excess spoil fills in those valleys often involves
burying the upper reaches of perennial and intermittent streams.
A further description of the existing environment of the central
Appalachian coalfields can be found in the draft and final
environmental impact statements issued in 2003 and 2005, respectively,
by the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps
of Engineers (COE or the Corps), the U.S. Fish and Wildlife Service
(FWS), OSM, and the West Virginia Department of Environmental
Protection. The draft EIS, which the final EIS incorporates by
reference, contains the bulk of that description. The draft EIS is
entitled ``Mountaintop Mining/Valley Fills in Appalachia Draft
Programmatic Environmental Impact Statement'' (EPA 9-03-R-00013, EPA
Region 3, June 2003) and is available at http://www.epa.gov/region3/mtntop/eis.htm. The final EIS, which is entitled ``Mountaintop Mining/
Valley Fills in Appalachia Final Programmatic Environmental Impact
Statement'' (EPA 9-03-R-05002, EPA Region 3, October 2005), is
available at http://www.epa.gov/region3/mtntop/pdf/mtm-vf_fpeis_full-document.pdf.
Underground mines also may result in the filling of some stream
segments where other viable options may not exist, especially in steep-
slope areas. Rock and other overburden materials removed as part of the
cut made to expose the coal seam into which the mine entries and
ventilation shafts are driven typically are used to construct an
adjoining bench upon which mine offices, parking lots, equipment, and
other support facilities are located. This process is referred to as
``facing up'' the mine. Any material removed as part of the face-up
operation that is not used to construct the bench or placed in
temporary storage for use in restoring the approximate original contour
and reclaiming the face-up area once the mine closes permanently is
excess spoil. Should such excess spoil exist, it would be placed in
fills on adjacent hillsides or in adjoining valleys. Underground mining
operations also may involve the excavation of non-coal waste rock from
underground tunnels. The waste rock, which we define as underground
development waste, is typically brought to the surface and placed
either in refuse piles or in excess spoil fills that meet the
requirements for refuse piles, as required by 30 CFR 817.71(i).
Activities associated with coal preparation plants also may result
in the filling of some stream segments. These plants clean coal by
removing impurities, especially ash, incombustible rock, and sulfur.
They create large quantities of coal processing waste, including both a
very fine fraction, which is often suspended in water in a semi-liquid
form (slurry) and a coarse fraction (refuse). The slurry is usually
impounded behind dams constructed of coarse refuse in a valley adjacent
to the plant.
One industry commenter stated that underground coal mining in
central Appalachia depends on fills in mostly intermittent streams to
store material from mine bench and stockpile construction and for
sedimentation ponds and road crossings. The commenter also noted that
coal processing waste is deposited in valley fills associated with coal
preparation plants. Therefore, according to the commenter, without
valley fills, coal mining in central Appalachia is doomed. While the
commenter's statement may be somewhat of an exaggeration, there is
little doubt that a prohibition on placement of excess spoil and coal
mine waste in perennial or intermittent streams would have a
significant adverse impact not only on surface mines, but also on
underground mines and coal preparation plants.
Pages 7-8 of the final report dated January 13, 2003, for an
economic study prepared for us by Hill & Associates, Inc. (Contract No.
CT212142) contains the following discussion:
We received strong input from the mining community that it is an
egregious mistake to ignore impacts of the valley fill limitations
on deep mines, especially new ones. First, many deep mines are co-
dependent on related surface mines for quality blending requirements
and even economic averaging arrangements. Eliminating or reducing
the surface mining has a direct impact on the viability of the deep
mining in these instances. Second, the typical reject rate in
Central Appalachia from a wash plant associated with a deep mine is
about 50%. Thus, for every one ton of coal mined, one ton of refuse
is placed in a valley fill or related impoundment. In fact, the
valley fills associated with wash plant refuse are generally among
the larger valley fills associated with coal mining (with generally
larger watershed) but are fewer in number than surface mining valley
fills. Third, the construction of a new deep mine involves other
valley fill issues. Often, a new deep mine is accompanied by a new
wash plant with a new valley fill for refuse.
[[Page 75824]]
The Hill & Associates report uses the term ``deep mines'' for
underground mines and the term ``wash plants'' for coal preparation
plants. In addition, in the report, the term ``valley fills'' includes
all excess spoil fills and coal mine waste disposal facilities
constructed as part of a surface mine.
The following excerpt from a colloquy between Senators Howard Baker
of Tennessee and Henry Jackson of Washington concerning S. 425, a 1973
bill that was a precursor to SMCRA, illustrates that Congress was
cognizant of the potential scale of mountaintop removal operations and
the attendant fills:
Mr. BAKER. Mr. President, the last question I have to put, so
that we may look this squarely in the face, is this: Would the
distinguished chairman of the committee say certainly that what we
are doing is sanctioning mountain top mining to the extent where
whole mountains may be stripped down to ground level, and the
storage of millions of tons of overburden may be placed in the
hollows, creating hundreds of thousands of acres of new flat land,
and that if we are going to adopt this variance which I intend to
support, we should do it with our eyes wide open to the fact that
whole mountains may disappear from the landscape?
Mr. JACKSON. The answer is, yes, of course * * *. What we want
to do is achieve the twin objectives, here, of being able to
maintain a mining operation that will be satisfactory from an
economic point of view, but also that will be environmentally
acceptable.
119 Cong. Rec. S33314 (daily ed. October 9, 1973).
D. We Should Ensure the Protection of Headwater Streams by Requiring
Maintenance of an Undisturbed Buffer Between Mining Activities and
Streams
A number of commenters emphasized that headwater streams and mature
forest cover are important to maintain the health of the ecological and
biological functions of the entire stream. According to the commenters,
numerous studies have clearly demonstrated that stream buffer zones of
native vegetation (generally hardwood forests in the central
Appalachian coal mining region) represent the best technology currently
available for protecting the functions of headwater streams.
We agree with the commenters that headwater streams make a
significant contribution to ecosystem function and the ecological
productivity of downstream flows. We also agree that, in the absence of
other considerations, precluding surface coal mining and reclamation
operations in or near headwater streams may be the best technology
currently available to protect the fish, wildlife, and related
environmental values associated with those streams.
However, the universal protection of mature forest cover and
headwater streams all the way to the top of the ridge or the head of
the stream would preclude viable surface mining operations in almost
all cases, especially in Appalachia. Sections 515(b)(24) and 516(b)(11)
of SMCRA provide that surface coal mining and reclamation operations
must use the best technology currently available to minimize
disturbances to and adverse impacts on fish, wildlife, and related
environmental values, but only ``to the extent possible.'' The ``to the
extent possible'' clause in these statutory provisions recognizes that,
because surface coal mining operations inherently involve significant
disturbance of the land, those operations necessarily result in some
disturbances to and adverse impacts on fish, wildlife, and related
environmental values. Therefore, the determination of what constitutes
the best technology currently available to minimize those adverse
impacts is a site-specific determination that must be made in the
context of the site's geologic, topographic, and ecological
characteristics (including the location of the coal) and the nature of
the mining operation. This approach is consistent with our regulatory
definition of ``best technology currently available'' in 30 CFR 701.5,
a definition that has remained unchanged since 1979. For example, it is
almost never possible to conduct surface coal mining operations without
disturbing ephemeral streams, especially in a mesic environment. In
those cases, the best technology currently available would focus on how
the site is reclaimed after mining, in particular, use of the
revegetation, restoration, and fish and wildlife habitat enhancement
measures mentioned in sections 816.97 and 817.97 of our rules.
In addition, many surface coal mining operations necessarily
involve disturbance of intermittent or perennial streams and all or
part of the buffer zone for the stream segment in which the activities
listed in paragraphs (b)(1) through (b)(4) of sections 816.57 and
817.57 of this final rule occur. For example, in 2000 in West Virginia,
a team consisting of representatives from OSM, the West Virginia
Division of Environmental Protection, industry, and the environmental
community completed an engineering evaluation of 14 proposed mine
sites, which were representative of all proposed mining sites in West
Virginia. As summarized on page 2 of the report, the team concluded
that prohibiting construction of fills in intermittent and perennial
streams would have a dramatic impact on coal recovery:
Limiting valley fills to the ephemeral streams resulted in
significant or total loss of the coal resource for 9 of the 11 mine
sites when compared to the original mine site plans. All of the coal
resource was lost for 6 of the 11 mine sites. By restricting fills
to the ephemeral streams, the total coal recovery is estimated at
18.6 million tons, a 90.9 percent reduction. The original estimate
was 186 million tons. The team noted that even if smaller fills
could be constructed, they would impact nearly every available
valley, possibly increasing the overall environmental impact.
Hence, this final rule does not absolutely prohibit the conduct of
surface activities in intermittent or perennial streams, nor does it
require maintenance of an undisturbed buffer between surface activities
and the intermittent or perennial stream in situations where it is not
possible to do so because of the nature of the proposed surface coal
mining operations. In other words, avoidance of any disturbance to the
stream and maintenance of an undisturbed buffer for the stream is not
required if avoidance would preclude the conduct of surface coal mining
and reclamation operations.
However, in keeping with the statutory requirement to use the best
technology currently available to the extent possible, and in response
to the commenters' concerns, we have revised the rule to include a
requirement that, when a permit application includes a proposal to
disturb a perennial or intermittent stream or land within 100 feet of
such a stream, the permit applicant must demonstrate to the
satisfaction of the regulatory authority that avoiding disturbance of a
perennial or intermittent stream or lands within 100 feet of such a
stream is not reasonably possible. See paragraphs (b)(1), (c)(1),
(d)(1), and (e)(1) of sections 780.28 and 784.28, paragraph (d)(1)(i)
of sections 780.25 and 784.16, and paragraph (a)(3)(i) of sections
780.35 and 784.19 of the final rule. Those provisions of our final rule
use the term ``reasonably possible'' to clarify that the phrase ``to
the extent possible'' in sections 515(b)(24) and 516(b)(11) of SMCRA
should not be interpreted as requiring the use of any theoretically
possible approach to compliance with the minimization requirement
without regard to cost or other provisions of SMCRA. Those provisions
include section 515(b)(1), which requires that surface coal mining
operations be conducted ``so as to maximize the utilization and
conservation of the solid
[[Page 75825]]
fuel resource being recovered so that reaffecting the land in the
future through surface coal mining can be minimized,'' and section
102(f), which specifies that one of the purposes of SMCRA is to ensure
that the coal supply essential to the nation's energy requirements is
provided. Section 102(f) also calls for establishment of a regulatory
program that balances environmental protection and coal production. We
believe that our final rule strikes that balance by using the term
``reasonably possible'' to interpret and apply the requirements of
sections 515(b)(24) and 516(b)(11) of the Act.
A survey of all coal mining permits issued between October 1, 2001,
and June 30, 2005, indicates that coal mining activities authorized by
those permits will directly affect about 535 miles of streams
nationwide, of which 324 miles (60.6 percent) are in the central
Appalachian coalfields. Based on data from the West Virginia permits,
we estimate that approximately two-thirds of the 324 miles will be
permanently covered by excess spoil fills and coal mine waste disposal
facilities. When segments of headwater streams are buried permanently
by excess spoil or mine waste fills, the discharge from the toe of the
fill is equivalent to a spring. The groin ditches associated with the
fill are too steep to fully replicate the buried stream segment. As
discussed in the environmental impact statement for this rulemaking,
typically, the stream segment downstream of the discharge from the toe
of the fill has a higher base flow rate and lower peak flows than it
did before construction of the fill. The temperature of the flow is
also cooler and less variable than that of the original stream. Most of
the remaining miles of stream directly affected by mining operations
should experience only temporary adverse environmental impacts, chiefly
as a result of mining through those streams. In those cases, the
streams are diverted and relocated while the mining operation proceeds
through the streambed. When mining is completed, the stream is restored
to its original location unless the relocation is permanent.
Finally, our existing rules require that fills be revegetated in a
manner consistent with the approved postmining land use. In time, we
anticipate that hardwood forests will be reestablished on most fill
surfaces in Appalachia.
E. We Have Not Accorded Sufficient Importance to the Environmental
Protection Purposes of SMCRA
Several commenters objected to our repeated references to section
102(f) of SMCRA in the preamble to the proposed rule. Section 102(f)
provides that one of the purposes of SMCRA is to ``assure that the coal
supply essential to the Nation's energy requirements and to its
economic and social well-being is provided'' and to ``strike a balance
between protection of the environment and agricultural productivity and
the Nation's need for coal as an essential source of energy.'' 30
U.S.C. 1202(f). The commenters allege that, in developing our proposed
rule, we completely ignored the other purposes listed in section 102,
in particular those in paragraphs (a) [``establish a nationwide program
to protect society and the environment from the adverse effects of
surface coal mining operations''], (c) [``assure that surface coal
mining operations are not conducted where reclamation as required by
this Act is not feasible''], and (d) [``assure that surface coal mining
operations are so conducted as to protect the environment'']. The
commenters argue that the result is to skew the analysis of SMCRA in
favor of resource development while overlooking negative impacts to
streams, water quality, and fish habitat. The commenters made these
arguments in the context of advocating protection for headwater streams
and interpreting the 1983 rule in a manner that would preclude the
construction of excess spoil fills and coal mine waste disposal
facilities in streams.
We disagree with the commenters' allegations. The purposes of SMCRA
in section 102 explain what Congress intended to accomplish through the
specific provisions found in the rest of the Act. They do not provide
independent rulemaking authority. In particular, they do not provide
authority to adopt regulations that would preclude surface coal mining
operations on lands where those operations are not otherwise prohibited
by SMCRA. Any regulations adopted under SMCRA (as well as any
interpretation of an existing rule) must be consistent with the
specific provisions of the Act. The environmental protection standards
and other provisions of title V of the Act set out specific
requirements, consistent with the environmental protection and other
purposes of SMCRA, for the regulation of surface coal mining and
reclamation operations. Therefore, any regulations implementing title V
must be consistent with and based upon the provisions of that title.
The purposes in section 102 can provide support or guidance for a
regulation, but in and of themselves they do not establish requirements
or authority for a regulation and they do not suffice to justify
adoption of a regulation (or interpretation of an existing regulation)
that is inconsistent with specific requirements or other provisions of
the Act.
Within title V, section 515(c) expressly requires that our
regulations establish provisions under which mountaintop removal mining
operations may be permitted: ``Each State program may and each Federal
program shall include procedures pursuant to which the regulatory
authority may permit [mountaintop removal] operations.'' 30 U.S.C.
1265(c)(1). Adoption of a rule (or interpretation of an existing rule)
to prohibit placement of excess spoil and coal mine waste in streams,
as the commenters advocate on the basis of the environmental protection
purposes of paragraphs (a), (c), and (d) of section 102 of SMCRA, would
be inconsistent with this provision of SMCRA because mountaintop
removal operations--and most other types of mining operations in steep-
slope areas--typically cannot be conducted without construction of
excess spoil fills in streams. In a study conducted in West Virginia,
the United States Geological Survey found that, on average, perennial
streams begin in watersheds as small as 40.8 acres and intermittent
streams in watersheds as small as 14.5 acres. See Katherine S. Paybins,
Flow Origin, Drainage Area, and Hydrologic Characteristics for
Headwater Streams in Mountaintop Coal-Mining Region of Southern West
Virginia, Water Resources Investigations Report 02-4300, U.S.
Geological Survey, 2003, p.1. Industry commenters also asserted that
underground mining operations in central Appalachia would be severely
curtailed by such a limitation because those operations need to
construct fills to contain underground development waste generated by
the face-up and other aspects of mine construction. It would be
difficult to construct those fills in steep-slope areas without
impacting an intermittent or perennial stream.
In addition, section 515(b)(22)(D) of SMCRA authorizes the
placement of excess spoil in areas that ``contain springs, natural
water courses, or wet weather seeps'' if proper underdrains are
constructed. Ephemeral, intermittent, and perennial streams are all
natural watercourses. Springs are groundwater discharges. Discharges
from springs typically form intermittent or perennial streams. In
relevant part,
[[Page 75826]]
our rules at 30 CFR 701.5 define an ``intermittent stream'' as a stream
or reach of a stream that obtains its flow from both surface runoff and
ground water discharge.'' Therefore, by authorizing placement of excess
spoil in areas that contain springs and natural watercourses, section
515(b)(22)(D) of SMCRA clearly allows construction of excess spoil
fills in intermittent and perennial streams, provided the necessary
underdrains are installed. Interpreting the purposes of SMCRA listed in
paragraphs (a), (c), and (d) of section 102 as authorizing adoption of
a rule (or interpretation of an existing rule) to effectively prohibit
construction of excess spoil fills in perennial and intermittent
streams thus would be inconsistent with section 515(b)(22)(D) of SMCRA
and, by extension, section 515(c) of SMCRA.
F. EPA Cannot Legally Concur With the Revised Stream Buffer Zone Rules
Because They Violate the Clean Water Act
Section 501(a)(B) of SMCRA specifies that we must obtain the
written concurrence of the EPA Administrator with respect to
regulations that relate to air or water quality standards published
under the authority of either the Clean Air Act or the Clean Water Act.
That provision applies to some of the changes that we are making in
this final rule.
Several commenters stated that EPA cannot legally concur with the
proposed rule because it would result in significant degradation to the
aquatic ecosystem in violation of the Clean Water Act regulations at 40
CFR 230.10(c), which are part of the 404(b)(1) Guidelines. The
commenters argue that, by eliminating the provision in the 1983 stream
buffer zone rule that required a finding that the proposed activity
would not cause or contribute to a violation of state or federal water
quality standards and would not adversely affect the water quality,
quantity, or other environmental resources of the stream, the proposed
rule would implicitly allow effects that are both adverse and
significant. According to the commenters, this result would be
inconsistent with 40 CFR 230.10(c), which provides that, subject to an
exception that is not germane here, ``no discharge of dredged or fill
material shall be permitted which will cause or contribute to
significant degradation of the waters of the United States.'' In
addition, 40 CFR 230.10(a) provides that ``no discharge of dredged or
fill material shall be permitted if there is a practicable alternative
to the proposed discharge which would have less adverse impact on the
aquatic ecosystem, so long as the alternative does not have other
significant adverse environmental consequences.'' Therefore, according
to the commenters, this final rule would violate the Clean Water Act,
which would mean that EPA has no basis under the Clean Water Act for
concurrence with the final rule. Another commenter argues the rule is
not consistent with the Clean Water Act because it authorizes waste
assimilation in streams, which the Clean Water Act prohibits.
We do not agree with the commenters. Section 501(a)(B) of SMCRA
does not establish a requirement that the EPA Administrator's
concurrence be based upon provisions of the Clean Water Act. Moreover,
the requirements of the Clean Water Act apply independently of any
regulations adopted under SMCRA. See section 702(a)(2) of SMCRA, which
provides that nothing in SMCRA ``shall be construed as superseding,
amending, modifying, or repealing'' the Clean Water Act or any
regulations or state laws adopted under authority of that law. Our
final rules at 30 CFR 780.28(f)(2), 784.28(f)(2), 816.57(a)(2), and
817.57(a)(2) reiterate this relationship between SMCRA and the Clean
Water Act and emphasize that issuance of a SMCRA permit does not
authorize initiation of surface coal mining operations for which the
applicant has not obtained all necessary authorizations,
certifications, and permits under the Clean Water Act. Therefore, EPA's
concurrence with the final rule is not contrary to the Clean Water Act.
G. The Applicability of the Final Rules Should Be Limited to Steep-
Slope Areas and Mountaintop Removal Operations
The Pennsylvania regulatory authority recommended that we not
proceed with this rulemaking because it would impose additional burdens
on Pennsylvania, create uncertainty for both citizen groups and mine
operators, and would likely lead to extensive and costly litigation.
According to the commenter, the rule's benefits would not offset the
unfunded burdens, uncertainties and litigation that would result from
adoption of the regulations. Pennsylvania also stated that if we
proceed with a final rule, that rule should not require all states to
change their programs to address a matter that is an issue only in
those few states that have mountaintop removal operations and steep-
slope mining. Instead, Pennsylvania recommended that we use the
specific authority of section 515 of SMCRA to craft a rule tailored to
mountaintop removal operations and steep-slope mining. The National
Mining Association made similar comments with respect to our proposed
excess spoil rules, arguing that the rulemaking record does not
demonstrate a need for applying the excess spoil rules to any other
areas.
We do not agree with the commenters' recommendations. We believe
that perennial and intermittent streams potentially affected by excess
spoil fills and coal mine waste disposal facilities in non-steep-slope
areas and areas outside central Appalachia merit the same protection as
streams in central Appalachia. Furthermore, states that may have very
few operations involving placement of excess spoil or coal mine waste
in perennial or intermittent streams would incur only minimal
additional resource costs in processing applications for those
operations.
The vast majority of excess spoil fills that involve placement of
excess spoil in perennial or intermittent streams are located in steep-
slope areas of central Appalachia. However, those structures are
occasionally constructed in streams in other states and other areas.
For example, with respect to excess spoil fills, a nationwide survey of
all coal mining permits issued between October 1, 2001, and June 30,
2005, found that those permits included a total of 1,612 excess spoil
fills, of which 1,589 (98.6 percent) are located in the central
Appalachian coalfields. Specifically, most of the fills approved in
those permits are located in Kentucky (1,079), West Virginia (372), and
Virginia (125), with 13 approved in Tennessee. However, the remaining
fills approved during that time are located in Alaska, Alabama, Ohio,
Pennsylvania, and Washington, so we believe that sufficient basis
exists for a national rulemaking. This survey is discussed in greater
detail in the environmental impact statement that accompanies this
rule.
Surface coal mining operations nationwide generate coal mine waste.
Except in very flat terrain, refuse piles and especially slurry
impoundments are constructed in stream valleys. There is no basis for
limiting the scope of our coal mine waste rules to steep-slope areas or
mountaintop removal mining.
In addition, the stream buffer zone rule is national in scope, as
are the stream diversion rules. The frequency of use of those rules has
little relationship to topography or type of mining. Surface coal
mining operations routinely encounter perennial and intermittent
streams in both steep-slope and non-steep-slope areas. The changes that
we have made to the stream buffer zone rules, especially the new permit
application requirements for operations
[[Page 75827]]
that propose to disturb the surface of lands within 100 feet of a
perennial or intermittent stream and the revised findings that the
regulatory authority must make before approving an exception to the
buffer zone requirement, have universal applicability and utility, as
do the changes to the stream diversion rules.
Finally, we do not agree with the commenter's characterization of
the rule as creating uncertainty. To the contrary, this rule is
intended in part to address and resolve the controversy and uncertainty
surrounding the 1983 stream buffer zone rule. The permitting decisions
that the regulatory authority must make under this final rule differ
little in complexity from those that the regulatory authority must make
under other provisions of the existing rules. As in the case of other
situations in which the regulatory authority must apply subjective
requirements, we anticipate that the regulatory authority will use best
professional judgment in determining compliance. Therefore, we decline
to adopt the commenter's recommendations.
H. The Stream Buffer Zone Rule Is Unnecessary and Should be Removed in
Its Entirety
Several commenters advocated completely removing the stream buffer
zone rule, noting that nothing in SMCRA mandates adoption of such a
rule. One commenter noted that removal of the stream buffer zone rule
would be the most effective method of eliminating ambiguity from the
federal regulations concerning fill construction. The commenters stated
that maintaining a stream buffer zone rule is not needed to provide
SMCRA-mandated environmental protection and that the statute and
regulations are replete with other regulatory requirements that
directly address the concerns for which the stream buffer zone rule was
adopted.
We considered the option recommended by the commenters, but decided
to retain the stream buffer zone rule. With respect to perennial and
intermittent streams, we believe that the rule serves a useful role in
establishing a buffer zone as the best technology currently available
to comply with the statutory requirements to minimize disturbances and
adverse impacts on fish, wildlife, and related environmental values,
provided maintenance of a buffer zone is reasonably possible. See the
discussion in Part VI.D. of this preamble.
VII. Why did we decide against applying the stream buffer zone rule to
all waters of the United States (WOTUS)?
On August 24, 2007, we proposed to revise the scope of our stream
buffer zone rules at 30 CFR 816.57 and 817.57, which applied to
perennial and intermittent streams, to apply to all waters of the
United States, which would include certain lakes, ponds, wetlands, and
reaches of ephemeral streams. We had two reasons for proposing this
change. First, the scope of the statutory provisions that form the
basis for the stream buffer zone rule, i.e., sections 515(b)(10)(B)(i)
and (24) and 516(b)(9)(B) and (11) of SMCRA, is not limited to
perennial or intermittent streams. Instead, those provisions broadly
require that, to the extent possible using the best technology
currently available, surface coal mining operations be conducted so as
to prevent additional contributions of suspended solids to streamflow
or runoff outside the permit area and that surface coal mining and
reclamation operations be conducted so as to minimize disturbances to
and adverse impacts on fish, wildlife, and related environmental
values. Sedimentation and sediment-laden runoff from mine sites could
degrade those values. Second, we anticipated that achieving greater
consistency with the terminology used in regulatory programs under the
Clean Water Act would remove one obstacle to better coordination and
streamlining of the SMCRA and Clean Water Act permitting processes.
In the preamble to the proposed rule, we requested comment on
whether the increased regulatory consistency and other benefits of
adopting the term WOTUS would outweigh the jurisdictional and other
problems associated with use of that term as part of the SMCRA
regulatory program. See 72 FR 48900, August 24, 2007. We found little
public support for the proposed change.
All three iterations of the stream buffer zone rule that we adopted
since the enactment of SMCRA have applied only to perennial and
intermittent streams or subsets thereof. Many commenters opposed
disturbing that regulatory stability, noting that our rules at 30 CFR
701.5 define perennial and intermittent streams in a well-understood
manner consistent with other generally accepted definitions of those
terms. They expressed concern that use of WOTUS would be confusing
because that term has no clearly established legal or programmatic
meaning. The commenters stated that the various organizational units of
the Corps and EPA vary greatly in their interpretation and application
of the term WOTUS and that the scope of that term is constantly
evolving as the courts struggle to define the jurisdictional reach of
the Clean Water Act. One commenter noted that the Supreme Court has
been unable to agree on even a single governing principle for WOTUS.
See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Eng'rs, 531 U.S. 159 (2001) (SWANCC); Rapanos v. U.S., 547 U.S. 715
(2006). The commenter concluded that ``OSM should not anchor its
regulatory program on such an unstable foundation,'' a sentiment shared
by other commenters.
We received numerous comments to the effect that the proposed rule
change would be unnecessary and possibly counterproductive because the
definitions of perennial and intermittent streams in both our rules and
state regulatory programs under SMCRA are clear and relatively
straightforward to implement, while WOTUS is not. The Virginia
regulatory authority commented that adding lakes, ponds, and wetlands
to the scope of the buffer zone rule would probably not be much of a
change to that agency's existing practice, apart from the matter of
obtaining jurisdictional determinations, but that it would replace an
established and effective regulatory term with no real benefit gained.
Several commenters opposed changing the scope of our stream buffer
zone rules to WOTUS because the unsettled and subjective meaning of
that term would spawn considerable uncertainty, which would be contrary
to our stated objective of clarifying the existing stream buffer zone
rules. The National Mining Association elaborated upon this argument as
follows:
When OSM revised the [stream buffer zone] rule in 1983, the
principal reason for limiting the rule to perennial and intermittent
streams was because the earlier version referencing streams with a
biological community was confusing and difficult to apply. This,
according to the agency, ``led to confusion on the part of
operators'' attempting to apply the amorphous and ill-defined
biological community standard. In response to challenges from
several environmental groups, the federal district court upheld the
agency's reasoning holding that ``it is precisely this type of
justification, based on practical experience and expertise that
justifies such a change.'' Moreover, the court noted that the stream
buffer zone rule is not the only, or the most important, one in
OSM's regulation[s] to implement Sec. Sec. 515(b)(10) and (24).
[Footnotes omitted.] * * * Here the practical experience discloses
[[Page 75828]]
that changing the scope of the rule to WOTUS will be even more
confusing and difficult to apply than the 1979 rule due to the vague
and confusing status of the meaning of waters of the United States.
The Association also expressed concern that the adoption of WOTUS,
a Clean Water Act term that we have no authority to interpret or
define, could have unintended impacts on SMCRA regulatory programs and
the regulated community because we have no control over how that term
may be defined in the future.
Several commenters expressed concern that the use of WOTUS would
greatly delay the SMCRA permitting process because of the need to
obtain jurisdictional determinations from the U.S. Army Corps of
Engineers in accordance with a guidance document issued by EPA and the
Corps on June 5, 2007, entitled ``Clean Water Act Jurisdiction
Following the U.S. Supreme Court's Decision in Rapanos v. United States
& Carabell v. United States,'' http://www.epa.gov/owow/wetlands/pdf/RapanosGuidance6507.pdf. According to the commenters, that document
appears to require that permit applicants seek jurisdictional
determinations from the Corps in many more situations than was the case
before issuance of the guidance document. The National Mining
Association stated that the Corps already has a massive backlog of
requests for jurisdictional determinations. Because we are not adopting
the use of WOTUS for other reasons, we did not investigate the accuracy
of these comments. However, for informational purposes, we note that
the Corps also issued Regulatory Guidance Letter No. 08-02 on June 26,
2008. That letter provides further guidance on jurisdictional
determinations and related procedures.
The National Mining Association stated that it supports
coordination of and reduction of duplication between the SMCRA and
Clean Water Act permitting processes, but that, based on its experience
in promoting that goal during the past seven years, it did not see any
realistic probability that changing the focus of the buffer zone rule
from perennial and intermittent streams to WOTUS would achieve that
goal. The Association also stated that it did not foresee any
discernible environmental benefits from the proposed change in focus.
Comments submitted on behalf of 12 national environmental
organizations also strongly opposed the proposed use of WOTUS to define
the scope of the stream buffer zone rule:
One of the most perplexing aspects of the proposed rule is OSM's
plan to change the bodies of water to which stream buffer zone
provisions apply. If adopted, the rule would no longer apply to all
perennial and intermittent streams, but instead would cover ``waters
of the United States.'' Although this is touted as providing
``increased environmental protection and consistency with the Clean
Water Act,'' less protection and more confusion seems inevitable if
the proposal is adopted.
To begin with, this proposal appears to be a solution in search
of a problem. OSM acknowledges: ``we do not anticipate that this
change in terminology will result in a significant expansion in the
applicability of our rules because the vast majority of waters that
may be affected by surface coal mining and reclamation operations
are perennial and intermittent streams.'' By itself, this fact is
not a reason to reject the proposal; we agree with the idea that a
wide range of water bodies ought to be protected from mining-related
damage, as SMCRA contains provisions that seek to protect water
bodies beyond streams. However, in view of the other problems
discussed below with linking the Stream Buffer Zone rule to ``waters
of the United States'' under the Clean Water Act, the likely
incremental benefit of including other water bodies does not justify
the change.
If there is one thing that conservation groups, the federal
government, and the coal mining companies probably can agree on in
this rulemaking, it is that it is not clear today what aquatic
features qualify as ``waters of the United States,'' at least
without further factual inquiry. As a result of two Supreme Court
decisions and unhelpful ``guidance'' by EPA and the Army Corps of
Engineers, some have come to the conclusion that even certain
streams may not qualify as ``waters of the United States'' protected
by the Clean Water Act's core programs.
* * * * *
Were the Stream Buffer Zone rule to be amended by the proposed
rule to apply to ``waters of the United States,'' then, we have
significant concern that it may be applied to only a subset of
perennial and intermittent streams, whereas it historically has
applied to all such streams. Effectively, implementing this change
may lead to the proposed rule protecting fewer streams than the
Stream Buffer Zone rule has in the past * * *.
Finally, we do not believe that it is feasible, as OSM suggests,
to resolve these jurisdictional issues by having ``the SMCRA
regulatory authority * * * consult and coordinate with the Corps of
Engineers in situations in which there is a question as to whether
waters within or adjacent to the proposed permit area are waters of
the United States under the Clean Water Act.'' As the OSM may or not
be aware, it is the EPA, not the Corps, that has the responsibility
for determining which water bodies are ``waters of the United
States'' for purposes of the 404 program and the entire Clean Water
Act.
The EPA, working in conjunction with the Corps, is just
beginning to make many jurisdictional and non-jurisdictional
determinations using Rapanos as a guide, and the preliminary
indications are that the process is very time-consuming and, more
importantly, may be so arbitrary that it is leading to waters being
declared unprotected when they in fact should remain jurisdictional.
Three commenters (the U.S. Fish and Wildlife Service, the Geologic
Resources and Water Resources Divisions of the National Park Service,
and the Pennsylvania Fish and Boat Commission) expressly supported the
proposed use of WOTUS in defining the scope of the stream buffer zone
rules. However, two of the three expressed concern that the change
might reduce the protection afforded to perennial and intermittent
streams. The U.S. Fish and Wildlife Service stated that it supported
the use of WOTUS ``as a matter of regulatory consistency and sound
public policy, but remains concerned about the unsettled nature of
jurisdictional determinations in headwater streams'' in the wake of
recent Supreme Court decisions. The Service requested that we work with
them ``to develop a process to monitor the extent to which intermittent
or perennial streams are determined not to be `waters of the U.S.' ''
The Pennsylvania Fish and Boat Commission strongly urged that we also
retain the rule's applicability to perennial and intermittent streams
because application of those terms in the SMCRA context is not
dependent upon a jurisdictional determination by the U.S. Army Corps of
Engineers. The Commission expressed the fear that adoption of WOTUS
without also retaining the rule's applicability to perennial and
intermittent streams ``would weaken or reduce the protection on most
streams, especially headwater streams.''
The Geologic Resources and Water Resources Divisions of the
National Park Service stated that they fully supported the proposed
change because many high-value aquatic ecosystems are neither perennial
nor intermittent streams. According to the commenter, the proposed rule
change would not place an undue burden or impact on operators,
especially when considering the environmental benefits that would be
realized through protecting a more inclusive set of aquatic systems,
including wetlands, lakes, and ponds. The commenter stated that the
National Park Service routinely seeks permits through local Corps
offices and has never found that this requirement imposed a burden or
had a substantial impact on the completion of any project.
After evaluating the comments received, we find the arguments
against adoption of WOTUS persuasive. The final rule that we are
adopting today retains the status quo with respect to the scope of the
stream buffer zone rule; i.e., that rule will continue to apply to
[[Page 75829]]
perennial and intermittent streams rather than to WOTUS. Rather than
attempting to introduce Clean Water Act terminology and procedures into
regulations implementing SMCRA, we believe that the more prudent and
defensible course of action is to adopt terminology and requirements
based on provisions of SMCRA. SMCRA does not use the term WOTUS in
establishing regulatory requirements for surface coal mining
operations, but it does refer to streams. At the same time, section
702(a) of SMCRA clearly specifies that nothing in SMCRA may be
construed as superseding, amending, modifying, or repealing the Clean
Water Act or its implementing regulations. Therefore, issuance of a
SMCRA permit does not authorize the permittee to initiate activities
for which a permit, certification, or other authorization is required
under the Clean Water Act. The final rules at 30 CFR 780.28(f)(2),
784.28(f)(2), 816.57(a)(2), and 817.57(a)(2) that we are adopting today
reiterate that fact.
One commenter strongly disagreed with our statement in the preamble
to proposed 30 CFR 780.28 and 784.28 that we did not anticipate that
switching from perennial and intermittent streams to WOTUS would result
in a significant expansion in the applicability of our rules because
the vast majority of waters that may be affected by surface coal mining
and reclamation operations are perennial and intermittent streams. This
comment is now moot in light of our decision not to adopt WOTUS.
We also wish to clarify that we use the terms perennial,
intermittent, and ephemeral streams, as defined in 30 CFR 701.5, to
implement the SMCRA regulatory program. Our definitions of those terms
do not affect jurisdictional determinations under the Clean Water Act.
The Corps and EPA are responsible for making those jurisdictional
determinations.
Although we have decided not to adopt WOTUS as part of the stream
buffer zone rule, our existing rules will continue to provide
protection to lakes, ponds, wetlands, and, to some extent, ephemeral
streams by other means. Those rules fully implement the statutory
provisions that form the basis for the stream buffer zone rule, i.e.,
sections 515(b)(10)(B)(i) and (24) and 516(b)(9)(B) and (11) of SMCRA,
which require that, to the extent possible using the best technology
currently available, surface coal mining operations be conducted so as
to prevent additional contributions of suspended solids to streamflow
or runoff outside the permit area and that surface coal mining and
reclamation operations be conducted so as to minimize disturbances to
and adverse impacts on fish, wildlife, and related environmental
values.
Most significantly, 30 CFR 780.16(b) and 784.21(b) require that
each permit application include a fish and wildlife protection and
enhancement plan. The plan must describe how, to the extent possible,
using the best technology currently available, the operator will
minimize disturbances and adverse impacts on fish, wildlife, and
related environmental values during surface coal mining and reclamation
operations and how enhancement of those resources will be achieved
where practicable. The plan must be consistent with the requirements of
30 CFR 816.97 or 817.97 and it must include protective measures to be
taken during the active mining phase. The rule lists the establishment
of buffer zones as one example of those protective measures.
Under 30 CFR 816.97(a) and 817.97(a), the operator must, to the
extent possible, using the best technology currently available,
minimize disturbances and adverse impacts on fish and wildlife and
related environmental values and must achieve enhancement of those
resources where practicable. Paragraph (f) of 30 CFR 816.97 and 817.97
provides that the operator must avoid disturbances to, enhance where
practicable, restore, or replace wetlands and riparian vegetation along
rivers and streams and bordering ponds and lakes. Paragraph (f) also
requires that the operator avoid disturbances to, enhance where
practicable, or restore habitats of unusually high value for fish and
wildlife.
With respect to water quality, 30 CFR 780.21(h) and 784.14(g)
require that each permit application include a hydrologic reclamation
plan indicating how the relevant requirements of 30 CFR part 816 or
817, including sections 816.41 through 816.43 or 817.41 through 817.43,
will be met. The plan must be specific to local hydrologic conditions
and it must contain the steps to be taken to minimize disturbances to
the hydrologic balance within the permit and adjacent areas. Under 30
CFR 816.41(a) and 817.41(a), all surface and underground mining and
reclamation activities must be conducted to minimize disturbance of the
hydrologic balance within the permit and adjacent areas.
VIII. Section-by-section analysis: How are we revising our rules?
A. Sections 780.14 and 784.23 Operation Plan: Maps and Plans
As proposed, we are revising 30 CFR 780.14(b)(11) and 784.23(b)(10)
by replacing the terms ``coal processing waste bank'' and ``coal
processing waste dam and embankment'' with ``refuse pile'' and ``coal
mine waste impounding structure'' to employ terminology consistent with
the definitions and performance standards that we adopted September 26,
1983. See the discussion under the heading ``Changes to conform to 1983
rule revisions'' in Part VIII.B. of this preamble for a more detailed
explanation.
In addition, as proposed, we are replacing the references to
sections 780.35(c) and 816.71(b) in the former version of section
780.14(c) with a reference to section 780.35 to be consistent with
other changes that we are making to those rules. Those changes include
moving the design certification requirement formerly located in section
816.71(b) to section 780.35(b) to consolidate permitting requirements.
In similar fashion, as proposed, we are deleting the reference to
section 817.71(b) formerly located in section 784.23(c) because we are
moving the design certification provisions previously located in
section 817.71(b) to section 784.19(b) to consolidate permitting
requirements. There is no need for a replacement cross-reference
because section 784.23(c) already cross-references section 784.19 in
its entirety.
We received no comments concerning the proposed changes discussed
above.
B. Sections 780.25 and 784.16 Reclamation Plan: Siltation Structures,
Impoundments, Refuse Piles, and Coal Mine Waste Impounding Structures
1. Changes To Conform to 1983 Revisions to Definitions and Performance
Standards
On September 26, 1983 (48 FR 44006), we revised the definitions and
performance standards in our regulations relating to coal mine waste to
be more consistent with the terminology used by the Mine Safety and
Health Administration (MSHA). As we stated at 48 FR 44009, col. 1,
``[i]t is undesirable to have two regulatory programs for the same
subject that contain conflicting standards or which use fundamentally
different terminology.''
Among other things, we adopted definitions of three new terms in 30
CFR 701.5. ``Coal mine waste'' is defined as ``coal processing waste
and
[[Page 75830]]
underground development waste.'' ``Impounding structure'' is defined as
``a dam, embankment, or other structure used to impound water, slurry,
or other liquid or semi-liquid material.'' ``Refuse pile'' is defined
as ``a surface deposit of coal mine waste that does not impound water,
slurry, or other liquid or semi-liquid material.'' The latter two terms
are consistent with the terminology of MSHA's rules. ``Refuse pile''
replaces the term ``coal processing waste bank'' previously used in our
rules, while ``impounding structure'' incorporates (but is not limited
to) all structures that our rules previously referred to as coal
processing waste dams or embankments.
In concert with the new definition of coal mine waste, we revised
our performance standards at 30 CFR 817.71-817.74 to eliminate the
language that combined underground development waste with excess spoil
for purposes of performances standards for underground mines. Because
the definition of coal mine waste includes underground development
waste, we revised our rules to specify that the disposal of underground
development waste is subject to the performance standards for refuse
piles (30 CFR 817.83) rather than the performance standards for the
disposal of excess spoil that applied under the old rules.
However, we did not revise our permitting requirements in a similar
fashion at that time. Therefore, in our August 24, 2007, proposed rule,
we proposed to modify our regulations in 30 CFR parts 780 and 784 to
harmonize those rules with our 1983 changes to the definitions and
performance standards concerning coal mine waste. In essence, in the
proposed rule, we replaced the term ``coal processing waste banks''
with ``refuse piles'' and the term ``coal processing waste dams and
embankments'' with references to coal mine waste impounding structures.
As proposed, this final rule revises the heading and contents of
sections 780.25 and 784.16 by replacing the terms ``coal processing
waste bank'' and ``coal processing waste dam and embankment'' with
``refuse pile'' and ``coal mine waste impounding structure.'' With
these changes, our permitting requirements concerning coal mine waste
employ terminology consistent with the definitions and performance
standards for coal mine waste that we adopted on September 26, 1983.
We received no comments on the revisions discussed above. However,
some industry commenters opposed the September 26, 1983, rule changes
that classified underground development waste as coal mine waste and
required that coal mine waste (including underground development waste)
disposed of outside the mine workings and excavations be placed in
accordance with 30 CFR 817.83, which contains the performance standards
for refuse piles. The commenters argued that underground development
waste should be treated as excess spoil, not coal mine waste. The
commenters' objections are untimely. The definition of coal mine waste
in 30 CFR 701.5 is now a matter of settled law, as is the performance
standard at 30 CFR 817.81(a), which requires that coal mine waste
disposed of outside the mine workings and excavations be placed in
designated coal mine waste disposal areas within the permit area. The
existing regulations at 30 CFR 817.71(i) allow coal mine waste to be
placed in excess spoil fills with the approval of the regulatory
authority, but only if the waste is nontoxic and non-acid-forming and
only if the waste is placed in accordance with 30 CFR 817.83 (the
requirements for refuse piles).
Several commenters expressed concern that the 1983 rule's
classification of underground development waste as coal mine waste
could prohibit the use of underground development material for
construction of face-up areas, support facilities, and other beneficial
uses. We do not understand how underground development waste could be
used for the construction of face-up areas because the face-up of the
mine must be completed and construction of mine adits must begin before
underground development waste would be produced. Perhaps the commenters
are interpreting the 1983 rules as classifying material removed as part
of the face-up of the underground mine as underground development
waste. If so, the commenters are misreading those rules. Nothing in the
definitions of coal mine waste or underground development waste
classifies face-up materials as either coal mine waste or underground
development waste. In addition, nothing in our existing rules or the
rules that we are adopting today would prohibit the use of underground
development waste for construction of support facilities or other
mining-related uses, provided the use of the waste for those purposes
complies with all regulatory program requirements applicable to those
uses. The final rules that we are adopting today apply only to the
permanent disposal of coal mine waste (including underground
development waste), not to the temporary use of those materials for
mining-related purposes.
2. Paragraph (a)(2)
This paragraph sets forth design requirements for all impoundments
other than low hazard impoundments. As proposed, we are removing the
last sentence of former paragraph (a)(2) of sections 780.25 and 784.16
and redesignating the remainder of that paragraph as paragraph
(a)(2)(i) of those sections. We are redesignating the last sentence of
former paragraph (a)(2) as paragraph (a)(2)(ii). In addition, we are
redesignating former subparagraphs (a)(2)(i) through (iv) of sections
780.25 and 784.16 as subparagraphs (a)(2)(ii)(A) through (D) of those
sections. We are making these redesignations because both the last
sentence of former paragraph (a)(2) and former subparagraphs (i)
through (iv) apply to all structures meeting the criteria of 30 CFR
77.216(a), while the remainder of former paragraph (a)(2) applies only
to those impoundments that meet the Class B or C criteria (now the
Significant Hazard Class or High Hazard Class criteria, respectively)
for dams in the U.S. Department of Agriculture, Natural Resources
Conservation Service (NRCS) publication Technical Release No. 60,
``Earth Dams and Reservoirs.''
As proposed, we are revising redesignated paragraph (a)(2)(i) of
sections 780.25 and 784.16 to update the incorporation by reference of
the NRCS publication ``Earth Dams and Reservoirs,'' Technical Release
No. 60 (210-VI-TR60, October 1985), by replacing the reference to the
October 1985 edition with a reference to the superseding July 2005
edition. Consistent with the terminology in the newer edition, we are
replacing references to Class B or C dam criteria with references to
Significant Hazard Class or High Hazard Class dam criteria,
respectively. Only the terminology has changed--the actual criteria
remain the same as before. The newer publication is not available from
the National Technical Information Service, but is available online
from the Natural Resources Conservation Service (the successor to the
Soil Conservation Service). Consequently, we are deleting the ordering
information pertinent to the National Technical Information Service and
replacing it with the URL (Web address) at which the publication may be
reviewed and from which it may be downloaded without charge. We are
also updating the address and location of our administrative record
room and updating the URL information (Web address) for the National
Archives and Records Administration.
We received no comments on the changes discussed above.
[[Page 75831]]
3. Paragraph (c)
Paragraph (c) contains design requirements that apply to all
impoundments. To improve clarity and consistency with other
regulations, we are revising paragraph (c)(2) of sections 780.25 and
784.16 as proposed by replacing the term ``Mine Safety and Health
Administration'' with a citation to 30 CFR 77.216(a), which contains
the MSHA impoundment criteria to which paragraph (c)(2) refers. Revised
paragraph (c)(2) requires that plans for impoundments meeting MSHA
criteria comply with MSHA's impoundment design requirements at 30 CFR
77.216-2. We are deleting the requirement that those plans also comply
with 30 CFR 77.216-1. The deleted requirement is not germane to permit
applications and plans because it contains signage requirements that
apply only to impoundments that already exist or are under
construction. We are also making two nonsubstantive changes: Replacing
``shall'' with ``must'' in keeping with plain language principles and,
in the second sentence, deleting an obsolete reference to paragraph
(a).
The final rule also includes a new paragraph (c)(4). We originally
proposed to redesignate paragraph (f) of sections 780.25 and 784.16 as
paragraph (e) of those sections. In a nonsubstantive editorial
revision, we are instead redesignating paragraph (f) [paragraph (e) in
our 2007 proposed rule] as paragraph (c)(4) of sections 780.25 and
784.16. The paragraph in question applies only to impoundments that
meet certain criteria in NRCS Technical Release No. 60 or the criteria
of 30 CFR 77.216(a). It has no relevance to other types of siltation
structures or to refuse piles. Therefore, it is more appropriate as
part of paragraph (c), which applies to all types of impoundments,
including coal mine waste impoundments, rather than as a separate
paragraph (e). Consistent with this redesignation, we are also deleting
the references to paragraphs (b) [siltation structures] and (d) [coal
mine waste impoundments and refuse piles] that appeared in proposed
paragraph (e). Final paragraph (c)(4) is otherwise identical to
proposed paragraph (e). As proposed, we also are revising this
paragraph to be consistent with the terminology in the July 2005
edition of NRCS Technical Release No. 60 by replacing references to
Class B or C dam criteria with references to Significant Hazard Class
or High Hazard Class dam criteria, respectively. Only the terminology
has changed; the actual criteria remain the same as before.
We received no comments on the changes discussed above.
4. Paragraph (d) Introductory Language
The final rule includes new introductory language specifying that
an applicant for a permit must comply with all applicable requirements
in paragraphs (d)(1) through (3) if the applicant proposes to place
coal mine waste in a refuse pile or impoundment or use coal mine waste
to construct an impounding structure. This requirement, which is not
new, is a nonsubstantive editorial change that reflects the structure
of the final rule.
5. Paragraph (d)(1)
We have extensively revised paragraph (d)(1) of sections 780.25 and
784.16 in response to comments. Final sections 780.25(d)(1) and
784.16(d)(1) are identical except that the reference to section 816.59
in section 780.25(d)(1) is replaced with a reference to 817.59 in
section 784.16(d)(1).
This new paragraph contains requirements for minimizing adverse
environmental impacts on perennial and intermittent streams and
adjacent areas when a permit application proposes to construct a refuse
pile or slurry impoundment or to use coal mine waste to construct an
impounding structure. We are adopting these requirements under the
authority of sections 515(b)(24) and 516(b)(11) of SMCRA. Those
statutory provisions require that, to the extent possible using the
best technology currently available, surface coal mining and
reclamation operations be conducted to minimize disturbances and
adverse impacts on fish, wildlife, and related environmental values.
Discussion of General Comments Received on Paragraph (d)(1)
Several commenters argued that we have no authority to adopt these
regulations because section 515(f) of SMCRA, which contains
requirements for refuse piles and slurry impoundments, only mentions
criteria related to safety, not environmental protection. We do not
agree with the commenters. SMCRA contains numerous environmental
protection requirements, including those set forth in sections
515(b)(24) and 516(b)(11), that apply to all surface coal mining and
reclamation operations and all aspects of those operations, including
the disposal of coal mine waste. The fact that section 515(f) does not
mention environmental protection in no way suggests that coal mine
waste disposal facilities need not comply with the environmental
protection provisions of SMCRA or that we lack the authority to adopt
regulations establishing environmental protection requirements for
those facilities.
Industry commenters strongly opposed the requirement in proposed
paragraph (d)(1) for an analysis of alternatives for placement of coal
mine waste. The commenters cited a variety of reasons, including
excessive costs, delays in permitting, the probable lack of
environmental benefits, the potential for conflict between the SMCRA
regulatory authority's application of the alternatives analysis
requirement and the approach adopted by the Clean Water Act permitting
authority, duplication of effort with the Clean Water Act, a lack of
justification under SMCRA, exceeding the intent of SMCRA, and a fear
that this requirement could result in a never-ending cycle of analysis
and litigation concerning whether the correct alternative was selected
by the permit applicant and approved by the state regulatory authority.
Many commenters stated that the requirement for an alternatives
analysis has no basis in SMCRA and instead appears to be a mixture of
provisions borrowed from the National Environmental Policy Act and the
Clean Water Act.
Nothing in the proposed alternatives analysis requirement in
paragraph (d)(1) of sections 780.25 and 784.16 of the final rule is
based upon the National Environmental Policy Act. We respectfully
disagree with those commenters who argued that the requirement for an
alternatives analysis is a Clean Water Act requirement that has no
basis or justification under SMCRA and that exceeds the intent of
SMCRA. We acknowledge that we derived this element of our proposed
rules from the alternatives analysis requirements of the 404(b)(1)
Guidelines in 40 CFR part 230, which include the substantive
environmental criteria used in evaluating activities regulated under
section 404 of the Clean Water Act. However, we concluded that a
modified version of the alternatives analysis requirements in the
404(b)(1) Guidelines is an appropriate means of obtaining the
background data and analyses that both the applicant and the regulatory
authority need to make informed decisions concerning compliance with
the requirements of sections 515(b)(24) and 516(b)(11) of SMCRA, which
provide that surface coal mining and reclamation operations must be
conducted to minimize disturbances to and adverse impacts on fish,
wildlife, and related environmental values to the extent possible,
using the best technology currently available.
Therefore, paragraphs (d)(1)(ii) and (d)(1)(iii) of sections 780.25
and 784.16
[[Page 75832]]
of this final rule apply the alternatives analysis requirement to all
applications that propose to place coal mine waste in or within 100
feet of a perennial or intermittent stream. In addition, paragraph
(d)(1)(iii)(A) of these sections of the final rule applies more
detailed analytical requirements to applications that propose to place
coal mine waste in perennial or intermittent streams as opposed to
applications that propose to place coal mine waste only within 100 feet
of those streams.
A few commenters criticized the analysis of alternatives provisions
of the proposed rule because they did not completely parallel the
requirements of the 404(b)(1) Guidelines in 40 CFR part 230. At least
one commenter recommended that we incorporate the 404(b)(1) Guidelines
by reference. We do not find this recommendation appropriate because
the 404(b)(1) Guidelines are designed to implement the Clean Water Act,
while our regulations implement SMCRA and must be based upon SMCRA
requirements. Under section 702(a) of SMCRA, nothing in SMCRA may be
construed as amending, modifying, repealing, or superseding any Clean
Water Act requirement. However, there is also nothing in SMCRA that
would compel or authorize us to adopt regulations that parallel or
incorporate Clean Water Act requirements.
SMCRA and the Clean Water Act provide for separate regulatory
programs with different purposes and very different permitting
requirements and procedures. In addition, as other commenters noted,
SMCRA and the Clean Water Act differ considerably with respect to
jurisdiction. The Clean Water Act focuses on regulating discharges of
pollutants into waters of the United States, whereas SMCRA regulates a
broad universe of environmental and other impacts of surface coal
mining and reclamation operations, including impacts on water quantity,
water quality, and terrestrial and aquatic ecosystems. We encourage
coordination and cooperation between SMCRA regulatory authorities and
the agencies administering the Clean Water Act. See the memorandum of
understanding entitled ``Memorandum of Understanding among the U.S.
Army Corps of Engineers, the U.S. Office of Surface Mining, the U.S.
Environmental Protection Agency, and the U.S. Fish and Wildlife Service
for the Purpose of Providing Concurrent and Coordinated Review and
Processing of Surface Coal Mining Applications Proposing Placement of
Dredged and/or Fill Material in Waters of the United States,'' which
took effect February 8, 2005, and the provisions of this final rule
that authorize the SMCRA regulatory authority to accept an analysis of
alternatives completed for Clean Water Act purposes as meeting the
requirements for an analysis of alternatives under this final rule,
when and to the extent appropriate. However, we believe that
maintaining the distinction between those programs is both
administratively and legally appropriate. That conclusion is supported
by the comments that we received from both industry and state
regulatory authorities.
Many industry commenters, supported by some, but not all, state
regulatory authority commenters, stated that the proposed alternatives
analysis requirement would introduce a major new element of
uncertainty, and result in costly and wasteful duplication of effort on
the part of permit applicants and state regulatory authorities. The
commenters stated that this element of our proposed rule was
inconsistent with our statement in the preamble to that rule that a
primary reason for the rulemaking was to provide improved clarity and
reduction of uncertainty regarding the meaning of the regulations. One
commenter stated that at best the alternatives analysis requirement
``adds yet another layer of redundant paperwork and analysis as it
duplicates the federally-administered 404 process. At worst, OSM has
set the stage for conflicts between the section 404 program and the
largely state-implemented SMCRA programs.'' The commenter further
stated that by imposing an alternatives analysis requirement on state
regulatory authorities, we are ``flirting dangerously'' with creating
conflicting alternatives analyses because ``the goals and objectives of
SMCRA and corresponding state statutes may be different than those of
the Corps and EPA under section 404.''
While we understand the commenters' apprehensions, these comments
are speculative in nature. There may be some initial uncertainty as
regulatory authorities establish procedures and criteria for
implementation of the alternative analysis requirements and determining
least overall adverse impact on fish, wildlife, and related
environmental values under this rule, but that uncertainty should
subside once those procedures and criteria are in place.
The Interstate Mining Compact Commission, writing on behalf of
member state regulatory authorities, argued that the alternative
analysis requirement is duplicative of requirements under the Clean
Water Act that are already encompassed by the SMCRA permitting scheme.
As discussed elsewhere in this preamble, we believe that the
alternatives analysis requirement that we are adopting as part of this
final rule differs from and serves a somewhat different purpose than
the alternatives analysis requirement under the regulations and other
documents implementing section 404 of the Clean Water Act. To the
extent that duplication may exist, we encourage states to coordinate
the processing of coal mining permit applications with the U.S. Army
Corps of Engineers in accordance with a memorandum of understanding
entitled ``Memorandum of Understanding among the U.S. Army Corps of
Engineers, the U.S. Office of Surface Mining, the U.S. Environmental
Protection Agency, and the U.S. Fish and Wildlife Service for the
Purpose of Providing Concurrent and Coordinated Review and Processing
of Surface Coal Mining Applications Proposing Placement of Dredged and/
or Fill Material in Waters of the United States,'' which took effect
February 8, 2005. This final rule also authorizes the SMCRA regulatory
authority to accept an analysis of alternatives completed for Clean
Water Act purposes as meeting the requirements for an analysis of
alternatives under this final rule, when and to the extent appropriate.
The Commission and some, but not all, commenters representing
individual state regulatory authorities also opposed the alternatives
analysis requirement in the proposed rule because of state fiscal
constraints and fear of the ``potentially overwhelming'' time and
effort that would be required for state permitting personnel to
adequately review and analyze alternatives.
We anticipate that few, if any, state regulatory authorities will
experience a significant increase in demands on their resources as a
result of the alternatives analysis requirement in the final rule. West
Virginia, one of the states most impacted by the rule, supported the
proposed rule. Kentucky, another state that would be significantly
impacted, estimated that, on average, the new requirement would add ten
hours to the time required to process a permit application. We believe
that the intangible environmental benefits of the rule (increased
scrutiny of efforts to minimize adverse impacts on fish, wildlife, and
related environmental values associated with perennial and intermittent
streams) will outweigh what we anticipate will be a modest increase in
demand on state regulatory authority resources.
The U.S. Fish and Wildlife Service requested that we work with the
Service
[[Page 75833]]
to build a process into the alternative analysis requirements in the
final rule to protect unique and high value fish and wildlife
resources. In response, we note that our fish and wildlife protection
rules at 30 CFR 816.97(f) and 817.97(f) already require that the
operator ``avoid disturbances to, enhance where practicable, or restore
habitats of unusually high value for fish and wildlife.'' In addition,
our permitting rules at 30 CFR 780.16 and 784.21 provide a role for the
Service in determining fish and wildlife data collection requirements
and reviewing the fish and wildlife protection plan in the permit
application. Therefore, addition of the provision requested by the
Service is not necessary.
Discussion of Specific Provisions of Paragraph (d)(1)
In the final rule, the first sentence of paragraph (d)(1) of
sections 780.25 and 784.16 provides that the permit applicant must
design the operation to avoid placement of coal mine waste in or within
100 feet of perennial and intermittent streams to the extent possible.
We added this provision in response to EPA concerns and numerous
comments urging greater protection for headwater streams because of
their ecological importance and contribution to the function of the
stream as a whole. In effect, the new sentence identifies avoiding
placement of coal mine waste in or within 100 feet of perennial or
intermittent streams as the preferred method of complying with the
SMCRA requirement to minimize disturbances and adverse impacts on fish,
wildlife, and related environmental values with respect to those
streams. That is, whenever avoidance of disturbance is reasonably
possible, the rule establishes avoidance as the best technology
currently available to meet the requirements of sections 515(b)(24) and
516(b)(11) of SMCRA, which require minimization of disturbances and
adverse impacts to fish, wildlife, and related environmental values to
the extent possible using the best technology currently available. This
provision of the final rule is consistent with our stream buffer zone
rules at 30 CFR 816.57 and 817.57, which establish maintenance of an
undisturbed buffer for perennial and intermittent streams as the best
technology currently available to meet the requirements of sections
515(b)(24) and 516(b)(11) of SMCRA, provided maintenance of an
undisturbed buffer is reasonably possible.
However, the final rule does not and cannot mandate avoidance in
all cases for all stream segments. The provisions of SMCRA underlying
this rule require minimization of disturbances and adverse impacts on
fish, wildlife, and related environmental values only ``to the extent
possible.'' Avoiding disturbance of the stream and maintenance of an
undisturbed buffer zone for that stream is the ultimate means of
minimizing adverse impacts on fish, wildlife, and related environmental
values and hence is the default best technology currently available to
comply with the statutory minimization requirement. However, there is
sometimes no viable alternative to the construction of coal mine waste
disposal facilities in perennial or intermittent streams and their
buffer zones, in which case avoidance is not reasonably possible. Under
those circumstances, SMCRA--and hence this final rule--do not require
avoidance. Instead, the applicant must propose other methods of
complying with the minimization requirement that are consistent with
the proposed surface coal mining operations. We do not interpret SMCRA
as authorizing us to prohibit surface coal mining operations in
situations other than those specifically set forth in the Act. However,
SMCRA does not override prohibitions that apply under other laws and
regulations. Any such requirements and prohibitions will continue to
apply according to the terms of those laws and regulations.
Paragraph (d)(1)(i) of the final rule requires that the permit
applicant explain, to the satisfaction of the regulatory authority, why
an alternative coal mine waste disposal method or an alternative
location or configuration that does not involve placement of coal mine
waste in or within 100 feet of a perennial or intermittent stream is
not reasonably possible. We added this requirement to reinforce the
provision in paragraph (d)(1) of the final rule establishing avoidance
of placement of coal mine waste in or within 100 feet of a perennial or
intermittent stream, whenever avoidance is reasonably possible, as the
best technology currently available to comply with the statutory
requirement for minimization of disturbances and adverse impacts on
fish, wildlife, and related environmental values to the extent possible
using the best technology currently available.
Paragraph (d)(1)(ii) of the final rule provides that, if the permit
applicant is unable to design the operation to avoid placement of coal
mine waste in or within 100 feet of a perennial or intermittent stream,
the application must identify a reasonable range of alternative
locations or configurations for any proposed refuse piles or coal mine
waste impoundments. A number of commenters on a similar provision in
the proposed rule expressed concern that this provision was too vague
and could be interpreted as requiring an unlimited number of
alternatives, including those that have no possibility of being
implemented. In response to this concern, we have added language
clarifying that this provision does not require identification of all
potential alternatives and that only those reasonably possible
alternatives that are likely to differ significantly in terms of
impacts on fish, wildlife, and related environmental values need be
identified and considered. The latter provision is consistent with the
policies to which EPA and the Corps adhere in implementing section 404
of the Clean Water Act. See the EPA/COE memorandum entitled
``Appropriate Level of Analysis Required for Evaluating Compliance with
the Section 404(b)(1) Guidelines Alternatives Requirements.''
In response to the commenters' concerns, we also added language to
paragraph (d)(1)(ii) of the final rule specifying that an alternative
is reasonably possible if it conforms to the safety, engineering,
design, and construction requirements of the regulatory program; is
capable of being done after consideration of cost, logistics, and
available technology; and is consistent with the coal recovery
provisions of sections 816.59 and 817.59. In other words, nothing in
the rule should be construed as elevating environmental concerns over
safety considerations, as prohibiting the conduct of surface coal
mining operations that are not otherwise prohibited under SMCRA or
other laws or regulations, or as requiring consideration of
unreasonably expensive or technologically infeasible alternatives.
The portion of this rule that refers to ``consideration of cost,
logistics, and available technology'' is derived from the EPA
regulations at 40 CFR 230.10(a)(2), which define a practicable
alternative for purposes of section 404 of the Clean Water Act. In
interpreting this provision, the EPA/COE memorandum entitled
``Appropriate Level of Analysis Required for Evaluating Compliance with
the Section 404(b)(1) Guidelines Alternatives Requirements'' states
that ``[t]he determination of what constitutes an unreasonable expense
should generally consider whether the projected cost is substantially
greater than the costs normally associated with this particular type of
project.'' We have included similar language in paragraph
[[Page 75834]]
(d)(1)(ii)(B) of the final rule because (1) the concept of a
practicable alternative for purposes of section 404 of the Clean Water
Act is in some ways analogous to the determination of reasonably
possible alternatives under this rule, and (2) the principle is
consistent with the phrase ``to the extent possible'' in sections
515(b)(24) and 516(b)(11) of SMCRA. See Part VI.D. of this preamble for
a more extensive discussion of the rationale for our use of the term
``reasonably possible'' and its consistency with statutory provisions.
The final rule does not include the provision in paragraph
(d)(1)(i)(C) of the proposed rule stating that the least costly
alternative may not be selected at the expense of environmental
protection solely on the basis of cost. One commenter objected to the
proposed provision as being too extreme and subject to
misinterpretation, noting that there may be situations in which cost
could and should be the determining factor. We agree. Nothing in SMCRA
compels adoption of this provision. In lieu of this provision, we have
added language to paragraph (d)(1)(ii)(B) of the final rule clarifying
that the fact that one alternative may cost somewhat more than a
different alternative does not necessarily warrant exclusion of the
more costly alternative from consideration. We believe that the revised
language is more consistent with sections 515(b)(24) and 516(b)(11) of
SMCRA, which require use of the best technology currently available,
but only to the extent possible.
Paragraph (d)(1)(iii) of the final rule provides that any
application proposing to place coal mine waste in or within 100 feet of
a perennial or intermittent stream must include an analysis of the
impacts of the alternatives identified in paragraph (d)(1)(ii) on fish,
wildlife, and related environmental values. The analysis must consider
impacts on both terrestrial and aquatic ecosystems. These provisions
are substantively identical to the corresponding provisions in the
proposed rule.
Paragraph (d)(1)(iii)(A) of the final rule provides that, for every
alternative that proposes placement of coal mine waste in a perennial
or intermittent stream, the analysis must include an evaluation of
impacts on the physical, chemical, and biological characteristics of
the stream downstream of the proposed refuse pile or coal mine waste
impoundment, including seasonal variations in temperature and volume,
changes in stream turbidity or sedimentation, the degree to which the
coal mine waste may introduce or increase contaminants, and the effects
on aquatic organisms and the wildlife that is dependent upon the
stream. As discussed below, this paragraph of the final rule includes a
number of changes from the proposed rule as a result of the comments
that we received on the proposed rule.
One commenter stated that--
[T]he components of an alternatives analysis for a coal mine
disposal activity, as set forth in proposed 30 CFR 784.16(d)(1)(ii),
should be subdivided for clarity and certain of the components
should be reconsidered in terms of their purpose or value. As
written, 30 CFR 784.16(d)(1)(ii) requires ``* * * an evaluation of
short-term and long-term impacts on the aquatic ecosystem, both
individually and on a cumulative basis'' and goes on to specify that
the evaluation ``must consider impacts on the physical, chemical,
and biological characteristics of downstream flow, including
seasonal variations in temperature and volume, changes in stream
turbidity or sedimentation, the degree to which the coal mine waste
may introduce or increase contaminants, the effects on aquatic
organisms and the extent to which wildlife is dependent upon those
organisms.'' As strung together, these requirements create a number
of ambiguities, which will lead to problems in interpretation. The
list also includes terms that have no recognized meaning, such as
``biological characteristics of downstream flows.'' In addition to
these ambiguities, this section also requires assessments that are
new to the regulation of mining activities, including assessments of
the effects of turbidity and of secondary impacts on wildlife that
may be dependent on aquatic organisms in a potentially affected
water body. In the absence of commonly recognized guidelines, the
results of these assessments will be virtually impossible to
validate.
We have revised the rule to replace the potentially confusing
phrase ``biological characteristics of downstream flows'' with clearer
language requiring information on the biological characteristics of the
stream downstream of the proposed refuse pile or coal mine waste
impoundment. See paragraph (d)(1)(iii)(A) of final sections 780.25 and
784.16. We also replaced the requirement for an evaluation of the
extent to which wildlife is dependent upon aquatic organisms with a
requirement for an evaluation of the effects of the proposed operation
on wildlife that is dependent upon the stream. In addition, we decided
not to adopt the portion of proposed paragraph (d)(1)(ii) requiring
that the analysis include an evaluation of the short-term and long-term
impacts of each alternative on the aquatic ecosystem, both individually
and on a cumulative basis. This proposed requirement is subsumed within
the other analytical requirements of the final rule and would not
likely result in the submission of any meaningful additional
information.
However, we did not make further changes in response to this
comment because the commenter did not explain how the requirements
should be subdivided for clarity or why or how they create ambiguity.
With respect to the commenter's statement that the assessments required
by this rule will be impossible to validate in the absence of commonly
recognized guidelines, we believe that the commenter may have
misunderstood the purpose of the evaluation required by this rule. The
data and analyses required by this rule are intended only to facilitate
comparisons of the relative impacts of various alternatives on fish,
wildlife, and related environmental values, not to establish
reclamation standards. To the extent that the commenter may have meant
that there are no generally accepted protocols for evaluating some of
the listed characteristics, we believe that regulatory authorities have
the technical capability to develop any needed protocols specific to
conditions within their states.
One state regulatory authority urged us to revise the rule to
include consideration of impacts such as traffic, dust and noise on
local residents who may be affected by a proposed operation. While we
encourage permit applicants to consider these factors in designing
their operations, we do not consider them to be disturbances or adverse
impacts on fish, wildlife, and related environmental values within the
context of sections 515(b)(24) and 516(b)(11) of SMCRA. Therefore, we
are not including those factors as required components of the
alternatives analysis under paragraph (d)(1)(iii) of the final rule.
Paragraph (d)(1)(iii)(B) of the final rule allows the applicant to
submit an analysis of alternatives prepared under 40 CFR 230.10 for
Clean Water Act purposes in lieu of the analysis of impacts on fish,
wildlife, and related environmental values required under paragraph
(d)(1)(iii)(A) of the final rule. The regulatory authority will
determine the extent to which that analysis satisfies the requirements
of paragraph (d)(1)(iii)(A) of the final rule. These provisions of the
final rule are similar to their counterparts in the proposed rule.
One commenter expressed dismay that the rule did not require that
the regulatory authority accept the Clean Water Act analysis of
alternatives as fully meeting the requirements of this rule. We do not
believe that addition of this requirement to our rules would be
appropriate because the alternatives analysis required under the final
rule must address all environmental impacts
[[Page 75835]]
(both aquatic and terrestrial) of surface coal mining operations,
whereas the analysis of alternatives required under Clean Water Act
regulations focuses on impacts to waters of the United States. However,
under the final rule, the SMCRA regulatory authority has the discretion
to determine that an analysis of alternatives conducted for Clean Water
Act purposes satisfies the requirements for an analysis of alternatives
under this final rule, in whole or in part, as appropriate.
Paragraph (d)(1)(iv) of the final rule requires selection of the
alternative with the least overall adverse impact on fish, wildlife,
and related environmental values, including adverse impacts on water
quality and aquatic and terrestrial ecosystems, to the extent possible.
The proposed rule included an additional sentence specifying that if
the applicant proposes to select a different alternative, the applicant
must demonstrate, to the satisfaction of the regulatory authority, why
implementation of the more environmentally protective alternative is
not possible. The final rule does not include this sentence because we
have determined that it is neither needed nor appropriate in view of
the other changes that we have made to the rule. Specifically, we have
added language to paragraph (d)(1)(ii) of the final rule limiting the
alternatives that the applicant must identify to only those
alternatives that are reasonably possible. In addition, we have added
paragraph (d)(1)(i), which requires that the permit applicant explain,
to the satisfaction of the regulatory authority, why an alternative
that does not involve placement of coal mine waste in or within 100
feet of a perennial or intermittent stream is not reasonably possible.
The combination of these two changes means that the sentence in the
proposed rule is no longer logical or appropriate because the only
alternatives considered under the final rule are those that are
reasonably possible, which means that, within the universe of
reasonably possible alternatives identified, the applicant must select
the alternative with the least overall adverse impact on fish,
wildlife, and related environmental values. In other words, the
sentence in the proposed rule no longer has any relevance or meaning
because, under the final rule, the applicant does not have the option
of proposing alternatives that are not reasonably possible. Given that
change, the final rule provides that the applicant must select the
alternative with the least overall adverse impact on fish, wildlife,
and related environmental values.
Some commenters requested that we define or explain the term
``least overall adverse environmental impact.'' We do not believe that
a meaningful definition is possible, given the somewhat subjective
nature of the term and the site-specific nature of determinations under
this rule. We expect that persons preparing permit applications and
regulatory authority personnel reviewing those applications will use
their best professional judgment in applying this standard. Consistent
with the commonly accepted meaning of the words ``overall'' and
``environmental,'' we have modified the rule to clarify that the scope
of the term includes impacts to terrestrial ecosystems, not just
impacts to water quality and aquatic ecosystems. The relative
importance of these three components, as well as the constituents of
each of those components, will vary from site to site. Therefore, they
are not readily defined in a national rule. However, we have replaced
the term ``least overall adverse environmental impact'' with the term
``least overall adverse impact on fish, wildlife, and related
environmental values'' to be consistent with the terminology of
sections 515(b)(24) and 516(b)(11) of SMCRA and to provide greater
clarity.
EPA encouraged both permit applicants and SMCRA regulatory
authorities to use a watershed approach in determining which
alternative would have the least overall adverse impact on fish,
wildlife, and related environmental values:
A watershed approach expands the informational and analytic
basis of site selection decisions to ensure impacts are considered
on a watershed scale rather than only project by project. The idea
being locational factors (e.g., hydrology, surrounding land use) are
important to evaluating the indirect and cumulative impacts of the
project. Watershed planning efforts can identify and prioritize
where preservation of existing aquatic resources are important for
maintaining or improving the quality (and functioning) of downstream
resources. The objective of this evaluation is to maintain and
improve the quantity and quality of the watershed's aquatic
resources and to ensure water quality standards (numeric and
narrative criteria, anti-degradation, and designated uses) are met
in downstream waters.
Permit applicants should work with federal and state regulatory
authorities to identify appropriate and available information, such
as existing watershed plans, or in the absence of such plans,
existing information on current watershed conditions and needs, past
and current mining (and other development) trends, cumulative
impacts of past, present, and reasonable foreseeable future mining
activities, and chronic environmental problems (e.g., poor water
quality, CWA 303(d)-listed streams, etc.) in the watershed. The
regulatory authorities can also provide information on the
appropriate watershed scale to consider. The level of data and
analysis for implementing a watershed approach should be
commensurate with the scale of the project, to the extent
appropriate and reasonable.
We agree that the analysis of potential alternatives required under
paragraph (d)(1)(ii) should appropriately consider the overall
condition of the aquatic resources in the watershed, including any
impacts from previous mining activities.
6. Proposed Paragraph (d)(2)
In the proposed rule, paragraph (d)(2) of sections 780.25 and
784.16 provided that each application for an operation that will
generate or dispose of coal mine waste must describe the steps to be
taken to avoid or, if avoidance is not possible, to minimize the
adverse environmental impacts that may result from the construction of
refuse piles and coal mine waste impoundments and impounding
structures. The preamble to the proposed rule explained that this
requirement applied to construction, maintenance, and reclamation of
the alternative selected under paragraph (d)(1)(i)(C).
EPA recommended that we revise the rule to incorporate the concepts
of avoidance and minimization of adverse environmental impacts into the
alternatives analysis required by paragraph (d)(1) of sections 780.25
and 784.16 rather than placing them in a separate paragraph. EPA stated
that the intended purpose of the alternatives analysis is to determine
the means by which coal mine waste could be disposed of with the least
adverse environmental impact. EPA further recommended removal of the
preamble language in the proposed rule that specifies that the
avoidance and minimization requirements in proposed paragraph (d)(2)
only apply to the alternatives selected under proposed paragraph
(d)(1)(i)(C). According to EPA, these changes would reduce potential
uncertainty regarding the appropriate factors to consider in the
alternatives analysis and would reinforce the requirement to evaluate
different project locations and design elements when assessing the
viability and environmental impacts of each location.
After considering these comments and the changes that we made to
paragraph (d)(1) in the final rule, we have decided not to adopt
proposed paragraph (d)(2) because provisions of that paragraph are now
redundant and unnecessary. Under 30 CFR 816.97(a) and 817.97(a), the
[[Page 75836]]
operator must, to the extent possible, using the best technology
currently available, minimize disturbances and adverse impacts on fish
and wildlife and related environmental values and must achieve
enhancement of those resources where practicable. Paragraph (f) of 30
CFR 816.97 and 817.97 provides that the operator must avoid
disturbances to, enhance where practicable, restore, or replace
wetlands and riparian vegetation along rivers and streams and bordering
ponds and lakes. That paragraph also requires that the operator avoid
disturbances to, enhance where practicable, or restore habitats of
unusually high value for fish and wildlife. Paragraph (b)(1) of 30 CFR
780.16 and 784.21 requires that the fish and wildlife protection and
enhancement plan in the permit application be consistent with the
requirements of 30 CFR 816.97 and 817.97, respectively. Therefore,
proposed paragraph (d)(2) would not add any requirements that are not
already found in 30 CFR 816.97 and 817.97.
In addition, as revised in the final rule, paragraph (d)(1) of
sections 780.25 and 784.16 provides that permit applicants must design
their operations to avoid placement of coal mine waste in or within 100
feet of a perennial or intermittent stream to the extent possible. This
new provision establishes avoidance of disturbance of perennial and
intermittent streams and their buffer zones as the best technology
currently available to comply with the requirement under sections
515(b)(24) and 516(b)(11) to minimize disturbances and adverse impacts
on fish, wildlife, and related environmental values. However, the
statutory minimization requirement applies only ``to the extent
possible,'' and, given the realities of geology (which dictates where
coal is located), topography, and mining mechanics and economics, it is
not always possible to implement the ultimate form of minimization,
which is avoidance of disturbances, and still conduct surface coal
mining operations. Consequently, paragraph (d)(1) of the final rule
requires that the applicant avoid disturbance only to the extent
possible. Paragraph (d)(1)(i) of the revised final rule provides that,
when a permit applicant proposes to construct a refuse pile or coal
mine waste impounding structure in or within 100 feet of a perennial or
intermittent stream, the applicant must explain, to the satisfaction of
the regulatory authority, why an alternative that does not involve
placement of coal mine waste in or within 100 feet of a perennial or
intermittent stream is not reasonably possible. Therefore, adoption of
proposed paragraph (d)(2) is no longer appropriate because, as revised,
paragraph (d)(1) of the final rule requires consideration of avoidance
as part of the alternatives analysis and selection process.
7. Paragraphs (d)(2) and (3)
As proposed, we are combining former paragraphs (d) and (e) of
sections 780.25 and 784.16, which contained design requirements for
coal processing waste banks, and former paragraph (e), which contained
design requirements for coal processing waste dams and embankments,
into a substantially revised paragraph (d). Paragraph (d)(2), which
contains design requirements specific to refuse piles, corresponds to
former paragraph (d). Paragraph (d)(3), which contains design
requirements specific to impoundments and impounding structures
constructed of or intended to impound coal mine waste, corresponds to
former paragraph (e). Because of changes in other provisions of
paragraph (d), the nomenclature in the final rule differs slightly from
the proposed rule in that proposed paragraph (d)(3) is codified as
paragraph (d)(2) in the final rule and proposed paragraph (d)(4) is
codified as paragraph (d)(3) in the final rule.
As proposed, final paragraph (d)(2) of sections 780.25 and 784.16
does not include the cross-reference to section 816.84 formerly found
in section 780.25(d) and the cross-reference to section 817.84 formerly
found in section 784.16(d). We are deleting those cross-references
because final sections 780.25(d)(2) and 784.16(d)(2) pertain only to
refuse piles, not to the coal mine waste impounding structures to which
sections 816.84 and 817.84 apply. The deletion is not a substantive
change because the former version of the rules did not pertain to coal
mine waste impounding structures either.
Similarly, as proposed, final paragraph (d)(3) of sections 780.25
and 784.16 does not include the cross-reference to section 816.83
formerly found in section 780.25(e) and the cross-reference to section
817.83 formerly found in section 784.16(e). We are deleting those
cross-references because final sections 780.25(d)(3) and 784.16(d)(3)
pertain only to coal mine waste impoundments and impounding structures,
not to the refuse piles to which sections 816.83 and 817.83 apply. The
deletion is not a substantive change because the former version of the
rules did not pertain to refuse piles either.
In addition, revised paragraph (d)(3) of sections 780.25 and 784.16
does not contain the requirement formerly found in sections 780.25(e)
and 784.16(e) that each plan for an impounding structure comply with 30
CFR 77.216-1. As proposed, we are deleting this cross-reference because
30 CFR 77.216-1 does not include any design requirements. Instead, that
rule consists solely of MSHA requirements for signage for existing
impoundments and impoundments under construction. Consequently, there
is no reason to retain this cross-reference because the referenced
requirement is not relevant to preparation of plans or permit
applications for proposed impoundments. Final paragraph (d)(3) retains
the requirement that each plan for an impounding structure comply with
30 CFR 77.216-2, which contains design requirements for impoundments
and impounding structures.
We received no comments on the changes discussed above.
C. Sections 780.28 and 784.28 Activities in or Adjacent to Perennial or
Intermittent Streams
As explained in the preamble to the proposed rule, we are adding
new sections 780.28 and 784.28 because the review and approval of
proposals to disturb the surface of lands within 100 feet of perennial
and intermittent streams is a permitting action, not a performance
standard. Consequently, as proposed, we are moving the permitting
aspects of the stream buffer zone rules, which were formerly codified
at 30 CFR 816.57(a)(1) and 817.57(a)(1) as part of the performance
standards in subchapter K, to new sections 780.28 and 784.28, which are
part of the permitting requirements of subchapter G. We are also
extensively revising the proposed rules in response to comments.
Sections 780.28 and 784.28 replace the rules formerly located at 30
CFR 816.57(a)(1) and 817.57(a)(1), which provided that the regulatory
authority may authorize activities on the surface of lands within 100
feet of a perennial or intermittent stream only upon finding that the
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. As discussed in Part VII of this preamble, we have decided to
retain the scope of the original rules, which applied to perennial and
intermittent streams, rather than change the scope to waters of the
United States, as we proposed on August 24, 2007.
[[Page 75837]]
In the proposed rule, paragraph (a) of sections 780.28 and 784.28
defined their applicability, paragraph (b) established mapping
requirements, paragraph (c) contained permit application requirements
for obtaining a variance from the prohibition on disturbance of the
buffer zone established under section 816.57 or section 817.57,
paragraph (d) contained standards for regulatory authority approval of
a requested variance, paragraph (e) established permit application and
regulatory authority approval requirements for activities that are not
subject to the prohibition on disturbance of the buffer zone, and
paragraph (f) explained the relationship between our rules and Clean
Water Act requirements.
One commenter suggested that we streamline and simplify both the
structure of these sections and their contents. The commenter requested
that we modify the rule to more clearly distinguish between activities
that will be conducted in the buffer zone for a perennial or
intermittent stream and those that are planned to be conducted in the
stream itself. The commenter also requested that we avoid describing
the stream buffer zone requirement as a ``prohibition'' and argued that
the new mapping requirements in proposed paragraph (b) were
unnecessary. We have accepted these comments and revised the rules
accordingly. However, we did not adopt the actual rewrite of the rules
that the commenter provided. In addition, while sections 780.28 and
784.28 of the final rule do not refer to the stream buffer zone
requirements of sections 816.57 and 817.57 as a prohibition, we do not
agree with the commenter that use of that term would be an incorrect
characterization. We continue to use that term in the preamble when
appropriate.
We also extensively restructured and revised these sections of the
proposed rule in response to numerous comments (1) urging greater
protection for headwater streams in view of their importance to the
function and productivity of the stream as a whole, and (2) emphasizing
that maintenance of undisturbed buffer zones of mature native
vegetation is the best technology currently available to achieve the
requirements of sections 515(b)(24) and 516(b)(11) of the Act
concerning minimization of disturbances and adverse impacts on fish,
wildlife, and related environmental values. Commenters objected to our
preamble discussion of these sections in the proposed rule in which we
stated that a rule establishing a buffer zone as the best technology
currently available would be inconsistent with the definition of ``best
technology currently available'' in 30 CFR 701.5 because it would not
provide sufficient flexibility to accommodate advances in science and
technology. In particular, commenters noted that we cited no technical
or other support for the proposition that there are equally effective
alternatives to buffer zones for purposes of meeting the requirements
of sections 515(b)(24) and 516(b)(11) of SMCRA, which require that
surface coal mining and reclamation operations be conducted so as to
minimize disturbances and adverse impacts on fish, wildlife, and
related environmental values to the extent possible using the best
technology currently available.
Our discussion of the meaning of best technology currently
available in the preamble to the proposed rule focused on sediment
control and meeting the requirements of sections 515(b)(10)(B)(i) and
516(b)(9)(B) of SMCRA, which provide that surface coal mining
operations must be conducted in a manner that prevents, to the extent
possible using the best technology currently available, additional
contributions of suspended solids to streamflow or to runoff outside
the permit area. We are not repeating that discussion in this preamble,
although it remains valid with respect to sediment control. However,
sediment control is the focus of only two of the four statutory
provisions underlying the stream buffer zone rule and is the subject of
only half of the definition of ``best technology currently available''
in 30 CFR 701.5.
We are revising sections 780.28 and 784.28 to clarify that
maintenance of an undisturbed 100-foot buffer between the stream and
mining and reclamation activities conducted on the surface of lands is
the default best technology currently available to meet the underlying
statutory requirements whenever the stream segment in question need not
be disturbed and it is possible to leave an undisturbed 100-foot
buffer. In other words, the final rule requires maintenance of an
undisturbed l00-foot buffer unless the permit applicant can demonstrate
to the satisfaction of the regulatory authority that maintaining a 100-
foot buffer is either not reasonably possible or not necessary to meet
the fish and wildlife and hydrologic balance protection provisions of
the regulatory program. We anticipate that the latter demonstration
will be difficult to make with respect to fish and wildlife protection
requirements unless the stream is highly polluted or the land within
the buffer has been and continues to be significantly disturbed or
degraded by activities such as intensive agriculture.
In summary, we have added the following requirements in response to
comments:
The regulatory authority's decision must be made in the
form of written findings.
For activities to be conducted in a perennial or
intermittent stream (including the activities listed in paragraphs
(b)(2) through (b)(4) of sections 816.57 and 817.57), the permit
application must demonstrate, and the regulatory authority must find,
that avoiding disturbance of the stream is not reasonably possible. See
Part VI.D. of this preamble for a more extensive discussion of our
rationale for adopting the term ``reasonably possible'' and its
consistency with statutory provisions. We also added a requirement that
the permit include a condition requiring a demonstration of compliance
with the Clean Water Act in the manner specified in paragraph (a)(2) of
section 816.57 or section 817.57 before the permittee may conduct any
activities in a perennial or intermittent stream that require
authorization or certification under the Clean Water Act.
For activities to be conducted within 100 feet of a
perennial or intermittent stream, but not in the stream itself, the
permit application must demonstrate, and the regulatory authority must
find, that avoiding disturbance of the stream is either not reasonably
possible or not necessary to meet the fish and wildlife and hydrologic
balance protection provisions of the regulatory program. This
requirement applies only to activities that will occur on land subject
to the buffer requirement of paragraph (a)(1) of sections 816.57 and
817.57. It does not apply to activities conducted on lands included
within the scope of paragraph (b) of sections 816.57 and 817.57; i.e.,
to what would have been the buffer zone for those segments of a
perennial or intermittent stream for which the regulatory authority
approves one or more of the activities listed in paragraphs (b)(1)
through (b)(4) of section 816.57 or 817.57. See Part VIII.I. of this
preamble.
For purposes of these sections, the requirement to demonstrate that
avoidance of disturbance of the stream or buffer zone is not reasonably
possible should not be construed as elevating environmental concerns
over safety considerations, as prohibiting the conduct of surface coal
mining operations that are not otherwise prohibited under SMCRA or
other laws, as prohibiting maximization of coal
[[Page 75838]]
recovery to the extent provided in sections 816.59 and 817.59, or as
requiring unreasonably excessive expenditures to avoid disturbance.
However, by itself, the fact that designing and conducting the
operation to avoid disturbance of the stream or buffer zone may be more
expensive than designing and conducting it to include disturbance of
the stream or buffer zone does not necessarily mean that avoidance of
disturbance is not reasonably possible. Consistent with the statutory
directive to minimize disturbances and adverse impacts on fish,
wildlife, and related environmental values to the extent possible,
using the best technology currently available, the permit applicant and
the regulatory authority must weigh the environmental benefits of
avoiding disturbance against the cost of doing so and determine the
appropriate balance based on site-specific environmental, economic,
operational, and engineering considerations, not the financial status
of the permit applicant.
The U.S. Fish and Wildlife Service recommended that we revise these
rules to include language similar to that used in our rules governing
selection of alternatives under the alternatives analysis requirements
for coal mine waste and excess spoil in sections 780.25 and 780.35. We
are not adopting this recommendation because an alternatives analysis
is not a part of our stream buffer zone rules. For those situations in
which an alternatives analysis is required under section 780.25(d)(1)
or 780.35(a)(3), there is no need to replicate that requirement here.
Those rules and their preamble already provide guidance for the
identification of reasonably possible alternatives and require
selection of the alternative with the least overall adverse impact on
fish, wildlife, and related environmental values.
The U.S. Fish and Wildlife Service also requested that we work with
the Service to build a process into these sections of the final rule to
protect unique and high value fish and wildlife resources and to
develop design standards that would provide greater specificity as to
how the decision criteria for granting variances from the stream buffer
zone requirements will be applied. In response, we note that our fish
and wildlife protection rules at 30 CFR 816.97(f) and 817.97(f) already
require that the operator ``avoid disturbances to, enhance where
practicable, or restore habitats of unusually high value for fish and
wildlife.'' In addition, our permitting rules at 30 CFR 780.16 and
784.21 provide a role for the Service in determining fish and wildlife
data collection requirements and reviewing the fish and wildlife
protection and enhancement plan in the permit application. Therefore,
we believe that our existing rules provide adequate opportunity for
involvement by the Service and that addition of the provisions
requested by the Service would be redundant. However, we are willing to
work with the Service in developing suggested guidelines for
application of paragraphs (c)(3)(ii) and (e)(2)(ii) of sections 780.28
and 784.28; i.e., identifying measures and techniques that may
constitute the best technology currently available under various
situations to minimize disturbances and adverse impacts on fish,
wildlife, and related environmental values to the extent possible, as
required by sections 780.16(b), 784.21(b), 816.97(a), and 817.97(a).
Several commenters requested that we clarify in the preamble that
section 784.28 applies only to lands upon which surface activities will
exist and lands immediately adjacent to those lands, not to areas that
merely overlie underground operations associated with an underground
mine. We agree with the position stated by the commenters and have
inserted the word ``surface'' in the heading and other provisions of
section 784.28 to provide added clarity. One commenter expressed
concern that use of the terms ``adjacent'' or ``adjacent area'' could
result in the requirements of this rule being applied to lands
overlying the underground mine workings because the definition of
``adjacent area'' in 30 CFR 701.5 includes areas with ``probable
impacts from underground workings.'' We find the commenter's concern to
be unfounded. The definition of adjacent area clearly states that the
term's meaning must be determined in the context in which the term is
used. Nothing in the context of the final rule that we are adopting
today suggests that section 784.28 should or could be applied to the
area overlying underground workings, except in the narrow situation in
which that area happens to be coincident with or within 100 feet of an
area upon which there will be surface activities associated with the
underground mine.
Final sections 780.28 and 784.28 are identical with the exception
of appropriate modifications to reflect the differences between surface
mining and underground mining. Most significantly, in section 784.28,
the term ``surface mining activities'' is replaced by language that
clarifies that the requirements of that section apply only to surface
activities conducted on the surface of lands in connection with an
underground coal mining operation. The following paragraphs discuss
each element of final sections 780.28 and 784.28.
1. Final Paragraph (a)
Paragraph (a)(1) of final sections 780.28 and 784.28 provides that,
except as otherwise specified in paragraph (a)(2), those sections apply
to applications to conduct activities in perennial or intermittent
streams or on the surface of lands within 100 feet, measured
horizontally, of perennial or intermittent streams. This paragraph
reflects the fact that, under sections 816.57(a) and 817.57(a), we
prohibit surface activities that would disturb the surface of lands
within 100 feet of perennial and intermittent streams unless the
regulatory authority approves a variance from that prohibition or
unless the exception in paragraph (b) of sections 816.57 and 817.57
applies. We have added a clause clarifying that the l00-foot buffer
zone must be measured horizontally, consistent with generally accepted
practice and convention with respect to distance requirements. We
originally proposed to include this clause in the mapping requirements
of paragraph (b), but we moved it to paragraph (a) as a result of our
decision not to adopt proposed paragraph (b). As we stated in the
preamble to proposed paragraph (b), the 100 feet must be measured from
the ordinary high water mark of the stream, consistent with the Corps
of Engineers' practices for establishing jurisdictional limits for
waters of the United States.
We are adding paragraph (a)(2)(i) to specify that sections 780.28
and 784.28 do not apply to applications under section 785.21 for
permits for coal preparation plants not located within the permit area
of a mine. This provision reflects the fact that we did not propose any
changes to the rules concerning those preparation plants in sections
785.21 and 827.12 of our regulations and the fact that we do not intend
for this final rule to alter those rules with respect to the
applicability of the stream buffer zone rules to coal preparation
plants not located in the permit area of a mine. Section 827.12 of our
rules does not apply the stream buffer zone rule in sections 816.57 and
817.57 to coal preparation plants not located within the permit area of
a mine. See 48 FR 20399, May 5, 1983.
We are adding paragraph (a)(2)(i) because, as part of this final
rule, we are moving the permitting aspects of the previous version of
the stream buffer zone rule in sections 816.57 and 817.57 to new
sections 780.28 and 784.28.
[[Page 75839]]
Existing section 785.21(c) provides that coal preparation plants not
located within the permit area of a mine are subject not only to the
special permitting requirements of section 785.21, but also to ``all
other applicable requirements of this subchapter.'' ``This subchapter''
refers to subchapter G of chapter VII, which contains the permitting
requirements for all surface coal mining and reclamation operations.
Thus, to ensure that section 785.21(c) is not now interpreted as
including the newly added permitting requirements related to the stream
buffer zone rule, we are adding the exception in paragraph (a)(2)(i) of
sections 780.28 and 784.28.
We are also adding paragraph (a)(2)(ii) to clarify that paragraphs
(b) through (e) of sections 780.28 and 784.28 do not apply to
diversions of perennial or intermittent streams, which are governed by
sections 780.29, 784.29, 816.43, and 817.43. This change reflects the
1983 rules, in which the findings and substantive requirements
applicable to the approval of stream-channel diversions were specified
primarily in the stream-channel diversion rules rather than the stream
buffer zone rules. Paragraph (b)(1) of sections 816.43 and 817.43
contains the finding that the regulatory authority must make before
approving a proposed stream-channel diversion. See Part VIII.G. of this
preamble for a discussion of the changes that we are making to the
stream-channel diversion rules.
2. Proposed Paragraph (b)
Proposed paragraph (b) would have required that maps submitted as
part of the permit application show all waters of the United States
that are located either within the proposed permit area or within the
adjacent area, as that term is defined at 30 CFR 701.5. However, with
our decision not to change the scope of the stream buffer zone rule
from perennial and intermittent streams to waters of the United States,
there is no longer any need for the proposed mapping requirement. The
existing requirements in sections 779.25(a)(7) and 783.25(a)(7), which
require that permit application maps show streams, lakes, ponds, and
springs located within the proposed permit and adjacent areas, are
adequate in that they require mapping of all perennial and intermittent
streams located in or within 100 feet of the permit area. Therefore,
comments opposing the adoption of proposed paragraph (b) are now moot
and will not be discussed further.
3. Final Paragraph (b)
Paragraph (b) of sections 780.28 and 784.28 establishes application
requirements for persons seeking to conduct activities in a perennial
or intermittent stream as part of one of the activities listed in
paragraphs (b)(2) through (b)(4) of section 816.57 or 817.57. Those
activities include construction of bridge abutments and other stream-
crossing structures in streams, construction of sedimentation pond
embankments in streams, and construction of excess spoil fills and coal
mine waste disposal facilities in streams. The application must
demonstrate that avoiding disturbance of the stream is not reasonably
possible and that the proposed activities will comply with all
applicable requirements in paragraphs (b) and (c) of section 816.57 or
817.57. These requirements, which we have adopted in response to
comments urging greater protection for headwater streams, as discussed
in Part VI.D. of this preamble, are more specific than paragraph (e) of
the proposed rule, which would have required only a demonstration that
to the extent possible, the applicant would use the best technology
currently available as required by the hydrologic balance protection
requirements of 30 CFR 816.41(d) or 817.41(d) and the fish and wildlife
protection requirements of 30 CFR 816.97(a) or 817.97(a).
4. Final Paragraph (c)
Paragraph (c) of sections 780.28 and 784.28 contains application
requirements for persons seeking to conduct surface activities that
would disturb the surface of land within 100 feet of a perennial or
intermittent stream, but that would not take place in the stream
itself. This paragraph applies only to activities that will occur on
lands subject to the buffer requirement of paragraph (a) of sections
816.57 and 817.57. It does not apply to activities conducted on lands
included within the scope of paragraph (b) of sections 816.57 and
817.57; i.e., to what would have been the buffer zone for stream
segments for which the regulatory authority approves one or more of the
activities listed in paragraphs (b)(1) through (b)(4) of section 816.57
or 817.57.
Under paragraph (c), the application must demonstrate that avoiding
disturbance of land within 100 feet of the stream either is not
reasonably possible or is not necessary to meet the fish and wildlife
and hydrologic balance protection provisions of the regulatory program.
In addition, the application must identify any lesser buffer that is
proposed instead of maintaining a 100-foot buffer between surface
activities and the perennial or intermittent stream. Finally; the
application must explain how the lesser buffer, together with any other
proposed protective measures, constitute the best technology currently
available to (1) prevent the contribution of additional suspended
solids to streamflow or runoff outside the permit area to the extent
possible, as required by section 780.21(h) or 784.14(g) and section
816.41(d)(1) or 817.41(d)(1), and (2) minimize disturbances and adverse
impacts on fish, wildlife, and related environmental values to the
extent possible, as required by section 780.16(b) or 784.21(b) and
section 816.97(a) or 817.97(a). Final paragraph (c) is similar to
paragraph (c) of the proposed rule except for the first of these
requirements [the one codified in paragraph (c)(1)], which we added in
response to comments urging greater protection for headwater streams,
as discussed in Part VI.D. of this preamble.
Paragraph (c)(3) of sections 780.28 and 784.28 refers to certain
other OSM rules. Among those rules, sections 816.41(d) and 817.41(d)
require, in relevant part, that mining operations prevent, to the
extent possible using the best technology currently available,
additional contribution of suspended solids to streamflow outside the
permit area. They implement, in part, the sedimentation prevention
requirements of sections 515(b)(10)(B)(i) and 516(b)(9)(B) of SMCRA,
respectively. Sections 816.97(a) and 817.97(a) require, in relevant
part, that, to the extent possible using the best technology currently
available, the operator minimize disturbances and adverse impacts on
fish, wildlife, and related environmental values. They implement, in
part, the fish and wildlife protection requirements of sections
515(b)(24) and 516(b)(11) of SMCRA, respectively. Sections 780.21(h)
and 784.14(g) require that each permit application include a hydrologic
reclamation plan designed to implement, among other things, the
requirements of sections 816.41(d) and 817.41(d), respectively.
Sections 780.16(b) and 784.21(b) require that each permit application
include a fish and wildlife protection and enhancement plan designed to
implement the requirements of sections 816.97(a) and 817.97(a),
respectively.
5. Final Paragraph (d)
Paragraph (d)(1) of sections 780.28 and 784.28 provides that before
approving any surface activities in a perennial or intermittent stream,
the regulatory authority must find in
[[Page 75840]]
writing that avoiding disturbance of the stream is not reasonably
possible and the plans submitted with the application meet all
applicable requirements in paragraphs (b) and (c) of section 816.57 or
817.57. The findings are the same as the demonstration that the
applicant must make in the application under paragraph (b) of these
sections. These findings, which we have adopted in response to comments
urging greater protection for headwater streams, as discussed in Part
VI.D. of this preamble, are more specific than the corresponding
provisions of paragraph (e) of the proposed rule, which would have
required only that the regulatory authority find that, to the extent
possible, the applicant will use the best technology currently
available as required by the hydrologic balance protection requirements
of 30 CFR 816.41(d) or 817.41(d) and the fish and wildlife protection
requirements of 30 CFR 816.97(a) or 817.97(a).
We are also adopting a new paragraph (d)(2) of sections 780.28 and
784.28 in response to comments that we received on proposed paragraph
(f) of those sections. Paragraph (d)(2) provides that before approving
a permit application in which the applicant proposes to conduct surface
activities in a perennial or intermittent stream, the regulatory
authority must include a permit condition requiring a demonstration of
compliance with the Clean Water Act in the manner specified in
paragraph (a)(2) of sections 816.57 and 817.57 before the permittee may
conduct those activities. This requirement applies to the extent that
the activities require authorization or certification under the Clean
Water Act. Please refer to the preamble discussion of paragraph (f) for
an explanation of the rationale for this provision.
6. Final Paragraph (e)
Paragraph (e) of sections 780.28 and 784.28 specifies that before
approving any surface activities that would disturb the surface of land
subject to the buffer requirement of section 816.57(a)(1) or
817.57(a)(1), the regulatory authority must find in writing that the
applicant has made the demonstrations required under paragraph (c) of
sections 780.28 and 784.28. The final rule is similar to paragraph (d)
of the proposed rule except that we decided not to adopt the provision
in paragraph (d)(1) of the proposed rule that would have established a
determination by the regulatory authority that the measures proposed by
the applicant would be no less effective in meeting the requirements of
the regulatory program than maintenance of an undisturbed buffer under
paragraph (a) of section 816.57 or 817.57 as a prerequisite for
approval.
Some commenters objected to this proposed requirement, noting that
the proposed rule did not include a corresponding requirement for a
similar demonstration in the permit application. They also stated that
the focus of any finding should be on whether the buffer and related
measures were effective in meeting other regulatory program
requirements, and that it would be very difficult to quantify the
theoretical effectiveness of a 100-foot buffer compared to a lesser
buffer on a site-specific basis, as the proposed rule would have
required. We agree. Therefore, we are not including a requirement for
the proposed finding in the final rule. The replacement finding in
paragraph (e)(1) of sections 780.28 and 784.28 in the final rule has a
counterpart in the permit application requirements of paragraph (c) and
focuses on whether and how the statutory and regulatory requirements to
use the best technology currently available to prevent additional
contributions of suspended solids to streamflow or runoff outside the
permit area to the extent possible and to minimize disturbances and
adverse impacts on fish, wildlife, and related environmental values to
the extent possible will be met.
The findings required by paragraph (e) of sections 780.28 and
784.28 replace the finding that the regulatory authority had to make
under paragraph (a)(1) of the 1983 version of sections 816.57 and
817.57 before authorizing activities that would disturb the surface of
lands within 100 feet of a perennial or intermittent stream. The
provision that we are deleting from sections 816.57 and 817.57 stated
that, before authorizing an activity closer than 100 feet to a
perennial or intermittent stream, the regulatory authority must find
that the activity 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. That requirement has no direct counterpart in
sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), or 516(b)(11) of
SMCRA, which, as previously discussed, are the provisions of SMCRA that
form the basis for the stream buffer zone rule.
The introductory language of sections 515(b)(10) and 516(b)(9) of
SMCRA does provide that performance standards for surface coal mining
operations must include a requirement for the minimization of
disturbances to the quality and quantity (or, in the case of section
516(b)(9), just the quantity) of water in surface and ground water
systems. However, that language does not stand alone as an independent
requirement. Instead, when read in its entirety, section 515(b)(10)
provides that the requirement for minimization of disturbances to water
quality and quantity must be achieved by implementation of the measures
and techniques described in subparagraphs (A) through (F) of section
515(b)(10). Similarly, section 516(b)(9) provides that the requirement
for minimization of disturbances to water quantity must be achieved by
implementation of subparagraphs (A) and (B) of section 516(b)(9).
In addition, sections 515(b)(10)(B)(i) and 516(b)(9)(B) refer only
to the prevention of additional contributions of suspended solids.
Those paragraphs provide that contributions of suspended solids to
streamflow must not be in excess of requirements set by applicable
State or Federal law, but they do not mention any other water quality
parameter. Therefore, that provision by itself does not authorize the
required finding previously found in paragraph (a)(1) of sections
816.57 and 817.57. Furthermore, the SMCRA regulatory authority is not
necessarily in the best position to determine whether a proposed
activity will cause or contribute to a violation of applicable State or
Federal water quality standards for any parameter. Those standards and
parameters are established and implemented under the authority of the
Clean Water Act (33 U.S.C. 1251 et seq.), not SMCRA, and are sometimes
administered by an agency other than the SMCRA regulatory authority.
Under 30 CFR 780.18(b)(9) and 784.13(b)(9), the SMCRA permit
application must include a description of the steps to be taken to
comply with the requirements of the Clean Air Act (42 U.S.C. 7401 et
seq.), the Clean Water Act (33 U.S.C. 1251 et seq.), and other
applicable air and water quality laws and regulations, but there is no
requirement that the SMCRA regulatory authority pass judgment on the
adequacy of that description or on the adequacy of the steps that the
applicant proposes to take.
As discussed above, sections 515(b)(10)(B)(i) and 516(b)(9)(B) of
SMCRA provide that ``in no event shall such contributions [of suspended
solids] be in excess of requirements set by applicable State or Federal
law.'' This language originated in H.R. 2, the House of
Representatives' version of the legislation that became SMCRA. In
[[Page 75841]]
describing the intent of these provisions, the House Committee on
Interior and Insular Affairs stated:
In cases where there will be water discharge from the mine
sites, the number of such discharges should be minimized by
collectively controlling and channeling the watercourse into an
acceptable receiving stream or area location. It also should be
understood that prior to any discharge off the permit area, the
discharge should be treated to remove pollutants that may be
present. Such treatment must, at a minimum, meet the requirements of
this Act and insure compliance with applicable local, State, or
Federal water quality requirements.
H. Rep. No. 95-218 at 116 (1977).
Nothing in the language of the Act or the legislative history
quoted above mandates retention of the provision that we are removing
from paragraph (a)(1) of sections 816.57 and 817.57. The statutory
provisions are clearly intended to ensure treatment of discharges from
the minesite that leave the permit area. Those requirements are already
addressed by the performance standards at 30 CFR 816.42 and 817.42,
which require that discharges of water from areas disturbed by surface
or underground mining activities ``be made in compliance with all
applicable State and Federal water quality laws and regulations and
with the effluent limitations for coal mining promulgated by the U.S.
Environmental Protection Agency set forth in 40 CFR Part 434.''
Similarly, other existing rules already cover the permit application
phase in that the determination of probable hydrologic consequences of
the proposed operation must include findings on what impact the
proposed operation will have on sediment yields from the disturbed area
and certain water quality parameters, including suspended solids. See
30 CFR 780.21(f)(3)(iv) and 784.14(e)(3)(iii). Under 30 CFR 780.21(h)
and 784.14(g), the hydrologic reclamation plan submitted with the
permit application must include a description of how the relevant
requirements of 30 CFR part 816 or 817, including the water quality
requirements of section 816.42 or 817.42, will be met and the measures
to be taken to ``prevent, to the extent possible using the best
technology currently available, additional contributions of suspended
solids to streamflow.''
In addition, the absolute nature of the ``will not adversely
affect'' language formerly found in paragraph (a)(1) of sections 816.57
and 817.57 is inconsistent with paragraphs (b)(10)(B)(i) and (b)(24) of
section 515 and paragraphs (b)(9)(B) and (b)(11) of section 516 of the
Act, all of which provide that surface coal mining operations must be
conducted to meet the requirements of those paragraphs ``to the extent
possible'' using the ``best technology currently available.'' The
appropriate standard under sections 515(b)(24) and 516(b)(11) is
minimization of disturbances and adverse impacts on fish, wildlife, and
related environmental values. While avoidance is the ultimate form of
minimization, there is no statutory basis for a rule that requires
absolute avoidance of all adverse effects. Such a rule would run afoul
of the plain language of sections 515(b)(24) and 516(b)(11) the Act,
which requires only minimization of disturbances and adverse impacts
and then only to the extent possible using the best technology
currently available.
As discussed more fully in Part III.D. of this preamble, the
preamble to the 1983 version of the stream buffer zone rules (``the
1983 preamble'') recognizes that the protection afforded by those rules
need not be absolute. It acknowledges that some adverse impacts on
hydrology and fish, wildlife, and related environmental values are
unavoidable because of the nature of surface coal mining operations.
Furthermore, the 1983 preamble states that ``OSM recognizes that some
surface mining activities can be conducted within 100 feet of a
perennial or an intermittent stream without causing significant adverse
impacts on the hydrologic balance and related environmental values,''
thus implying that some adverse impacts would occur. 48 FR 30313, col.
1, June 30, 1983, emphasis added. Similarly, ``final Sec. 816.57 is
intended to protect significant biological values in streams.'' Id.,
col. 3, emphasis added. And, with respect to stream diversions, the
1983 preamble specifies that--
Alteration of streams may have adverse aquatic and ecological
impacts on both diverted stream reaches and other downstream areas
with which they merge. However, final Sec. 816.57(a) will minimize
these impacts.
Id. at 30315, col. 1, emphasis added.
Our removal of the requirement formerly found in 30 CFR
816.57(a)(1) and 817.57(a)(1) for a finding concerning applicable State
or Federal water quality standards does not authorize activities that
would constitute or result in a violation of State or Federal water
quality standards. Section 702(a) of SMCRA provides that nothing in
SMCRA may be construed as superseding, amending, modifying, or
repealing the Clean Water Act, its implementing regulations, State laws
enacted pursuant to the Clean Water Act, or other Federal laws relating
to preservation of water quality. In addition, our regulations at 30
CFR 816.42 and 817.42 require that discharges of water from disturbed
areas ``be made in compliance with all applicable State and Federal
water quality laws and regulations.''
In the preamble to the proposed rule, we sought comment on whether
we should amend 30 CFR 816.42 and 817.42, which currently address only
discharges of water, to include a paragraph specifying, for
informational purposes, that discharges of dredged or fill materials
into waters of the United States must comply with all applicable State
and Federal requirements. Commenters were divided on the merits of this
potential rule change. We have decided against adding this provision,
both because of the possibility that the language might be erroneously
interpreted as being enforceable under SMCRA rather than as just an
informational provision and because adding the language is unlikely to
be helpful to the regulated community, which is well aware of the need
to comply with both SMCRA and the various elements of Clean Water Act
regulatory programs.
7. Final Paragraph (f)
Paragraph (f) of sections 780.28 and 784.28 summarizes the
relationship between SMCRA permitting actions and Clean Water Act
requirements. Paragraph (f)(1) provides that every permit application
must identify the authorizations that the applicant anticipates will be
needed under sections 401, 402, and 404 of the Clean Water Act, 33
U.S.C. 1341, 1342, and 1344, and describe the steps that the permit
applicant has taken or will take to procure those authorizations. This
provision implements, in part, section 508(a)(9) of SMCRA, which
requires that each permit application include ``the steps to be taken
to comply with applicable air and water quality laws and regulations.''
Paragraph (f)(2) of sections 780.28 and 784.28 specifies that, if
the permit application meets all applicable requirements of subchapter
G (the permitting regulations), the regulatory authority will process
the permit application and may issue the permit before the applicant
obtains all necessary authorizations under the Clean Water Act, 33
U.S.C. 1251 et seq. This arrangement may facilitate review by the Corps
of any preconstruction notification submitted by the permit applicant
under Nationwide Permits 21, 49, and 50. The nationwide permits
[[Page 75842]]
apply only if the SMCRA permit has already been issued or if the
application is being processed as part of an integrated permit
processing procedure. See 72 FR 11092, 11184, and 11191, March 12,
2007.
As proposed, paragraph (f)(2) would have provided that the
permittee may not initiate any activities for which Clean Water Act
authorization or certification is required until that authorization or
certification is obtained. The preamble to the proposed rule stated
that we considered that provision informational. We requested comment
on whether the provision should remain informational or whether we
should revise our rules to require its inclusion as a SMCRA permit
condition, which would mean that the prohibition on initiation of
activities before obtaining all necessary Clean Water Act
authorizations and certifications would be independently enforceable
under SMCRA. See 72 FR 48901, August 24, 2007.
Commenters were divided on this issue. The U.S. Fish and Wildlife
Service and the Geologic and Water Resources Divisions of the National
Park Service supported adoption of a rule requiring a permit condition
under SMCRA. The EPA also supported adoption of a requirement for a
permit condition under SMCRA, stating that such a requirement would
enhance compliance with Clean Water Act requirements. One state
regulatory authority opposed adoption of a requirement for a permit
condition; the commenter instead recommended that coordination of
permitting and enforcement of Clean Water Act requirements be left to
the states and the Corps. Comments from the mining industry strongly
opposed adoption of a rule that would impose a permit condition under
SMCRA, expressing the fear that it would only result in more
duplication and confusion in regulation of the coal mining industry.
One commenter stated that, if the permittee needs to comply with the
Clean Water Act, then the requirements of that statute should be
enforced according to the statutory scheme specified in the Clean Water
Act.
In response to the comments supporting adoption of a rule requiring
imposition of a permit condition, we are adding a new paragraph (d)(2)
to sections 780.28 and 784.28. That paragraph provides that before
approving a permit application in which the applicant proposes to
conduct surface activities in a perennial or intermittent stream, the
regulatory authority must include a permit condition requiring a
demonstration of compliance with the Clean Water Act in the manner
specified in paragraph (a)(2) of sections 816.57 and 817.57 before the
permittee may conduct those activities. This requirement applies to the
extent that the activities require authorization or certification under
the Clean Water Act. New paragraph (a)(2) of sections 816.57 and 817.57
provides that surface activities, including those activities identified
in paragraphs (b)(1) through (b)(4) of sections 816.57 and 817.57, may
be authorized in perennial or intermittent streams only where those
activities would not cause or contribute to the violation of applicable
State or Federal water quality standards developed pursuant to the
Clean Water Act, as determined through certification under section 401
of the Clean Water Act or a permit under section 402 or 404 of the
Clean Water Act.
However, in adopting these rules, we reiterate that nothing in
SMCRA provides the SMCRA regulatory authority with jurisdiction over
the Clean Water Act or the authority to determine when a permit or
authorization is required under the Clean Water Act. Under paragraphs
(a) and (a)(2) of section 702 of SMCRA, nothing in SMCRA (and, by
extension, regulations adopted under SMCRA) may be construed as
superseding, amending, modifying, or repealing the Clean Water Act or
any state laws or state or federal rules adopted under the Clean Water
Act. In addition, nothing in the Clean Water Act vests SMCRA regulatory
authorities with the authority to enforce compliance with the
permitting and certification requirements of that law.
We have revised proposed paragraph (f)(2) to be consistent with
these principles. As revised, final paragraph (f)(2) provides that
issuance of a SMCRA permit does not authorize the permittee to initiate
any activities for which Clean Water Act authorization or certification
is required. The final rule further states that ``[i]nformation
submitted and analyses conducted under subchapter G of this chapter may
inform the agency responsible for authorizations and certifications
under sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C.
1341, 1342, and 1344, but they are not a substitute for the reviews,
authorizations, and certifications required under those sections of the
Clean Water Act.'' Paragraph (f)(2) does not impose any new
requirements under SMCRA, nor does it authorize the regulatory
authority to make any determinations required under the Clean Water
Act.
D. Section 780.35 Disposal of Excess Spoil (Surface Mines)
1. General Discussion of the Rule and the Rationale for the Rule
Changes
The environmental impacts of fills and other structures associated
with the disposal of excess spoil from surface coal mining operations,
and of coal mine waste, have been the subject of controversy, largely
because they involve the filling of substantial portions of stream
valleys, especially in central Appalachia. This controversy has
highlighted the need to ensure that excess spoil creation is minimized
to the extent possible, and that excess spoil and coal mine waste
disposal facilities are located and designed to minimize disturbances
and adverse impacts on fish, wildlife, and related environmental values
to the extent possible, using the best technology currently available,
as required by sections 515(b)(24) and 516(b)(11) of SMCRA.
Prior to the adoption of this final rule, our regulations
pertaining to the disposal of excess spoil primarily focused on
ensuring that fills are safe and stable. This final rule adds several
requirements intended to promote environmental protection, including
minimization of the adverse environmental impacts of fill construction
in perennial and intermittent streams. Several commenters argued that
we have no authority to adopt these regulations because section
515(b)(22) of SMCRA, which establishes standards for the disposal of
excess spoil, does not include any requirements for protection of fish,
wildlife, and related environmental values, but instead focuses on
engineering standards intended to promote stability, prevent mass
movement, and control infiltration of water. We do not agree with the
commenters. The rule changes that we are adopting today implement, in
part, the requirement in section 515(b)(24) of SMCRA that surface coal
mining and reclamation operations be conducted in a manner that
minimizes disturbances to, and adverse impacts on, fish, wildlife, and
related environmental values to the extent possible, using the best
technology currently available. Section 515(b)(24) applies to the
disposal of excess spoil both by its own terms (disposal of excess
spoil is a part of surface coal mining and reclamation operations) and
through section 515(b)(22)(I), which requires that the placement of
excess spoil meet ``all other provisions of this Act.'' SMCRA contains
numerous environmental protection requirements that apply to all
[[Page 75843]]
surface coal mining and reclamation operations and all aspects of those
operations, including the disposal of excess spoil. The fact that
section 515(b)(22) does not mention environmental protection in no way
suggests that excess spoil fills need not comply with the environmental
protection provisions of SMCRA or that we lack the authority to adopt
regulations establishing environmental protection requirements for
those structures.
One commenter stated that we should limit the applicability of the
new regulations governing excess spoil placement to operations in
steep-slope areas where the spoil will be placed in stream channels.
The commenter also stated that the generation and disposal of excess
spoil as part of non-steep slope operations has never been identified
as a significant issue and that we have not provided any significant
justification in the rulemaking record to support a need for applying
the excess spoil rule to non-steep-slope operations. We disagree. We
believe that these changes to our rules have merit wherever the
potential exists for operations to generate excess spoil and that they
should apply nationwide. Streams in non-steep-slope areas are no less
significant in terms of fish, wildlife, and related environmental
values than are streams in steep-slope areas. Excess spoil fills
outside central Appalachia are rare but they do occur.
Several commenters requested that the preamble clarify that the
term ``excess spoil'' does not include initial box cut spoil from the
first cut in an area mine, even though it will be placed outside the
mined area. Nothing in this final rule alters the definition of
``excess spoil'' or how that term is applied or interpreted. As defined
in section 701.5, the term ``excess spoil'' means--
Spoil material disposed of in a location other than the mined
out area; provided that spoil material used to achieve the
approximate original contour or to blend the mined-out area with the
surrounding terrain in accordance with Sec. Sec. 816.102(d) and
817.102(d) of this chapter in non-steep slope areas shall not be
considered excess spoil.
The preamble to the definition of ``excess spoil'' states that--
In the final rule, spoil used to merely blend the mined-out area
with the surrounding terrain need not be treated as excess spoil.
Thus, spoil from box cuts or first cuts in non-steep slope areas
would not be excess spoil when it is used to achieve approximate
original contour; i.e., to blend the mined-out area into the
surrounding terrain according to Sec. 816.102(d) of the backfilling
and grading rules. * * * If, however, the spoil from a box cut or a
first cut is deposited on slopes with angles defined as steep
slopes, the box cut or first cut spoil must be handled as excess
spoil in accordance with Sec. Sec. 816.71 and 817.71.
48 FR 32911 (July 19, 1983).
Paragraph (a)(1) of section 780.35 of the final rule requires that
surface coal mining operations be designed to minimize the creation of
excess spoil to the extent possible. Paragraph (a)(2) of section 780.35
of the final rule specifies that the maximum cumulative design volume
of all proposed excess spoil fills within the permit area must be no
larger than the capacity needed to accommodate the anticipated
cumulative volume of excess spoil that the operation will generate.
These requirements should reduce the adverse impacts of the operation
on fish, wildlife, and related environmental values by minimizing the
amount of land and water disturbed to construct excess spoil fills.
Paragraph (a)(3) of section 780.35 of the final rule requires that
the permit application include an analysis of the impacts on fish,
wildlife, and related environmental values of a reasonable range of
alternatives for disposal of excess spoil, including variations in the
number, size, location, and configuration of proposed fills. Only
reasonably possible alternatives that differ significantly in their
impacts on fish, wildlife, and related environmental values need be
considered. The analysis must consider impacts on both terrestrial and
aquatic ecosystems. In addition, when construction of the excess spoil
fill would involve placement of excess spoil in perennial or
intermittent streams, the rule specifies certain factors that must be
considered as part of the evaluation of impacts on fish, wildlife, and
related environmental values to ensure adequate assessment of impacts
on water quality and aquatic ecosystems, which are among the ``related
environmental values'' mentioned in sections 515(b)(24) and 516(b)(11)
of SMCRA. The applicant must select the alternative with the least
overall adverse impact on fish, wildlife, and related environmental
values, including adverse impacts on water quality and aquatic and
terrestrial ecosystems.
We are adopting these rules to improve the analysis of permit
applications and permitting decisions under SMCRA. SMCRA itself does
not require an analysis of alternatives. However, we believe that the
alternatives analysis requirement is a reasonable means of implementing
sections 515(b)(24) and 516(b)(11) of SMCRA. Those provisions of the
Act require that surface coal mining and reclamation operations be
conducted in a manner that minimizes disturbances and adverse impacts
on fish, wildlife, and related environmental values to the extent
possible, using the best technology currently available.
The addition of these requirements to our rules is consistent with
section 102(d) of SMCRA, which provides that one of the purposes of
SMCRA is to assure that surface coal mining operations are conducted so
as to protect the environment. In addition, the rules are consistent
with section 102(f) of SMCRA, which provides that another purpose of
SMCRA is to strike a balance between protection of the environment and
the nation's need for coal as an essential energy source. The rule
changes that we are adopting today discourage the disturbance of
perennial and intermittent streams and their buffers, but they also
recognize that it is not reasonably possible to do so in all cases for
all types of surface coal mining operations. For example, if the
creation of excess spoil as part of a surface coal mining operation is
unavoidable, the final rule would not prevent construction of the fills
needed to accommodate the excess spoil. Instead, our new and revised
rules are intended to ensure that surface coal mining and reclamation
operations are planned and conducted in a manner that minimizes adverse
environmental impacts from the construction of fills for the disposal
of excess spoil to the extent that it is possible to do so without
restricting coal production in a manner inconsistent with SMCRA in
general and sections 816.59 and 817.59 of our regulations in
particular. Section 201(c)(2) of SMCRA, 30 U.S.C. 1211(c)(2), which
directs the Secretary of the Interior to publish and promulgate such
rules and regulations as may be necessary to carry out the purposes and
provisions of SMCRA, provides additional authority for the adoption of
these rules.
One state regulatory authority stated that trying to balance the
fill minimization requirements of paragraphs (a)(1) and (2) with the
alternatives analysis and alternative selection requirements of
paragraph (a)(3) will be extremely difficult. According to the
commenter, the best location to place excess spoil to minimize the
footprint of the fill is not likely to be the best location
environmentally. The commenter suggested that guidance may be needed to
address this potential conflict.
We do not agree that the requirements of these paragraphs are in
conflict. Paragraph (a)(1) requires that the volume of excess spoil
created by the operation be minimized by returning as
[[Page 75844]]
much of the spoil as possible to the mined-out area, after taking into
consideration applicable regulations concerning final contours, safety,
stability, environmental protection, and the postmining land use.
Paragraph (a)(2) requires that the operation be designed so that the
maximum cumulative volume of all planned excess spoil fills does not
exceed the capacity needed to accommodate the anticipate cumulative
volume of excess spoil that the proposed operation will generate.
Nothing in these two paragraphs in any way contradicts the provision in
paragraph (a)(3) requiring selection of the alternative with least
overall adverse impact on fish, wildlife, and related environmental
values.
As proposed, this final rule consolidates most fill design and
permitting requirements in the permit application regulations in
sections 780.35 and 784.19, rather than splitting them between those
regulations and the performance standards in sections 816.71 and
817.71, as they were before the adoption of this rule. Also, as
proposed, the final rule revises the rule language to remove
inconsistencies between the performance standards and the permitting
requirements, to eliminate redundancies, and to be more consistent with
plain language principles.
The final rule adds paragraphs (a)(1) through (a)(4) to section
780.35 to establish environmentally-oriented requirements for permit
applications for operations that propose to generate excess spoil. In
the remainder of this part of the preamble, we discuss those and other
provisions of the final rule and the comments received on their
counterparts in the proposed rule.
2. Final Paragraphs (a)(1) and (a)(2)
Paragraph (a)(1) of section 780.35 provides that each application
for an operation that would generate excess spoil must include a
demonstration, prepared to the satisfaction of the regulatory
authority, that the operation has been designed to minimize the volume
of excess spoil to the extent possible, thus ensuring that as much
spoil as possible is returned to the mined-out area. The demonstration
must take into consideration applicable regulations concerning
restoration of the approximate original contour, safety, stability, and
environmental protection and the needs of the proposed postmining land
use. Some or all of those factors may limit the amount of spoil that
can be returned to the mined-out area, especially the requirements
related to safety, stability, and postmining land use. Also, if the
regulatory authority does not approve the proposed postmining land use,
the applicant and the regulatory authority will need to revisit the
demonstration to determine whether it must be revised to reflect the
needs and attributes of the postmining land use that is finally
approved.
Paragraph (a)(2) of section 780.35 requires that the application
include a demonstration that the designed maximum cumulative volume of
all proposed excess spoil fills within the permit area is no larger
than the capacity needed to accommodate the anticipated cumulative
volume of excess spoil that the operation will generate.
The goal of both paragraphs (a)(1) and (a)(2) is to minimize fill
footprints and thus minimize disturbances of forests, perennial and
intermittent streams, and riparian vegetation, consistent with the
requirement in sections 515(b)(24) and 516(b)(11) of SMCRA to minimize
disturbances and adverse impacts on fish, wildlife, and related
environmental values to the extent possible using the best technology
currently available.
Since the mid-1990's, the extent of excess spoil fill construction
in central Appalachia has been controversial, especially when fills
bury stream segments. As part of our oversight activities, we conducted
studies in 1999 in Kentucky, Virginia, and West Virginia to determine
how state regulatory authorities were administering SMCRA regulatory
programs regarding restoration of approximate original contour. From
our review of permit files and reclaimed mines, we determined that,
typically, some of the spoil placed in excess spoil fills could have
been retained on or returned to mined-out areas. See ``An Evaluation of
Approximate Original Contour and Postmining Land Use in Kentucky''
(OSM, September 1999); ``An Evaluation of Approximate Original Contour
Variances and Postmining Land Uses in Virginia'' (OSM, September 1999);
and ``Final Report: An Evaluation of Approximate Original Contour and
Postmining Land Use in West Virginia'' (OSM, May 1999).
In many instances, we found that the permit application
overestimated the anticipated volume of excess spoil that the operation
would produce. In addition, fills were designed and constructed larger
than necessary to accommodate the anticipated excess spoil, which
resulted in the unnecessary disturbance of additional land. Kentucky,
Virginia, and West Virginia worked with us to develop enhanced guidance
on material balance determinations, spoil management, and approximate
original contour determinations to correct these problems to the extent
feasible under the existing regulations. We also developed guidance for
use under the Tennessee Federal regulatory program. In most cases, the
regulatory authorities in those states have adopted policies based on
that guidance for use in reviewing permit applications.
Some industry commenters opposed the new excess spoil minimization
requirements, citing the preceding discussion as evidence that the
policies appear to be satisfactorily addressing any past issues and
that there is no longer any problem that would justify rulemaking.
Other industry commenters supported these provisions to the extent that
they codify policies that are working in the central Appalachian
states.
We believe that adoption of proposed paragraphs (a)(1) and (a)(2)
as final rules is appropriate because policies are subject to change.
The final rules that we are adopting today reinforce the basis for the
policies in place in Kentucky, Tennessee, Virginia, and West Virginia.
They also strengthen the enforceability of decisions based on those
policies and provide national consistency by ensuring that certain
basic requirements will be applied nationwide, including in those
states that have not adopted policies. We also believe that the
environment, the public, and the regulated community are best served by
the adoption of national regulations to clarify environmental
considerations concerning the generation and disposal of excess spoil.
3. Final Paragraph (a)(3)
As proposed, paragraph (a)(3) of section 780.35 would have required
that each application include a description of all excess spoil
disposal alternatives considered and an analysis of the environmental
impacts of those alternatives. In the final rule, we extensively
revised and reorganized paragraph (a)(3) in response to the many
comments that we received on this portion of the proposed rule.
Discussion of General Comments Received on Proposed Paragraph (a)(3)
Industry commenters strongly opposed the requirement in proposed
paragraph (a)(3) for an analysis of alternatives for excess spoil
fills. The commenters cited a variety of reasons, including excessive
costs, delays in permitting, duplication of effort with the Clean Water
Act, the probable lack of environmental benefits, the potential for
conflict between the SMCRA
[[Page 75845]]
regulatory authority's application of the alternatives analysis
requirement and the approach adopted by the Clean Water Act permitting
authority, a lack of justification under SMCRA, exceeding the intent of
SMCRA, and a fear that this requirement could result in a never-ending
cycle of analysis and litigation concerning whether the correct
alternative was selected by the permit applicant and approved by the
state regulatory authority. Many commenters stated that the requirement
for an alternatives analysis has no basis in SMCRA and instead appears
to be a mixture of provisions borrowed from the National Environmental
Policy Act and the Clean Water Act.
Nothing in the proposed alternatives analysis requirement in
paragraph (a)(3) of sections 780.35 and 784.19 of the final rule is
based upon the National Environmental Policy Act. We respectfully
disagree with those commenters who argued that the requirement for an
alternatives analysis is a Clean Water Act requirement that has no
basis or justification under SMCRA and that exceeds the intent of
SMCRA. We acknowledge that we derived this element of our proposed
rules from the alternatives analysis requirements of the 404(b)(1)
Guidelines in 40 CFR part 230, which include the substantive
environmental criteria used in evaluating activities regulated under
section 404 of the Clean Water Act. However, we concluded that a
modified version of the alternatives analysis requirements in the
404(b)(1) Guidelines is an appropriate means of obtaining the
background data and analyses that both the applicant and the regulatory
authority need to make informed decisions concerning compliance with
the requirements of sections 515(b)(24) and 516(b)(11) of SMCRA, which
provide that surface coal mining and reclamation operations must be
conducted to minimize disturbances and adverse impacts on fish,
wildlife, and related environmental values to the extent possible,
using the best technology currently available. Therefore, paragraphs
(a)(3)(ii) and (a)(3)(iii) of sections 780.35 and 784.19 of this final
rule apply the alternatives analysis requirement to all applications
that propose to place excess spoil in or within 100 feet of a perennial
or intermittent stream. In addition, paragraph (a)(3)(iii)(A) of these
sections of the final rule applies more detailed analytical
requirements to applications that propose to place excess spoil in
perennial or intermittent streams as opposed to applications that
propose to place excess spoil only within 100 feet of those streams.
One commenter stated that the rule should not require an
alternatives analysis when the permit applicant proposes to use excess
spoil to reclaim benches and highwalls on abandoned mine lands.
Alternatively, the commenter suggested that any reasonably possible
alternative that consisted solely of placement on abandoned mine
benches should be deemed the alternative with the least overall adverse
environmental impact. We interpret these comments as referring to
excess spoil fills constructed on preexisting benches under 30 CFR
816.74 and 817.74. We encourage the use of excess spoil to reclaim
abandoned mine lands, but we do not agree that applications proposing
to use excess spoil for that purpose should be exempt from compliance
with the alternatives analysis requirements of paragraph (a)(3).
Perennial and intermittent streams merit special consideration
regardless of whether those streams flow through undisturbed land or
abandoned mine lands. Also, abandoned mine lands vary widely in
quality, so we do not agree that an alternative proposing to place
excess spoil only on abandoned mine lands should be deemed the
alternative with the least overall adverse impact on fish, wildlife,
and related environmental values. However, the alternatives analysis
requirement applies only if the applicant proposes to place excess
spoil in or within 100 feet of a perennial or intermittent stream. When
constructing fills on preexisting benches, there is a distinct
possibility that the requirement will not apply at all because there
may be no perennial or intermittent streams within 100 feet of the
benches.
A few commenters criticized the analysis of alternatives provisions
of the proposed rule because they did not completely parallel the
requirements of the 404(b)(1) Guidelines in 40 CFR part 230. At least
one commenter recommended that we incorporate the 404(b)(1) Guidelines
by reference. We do not find this recommendation appropriate because
the 404(b)(1) Guidelines are designed to implement the Clean Water Act,
while our regulations implement SMCRA and must be based upon SMCRA
requirements. Under section 702(a) of SMCRA, nothing in SMCRA may be
construed as amending, modifying, repealing, or superseding any Clean
Water Act requirement. However, there is also nothing in SMCRA that
would compel or authorize us to adopt regulations that parallel or
incorporate Clean Water Act requirements.
SMCRA and the Clean Water Act provide for separate regulatory
programs with different purposes and very different permitting
requirements and procedures. In addition, as other commenters noted,
SMCRA and the Clean Water Act differ considerably with respect to
jurisdiction. The Clean Water Act focuses on regulating discharges of
pollutants into waters of the United States, whereas SMCRA regulates a
broad universe of environmental and other impacts of surface coal
mining and reclamation operations, including impacts on water quantity,
water quality, and terrestrial and aquatic ecosystems. We encourage
coordination and cooperation between the SMCRA regulatory authority and
the agencies administering the Clean Water Act. See the memorandum of
understanding entitled ``Memorandum of Understanding among the U.S.
Army Corps of Engineers, the U.S. Office of Surface Mining, the U.S.
Environmental Protection Agency, and the U.S. Fish and Wildlife Service
for the Purpose of Providing Concurrent and Coordinated Review and
Processing of Surface Coal Mining Applications Proposing Placement of
Dredged and/or Fill Material in Waters of the United States,'' which
took effect February 8, 2005, and the provisions of this final rule
that authorize the SMCRA regulatory authority to accept an analysis of
alternatives completed for Clean Water Act purposes as meeting the
requirements for an analysis of alternatives under this final rule,
when and to the extent appropriate. However, we believe that
maintaining the distinction between the SMCRA regulatory program and
Clean Water Act programs is both administratively and legally
appropriate. That conclusion is supported by the comments that we
received from both industry and state regulatory authorities.
Many industry commenters, supported by some, but not all, state
regulatory authority commenters, stated that the proposed alternatives
analysis requirement would introduce a major new element of
uncertainty, and result in costly and wasteful duplication of effort on
the part of permit applicants and state regulatory authorities. The
commenters stated that this element of our proposed rule was
inconsistent with our statement in the preamble to that rule that a
primary reason for the rulemaking was to provide improved clarity and
reduction of uncertainty regarding the meaning of the regulations. One
commenter stated that at best the alternatives analysis requirement
``adds yet another layer of
[[Page 75846]]
redundant paperwork and analysis as it duplicates the federally-
administered 404 process. At worst, OSM has set the stage for conflicts
between the section 404 program and the largely state-implemented SMCRA
programs.'' The commenter further stated that by imposing an
alternatives analysis requirement on state regulatory authorities, we
are ``flirting dangerously'' with creating conflicting alternatives
analyses because ``the goals and objectives of SMCRA and corresponding
state statutes may be different than those of the Corps and EPA under
section 404.''
While we understand the commenters' apprehensions, these comments
are speculative in nature. There may be some initial uncertainty as
regulatory authorities establish procedures and criteria for
implementing the alternative analysis requirements and determining
least overall adverse impact on fish, wildlife, and related
environmental values under this rule, but that uncertainty should
subside once those procedures and criteria are in place.
The Interstate Mining Compact Commission, writing on behalf of
member state regulatory authorities, argued that the alternatives
analysis requirement is duplicative of requirements under the Clean
Water Act that are already encompassed by the SMCRA permitting scheme.
As discussed elsewhere in this preamble, we believe that the
alternatives analysis requirement that we are adopting as part of this
final rule differs from and serves a somewhat different purpose than
the alternatives analysis requirement under the regulations and other
documents implementing section 404 of the Clean Water Act. To the
extent that duplication may exist, we encourage states to coordinate
the processing of coal mining permit applications with the U.S. Army
Corps of Engineers in accordance with a memorandum of understanding
entitled ``Memorandum of Understanding among the U.S. Army Corps of
Engineers, the U.S. Office of Surface Mining, the U.S. Environmental
Protection Agency, and the U.S. Fish and Wildlife Service for the
Purpose of Providing Concurrent and Coordinated Review and Processing
of Surface Coal Mining Applications Proposing Placement of Dredged and/
or Fill Material in Waters of the United States,'' which took effect
February 8, 2005. In addition, this final rule authorizes the SMCRA
regulatory authority to accept an analysis of alternatives completed
for Clean Water Act purposes as meeting the requirements for an
analysis of alternatives under this final rule, when and to the extent
appropriate.
The Commission and some, but not all, commenters representing
individual state regulatory authorities also opposed the alternatives
analysis requirement in the proposed rule because of state fiscal
constraints and fear of the ``potentially overwhelming'' time and
effort that would be required for state permitting personnel to
adequately review and analyze alternatives.
We anticipate that few, if any, state regulatory authorities will
experience a significant increase in demands on their resources as a
result of the alternatives analysis requirement in the final rule. West
Virginia, one of the states most impacted by the rule, supported the
proposed rule. Kentucky, another state that would be significantly
impacted, estimated that, on average, the new requirement would add ten
hours to the time required to process a permit application. We believe
that the intangible environmental benefits of the rule (increased
scrutiny of efforts to minimize adverse impacts on fish, wildlife, and
related environmental values associated with perennial and intermittent
streams) will outweigh what we anticipate will be a modest increase in
demand on state regulatory authority resources.
The U.S. Fish and Wildlife Service requested that we work with the
Service to build a process into the alternative analysis requirements
in the final rule to protect unique and high value fish and wildlife
resources. In response, we note that our fish and wildlife protection
rules at 30 CFR 816.97(f) and 817.97(f) already require that the
operator ``avoid disturbances to, enhance where practicable, or restore
habitats of unusually high value for fish and wildlife.'' In addition,
our permitting rules at 30 CFR 780.16 and 784.21 provide a role for the
Service in determining fish and wildlife data collection requirements
and reviewing the fish and wildlife protection plan in the permit
application. Therefore, addition of the provision requested by the
Service is not necessary.
Discussion of Specific Provisions of Final Paragraph (a)(3)
In the final rule, the first sentence of paragraph (a)(3) provides
that the permit applicant must design the operation to avoid placement
of excess spoil in or within 100 feet of perennial and intermittent
streams to the extent possible. We added this provision in response to
EPA concerns and numerous comments urging greater protection for
headwater streams because of their ecological importance and
contribution to the function of the stream as a whole. In effect, the
new sentence identifies avoiding placement of excess spoil in or within
100 feet of perennial or intermittent streams as the preferred method
of complying with the SMCRA requirement to minimize disturbances and
adverse impacts on fish, wildlife, and related environmental values
with respect to those streams. That is, whenever avoidance of
disturbance is reasonably possible, the final rule establishes
avoidance as the best technology currently available to comply with the
provisions of sections 515(b)(24) and 516(b)(11) of SMCRA, which
require minimization of disturbances and adverse impacts on fish,
wildlife, and related environmental values to the extent possible using
the best technology currently available. This provision of the final
rule is consistent with our stream buffer zone rules at 30 CFR 816.57
and 817.57, which establish maintenance of an undisturbed buffer for
perennial and intermittent streams as the best technology currently
available to meet the requirements of sections 515(b)(24) and
516(b)(11) of SMCRA, provided maintenance of an undisturbed buffer is
reasonably possible.
However, the final rule does not and cannot mandate avoidance in
all cases for all stream segments. The provisions of SMCRA underlying
this rule require minimization of disturbances and adverse impacts on
fish, wildlife, and related environmental values only ``to the extent
possible.'' Avoiding disturbance of the stream and maintenance of an
undisturbed buffer zone for that stream is the ultimate means of
minimizing adverse impacts on fish, wildlife, and related environmental
values and hence is the default best technology currently available to
comply with the statutory minimization requirement. However, there is
sometimes no alternative to the construction of excess spoil fills in
perennial or intermittent streams and their buffer zones if the
proposed surface coal mining operation is to be viable. Prohibiting the
construction of excess spoil fills would in effect preclude coal
recovery in those situations. Under those circumstances, SMCRA--and
hence this final rule--do not require avoidance of disturbance because
avoidance is not reasonably possible. Instead, the applicant must
propose other methods of complying with the minimization requirement
that are consistent with the proposed surface coal mining operations.
We do not interpret SMCRA as authorizing us to prohibit surface coal
mining operations
[[Page 75847]]
in situations other than those specifically set forth in the Act.
However, SMCRA does not override prohibitions that apply under other
laws and regulations, so we will also recognize those prohibitions in
reaching a decision on a permit application.
As proposed, paragraph (a)(3) would have required an alternatives
analysis for all operations that propose to generate excess spoil. In
response to comments citing the probable lack of environmental benefits
of the proposed alternatives analysis requirement and the burden that
it would impose, we have reconsidered this requirement and paragraph
(a)(3) of the final rule restricts the alternatives analysis
requirement to those situations in which the applicant proposes to
place excess spoil in or within 100 feet of a perennial or intermittent
stream. We believe that this restriction is appropriate because those
lands are likely to be the most significant in terms of fish, wildlife,
and related environmental values. In addition, this limitation may
facilitate coordination with permitting requirements under section 404
of the Clean Water Act, which apply whenever a permit applicant
proposes to place fill material in waters of the United States.
Paragraph (a)(3)(i) of the final rule requires that the permit
applicant explain, to the satisfaction of the regulatory authority, why
an alternative that does not involve placement of excess spoil in or
within 100 feet of a perennial or intermittent stream is not reasonably
possible. We added this requirement to reinforce the provision in
paragraph (a)(3) of the final rule establishing avoidance of placement
of excess spoil in or within 100 feet of a perennial or intermittent
stream, whenever avoidance is reasonably possible, as the best
technology currently available to comply with the statutory requirement
for minimization of disturbances and adverse impacts on fish, wildlife,
and related environmental values to the extent possible using the best
technology currently available.
Paragraph (a)(3)(ii) of the final rule provides that, if the permit
applicant is unable to design the operation to avoid placement of
excess spoil in or within 100 feet of a perennial or intermittent
stream, the application must identify a reasonable range of
alternatives that vary with respect to the number, size, location, and
configuration of proposed excess spoil fills. A number of commenters on
the proposed rule expressed concern that the requirement to identify a
reasonable range of alternatives was too vague and could be interpreted
as requiring an unlimited number of alternatives, including those that
have no possibility of being implemented. In response to this concern,
we have added language clarifying that paragraph (a)(3)(ii) does not
require identification of all potential alternatives and that only
those reasonably possible alternatives that are likely to differ
significantly in terms of impacts on fish, wildlife, and related
environmental values (either in degree or in watersheds affected) need
be identified and considered. The latter provision is consistent with
the policies to which EPA and the Corps adhere in implementing section
404 of the Clean Water Act. See the EPA/COE memorandum entitled
``Appropriate Level of Analysis Required for Evaluating Compliance with
the Section 404(b)(1) Guidelines Alternatives Requirements.''
In response to commenters' concerns, we also added language to
paragraph (a)(3)(ii) of the final rule specifying that an alternative
is reasonably possible if it conforms to the safety, engineering,
design, and construction requirements of the regulatory program; is
capable of being done after consideration of cost, logistics, and
available technology; and is consistent with the coal recovery
provisions of sections 816.59 and 817.59. In other words, nothing in
the rule should be construed as elevating environmental concerns over
safety considerations, as prohibiting the conduct of surface coal
mining operations that are not otherwise prohibited under SMCRA or
other laws or regulations, or as requiring consideration of
unreasonably expensive or technologically infeasible alternatives.
The portion of this rule that refers to ``consideration of cost,
logistics, and available technology'' is derived from the EPA
regulations at 40 CFR 230.10(a)(2), which define a practicable
alternative for purposes of section 404 of the Clean Water Act. In
interpreting this provision, the EPA/COE memorandum entitled
``Appropriate Level of Analysis Required for Evaluating Compliance with
the Section 404(b)(1) Guidelines Alternatives Requirements'' states
that ``[t]he determination of what constitutes an unreasonable expense
should generally consider whether the projected cost is substantially
greater than the costs normally associated with this particular type of
project.'' We have included similar language in paragraph (a)(3)(ii)(B)
of the final rule because (1) the concept of a practicable alternative
for purposes of section 404 of the Clean Water Act is in some ways
analogous to the determination of reasonably possible alternatives
under this rule, and (2) the principle is consistent with the phrase
``to the extent possible'' in sections 515(b)(24) and 516(b)(11) of
SMCRA. See Part VI.D. of this preamble for a more extensive discussion
of the rationale for our use of the term ``reasonably possible'' and
its consistency with statutory provisions.
The final rule does not include the provision in paragraph
(a)(3)(iii) of the proposed rule stating that the least costly
alternative may not be selected at the expense of environmental
protection solely on the basis of cost. One commenter objected to the
proposed provision as being too extreme and subject to
misinterpretation, noting that there may be situations in which cost
could and should be the determining factor. We agree. Nothing in SMCRA
would compel adoption of this provision. In lieu of this provision, we
have added language to paragraph (a)(3)(ii)(B) of the final rule
clarifying that the fact that one alternative may cost somewhat more
than a different alternative does not necessarily warrant exclusion of
the more costly alternative from consideration. We believe that the
revised language is more consistent with sections 515(b)(24) and
516(b)(11) of SMCRA, which require use of the best technology currently
available, but only to the extent possible.
Paragraph (a)(3)(iii) of the final rule provides that any
application proposing to place excess spoil in or within 100 feet of a
perennial or intermittent stream must include an analysis of the
impacts of the alternatives identified in paragraph (a)(3)(ii) on fish,
wildlife, and related environmental values. The analysis must consider
impacts on both terrestrial and aquatic ecosystems. For example,
depending on the topography and geology of the area, the analysis could
compare the impacts of constructing a few large excess spoil fills
versus a greater number of small fills, as well as the relative impacts
of concentrating fills in one or a few watersheds as opposed to placing
them in multiple watersheds. In addition, the quality of the receiving
waters must be taken into consideration in that it may be
environmentally preferable to concentrate fills and their impacts in
watersheds with the lowest water quality, to the extent that it is
possible to do so.
Paragraph (a)(3)(iii)(A) of the final rule provides that, for every
alternative that proposes placement of excess spoil in a perennial or
intermittent stream, the analysis must include an evaluation of impacts
on the physical, chemical, and biological characteristics of the stream
downstream of the proposed fill, including seasonal variations in
[[Page 75848]]
temperature and volume, changes in stream turbidity or sedimentation,
the degree to which the excess spoil may introduce or increase
contaminants, and the effects on aquatic organisms and the wildlife
that is dependent upon the stream. As discussed below, this paragraph
of the final rule includes a number of changes from the proposed rule
as a result of the comments that we received on the proposed rule.
One commenter on a virtually identical provision in the proposed
coal mine waste disposal rules stated that--
[T]he components of an alternatives analysis for a coal mine
disposal activity, as set forth in proposed 30 CFR 784.16(d)(1)(ii),
should be subdivided for clarity and certain of the components
should be reconsidered in terms of their purpose or value. As
written, 30 CFR 784.16(d)(1)(ii) requires ``* * * an evaluation of
short-term and long-term impacts on the aquatic ecosystem, both
individually and on a cumulative basis'' and goes on to specify that
the evaluation ``must consider impacts on the physical, chemical,
and biological characteristics of downstream flow, including
seasonal variations in temperature and volume, changes in stream
turbidity or sedimentation, the degree to which the coal mine waste
may introduce or increase contaminants, the effects on aquatic
organisms and the extent to which wildlife is dependent upon those
organisms.'' As strung together, these requirements create a number
of ambiguities, which will lead to problems in interpretation. The
list also includes terms that have no recognized meaning, such as
``biological characteristics of downstream flows.'' In addition to
these ambiguities, this section also requires assessments that are
new to the regulation of mining activities, including assessments of
the effects of turbidity and of secondary impacts on wildlife that
may be dependent on aquatic organisms in a potentially affected
water body. In the absence of commonly recognized guidelines, the
results of these assessments will be virtually impossible to
validate.
We have revised the rule to replace the potentially confusing
phrase ``biological characteristics of downstream flows'' with clearer
language requiring information on the biological characteristics of the
stream downstream of the proposed excess spoil fill. See paragraph
(a)(3)(iii)(A) of final sections 780.35 and 784.19. We also replaced
the requirement for an evaluation of the extent to which wildlife is
dependent upon aquatic organisms with a requirement for an evaluation
of the effects of the proposed operation on wildlife that is dependent
upon the stream.
In addition, we decided not to adopt the portion of proposed
paragraph (a)(3)(ii) requiring that the analysis include an evaluation
of the short-term and long-term impacts of each alternative on the
aquatic ecosystem, both individually and on a cumulative basis. This
proposed requirement is subsumed within the other analytical
requirements of the final rule and would not likely result in the
submission of any meaningful additional information.
However, we did not make further changes in response to this
comment because the commenter did not explain how the requirements
should be subdivided for clarity or why or how they create ambiguity.
With respect to the commenter's statement that the assessments required
by this rule will be impossible to validate in the absence of commonly
recognized guidelines, we believe that the commenter may have
misunderstood the purpose of the evaluation required by this rule. The
data and analyses required by this rule are intended only to facilitate
comparisons of the relative impacts of various alternatives on fish,
wildlife, and related environmental values, not to establish
reclamation standards. To the extent that the commenter may have meant
that there are no generally accepted protocols for evaluating some of
the listed characteristics, we believe that regulatory authorities have
the technical capability to develop any needed protocols specific to
conditions within their states.
One state regulatory authority urged us to revise the rule to
include consideration of impacts such as traffic, dust and noise on
local residents who may be affected by a proposed operation. While we
encourage permit applicants to consider these factors in designing
their operations, we do not consider them to be disturbances or adverse
impacts on fish, wildlife, and related environmental values within the
context of sections 515(b)(24) and 516(b)(11) of SMCRA. Therefore, we
are not including those factors as required components of the
alternatives analysis under paragraph (a)(3)(iii) of the final rule.
Paragraph (a)(3)(iii)(B) of the final rule allows the applicant to
submit an analysis of alternatives prepared under 40 CFR 230.10 for
Clean Water Act purposes in lieu of the analysis of impacts on fish,
wildlife, and related environmental values required under paragraph
(a)(3)(iii)(A) of the final rule. The regulatory authority will
determine the extent to which that analysis satisfies the requirements
of paragraph (a)(3)(iii)(A) of the final rule. These provisions of the
final rule are similar to their counterparts in the proposed rule.
One commenter expressed dismay that the rule did not require that
the regulatory authority accept the Clean Water Act analysis of
alternatives as fully meeting the requirements of this rule. We do not
believe that addition of this requirement to our rules would be
appropriate because the alternatives analysis required under the final
rule must address all environmental impacts (both aquatic and
terrestrial) of surface coal mining and reclamation operations, whereas
the analysis of alternatives required under Clean Water Act regulations
focuses on impacts to waters of the United States. However, under the
final rule, the SMCRA regulatory authority has the discretion to
determine that an analysis of alternatives conducted for Clean Water
Act purposes satisfies the requirements for an analysis of alternatives
under this final rule, in whole or in part, as appropriate.
Paragraph (a)(3)(iv) of the final rule requires selection of the
alternative with the least overall adverse impact on fish, wildlife,
and related environmental values, including adverse impacts on water
quality and aquatic and terrestrial ecosystems, to the extent possible.
The proposed rule included an additional sentence specifying that if
the applicant proposes to select a different alternative, the applicant
must demonstrate, to the satisfaction of the regulatory authority, why
implementation of the more environmentally protective alternative is
not possible. The final rule does not include this sentence because we
have determined that it is neither needed nor appropriate in view of
the other changes that we have made to the rule. Specifically, we have
added language to paragraph (a)(3)(ii) of the final rule limiting the
alternatives that the applicant must identify to only those
alternatives that are reasonably possible. In addition, we have added
paragraph (a)(3)(i), which requires that the permit applicant explain,
to the satisfaction of the regulatory authority, why an alternative
that does not involve placement of excess spoil in or within 100 feet
of a perennial or intermittent stream is not reasonably possible. The
combination of these two changes means that the sentence in the
proposed rule is no longer logical or appropriate because the only
alternatives considered under the final rule are those that are
reasonably possible, which means that, within the universe of
reasonably possible alternatives identified, the applicant must select
the alternative with the least overall adverse impact on fish,
wildlife, and related environmental values. In other words, the
sentence in the proposed rule no longer has any relevance or meaning
because, under the final rule, the applicant does not
[[Page 75849]]
have the option of proposing alternatives that are not reasonably
possible. Given that change, the final rule provides that the applicant
must select the alternative with the least overall adverse impact on
fish, wildlife, and related environmental values.
Some commenters requested that we define or explain the term
``least overall adverse environmental impact.'' We do not believe that
a meaningful definition is possible, given the somewhat subjective
nature of the term and the site-specific nature of determinations under
this rule. We expect that persons preparing permit applications and
regulatory authority personnel reviewing those applications will use
their best professional judgment in applying the requirements of this
paragraph of the rule. Consistent with the commonly accepted meaning of
the words ``overall'' and ``environmental,'' we have modified the rule
to clarify that the scope of the term includes impacts to terrestrial
ecosystems, not just impacts to water quality and aquatic ecosystems.
The relative importance of these three components, as well as the
constituents of each of those components, will vary from site to site.
Therefore, they are not readily defined in a national rule. However, we
have replaced the term ``least overall adverse environmental impact''
in the proposed rule with the term ``least overall impact on fish,
wildlife, and related environmental values'' to be consistent with the
terminology that appears in the underlying statutory provisions at
sections 515(b)(24) and 516(b)(11) of SMCRA and to provide greater
clarity.
EPA encouraged both permit applicants and SMCRA regulatory
authorities to use a watershed approach in determining which
alternative would have the least overall adverse impact on fish,
wildlife, and related environmental values:
A watershed approach expands the informational and analytic
basis of site selection decisions to ensure impacts are considered
on a watershed scale rather than only project by project. The idea
being locational factors (e.g., hydrology, surrounding land use) are
important to evaluating the indirect and cumulative impacts of the
project. Watershed planning efforts can identify and prioritize
where preservation of existing aquatic resources are important for
maintaining or improving the quality (and functioning) of downstream
resources. The objective of this evaluation is to maintain and
improve the quantity and quality of the watershed's aquatic
resources and to ensure water quality standards (numeric and
narrative criteria, anti-degradation, and designated uses) are met
in downstream waters.
Permit applicants should work with federal and state regulatory
authorities to identify appropriate and available information, such
as existing watershed plans, or in the absence of such plans,
existing information on current watershed conditions and needs, past
and current mining (and other development) trends, cumulative
impacts of past, present, and reasonable foreseeable future mining
activities, and chronic environmental problems (e.g., poor water
quality, CWA 303(d)--listed streams, etc.) in the watershed. The
regulatory authorities can also provide information on the
appropriate watershed scale to consider. The level of data and
analysis for implementing a watershed approach should be
commensurate with the scale of the project, to the extent
appropriate and reasonable.
We agree that the analysis of potential alternatives required under
paragraph (d)(1)(ii) should appropriately consider the overall
condition of the aquatic resources in the watershed, including any
impacts from previous mining activities.
4. Proposed Paragraph (a)(4)
Proposed paragraph (a)(4) of section 780.35 provided that each
application for an operation that will generate and dispose of excess
spoil must describe the steps to be taken to avoid the adverse
environmental impacts that may result from the construction of excess
spoil fills or, if avoidance is not possible, to minimize those
impacts. The preamble to the proposed rule explained that this
requirement applied to construction, maintenance, and reclamation of
the alternative selected under proposed paragraph (a)(3)(iii).
EPA recommended that we revise the rule to incorporate the concepts
of avoidance and minimization of adverse environmental impacts into the
alternatives analysis required by proposed paragraphs (a)(3)(i) and
(ii) rather than placing them in a separate paragraph. EPA stated that
the intended purpose of the alternatives analysis is to determine the
means by which excess spoil could be disposed of with the least adverse
environmental impact. EPA further recommended removal of the preamble
language in the proposed rule that specified that the avoidance and
minimization requirements in proposed paragraph (a)(4) only applied to
the alternative selected under proposed paragraph (a)(3)(iii).
According to EPA, these changes would reduce potential uncertainty
regarding the appropriate factors to consider in the alternatives
analysis and would reinforce the requirement to evaluate different
project locations and design elements when assessing the viability and
environmental impacts of each location.
After considering these comments and the changes that we made to
paragraph (a)(3) in the final rule, we have decided not to adopt
proposed paragraph (a)(4) because provisions of that paragraph are now
redundant and unnecessary. Under 30 CFR 816.97(a) and 817.97(a), the
operator must, to the extent possible, using the best technology
currently available, minimize disturbances and adverse impacts on fish
and wildlife and related environmental values and must achieve
enhancement of those resources where practicable. Paragraph (f) of 30
CFR 816.97 and 817.97 provides that the operator must avoid
disturbances to, enhance where practicable, restore, or replace
wetlands and riparian vegetation along rivers and streams and bordering
ponds and lakes. That paragraph also requires that the operator avoid
disturbances to, enhance where practicable, or restore habitats of
unusually high value for fish and wildlife. Paragraph (b)(1) of 30 CFR
780.16 and 784.21 requires that the fish and wildlife protection and
enhancement plan in the permit application be consistent with the
requirements of 30 CFR 816.97 and 817.97, respectively. Therefore,
proposed paragraph (a)(4) would not add any requirements that are not
already found in 30 CFR 816.97 and 817.97.
In addition, as revised in the final rule, paragraph (a)(3) of
section 780.35 provides that permit applicants should design their
operations to avoid placement of excess spoil in or within 100 feet of
a perennial or intermittent stream to the extent possible. This new
provision establishes avoidance of disturbance of perennial and
intermittent streams and their buffer zones as the best technology
currently available to comply with the requirement under sections
515(b)(24) and 516(b)(11) of SMCRA to minimize disturbances and adverse
impacts on fish, wildlife, and related environmental values. However,
the statutory minimization requirement applies only ``to the extent
possible,'' and, given the realities of geology (which dictates where
coal is located), topography, and mining mechanics and economics, it is
not always possible to implement the ultimate form of minimization,
which is avoidance of disturbances, and still conduct surface coal
mining operations. Consequently, paragraph (a)(3) of the final rule
requires that the applicant avoid disturbance only to the extent
possible. Paragraph (a)(3)(i) of the revised final rule provides that,
when a permit applicant proposes to place excess spoil in or within 100
feet of a perennial or intermittent stream, the applicant must explain,
to the satisfaction of the regulatory authority,
[[Page 75850]]
why an alternative that does not involve placement of excess spoil in
or within 100 feet of a perennial or intermittent stream is not
reasonably possible. Therefore, adoption of proposed paragraph (a)(4)
is no longer appropriate because, as revised, paragraph (a)(3) of the
final rule requires consideration of avoidance as part of the
alternatives analysis and selection process.
In the preamble to the proposed rule, we stated that we anticipated
that the steps mentioned in proposed paragraph (a)(4) would include
provisions in the operation plan to require that, when consistent with
prudent engineering practice and applicable regulatory requirements,
excess spoil placement begin at the highest elevation of the planned
fill and proceed down the valley to the toe of the fill, thus
minimizing both impacts to waters of the United States and the area
affected in the event that the full design capacity of the fill is not
needed because of changes in mining plans or other reasons. We
requested comment on whether this approach should be incorporated into
the rule language.
We received very few comments and those that we did receive were
split on this question. In this final rule, we have decided against
endorsing or adopting a ``top-down'' construction requirement because
the technique raises serious stability issues. In addition, it would be
inconsistent with provisions in the West Virginia Code of State
Regulations (CSR) adopted to address fill stability problems that the
state encountered. West Virginia requires that all durable rock fills
either be constructed from the toe up as provided by CSR 38-2-14.14.g.3
or that an erosion protection zone be established below the toe of the
single-lift fill in accordance with CSR 38-2-14.14.g.2. That zone is a
flat area of durable rock equal in length to half the height of the
fill. The height of the erosion protection zone must be sufficient to
accommodate designed flow from the underdrain of the fill. Because
section 515(b)(22) of the Act focuses on stability considerations in
the disposal of excess spoil, we do not believe that it would be
appropriate to adopt a regulation that could be in conflict with
existing state program requirements intended to ensure fill stability
and protect downstream residents and structures. Furthermore, top-down
construction is feasible only for durable rock fills under 30 CFR
816.73 and 817.73 and not all excess spoil qualifies for placement
under those sections of our rules. Other regulations that we are
adopting today as part of sections 780.35(a)(1) and (a)(2) and
784.19(a)(1) and (a)(2) require that operations be designed both to
minimize the creation of excess spoil and in a manner that ensures that
the cumulative volume of all proposed excess spoil fills does not
exceed the capacity needed to accommodate the anticipated amount of
excess spoil that the operation will produce. We believe that those
provisions should be adequate to minimize the areas affected by excess
spoil disposal.
5. Final Paragraph (a)(4)
Final paragraph (a)(4), which appeared as paragraph (a)(5) in the
proposed rule, requires that each application for an operation that
proposes to generate excess spoil include maps and cross-section
drawings showing the location of all proposed disposal sites and
structures. It also requires that fills be located on the most
moderately sloping and naturally stable areas available, unless the
regulatory authority approves a different location based upon the
alternatives analysis under paragraph (a)(3) or on other requirements
of the Act and regulations. Whenever possible, fills must be placed
upon or above a natural terrace, bench, or berm if that location would
provide additional stability and prevent mass movement. The final rule
differs slightly from the proposed rule in that we have revised the
wording to clarify that if the regulatory authority approves a
different location, that decision must be based upon the alternatives
analysis under paragraph (a)(3) or on other requirements of the Act and
regulations The wording of the proposed rule was subject to
misinterpretation because it allowed approval of a different location
based upon the alternatives analysis ``or other factors, taking into
account other requirements of the Act and regulations.''
The requirement for maps and cross-section drawings formerly
appeared as part of the first sentence of paragraph (a) of section
780.35, while the fill location requirements formerly appeared in 30
CFR 816.71(c). Those location requirements are more logically included
as part of the planning and design requirements in the permitting
regulations rather than as part of the performance standards. As
formerly codified in 30 CFR 816.71(c), the rule required that fills be
located on the most moderately sloping and naturally stable areas
available. However, as proposed, the final rule allows the regulatory
authority to approve different locations, based upon the analysis of
alternatives required under proposed paragraph (a)(3) of section 780.35
or on other requirements of the Act and regulations. This change is
needed to ensure that the analysis of alternatives and consideration of
impacts on fish, wildlife, and related environmental values are a
meaningful part of the site selection process. The change is consistent
with section 515(b)(22)(E) of SMCRA, which requires that excess spoil
be placed ``upon the most moderate slope among those upon which, in the
judgment of the regulatory authority, the spoil could be placed in
compliance with all the requirements of the Act.'' One of the
requirements of the Act is the provision in section 515(b)(24)
specifying that surface coal mining and reclamation operations must be
conducted so as to minimize disturbances and adverse impacts on fish,
wildlife, and related environmental values to the extent possible,
using the best technology currently available. Implementation of that
requirement may entail placement of spoil on slopes other than the most
moderate ones available.
6. Final Paragraph (a)(5)
Final paragraph (a)(5), which appeared as paragraph (a)(6) in the
proposed rule, requires that an application for an operation that would
generate excess spoil include detailed design plans for each excess
spoil disposal structure, prepared in accordance with the requirements
of sections 780.35 and 816.71 through 816.74. These requirements
correspond to a portion of the first sentence of the former version of
section 780.35(a). As proposed, we have added language requiring
compliance with the requirements of section 780.35 in recognition of
the other revisions to that section. Paragraph (a)(5) also includes a
requirement to design the fill and appurtenant structures using current
prudent engineering practices and any additional design criteria
established by the regulatory authority. This requirement is not new.
It formerly appeared in the first sentence of 30 CFR 816.71(b)(1). As
proposed, we are moving it to 30 CFR 780.35(a)(5) because it is a
design requirement, not a performance standard.
7. Final Paragraph (a)(6)
Final paragraph (a)(6), which appeared as paragraph (a)(7) in the
proposed rule, requires that the application include the results of a
geotechnical investigation of each proposed excess spoil disposal site,
with the exception of those sites at which spoil will be placed only on
a preexisting bench under 30 CFR 816.74. This requirement formerly
appeared in section 780.35(b). As proposed, final paragraph (a)(6) also
includes the
[[Page 75851]]
requirement to conduct sufficient foundation investigations that
formerly appeared in 30 CFR 816.71(d)(1). This shift is consistent with
our effort to consolidate design requirements in the permitting rules
rather than splitting them between the permitting rules and the
performance standards. The foundation investigation is an element of
the geotechnical investigation that is required for approval of a
proposed excess spoil fill in a permit application.
8. Final Paragraph (a)(7)
Final paragraph (a)(7), which appeared as paragraph (a)(8) in the
proposed rule, requires that each application include plans for the
construction, operation, maintenance, and reclamation of all excess
spoil disposal structures (fills) in accordance with the requirements
of 30 CFR 816.71 through 816.74. This requirement corresponds to a
similar provision formerly located in section 780.35(a). However, that
provision included a requirement for plans for the ``removal, if
appropriate, of the site and structures.'' Because excess spoil fills
are permanent, it is not appropriate to include plans for their removal
in the application. Consequently, as proposed, we have replaced the
requirement for plans for removal of the fills with a requirement for
plans for their reclamation, which would consist of final site
preparation and revegetation consistent with the approved postmining
land use.
9. Final Paragraph (a)(8)
Final paragraph (a)(8), which appeared as paragraph (a)(9) in the
proposed rule, combines overlapping requirements formerly found in 30
CFR 780.35(c) and 816.71(d)(2) concerning application and design
requirements for keyway cuts or rock-toe buttresses. We made no
substantive changes in those requirements.
10. Final Paragraph (b)
As proposed, final paragraph (b) requires that the application
include a certification by a qualified registered professional engineer
experienced in the design of earth and rock fills that the design of
all fills and appurtenant structures meets the requirements of section
780.35. This requirement formerly appeared in the second sentence of 30
CFR 816.71(b)(1). We have moved it to section 780.35 consistent with
our effort to consolidate design requirements in the permitting rules
rather than splitting them between the permitting rules and the
performance standards. We made no substantive changes to this
provision.
E. Section 784.19: Disposal of Excess Spoil (Underground Mines)
As proposed, we are revising section 784.19 to be consistent with
the definition of coal mine waste in 30 CFR 701.5, which we adopted on
September 26, 1983 (48 FR 44006). Among other things, that definition
reclassified underground development waste as coal mine waste, which
means that fills constructed of underground development waste must
adhere to the requirements for refuse piles instead of the requirements
applicable to excess spoil fills. At the same time that we adopted the
definition of coal mine waste in 1983, we revised our performance
standards at 30 CFR 817.71 through 817.74 to eliminate the language
that combined underground development waste with excess spoil for
purposes of performance standards for underground mines. Because the
definition of coal mine waste includes underground development waste,
the disposal of underground development waste is subject to the
performance standards for refuse piles at 30 CFR 817.83 rather than the
performance standards for the disposal of excess spoil that applied
under the pre-1983 rules.
Prior to the adoption of today's final rule, the design
requirements for fills in section 784.19 applied to both underground
development waste and excess spoil, which means that the permitting
requirements were inconsistent with the 1983 changes to the
corresponding performance standards. We have revised section 784.19 to
apply only to the disposal of excess spoil, consistent with the 1983
changes to our definitions and performance standards regarding coal
mine waste. For the same reason, we removed all references to
underground development waste and revised the section heading to read
``Disposal of excess spoil'' instead of ``Underground development
waste.'' Under the final rule that we are adopting today, the disposal
of underground development waste is now governed by the permitting
requirements for refuse piles in 30 CFR 784.16.
As proposed, final section 784.19 parallels the language of section
780.35, which contains the permit application requirements for the
disposal of excess spoil generated by surface mining activities. The
previous rule incorporated those requirements by reference. Adding
specific language in place of the cross-reference to section 780.35
makes this rule consistent with the pattern established in most of our
other rules for surface and underground mines, in which the provisions
for surface and underground mines are in separate parts, but are nearly
identical except for cross-references and the type of operation to
which they apply. In addition, adding specific language in place of the
cross-reference to section 780.35 allows the incorporation of cross-
references to the appropriate underground mining performance standards
in part 817 rather than having to use the cross-references in section
780.35 to the surface mining performance standards in part 816.
A few commenters stated that, because of the limited amount of
excess spoil generated by underground mines, we should use our
authority under section 516(d) of SMCRA to develop less stringent
permitting requirements for the disposal of that spoil. We decline to
accept that recommendation. We find nothing unique about the type of
excess spoil fills constructed as part of underground mining
operations. The number of fills constructed as part of underground
mining operations may be fewer than the number constructed as part of
surface mines and the size of those fills may be smaller than those
associated with surface mines, but that is not always true. In
addition, we find no reason that fills associated with underground
mines should be subject to lesser safety, stability, or environmental
protection requirements than fills associated with surface mines.
Some industry commenters on the proposed rule also opposed the
September 26, 1983, rule changes that classified underground
development waste as coal mine waste and required that coal mine waste
(including underground development waste) disposed of outside the mine
workings and excavations be placed in accordance with 30 CFR 817.83,
which contains the performance standards for refuse piles. The
commenters argued that underground development waste should be treated
as excess spoil, not coal mine waste. The commenters' objections are
untimely. The definition of coal mine waste in 30 CFR 701.5 is now a
matter of settled law, as is the removal of the applicability of the
excess spoil performance standards at 30 CFR 817.71 through 817.73 to
underground development waste. The performance standard at 30 CFR
817.81(a), which requires that coal mine waste disposed of outside the
mine workings and excavations be placed in designated coal mine waste
disposal areas within the permit area, also is settled law. The
existing regulations at 30 CFR 817.71(i) allow coal mine waste to be
placed in excess spoil fills with the approval of the regulatory
authority,
[[Page 75852]]
but only if the waste is nontoxic and non-acid-forming and only if the
waste is placed in accordance with 30 CFR 817.83 (the requirements for
refuse piles).
Several commenters expressed concern that the 1983 rule's
classification of underground development waste as coal mine waste
could prohibit the use of underground development material for
construction of face-up areas, support facilities, and other beneficial
uses. Underground development waste is unlikely to be used for the
construction of face-up areas because the face-up of the mine must be
completed and construction of mine adits must begin before underground
development waste would be produced. Perhaps the commenters are
interpreting the 1983 rules as classifying material removed as part of
the face-up of the underground mine as underground development waste.
If so, the commenters are misreading those rules. Nothing in the
definitions of coal mine waste or underground development waste
classifies face-up materials as either coal mine waste or underground
development waste. In addition, nothing in our existing rules or the
rules that we are adopting today would prohibit the use of underground
development waste for construction of support facilities or other
mining-related uses, provided the use of the waste for those purposes
complies with all regulatory program requirements applicable to those
uses. The final rules that we are adopting today apply only to the
permanent disposal of coal mine waste (including underground
development waste), not to the temporary use of those materials for
mining-related purposes. In other words, our excess spoil rules do not
apply to the temporary storage of material removed during face-up of an
underground mine if that material must be returned or regraded upon the
completion of mining to restore the approximate original contour. The
excess spoil rules apply only to permanent placement.
The rationale for the specific provisions concerning excess spoil
that we are adopting as part of section 784.19 today is the same as the
rationale for the changes to section 780.35 that we are also adopting
as part of this final rule. See Part VIII.D. of this preamble for a
discussion of those rules and the rationale for them, substituting
section 516(b)(11) for references to section 515(b)(24) and replacing
references to the surface mining performance standards in part 816 with
references to the corresponding underground mining performance
standards in part 817.
F. Sections 816.11 and 817.11: Signs and Markers
Prior to adoption of this final rule, the requirement that the
operator mark buffer zones for perennial and intermittent streams
appeared in both the stream buffer zone rules in sections 816.57(b) and
817.57(b) and the rules concerning signs and markers in sections
816.11(e) and 817.11(e). As proposed, we are consolidating our buffer
zone marking requirements in sections 816.11(e) and 817.11(e). As
revised, section 816.11(e), which applies to surface mines, provides
that the boundaries of any buffer to be maintained between surface
mining activities and perennial or intermittent streams in accordance
with sections 780.28 and 816.57(a) must be clearly marked to avoid
disturbance by surface mining activities. Similarly, section 817.11(e),
which applies to underground mines, provides that the boundaries of any
buffer to be maintained between surface activities and perennial or
intermittent streams in accordance with sections 784.28 and 817.57(a)
must be clearly marked to avoid disturbance by surface operations and
facilities resulting from or in connection with an underground mine.
We received no comments on these changes.
G. Sections 816.43 and 817.43: Diversions
Before adoption of this final rule, sections 816.43(b)(1) and
817.43(b)(1) provided that the regulatory authority may approve
diversion of perennial and intermittent streams within the permit area
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. The referenced finding
was the second part of the finding formerly located in sections
816.57(a)(1) and 817.57(a)(1).
As proposed, in this final rule we are replacing that finding with
a provision that is more consistent with the underlying provisions of
SMCRA. Sections 515(b)(10), 515(b)(24), 516(b)(9), and 516(b)(11) of
SMCRA do not establish or authorize a ``will not adversely affect''
standard like the one formerly found in our stream buffer zone rules at
30 CFR 816.57(a)(1) and 817.57(a)(1). Section 515(b)(10) requires that
surface coal mining and reclamation operations be conducted to
``minimize the disturbances to the prevailing hydrologic balance at the
mine site and in associated offsite areas and to the quality and
quantity of water in surface and ground water systems both during and
after surface coal mining operations and during reclamation.''
Section 516(b)(9), which pertains to underground coal mining
operations, contains similar language with the exception that it does
not mention water quality. Sections 515(b)(24) and 516(b)(11) require
that surface coal mining and reclamation operations be conducted to
``minimize disturbances and adverse impacts of the operation on fish,
wildlife, and related environmental values'' ``to the extent possible
using the best technology currently available.'' As demonstrated by
these quotes, SMCRA establishes a minimization standard rather than an
absolute ``will not adversely affect'' standard with respect to
disturbance of the hydrologic balance and disturbances and adverse
impacts on fish, wildlife, and related environmental values.
Consequently, we proposed to revise paragraph (b) of sections
816.43(b)(1) and 817.43(b)(1) to provide that the regulatory authority
may approve the diversion of perennial and intermittent streams within
the permit area if the diversion is located, designed, constructed, and
maintained using the best technology currently available to minimize
adverse impacts to fish, wildlife, and related environmental values to
the extent possible. This provision is consistent with sections
515(b)(24) and 516(b)(11) of SMCRA. Nothing in this rule should be
construed as superseding the performance standards for the protection
of fish, wildlife, and related environmental values in 30 CFR 816.97
and 817.97 or the related permitting requirements at 30 CFR 780.16 and
784.21.
No counterpart to sections 515(b)(10) or 516(b)(9) is necessary
because paragraph (a)(1) of sections 816.43 and 817.43, which applies
to diversions of all types, including stream-channel diversions,
already provides that ``[a]ll diversions shall be designed to minimize
adverse impacts to the hydrologic balance within the permit and
adjacent areas.'' Furthermore, paragraph (a)(2)(iii) of sections 816.43
and 817.43 requires that all diversions be designed, located,
constructed, maintained, and used to prevent, to the extent possible,
using the best technology currently available, additional contributions
of suspended solids to streamflow outside the permit area.'' The
language of that paragraph closely resembles the language of sections
515(b)(10)(B)(i) and 516(b)(9)(B) of the Act, which are two of the
statutory provisions underlying the existing stream buffer zone rules.
Furthermore, our permitting regulations
[[Page 75853]]
at 30 CFR 780.29 and 784.29 require that each permit application
include a description of how stream-channel diversions and other
diversions are to be constructed in compliance with 30 CFR 816.43 and
817.43, respectively.
In this final rule, we are adopting the proposed revisions to
sections 816.43(b)(1) and 817.43(b)(1) with one editorial change.
Instead of stating that the regulatory authority may approve the
diversion of perennial and intermittent streams within the permit area
if the diversion is located, designed, constructed, and maintained
using the best technology currently available to minimize adverse
impacts to fish, wildlife, and related environmental values to the
extent possible, the final rule applies that provision only to the
location and design of the diversion. This limitation is appropriate
because those are the elements that would be included in the permit
application. Construction and maintenance are more appropriately
included in a separate performance standard, which we have accomplished
by adding a sentence to the end of paragraph (b)(1) stating that the
permittee must construct and maintain the diversion in accordance with
the approved design.
The U.S. Fish and Wildlife Service stated that we were adopting a
less protective standard by revising the standard from one that
required a finding that ``the diversion will not adversely affect the
water quantity and quality and related environmental resources of the
stream'' to a requirement that the diversion use the best technology
currently available to minimize adverse impacts to fish, wildlife, and
related environmental values to the extent possible. We do not dispute
this characterization. However, the new standard is one that reflects
the provisions of SMCRA whereas the previous standard has no direct
connection to SMCRA and is neither appropriate nor practicable. The
Service recommended that we work with them to develop state or regional
design standards that are practicable and effective. We accept this
recommendation. We also intend to invite EPA to participate because
that agency also expressed an interest in this process.
The last sentence of paragraph (a)(3) of sections 816.43 and 817.43
as published on September 26, 1983 (48 FR 43993), provides that ``[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 enhancement of the aquatic habitat.'' In the preamble to
the proposed rule, we stated that the sentence pertained only to
stream-channel diversions. Therefore, we proposed to move that sentence
to paragraph (b) of sections 816.43 and 817.43 because those sections
contain all other performance standards that pertain only to stream-
channel diversions. As proposed, the final rule that we are adopting
today inserts that sentence in revised form as paragraph (b)(4) of
sections 816.43 and 817.43 and redesignates former paragraph (b)(4) as
paragraph (b)(5).
However, EPA noted that the effect of the proposed changes would be
to limit the requirements of that sentence to diversions of perennial
and intermittent streams, thus excluding diversions of ephemeral
streams. EPA stated that nothing in the existing rules limited the
scope of the last sentence of paragraph (a)(3) to perennial and
intermittent streams. While supporting new paragraph (b)(4), EPA urged
us to also retain the last sentence of paragraph (a)(3) in paragraph
(a) to ensure that its requirements continue to apply to permanent
diversions of miscellaneous flows (including ephemeral streams) under
paragraph (c).
After considering this comment, we have decided not to implement
our proposal to remove the last sentence of paragraph (a)(3). We
recognize that there will be situations in which permanent diversions
of ephemeral streams are constructed and that some ephemeral streams
may have riparian vegetation or aquatic habitats that must be replaced
or restored to the extent required under paragraphs (a) and (f) of 30
CFR 816.97 and 817.97. However, because all other elements of paragraph
(a)(3) pertain only to temporary diversions, we are redesignating that
sentence as new paragraph (a)(4) and are redesignating existing
paragraph (a)(4) as paragraph (a)(5). In addition, for clarity and
consistency with new paragraph (b)(4), we have slightly revised new
paragraph (a)(4) by replacing the phrase ``stream channel reclaimed
after the removal of a temporary diversion'' with ``stream channel
restored after the completion of mining'' to avoid creating the
impression that the temporary diversion must be removed before
constructing a restored stream channel. We also inserted the modifier
``any'' in front of ``riparian vegetation'' because not all ephemeral
streams have riparian vegetation.
We have decided not to adopt our proposed editorial revisions to
paragraph (a)(3) of sections 816.43 and 817.43 because we have
determined that they would not improve the clarity of that paragraph.
Revised paragraph (b)(4) provides that a permanent stream-channel
diversion or a stream channel restored after the completion of mining
must be designed and constructed using natural channel design
techniques so as to restore or approximate the premining
characteristics of the original stream channel, including the natural
riparian vegetation and the natural hydrological characteristics of the
original stream, to promote the recovery and enhancement of the aquatic
habitat and to minimize adverse alteration of stream channels on and
off the site, including channel deepening or enlargement, to the extent
possible. The final rule is similar to the proposed rule, although, to
improve clarity, we replaced the phrase ``stream channel reclaimed
after the removal of a temporary diversion'' in the proposed rule with
the more accurate phrase ``stream channel restored after the completion
of mining.'' The revised language reflects the facts that, in the
context of this rule, a stream channel is restored, not reclaimed (in
30 CFR 701.5, we define reclamation in terms of the postmining land
use), and that the restored stream channel must be in place before the
temporary stream-channel diversion is removed.
As proposed, paragraph (b)(4) includes new language concerning
natural channel design and adverse alteration of stream channels. This
language reinforces and clarifies the meaning of the requirement to
restore or approximate the premining characteristics of the original
stream. The goals of natural channel design include creating a stream
channel that will maintain the equilibrium of a natural stream, neither
downcutting (degrading) nor filling in (aggrading). A natural channel
is not stable in the sense that a concrete, trapezoidal channel is
stable. Depending on the stream type, a natural channel may meander,
eroding and depositing sediment at natural rates as part of its dynamic
equilibrium. The channel must pass the water and sediment that it
receives downstream, and the channel must maintain a connection to the
stream's floodplain. The new provisions are consistent with sections
515(b)(24) and 516(b)(11) of SMCRA, which require use of the best
technology currently available to minimize disturbances and adverse
impacts to fish, wildlife, and related environmental values to the
extent possible.
In a final rule on compensatory mitigation for losses of aquatic
[[Page 75854]]
resources, published on April 10, 2008 (73 FR 19594), EPA and the Corps
promulgated standards for compensatory mitigation for adverse impacts
on streams under section 404 of the Clean Water Act. The provisions of
the EPA/Corps mitigation rule related to mitigation work plans for
streams are contained in 33 CFR 332(c)(7) and include concepts of
natural stream channel design. In certain situations, mine operators
may find it advantageous to design, construct, and maintain stream-
channel diversions in a manner that satisfies both the requirements of
sections 816.43 and 817.43 of this rule and the requirements of the
EPA/Corps compensatory mitigation rule.
In the preamble to the proposed rule, we sought comment on whether
the revisions to sections 816.43(b) and 817.43(b) were sufficient to
meet the requirements of SMCRA, or whether we should also revise our
permitting rules to include a requirement for submission of
alternatives and an analysis of the environmental impacts of each
alternative whenever the applicant proposes to mine through waters of
the United States or divert perennial or intermittent streams. The
requirements would be similar to the corresponding requirements for
excess spoil fills and coal mine waste disposal facilities in sections
780.25(d)(1) and 780.35(a)(3) for surface mines or sections
784.16(d)(1) and 784.19(a)(3) for underground mines. Potential
alternatives could involve the number and length of stream segments
diverted, diversion design, construction technique, location of the
diversion, and whether the diversion is temporary or permanent.
EPA supported requiring an alternatives analysis for both stream-
channel diversions and mining through streams, stating that the
potential for significant stream degradation as a result of these
activities would be minimized by doing so. The agency stated that
stream diversions and mining through streams often have adverse impacts
including direct losses of stream function and resulting alteration of
downstream hydrology, water chemistry, and biotic communities. The
agency noted the preamble listed no examples of alternatives to mining
through streams and suggested that those alternatives could consist of
variations in the number and length of stream segments impacted,
construction techniques, reclamation design, and location.
One state regulatory authority opposed requiring an alternatives
analysis for mining through streams and stream-channel diversions. The
commenter stated that doing so would exceed the requirements of both
SMCRA and the Clean Water Act and that the Corps does not require an
analysis of alternatives in these situations. The commenter supported
the natural-channel design requirement.
After evaluating these comments, we have decided not to require an
alternatives analysis either for stream diversions or mining through
streams. First, when coal reserves exist beneath a stream and those
reserves could be extracted by surface mining methods, they are either
mined or they are not. Under SMCRA, an operator's decision on whether
to mine through a stream will be determined by geology, topography, and
economics. We have no authority under SMCRA to prevent diversion of a
stream or mining through a stream unless SMCRA prohibits surface coal
mining operations on the land where the stream is located. (However,
SMCRA does not override prohibitions that apply under other laws and
regulations. Any such prohibitions will continue to apply according to
the terms of those laws and regulations.) Therefore, an alternatives
analysis for mining through a stream is not appropriate under SMCRA.
With respect to stream diversions, this final rule strengthens the
requirement that diversions approximate natural stream characteristics
by adding a requirement for the use of natural-channel design
techniques. Construction of stream-channel diversions in accordance
with these rules should minimize damage to undisturbed areas of the
stream and should result in only temporary adverse impacts to the
diverted segment. Because the rule already requires the use of natural-
channel design techniques, an alternatives analysis for stream
diversions would add no value to the decision-making process.
Finally, as proposed, we are redesignating former paragraph (b)(4)
of sections 816.43 and 817.43 as paragraph (b)(5). In accordance with
the proposed rule, we are revising that paragraph to require that a
qualified registered professional engineer certify both the design and
construction of all stream-channel restorations. The former rule
applied that requirement only to diversions of perennial and
intermittent streams. We are adding the additional requirement because
stream-channel restorations are even more significant in terms of
stability and environmental concerns than temporary diversions that
exist only for the duration of mining; i.e., reconstructed stream
channels should be safe and stable and should approximate premining
conditions regardless of whether the channel is a temporary or
permanent diversion or a restoration of the original channel. In
addition, we are making editorial revisions to this paragraph to
clarify that separate certifications are required for the design and
construction of stream-channel diversions and stream restorations and
to specify which requirements apply to the design certification and
which apply to the construction certification.
H. Sections 816.46 and 817.46: Siltation Structures
Paragraph (b)(2) of 30 CFR 816.46 and 817.46 (1983) required that
all surface drainage from the disturbed area be passed through a
siltation structure before leaving the permit area. In essence, that
paragraph prescribed siltation structures (sedimentation ponds and
other treatment facilities with point-source discharges) as the best
technology currently available for sediment control. However, paragraph
(b)(2) was struck down upon judicial review because the court found
that the preamble to the rulemaking in which it was adopted did not
articulate a sufficient basis for the rule under the Administrative
Procedure Act. The court stated that the preamble did not adequately
discuss the benefits and drawbacks of siltation structures and
alternative sediment control methods and did not enable the court ``to
discern the path taken by [the Secretary] in responding to commenters''
concerns'' that siltation structures in the West are not the best
technology currently available. See In re: Permanent Surface Mining
Regulation Litigation II, Round III, 620 F. Supp. 1519, 1566-1568
(D.D.C. July 15, 1985).
On November 20, 1986 (51 FR 41961), we suspended the rules struck
down by the court. To avoid any confusion that may result from the
continuing publication of those rules in the Code of Federal
Regulations, we proposed to remove paragraph (b)(2) of sections 816.46
and 817.46 and redesignate the remaining paragraphs of those sections
accordingly. The continued presence of the suspended paragraphs in the
published version of the rules has been a source of ongoing confusion.
We received no comments opposing this proposal. Therefore, we are
removing paragraph (b)(2) of sections 816.46 and 817.46 as proposed.
This action supersedes the 1986 suspension of the paragraph being
removed. Sections 816.45 and 817.45, which remain unchanged by this
rule, set forth various measures and techniques that may constitute the
best technology currently available for sediment control,
[[Page 75855]]
although applicants and regulatory authorities are not limited to those
measures and techniques.
I. Sections 816.57 and 817.57: Activities in or Adjacent to Perennial
or Intermittent Streams
1. Background
Perennial and intermittent streams overlie coal deposits in all
regions of the nation. To the extent economically feasible and allowed
by law, surface mining operations often relocate those streams as part
of the process of recovering the underlying coal. Streams also may be
relocated to facilitate the construction of mine-related facilities
such as coal preparation plants. In other cases, steep slopes, narrow
valleys and other topographical limitations may result in the
construction of excess spoil fills, refuse piles, sedimentation ponds,
and coal mine waste impoundments in streams because the stream valley
is the only logical and technologically and economically feasible
location for those structures. All types of surface coal mining and
reclamation operations may experience the need to construct bridge
abutments, culverts, or other structures in or near perennial or
intermittent streams to facilitate crossing of those streams by roads,
railroads, conveyors, pipelines, utilities, or similar facilities.
Neither SMCRA nor the Clean Water Act precludes any of these
activities, provided the activities comply with all applicable
requirements of those laws and their implementing regulations. Parts II
and III.A. of this preamble explain the extent to which either SMCRA or
its legislative history contemplates the activities listed above. For
example, section 515(b)(22)(D) mentions the construction of excess
spoil fills in areas containing natural watercourses, springs, and wet-
weather seeps. In addition, the legislative history of SMCRA indicates
that Congress anticipated the continued construction of coal mine waste
impoundments in streams.
As discussed in Part III.A. of this preamble, Congress, in
developing the legislation that ultimately became SMCRA, specifically
considered and rejected inclusion of an absolute prohibition on
disturbance of land within 100 feet of certain streams. While we
subsequently adopted stream buffer zone rules as part of our initial
and permanent program regulations implementing SMCRA, we and the state
regulatory authorities have historically interpreted those rules as
allowing placement of fill material, including coal mine waste, in
waters of the United States, subject to approval of that placement
under the Clean Water Act. As discussed at length in Part III.E. of
this preamble, our historical interpretation and application of the
stream buffer zone rule is in harmony with statements in the decision
of the U.S. Court of Appeals for the Fourth Circuit in Kentuckians for
the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 442 (4th Cir.
2003). The rules that we are adopting today are intended to clarify any
lingering ambiguity regarding the appropriate interpretation of the
stream buffer zone rules.
The stream buffer zone rule effectively prescribes maintenance of a
100-foot undisturbed zone between perennial or intermittent streams and
surface mining activities (or, for underground mines, surface
activities on the surface of lands) as the best technology currently
available to fulfill the sediment control and fish and wildlife
protection requirements of sections 515(b)(10)(B)(i), 515(b)(24),
516(b)(9)(B), and 516(b)(11) of SMCRA. However, the concept of
maintenance of an undisturbed buffer zone as the best technology
currently available for purposes of those sections of the Act applies
only to activities that do not involve disturbance of the streambed and
do not inherently occur within the buffer zone. When the regulatory
authority and other pertinent government agencies approve the conduct
of activities within the stream and/or its buffer zone, an undisturbed
buffer between those activities and the stream inherently cannot be
maintained. Construction of fills and impoundments in streams
inherently involves disturbance of all or part of what would have been
the buffer zone for the affected stream segment, as does construction
of most stream-crossing structures. In addition, when a stream is
diverted, the original streambed and what would have been its buffer
zone typically are mined through or used for construction of mining-
related facilities. Nothing in this discussion should be construed as
meaning that all sedimentation ponds, excess spoil fills, refuse piles,
coal mine waste slurry impoundments, and stream crossing structures are
automatically exempt from the requirement to maintain an undisturbed
buffer zone. Only those structures and activities (or portions thereof)
for which there is no reasonable alternative location qualify for this
exception.
Section 827.12 of our rules does not apply the stream buffer zone
rule in sections 816.57 and 817.57 to coal preparation plants not
located within the permit area of a mine. See 48 FR 20399, May 5, 1983.
We proposed no changes to section 827.12 and nothing in the final rule
that we are adopting today alters that situation. As part of this final
rule, we are moving the permitting aspects of the previous version of
the stream buffer zone rule in sections 816.57 and 817.57 to new
sections 780.28 and 784.28. Existing section 785.21(c) provides that
coal preparation plants not located within the permit area of a mine
are subject not only to the special permitting requirements of section
785.21, but also to ``all other applicable requirements of this
subchapter.'' ``This subchapter'' refers to subchapter G of chapter
VII, which contains the permitting requirements for all surface coal
mining and reclamation operations. Thus, to ensure that section
785.21(c) is not now interpreted as including the newly added
permitting requirements related to the stream buffer zone rule, we are
adding paragraph (a)(2)(i) of sections 780.28 and 784.28 to specify
that the requirements of those sections do not apply to applications
under section 785.21 for coal preparation plants not located within the
permit area for a mine. See Part VIII.C. of this preamble. However, the
other permitting rules that we are adopting today, including the new
informational and analytical requirements for proposed excess spoil
fills and coal mine waste disposal facilities, typically will apply to
those applications, either through operation of section 785.21(c) or
through cross-references in the performance standards listed in section
827.12. In addition, section 827.12(b) specifically requires that any
stream-channel diversion comply with section 816.43.
2. General Description of Changes
The revised version of sections 816.57 and 817.57 that we are
adopting today attempts to minimize disputes and misunderstandings
associated with application of the 1983 version of the stream buffer
zone rules in sections 816.57 and 817.57. The language of the rules
that we are adopting today better conforms to the underlying provisions
of SMCRA. The revised rules distinguish between those situations in
which maintenance of an undisturbed buffer between surface activities
and perennial and intermittent streams constitutes the best technology
currently available to implement the underlying statutory provisions
(sections 515(b)(10)(B)(i) and (b)(24) and 516(b)(9)(B) and (b)(11) of
SMCRA) and those situations in which maintenance of a buffer is neither
feasible nor appropriate because the stream segment will be diverted,
altered by a culvert or other stream-crossing structure,
[[Page 75856]]
impounded, or filled. In the case of stream crossings involving
bridges, pipelines, utilities, or conveyors, the stream itself may
sometimes remain undisturbed, but the crossing will then most likely
require installation of abutments within the buffer zone. Construction
of fills and impoundments in streams inherently involves disturbance of
all or part of what would have been the buffer zone for the affected
stream segment, as does construction of most stream-crossing
structures. In addition, when a stream is diverted, the original
streambed and what would have been its buffer zone typically are mined
through or used for construction of mining-related facilities.
As proposed, we are reorganizing our rules to separate permitting
requirements from performance standards. The previous version of
paragraph (a) of sections 816.57 and 817.57 contained both permitting
requirements and performance standards. The rules that we are adopting
today separate the two for clarity and consistency. Revised sections
816.57 and 817.57 include only performance standards. As proposed, we
are moving the permitting aspects of the stream buffer zone rules,
which were formerly codified in paragraph (a)(1) of sections 816.57 and
817.57 as part of the performance standards in subchapter K, to new
sections 780.28 and 784.28, which are part of the permitting
requirements of subchapter G.
As proposed, we are deleting former paragraph (a)(2) of sections
816.57 and 817.57, which required the regulatory authority to make a
finding that any proposed temporary or permanent stream-channel
diversion will comply with section 816.43 or 817.43. This provision is
unnecessary because the obligation to comply with the stream-channel
diversion requirements of sections 816.43 and 817.43 is independent of
any cross-reference in section 816.57 or 817.57. We are consolidating
the permitting requirements for stream-channel diversions in sections
816.43 and 817.43, which we are revising as proposed. See Part VIII.G.
of this preamble.
We also are deleting former paragraph (b) of sections 816.57 and
817.57, which provided that the area not to be disturbed must be
designated as a buffer zone and marked as specified in section 816.11
or 817.11. This deletion is not a substantive change because the
requirement to mark the area to be left undisturbed as a buffer zone
also appears in sections 816.11(e) and 817.11(e), which we have revised
for clarity and consistency as discussed in Part VIII.F. of this
preamble. We received no response to our request in the preamble to the
proposed rule for comment on whether a formal regulatory definition of
``buffer'' or ``buffer zone'' would be useful. We did not include a
definition in the proposed rule and we are not adopting a definition as
part of this final rule because we find the meaning of those terms to
be clear without a regulatory definition.
Commenters representing industry and state regulatory authorities
generally supported the proposed revisions to sections 816.57 and
817.57 as much-needed and appropriate clarifications of those rules.
However, one commenter stated that the proposed rule did not go far
enough:
We agree with how the clarification more explicitly reflects the
historic interpretation by distinguishing between activities that
are not planned to occur in streams where a buffer zone does apply
and those activities that inherently involve placement of fill or
the disturbance of the stream channel. However, the text of the rule
uses new terminology such as ``prohibition'' and ``exceptions''
which incorrectly implies that the rule (and therefore the statute)
prohibits disturbances in stream channels. As the agency correctly
notes in the preamble, coal mining involves activities that
inherently involve disturbances or placement of fill in the stream
so a buffer zone is neither feasible nor appropriate. Accordingly,
for those activities, there is no buffer zone at all. As OSM
explains, ``those activities are governed by other regulations.''
The conduct of those types of activities is approved in the permit
in accordance with the ``other regulations'' which specifically
govern those activities.
The rule as presently structured by setting forth the buffer
zone requirement and then listing exceptions will inevitably prove
to be inflexible or quickly obsolete since there are many types of
activities where a buffer zone is infeasible or inappropriate. Of
course this can be remedied by simply adding a catch-all provision
to the exceptions that recognizes any other activity planned and
approved to occur in the stream. However, we believe it far better
to restructure the rule so that it more straightforwardly reflects
the underlying functional and operational distinction that has
guided the rule's application historically: (1) activities that
occur in the streams and, (2) activities that are not designed to
occur in the streams.
The commenter provided a suggested rewrite of sections 816.57 and
817.57, which we are not adopting, for the most part. We appreciate the
commenter's support of the basic principle underlying our revisions to
the stream buffer zone rule, but we disagree with the commenter's
arguments against use of the terms ``prohibitions'' and ``exceptions.''
We find that those terms accurately describe the pertinent portions of
the stream buffer zone rule. We have revised the rule to eliminate the
term ``prohibitions'' from the rule text, but we continue to
characterize paragraph (a) of sections 816.57 and 817.57 as a
prohibition in the preamble.
We also continue to use the term ``exception'' as the heading for
paragraph (b) of sections 816.57 and 817.57, but, in response to this
comment and a desire to improve the clarity of the proposed rule, we
have revised the introductory text of that paragraph to clarify that
the term ``exception'' means that the buffer requirement of paragraph
(a) of sections 816.57 and 817.57 does not apply to those segments of a
perennial or intermittent stream for which the regulatory authority, in
accordance with sections 780.28(d), 784.28(d), 816.43(b)(1), or
817.43(b)(1), approves one or more of the activities listed in
paragraphs (b)(1) through (b)(4) of sections 816.57 and 817.57. Thus,
as used in the final rule and this preamble, the term ``exception''
does not apply to the activity itself.
The term ``exception'' in the proposed rule and its preamble
sometimes refers to the activities listed in paragraphs (b)(1) through
(b)(4) of sections 816.57 and 817.57 (most of which refer only to
activities in the stream itself, not to activities in the buffer zone).
At other times, it refers to land within 100 feet of the stream segment
directly impacted by those activities. However, in this final rule, the
term exception refers only to what would otherwise be the buffer zone
for stream segments for which the regulatory authority approves one or
more of the activities listed in paragraphs (b)(1) through (b)(4). This
usage is consistent with the preamble to the proposed rule, which
describes paragraph (b) of sections 816.57 and 817.57 as ``providing an
exception from the prohibition on conducting activities that would
disturb the surface of lands within 100 feet of waters of the United
States.'' 72 FR 48908-48909, August 24, 2007. In addition, it is
consistent with the intent of the proposed rule, which as stated in the
introductory clause of proposed paragraph (b), was to specify the
circumstances in which the requirement to avoid disturbance of land
within 100 feet of waters of the United States did not apply.
Under the final rule, with the exception of stream-channel
diversions, for which all requirements appear in sections 816.43(b) and
817.43(b), application requirements for activities that take place in
perennial or intermittent streams appear in sections 780.28(b) and
784.28(b), regulatory authority approval standards for those activities
appear in sections 780.28(d)
[[Page 75857]]
and 784.28(d), and performance standards for those activities appear in
paragraphs (b)(1) through (b)(4) and (c) of sections 816.57 and 817.57.
With respect to activities that will take place within 100 feet of a
perennial or intermittent stream segment, but will not disturb the
stream segment itself, the final rule establishes application
requirements in sections 780.28(c) and 784.28(c), regulatory authority
approval standards in sections 780.28(e) and 784.28(e), and performance
standards in paragraph (c) of sections 816.57 and 817.57.
We are not adopting the commenter's recommendation that we revise
paragraph (b) of sections 816.57 and 817.57 to exclude buffer zones for
stream segments affected by any activity planned and approved to occur
in the stream. We find this exception to be too broad. We believe that
the activities that we list in paragraphs (b)(1) through (b)(4) include
all situations in which it may be inherently necessary to conduct
activities in a stream segment to facilitate surface coal mining and
reclamation operations. We also have reviewed our rules to ensure that,
for those activities, the obligation to minimize disturbances and
adverse impacts to fish, wildlife, and related environmental values to
the extent possible using the best technology currently available has
been applied through other requirements. To the extent that a SMCRA
permit applicant may receive authorization under the Clean Water Act to
place fill material in the stream as part of an activity other than
those listed in paragraphs (b)(1) through (b)(4), we will take that
approval into consideration during the SMCRA permitting process.
However, any activities conducted in the buffer zone for the stream
segment affected by the Clean Water Act authorization will remain
subject to the pertinent provisions of sections 780.28 and 816.57 or
sections 784.28 and 817.57.
Many commenters strongly opposed our proposed revisions to sections
816.57 and 817.57, characterizing paragraph (b) in particular as
creating new and unwarranted exceptions. We disagree with this
characterization. The 1983 version of the stream buffer zone rule has
historically been applied--and continues to be applied--to allow each
of the activities listed in paragraphs (b)(1) through (b)(4) to occur.
As other commenters emphasize, the requirement to maintain an
undisturbed buffer between the stream and surface activities related to
surface coal mining and reclamation operations has not been applied and
does not apply to activities planned and approved to occur in
intermittent or perennial streams--and in those situations the
rationale for maintaining an undisturbed buffer ceases to exist. As
discussed at length in Part III.E. of this preamble, our historical
approach to application of the stream buffer zone rule is in harmony
with statements of the U.S. Court of Appeals for the Fourth Circuit in
its decision in Kentuckians for the Commonwealth, Inc. v. Rivenburgh,
317 F.3d 425, 442-443 (4th Cir. 2003) (``it is beyond dispute that
SMCRA recognized the possibility of placing excess spoil material in
waters of the United States'').
The final rule that we are adopting today clarifies, but in this
regard does not alter, the basic historical and current application of
the 1983 stream buffer zone rule. Consistent with the application of
the 1983 stream buffer zone rule, paragraph (b) of final sections
816.57 and 817.57 recognizes that the conduct of surface coal mining
and reclamation operations sometimes requires the diversion of
perennial and intermittent streams, the construction of fills in
streams, and other disturbances of stream segments for sediment control
and construction of stream crossings. Therefore, the final rule
provides that the requirement to maintain an undisturbed buffer zone
for perennial and intermittent streams does not apply to those stream
segments for which the regulatory authority approves one or more of the
activities listed in paragraphs (b)(1) through (b))(4) of sections
816.57 and 817.57.
3. Paragraph (a)
Final paragraph (a)(1) of sections 816.57 and 817.57 specifies
that, except as provided in paragraph (b) and consistent with paragraph
(a)(2), the permittee or operator may not conduct surface activities
that would disturb the surface of land within 100 feet, measured
horizontally, of a perennial or intermittent stream unless the
regulatory authority authorizes the disturbance under paragraph (e) of
section 780.28 or 784.28. With the exception of the addition of a new
paragraph (a)(2), paragraph (a) of final sections 816.57 and 817.57 is
substantively identical to the proposed rule, although we have made
minor editorial revisions for clarity and brevity.
The final rule adds a new paragraph (a)(2) to sections 816.57 and
817.57 to address Clean Water Act requirements. We are also adding a
citation to the new paragraph in paragraph (a)(1). New paragraph (a)(2)
provides that surface mining activities in perennial or intermittent
streams may be authorized only where those activities would not cause
or contribute to the violation of applicable State or Federal water
quality standards developed pursuant to the Clean Water Act, as
determined through certification under section 401 of the Clean Water
Act (33 U.S.C. 1341) or a permit under section 402 or 404 of the Clean
Water Act (33 U.S.C. 1342 and 1344, respectively). This language does
not establish a general prohibition against mining activities in
intermittent or perennial streams, including the placement of excess
spoil or other fill materials in those streams. Instead, it reiterates
that mining-related discharges are subject to the permitting
requirements of sections 402 and 404 of the Clean Water Act and the
water quality certification requirement under section 401 of the Clean
Water Act. These requirements are independently applicable under the
Clean Water Act.
Paragraph (a)(2) does not require the SMCRA regulatory authority to
make a determination that a particular mining activity is consistent
with applicable water quality standards. The determination that a
particular mining activity is consistent with applicable water quality
standards will be made only by the appropriate Federal or State entity
responsible for the issuance of permits under sections 402 and 404 of
the Clean Water Act and certification under section 401 of that law.
The rule anticipates that a SMCRA permit will typically be issued prior
to issuance of any permits or certifications required under the Clean
Water Act. However, in those circumstances, new paragraph (d)(2) of
sections 780.28 and 784.28 provides that a SMCRA permit authorizing
mining activities in perennial or intermittent streams must include a
condition requiring that the permittee obtain all required approvals
under the Clean Water Act before initiating those activities. As the
rule itself makes clear, this provision of the stream buffer zone rule
is not applicable to any water not subject to jurisdiction under the
Clean Water Act. Further, any discharges to waters not covered by the
stream buffer zone rule that are jurisdictional ``waters of the United
States'' under the Clean Water Act must still comply with all
applicable permitting requirements under that law. As discussed in more
detail in Part IV of this preamble, none of the revisions to the stream
buffer zone rule or other elements of this final rule affect a mine
operator's responsibility to comply with water quality standards,
effluent limitations, or other requirements of the Clean Water Act.
A few commenters argued that a 100-foot buffer zone [see paragraph
(a)(1) of
[[Page 75858]]
the final rule] was insufficient to ensure protection of fish,
wildlife, and related environmental values associated with the streams.
Those comments are not germane to this rulemaking because we did not
propose any changes to the 100-foot distance, which has long been a
matter of settled law, nor did we seek comments on the adequacy of that
distance. To the extent that commenters provided scientific data to
support their suggestions, they did so primarily in the context of the
value of buffers for terrestrial species. However, the width of the
buffer that we established in our rules is based upon sediment control
and protection of aquatic ecosystems.
In developing the stream buffer zone rule for the initial
regulatory program, we selected the 100-foot width based primarily on
sediment control considerations. See the preamble to 30 CFR
715.17(d)(3) at 42 FR 62652, December 13, 1977, which states that
``[t]he 100-foot limit is based on typical distances that should be
maintained to protect stream channels from abnormal erosion.''
Preambles to subsequent versions of the stream buffer zone rule mention
the benefits that buffer zones provide to wildlife, but those benefits
are ancillary to the primary purpose of the buffer zone, which is to
protect the integrity of the stream. In the preamble to the 1983
version of the stream buffer zone rule at 30 CFR 816.57 and 817.57, we
rejected comments suggesting buffer widths other than 100 feet, stating
that--
The 100-foot width is used to protect streams from sedimentation
and help preserve riparian vegetation and aquatic habitats. Since
the 100-foot zone provides a simple and valuable standard for
enforcement purposes, OSM has chosen not to change the general rule.
48 FR 30314, June 30, 1983.
Expanding the stream buffer zone based on the needs of terrestrial
species has no sound scientific basis for the purpose of the stream
buffer zone rule, which focuses on protection of water quality and
aquatic habitats. Furthermore, establishing a buffer zone width based
on the needs of terrestrial species is not practical because the
optimal width of the buffer zone for each species varies considerably.
In addition, as discussed in section III.I.1.a) of the final
environmental impact statement (FEIS) for this rulemaking, a 100-foot
buffer zone has considerable value as a connecting corridor for
terrestrial species. Also, as discussed in section III.I.1 of the FEIS,
scientific studies generally support the current 100-foot width for
purposes of sediment control and protection of aquatic ecosystems.
Other existing rules, including those at 30 CFR 780.16, 784.21, 816.97,
and 817.97, provide sufficient protection for terrestrial wildlife.
One commenter stated that section 817.57(a) should apply to
subsidence resulting from underground mining activities beneath the
stream. We disagree. In response to litigation concerning the 1983
version of 30 CFR 817.57, we stipulated that the stream buffer zone
requirement for underground mines ``is directed only to disturbance of
surface lands by surface activities associated with underground
mining.'' In re: Permanent Surface Mining Regulation Litigation II-
Round II, 21 ERC 1725, 1741, footnote 21 (D.D.C. 1984). In addition,
only one provision of SMCRA prohibits the conduct of underground mining
operations that could result in the subsidence of streams. That
provision [section 516(c)] requires the regulatory authority to suspend
underground coal mining adjacent to ``permanent streams'' if the mining
activities present an ``imminent danger to inhabitants of the urbanized
areas, cities, towns, and communities.'' Our regulations at 30 CFR
817.121(f) clarify that the term ``permanent streams'' means perennial
streams. Neither section 516(c) of the Act nor 30 CFR 817.121(f)
mention environmental impacts as a threshold for the prohibition of
mining.
Subsidence impacts are regulated under section 516(b)(1) of SMCRA,
which provides, in relevant part, that the permit must require the
operator to--
Adopt measures consistent with known technology in order to
prevent subsidence causing material damage to the extent
technologically and economically feasible, maximize mine stability,
and maintain the value and reasonably foreseeable use of such
surface lands, except in those instances where the mining technology
used requires planned subsidence in a predictable and controlled
manner: Provided, That nothing in this subsection shall be construed
to prohibit the standard method of room and pillar mining.
Our definition of ``material damage'' in this context in 30 CFR
701.5 includes a functional impairment of surface lands or features.
Perennial and intermittent streams are considered surface features. As
stated in the preamble to that definition, ``[t]he definition of
`material damage' covers damage to the surface and to surface features,
such as wetlands, streams, and bodies of water, and to structures or
facilities.'' 60 FR 16724, March 31, 1995. Therefore, the subsidence
control plan for the underground mine prepared under section 784.20(b)
and implemented under section 817.121(a) and (b) must address impacts
on perennial and intermittent streams and the extent to which the
operation can be and has been designed to prevent subsidence causing
material damage to the extent technologically and economically feasible
(or, for planned subsidence operations, the extent to which the
operation has been designed to minimize material damage to the extent
technologically and economically feasible).
4. Paragraph (b)
Paragraph (b) of the proposed rule provided that the prohibition in
paragraph (a) on disturbance of the buffer zone did not apply to
certain activities in waters of the United States. Those activities
were listed in paragraphs (b)(1) through (b)(4). We have extensively
revised paragraph (b) in response to comments. First, as discussed in
Part VII of this preamble, we did not adopt the proposed change in
scope from perennial and intermittent streams to waters of the United
States. Second, as discussed above in Part VIII.I.2. of this preamble,
we have revised the introductory language of paragraph (b) to clarify
that the buffer requirement of paragraph (a) does not apply to those
segments of a perennial or intermittent stream for which the regulatory
authority, in accordance with sections 780.28(d), 784.28(d),
816.43(b)(1), or 817.43(b)(1), approves one or more of the activities
listed in paragraphs (b)(1) through (b)(4) of sections 816.57 and
817.57. There is no need or reason to apply the buffer requirements of
paragraph (a)(1) to a stream segment that will cease to exist because
of construction of a stream-channel diversion, excess spoil fill,
refuse pile, slurry impoundment, or sedimentation pond.\2\ In those
situations, there is no longer any stream segment to protect.
Furthermore, construction of those diversions, fills, and impoundments
inherently requires disturbance of the buffer for the stream segment as
well as the stream segment itself. With respect to stream crossings
[[Page 75859]]
under paragraph (b)(2), culverts, low-water crossings, and excavations
for buried pipelines and utilities necessarily disturb the streambed.
The road, pipeline, conveyor, or other utility will necessarily disturb
portions of the buffer zone adjacent to the crossing, even when a
bridge is constructed to avoid directly disturbing the stream itself.
Third, in addition to removing references to waters of the United
States, we have modified paragraphs (b)(1) through (b)(4) as explained
in the following discussion of those paragraphs.
---------------------------------------------------------------------------
\2\ In Ohio Valley Environmental Council v. U.S. Army Corps of
Engineers, Civ. Action No. 3:05-0784 (S.D. W. Va., June 13, 2007),
the district court held that discharges of sediment-laden water from
the toe of a fill into stream segments leading to a sedimentation
pond embankment require a permit under section 402 of the Clean
Water Act. That decision is on appeal to the U.S. Court of Appeals
for the Fourth Circuit as of the date of writing of this preamble.
However, we believe this rule, as finalized here, is sufficient to
accommodate the ultimate outcome of this litigation because the
issuance of a SMCRA permit does not relieve the permittee of the
obligation to comply with all requirements of the Clean Water Act.
See section 702(a) of SMCRA.
---------------------------------------------------------------------------
As proposed, for informational purposes, paragraphs (b)(1) through
(b)(4) specify that persons conducting the activities listed in those
paragraphs must comply with all other applicable requirements of the
regulatory program. Each of those paragraphs also cross-references some
of the most directly relevant regulatory program requirements.
Paragraph (b)(1)
Proposed paragraph (b)(1) applied to mining through waters of the
United States. It specified that such activities must comply with the
requirements of section 816.43(b) or 817.43(b) if the mining involves
the temporary or permanent diversion of a perennial or intermittent
stream. One commenter suggested that, to avoid creating the
misapprehension that the stream buffer zone rule could operate to
prohibit underground mining beneath streams, paragraph (b)(1) of
section 817.57 should either be eliminated or be revised to refer only
to the diversion of perennial or intermittent streams rather than to
mining through streams. In response to this comment, we have revised
paragraph (b)(1) of both sections 816.57 and 817.57 by deleting the
reference to mining through waters of the United States and replacing
it with a reference to diverting perennial or intermittent streams.
We find the commenter's suggestion compelling with respect to
underground mining operations, which may require diversion of some
perennial or intermittent stream segments to facilitate the
construction of mining-related facilities, but which are unlikely to
involve mining through those streams. We also find the change in
terminology appropriate for surface mining operations because, in view
of our decision not to revise the scope of this rule to include waters
of the United States, there is no longer any need to refer to mining
through waters other than perennial or intermittent streams. Sections
816.43(b) and 817.43(b) effectively require that the permittee divert
perennial or intermittent streams before mining through them.
Therefore, we have revised paragraph (b)(1) of sections 816.57 and
817.57 to refer to diversions of perennial or intermittent streams
rather than to mining through waters of the United States. As in the
proposed rule, the final rule contains a reminder that all stream-
channel diversions must comply with sections 816.43(b) and 817.43(b),
which contain approval, design, and construction requirements specific
to stream-channel diversions and stream-channel restorations.
Paragraph (b)(2)
Proposed paragraph (b)(2) applied to the placement of bridge
abutments, culverts, or other structures in or near waters of the
United States to facilitate crossing those waters. One commenter
requested that the rule also apply to stream crossings for utilities,
pipelines, and conveyors. We intended for this rule to apply to all
stream crossings, not just those for roads. Therefore, we have revised
paragraph (b)(2) to apply to the placement of bridge abutments,
culverts, or other structures in or within 100 feet of a perennial or
intermittent stream to facilitate the crossing of the stream by roads,
railroads, conveyors, pipelines, utilities, or similar facilities. As
applicable, activities under this paragraph must comply with the road
design, construction, and maintenance requirements of sections 816.150
and 816.151 or, for railroad spurs, pipelines, utilities, and
conveyors, with the support facility requirements of section 816.181.
For underground mining operations, the appropriate cross-references are
sections 817.150, 817.151, and 817.181, respectively.
Sections 816.151(d)(6) and 817.151(d)(6) contain standards
governing the types of structures that primary mine roads may use to
cross perennial and intermittent streams. Any low-water crossings must
be designed, constructed, and maintained to prevent erosion of the
structure or the streambed and additional contributions of suspended
solids to streamflow. Sections 816.151(c)(2) and 817.151(c)(2) prohibit
the use of stream fords for primary roads unless they are approved by
the regulatory authority as temporary routes during road construction.
All mine access and haul roads, whether primary or not, must comply
with section 816.150(b) or 817.150(b). Those regulations include
language similar to the sedimentation control and fish and wildlife
protection requirements of sections 515(b)(10)(B)(i), 515(b)(24),
516(b)(9)(B), and 516(b)(11) of SMCRA.
Also, under our existing regulations, support facilities, which may
include railroads, pipelines, utilities, and conveyor systems, must
comply with sections 816.181 and 817.181. Paragraph (b) of sections
816.181 and 817.181 includes language similar to the sedimentation
control and fish and wildlife protection requirements of sections
515(b)(10)(B)(i), 516(b)(9)(B), 515(b)(24), and 516(b)(11) of SMCRA.
Paragraph (b)(3)
Proposed paragraph (b)(3) applied to the construction of
sedimentation pond embankments in waters of the United States. One
commenter requested that this provision be expanded to include the pool
or storage area for the sedimentation pond. We believe that the
proposed rule implied the inclusion of those areas because they are an
unavoidable result of the construction of sedimentation pond
embankments in perennial or intermittent streams. However, in response
to this comment, we have revised paragraph (b)(3) to clarify that it
applies to the construction of sedimentation pond embankments in a
perennial or intermittent stream and, by extension, to the pool or
storage area created by the embankment. As proposed, final paragraph
(b)(3) provides that activities under this paragraph must comply with
the sediment control requirements of section 816.45(a) or 817.45(a). In
response to a different comment, we have added a reminder that, under
sections 816.56 and 817.56, all sedimentation pond embankments must be
removed and reclaimed before abandoning the permit area or seeking
final bond release unless the regulatory authority approves retention
of the pond as a permanent impoundment under section 816.49(b) or
817.49(b) and provisions have been made for sound future maintenance by
the permittee or the landowner in accordance with 30 CFR 800.40(c)(2).
Both the 1979 and 1983 versions of our permanent regulatory program
regulations prohibit the placement of sedimentation ponds in perennial
streams unless approved by the regulatory authority. See 30 CFR
816.46(a)(2) (1979) and 816.46(c)(1)(ii) (1983). However, the preamble
to the 1979 rules explains that construction of sedimentation ponds in
streams typically is a necessity in steep-slope mining conditions:
Sedimentation ponds must be constructed prior to any disturbance
of the area to be drained into the pond and as near as possible to
the area to be disturbed. [Citation omitted.] Generally, such
structures should be located out of perennial streams to facilitate
the
[[Page 75860]]
clearing, removal and abandonment of the pond. Further, locating
ponds out of perennial streams avoids the potential that flooding
will wash away the pond. However, under design conditions, ponds may
be constructed in perennial streams without harm to public safety or
the environment. Therefore, the final regulations authorize the
regulatory authority to approve construction of ponds in perennial
streams on a site-specific basis to take into account topographic
factors. [Citation omitted.]
* * * * *
Commenters suggested allowing construction of sedimentation
ponds in intermittent and perennial streams. Because of the
physical, topographic, or geographical constraints in steep slope
mining areas, the valley floor is often the only possible location
for a sediment pond. Since the valleys are steep and quite narrow,
dams must be high and must be continuous across the entire valley in
order to secure the necessary storage.
* * * * *
The Office recognizes that mining and other forms of
construction are presently undertaken in very small perennial
streams. Many Soil Conservation Service (SCS) [now the Natural
Resources Conservation Service] structures are also located in
perennial streams. Accordingly, OSM believes these cases require
thorough examination. Therefore, the regulations have been modified
to permit construction of sedimentation ponds in perennial streams
only with approval by the regulatory authority.
44 FR 15159-60, March 13, 1979.
In short, sedimentation ponds must be constructed where there is
sufficient storage capacity, which, in narrow valleys lacking natural
terraces, typically means in the stream.
In the preamble to the proposed rule, we stated our belief that our
existing rules at 30 CFR 816.46(c)(1)(ii) and 817.46(c)(1)(ii) can be
applied in a manner consistent with a March 1, 2006, letter from
Benjamin Grumbles, Assistant Administrator of the Environmental
Protection Agency, to John Paul Woodley, Assistant Secretary of the
Army (Civil Works).\3\ Among other things, that letter states that the
sedimentation pond must be constructed as close to the toe of the fill
as practicable to minimize temporary adverse environmental impacts
associated with construction and operation of the waste treatment
system. In particular, 30 CFR 816.46(c)(1)(ii) and 817.46(c)(1)(ii)
require that all sedimentation ponds be placed as near as possible to
the disturbed area that they serve. We interpret this provision as
meaning that sedimentation ponds collecting runoff from excess spoil
fills must be constructed as close to the toe of the fill as possible.
We also stated our belief that application of the existing rules in
this manner will properly implement the intent of Congress in enacting
SMCRA, as expressed in section 102(f) of the Act, which provides that
one of the purposes of the Act is to strike a balance between energy
production and environmental protection. However, we sought comment on
whether it would be appropriate or helpful to revise those rules by
replacing the term ``perennial streams'' with ``waters of the United
States'' or whether we should more clearly specify the conditions under
which the regulatory authority may approve placement of sedimentation
ponds in perennial streams or other waters of the United States.
---------------------------------------------------------------------------
\3\ In Ohio Valley Environmental Council v. U.S. Army Corps of
Engineers, Civ. Action No. 3:05-0784 (S.D. W. Va., June 13, 2007),
the district court held that discharges of sediment-laden water from
the toe of a fill into a stream segments leading to a sedimentation
pond embankment requires a permit under section 402 of the Clean
Water Act. That decision is on appeal to the U.S. Court of Appeals
for the Fourth Circuit as of the date of writing of this preamble.
However, we believe this rule, as finalized here, is sufficient to
accommodate the ultimate outcome of this litigation because the
issuance of a SMCRA permit does not relieve the permittee of the
obligation to comply with all requirements of the Clean Water Act.
See section 702(a) of SMCRA.
---------------------------------------------------------------------------
We received one comment recommending that we take both actions. The
comment advocating replacement of ``perennial streams'' with ``waters
of the United States'' is moot in light of our decision, as explained
in Part VII of this preamble, not to adopt the term ``waters of the
United States'' as a replacement for perennial and intermittent
streams. With respect to the second part of the comment, the commenter
provided no suggestions on what specifications we should adopt.
Therefore, we are not making any changes in response to this comment.
Paragraph (b)(4)
Proposed paragraph (b)(4) applied to the construction of excess
spoil fills and coal mine waste disposal facilities in waters of the
United States. The final rule is identical to the proposed rule with
the exception that we have replaced ``waters of the United States''
with ``a perennial or intermittent stream'' for reasons discussed in
Part VII of this preamble. As proposed and adopted, paragraph (b)(4)
also provides a reminder that excess spoil fills must comply with the
requirements of paragraphs (a) and (f) of section 816.71or 817.71. It
also provides a reminder that coal mine waste disposal facilities must
comply with the pertinent requirements of sections 816.81(a),
816.83(a), and 816.84, or, for underground mining operations, sections
817.81(a), 817.83(a), and 817.84, respectively.
As discussed in Parts VIII.B., VIII.D., and VIII.E. of this
preamble, we are extensively revising our rules governing the disposal
of excess spoil and coal mine waste. In both cases, we are adding
provisions designed to ensure use of the best technology currently
available, to the extent possible, to minimize the adverse impacts on
fish, wildlife, and related environmental values that may result from
construction of excess spoil and coal mine waste disposal facilities.
See sections 780.25(d)(1), 780.35(a)(3), 784.16(d)(1), and
784.19(a)(3). In addition, we are adding paragraphs (a)(1) and (a)(2)
of sections 780.35 and 784.19 to require that operations be designed to
minimize the creation of excess spoil and to ensure that fills are no
larger than necessary to accommodate the anticipated volume of excess
spoil.
Other Comments Received on Proposed Paragraph (b)
The preamble to the proposed rule stated that we intended that the
list of activities in paragraph (b) would include the universe of
activities that inherently involve placement of fill material into
waters of the United States as part of surface coal mining and
reclamation operations. We invited comment on whether the list met that
goal and, if not, how any other activities that involve placement of
fill material into waters of the United States as part of surface coal
mining and reclamation operations should be regulated under SMCRA with
respect to this rule.
The few commenters who responded to this request expressed concern
that the list was not all-inclusive. They recommended that it be
revised to universally include all activities that are planned and
approved to occur in the stream. We have not adopted this
recommendation. We believe that the activities that we list in
paragraphs (b)(1) through (b)(4) include all situations in which it may
be inherently necessary to conduct activities in a stream segment to
facilitate surface coal mining and reclamation operations. To the
extent that a SMCRA permittee or permit applicant may receive
authorization under the Clean Water Act to place fill material in a
stream as part of an activity other than those listed in paragraphs
(b)(1) through (b)(4), we will consider that approval and its
implications when reviewing a SMCRA permit application. However,
surface activities conducted in the buffer zone of a stream segment are
subject to the stream buffer zone rule regardless of
[[Page 75861]]
whether that segment is also subject to a Clean Water Act
authorization.
One commenter recommended that we add a list of other activities to
paragraph (b). Our responses to the suggested additions are set forth
below:
Pool or storage area for sedimentation ponds and
impoundments
As discussed above, we have added a sentence to paragraph (b)(3) to
clarify that the provisions of that paragraph extend to the pool or
storage area created by the construction of a sedimentation pond
embankment in a perennial or intermittent stream.
Stream reaches between the toe of an excess spoil fill,
refuse pile, or slurry impoundment and the sediment or drainage control
structure for that fill, refuse pile, or impoundment
Historically, we and the state regulatory authorities have
considered stream reaches of this nature to be part of the mining
operation and included them within the permit area because they no
longer function as a stream, but as a channel directing runoff from the
face of the fill, refuse pile, or slurry pond embankment to the
sediment pond for that structure. Our approach is consistent with the
historical practice of Clean Water Act permitting authorities, which
have issued NPDES permits for discharges from sediment ponds located in
a perennial or intermittent stream. Inherent in that practice is the
assumption that flows in the stream segment between the toe of the fill
and the sediment pond embankment are not considered to be waters of the
United States. EPA and the Corps have adopted policies classifying the
stream segment between the toe of the fill or impounding structure and
the sediment pond to be to be a channel conveying industrial waste
water from the mining operation to a treatment facility before
discharge into waters of the United States.\4\ These waste treatment
systems are designed to assure that the water flowing from the sediment
pond into waters of the United States will meet effluent limitations.
---------------------------------------------------------------------------
\4\ See, e.g., a letter dated March 1, 2006, from Benjamin
Grumbles, Assistant Administrator of the Environmental Protection
Agency, to John Paul Woodley, Assistant Secretary of the Army (Civil
Works), which states that, for surface coal mining operations in the
Appalachian Mountain states, the stream segment between the toe of
the fill and the sedimentation pond will be considered part of the
waste treatment system, not waters of the United States, for
purposes of the Clean Water Act. The sedimentation pond must be
constructed as close to the toe of the fill as practicable to
minimize temporary adverse environmental impacts associated with
construction and operation of the waste treatment system. The letter
notes that, as a condition of approval, the Corps also requires that
the stream segment be restored as soon as the mining operation is
completed and the pond is no longer needed for treatment purposes.
At that time, the stream segment will once again be classified as
waters of the United States. Therefore, based on this provision of
the letter, it may be prudent for the permittee to maintain an
undisturbed buffer for the affected stream segment to the extent
possible.
---------------------------------------------------------------------------
However, in 2007, the U.S. District Court for the Southern District
of West Virginia held that these stream segments are in fact waters of
the United States, that sediment washing off the face of the fill does
not qualify as fill material, and that the discharge of pollutants such
as sediment into the stream segments between the toe of the fill and
the sedimentation pond embankment is impermissible unless the discharge
is authorized in a permit issued under section 402 of the Clean Water
Act. See Ohio Valley Environmental Council v. U.S. Army Corps of
Engineers, Civ. Action No. 3:05-0784 (S.D. W. Va., June 13, 2007). That
decision is on appeal to the U.S. Court of Appeals for the Fourth
Circuit as of the date of writing of this preamble. Regardless of the
outcome of that litigation, we see no need to revise our rules in
response to the commenter's concern. We recognize that the litigation
has the potential to affect the implementation of sediment control for
excess spoil fills, the extent to which sediment ponds continue to be
constructed in intermittent or perennial streams below fills and
impounding structures, and the classification of stream segments
between the toe of the fill and the sediment pond embankment. However,
we believe this rule, as finalized here, is sufficiently flexible to
accommodate any shift in implementation of the Clean Water Act. As
stated in paragraph (f)(2) of sections 780.28 and 784.28 and paragraph
(d) of sections 816.57 and 817.57, issuance of a SMCRA permit does not
relieve the permittee of the obligation to comply with all requirements
of the Clean Water Act.
Erosion protection zones
These features, which are primarily the result of recent changes in
West Virginia regulations (see West Virginia Code of State Regulations
38-2-14.14.g.2.) and are intended to promote fill stability, are
considered part of the fill. No rule change is needed.
Diversions
With the exception of stream-channel diversions, which are already
included in paragraph (b)(1), the construction of diversions generally
does not involve placement of fill material in a perennial or
intermittent stream or other direct disturbance of the stream.
Therefore; we see no reason to add them to the list of activities in
paragraph (b).
Stream crossings involving roads, conveyors, pipelines, or
power lines
We have revised paragraph (b)(2) to clarify that it applies to the
placement of bridge abutments, culverts, or other structures in or
within 100 feet of a perennial or intermittent stream to facilitate the
crossing of the stream by roads, railroads, conveyors, pipelines,
utilities, or similar facilities.
Ephemeral streams and isolated waters of the United States
These features are not subject to the stream buffer zone rule,
which applies only to perennial and intermittent streams. However,
their exclusion from the stream buffer zone rule does not mean that
they need not be considered during the SMCRA permitting process. In
some cases, the provisions of sections 816.97(f) and 817.97(f)
concerning wetlands and habitats of unusually high value for fish and
wildlife may apply.
Activities listed in 33 CFR 323.4 for which no permit is
required under section 404 of the Clean Water Act
The fact that certain activities do not require a permit for
purposes of section 404 of the Clean Water Act is not sufficient
justification for excluding those activities from the requirement to
maintain an undisturbed buffer between surface activities and perennial
and intermittent streams for purposes of regulation under SMCRA.
5. Paragraph (c)
As proposed, paragraph (c) of sections 816.57 and 817.57 would have
provided that activities exempt from the prohibition on disturbance of
the surface of lands within 100 feet of waters of the United States
must comply with paragraphs (b)(10)(B)(i) and (b)(24) of section 515 of
the Act (or, for underground mining operations, paragraphs (b)(9)(B)
and (b)(11) of section 516 of the Act) and the regulations implementing
those provisions of the Act. However, the referenced statutory
provisions and regulations apply to all surface coal mining and
reclamation operations, not just to those described in the proposed
rule. Therefore, as adopted in the final rule, paragraph (c) applies to
all activities conducted either in perennial or intermittent streams or
within 100 feet of those streams.
Paragraphs (c)(1) through (c)(4) of the final rule reference and
describe the OSM regulations, other than the stream buffer zone rules,
that most directly relate to implementation of sections
515(b)(10)(B)(i) and (b)(24) and 516(b)(9)(B) and (b)(11) of SMCRA.
Those regulations include the requirement in 30 CFR 816.41(d)(1) and
817.41(d)(1) that activities be conducted
[[Page 75862]]
according to the plan approved under 30 CFR 780.21(h) or 784.14(g) and
that earth materials, groundwater discharges, and runoff be handled in
a manner that prevents, to the extent possible using the best
technology currently available, additional contributions of suspended
solids to streamflow outside the permit area; and otherwise prevents
water pollution. They also include the requirement in 30 CFR 816.45(a)
and 817.45(a) that appropriate sediment control measures be designed,
constructed, and maintained using the best technology currently
available to prevent, to the extent possible, additional contributions
of sediment to streamflow or to runoff outside the permit area. And
they include the requirement in 30 CFR 816.97(a) and 817.97(a) that the
operator must, to the extent possible using the best technology
currently available, minimize disturbances and adverse impacts on fish
and wildlife and related environmental values and achieve enhancement
of those resources where practicable. In the final rule, we are adding
paragraph (c)(4) to incorporate a reference to 30 CFR 816.97(f) and
817.97(f). Those rules require that the operator avoid disturbances to,
enhance where practicable, restore, or replace wetlands, habitats of
unusually high value for fish and wildlife, and riparian vegetation
bordering rivers, streams, lakes, and ponds.
Paragraph (c) does not impose any new requirements. Instead, it
reiterates that the referenced rules apply to all surface coal mining
and reclamation operations, including those activities that occur in or
within 100 feet of a perennial or intermittent stream under paragraph
(b) of sections 816.57 and 817.57.
6. Proposed Paragraph (d)
Proposed paragraph (d) of sections 816.57 and 817.57 provided that
the permittee may not initiate any activities under paragraph (b) until
the permittee obtains all necessary certifications and authorizations
under sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C.
1341, 1342, and 1344. The preamble to the proposed rule stated that we
considered that provision informational. We requested comment on
whether the provision should remain informational or whether we should
revise our rules to require its inclusion as a SMCRA permit condition,
which would mean that the prohibition on initiation of activities
before obtaining all necessary Clean Water Act authorizations and
certifications would be independently enforceable under SMCRA. See 72
FR 48910, August 24, 2007.
Commenters were divided on this issue. The U.S. Fish and Wildlife
Service and the Geologic and Water Resources Divisions of the National
Park Service supported adoption of a rule requiring a permit condition
under SMCRA. The EPA also supported adoption of a requirement for a
permit condition under SMCRA, stating that such a requirement would
enhance compliance with Clean Water Act requirements. One state
regulatory authority opposed adoption of a requirement for a permit
condition; the commenter instead recommended that coordination of
permitting and enforcement of Clean Water Act requirements be left to
the states and the Corps. Comments from the mining industry strongly
opposed adoption of a rule that would impose a permit condition under
SMCRA, expressing the fear that it would only result in more
duplication and confusion in regulation of the coal mining industry.
One commenter stated that, if the permittee needs to comply with the
Clean Water Act, then the requirements of that statute should be
enforced according to the statutory scheme specified in the Clean Water
Act.
After reviewing the comments, we have decided not to adopt proposed
paragraph (d). Instead, we are adopting new paragraph (a)(2), which
provides that surface activities, including those activities identified
in paragraphs (b)(1) through (b)(4) of sections 816.57 and 817.57, may
be authorized in perennial or intermittent streams only where those
activities would not cause or contribute to the violation of applicable
State or Federal water quality standards developed pursuant to the
Clean Water Act, as determined through certification under section 401
of the Clean Water Act or a permit under section 402 or 404 of the
Clean Water Act. We are also adopting a new paragraph (d)(2) of
sections 780.28 and 784.28. That paragraph provides that before
approving a permit application in which the applicant proposes to
conduct surface activities in a perennial or intermittent stream, the
regulatory authority must include a permit condition requiring a
demonstration of compliance with the Clean Water Act in the manner
specified in paragraph (a)(2) of sections 816.57 and 817.57 before the
permittee may conduct those activities. This requirement applies to the
extent that the activities require authorization or certification under
the Clean Water Act.
However, in adopting these rules, we reiterate that nothing in
SMCRA provides the SMCRA regulatory authority with jurisdiction over
the Clean Water Act or the authority to determine when a permit or
authorization is required under the Clean Water Act. Under paragraphs
(a) and (a)(2) of section 702 of SMCRA, nothing in SMCRA (and, by
extension, regulations adopted under SMCRA) may be construed as
superseding, amending, modifying, or repealing the Clean Water Act or
any state laws or state or federal rules adopted under the Clean Water
Act. In addition, nothing in the Clean Water Act vests SMCRA regulatory
authorities with the authority to enforce compliance with the
permitting and certification requirements of that law.
J. Sections 816.71 and 817.71 General Requirements for Disposal of
Excess Spoil
As proposed, we have added a new paragraph (a)(4) to sections
816.71 and 817.71 to implement, in part, the requirements of sections
515(b)(24) and 516(b)(11) of the Act. Sections 515(b)(24) and
516(b)(11) require that surface coal mining and reclamation operations
be conducted to ``minimize disturbances and adverse impacts of the
operation on fish, wildlife, and related environmental values'' ``to
the extent possible using the best technology currently available.''
The new paragraph requires that excess spoil be placed in
designated disposal areas within the permit area in a controlled manner
to minimize disturbances to and adverse impacts on fish, wildlife, and
related environmental values to the extent possible using the best
technology currently available.
As previously discussed in Parts VIII.D. and VIII.E. of this
preamble, we have moved paragraphs (b)(1) (design certification), (c)
(location), and (d)(1) (foundation investigations) of the former
version of sections 816.71 and 817.71 to sections 780.35 and 784.19 as
part of our effort to place provisions that are solely design
considerations and requirements in our permitting regulations rather
than in the performance standards.
As proposed, in this final rule we are deleting the last sentence
of paragraph (d)(2) of the former version of sections 816.71 and
817.71. That sentence required a stability analysis for rock toe
buttresses and keyway cuts. We have deleted it because it duplicates
requirements included in sections 780.35 and 784.19. Final paragraph
(d) of sections 816.71 and 817.71 retains the requirement that keyway
cuts or rock-toe buttresses be constructed to ensure fill stability
when the slope in the disposal area exceeds either 2.8h:1v (36
[[Page 75863]]
percent) or any lesser slope designated by the regulatory authority
based on local conditions.
As proposed, this final rule redesignates former paragraph (b)(2)
of sections 816.71 and 817.71 as paragraph (b) of those sections. It
revises that paragraph to require that the fill not only be designed to
attain a minimum static safety factor of 1.5 as required by the former
version of these rules, but that the fill actually be constructed to
attain that safety factor. This change is consistent with section
515(b)(22)(A) of the Act, which requires that all excess spoil be
placed in a way that ensures mass stability and prevents mass movement.
Consistent with the proposed rule, we are adding a new paragraph
(c) to sections 816.71 and 817.71 to require that the permittee
construct the fill in accordance with the design and plans submitted
under section 780.35 or 784.19 and approved as part of the permit. This
provision emphasizes that fills must be built on the sites selected
under section 780.35 or 784.19 in a manner consistent with the designs
submitted under those sections and approved as part of the permit. It
is a companion to the new provisions concerning environmental
protection and excess spoil minimization that we have added to sections
780.35 and 784.19.
Finally, as proposed, we are removing former section 817.71(k),
which provided that 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 that structure is less than 400
feet in length and is designed in accordance with section 817.71. We
removed this paragraph because spoil excavated as part of face-up
operations and used to construct a mine bench is not excess spoil. As
defined in 30 CFR 701.5, excess spoil consists of spoil material
disposed of in a location outside the mined-out area, but it does not
include spoil needed to achieve restoration of the approximate original
contour. In most cases, spoil used to construct the bench for an
underground mine will later be used to reclaim the face-up area when
the underground mine is finished. That is, the bench will be regraded
to cover the mine entry and eliminate any highwall once mining is
completed and the bench is no longer needed for mine offices, parking
lots, equipment storage, conveyor belts, and other mining-related
purposes. Consequently, this paragraph of the regulations does not
belong in a section devoted to disposal of excess spoil.
We are not moving the requirements of section 817.71(k) to another
part of our rules because we do not find it necessary to impose the
design requirements for excess spoil fills (which are permanent
structures) on temporary spoil storage structures and support
facilities, such as the benches to which section 817.71(k) applies. Nor
do we find it necessary or appropriate to limit those benches to 400
feet in length. Bench length and configuration are more appropriately
determined by operational, topographic, geologic, and other site-
specific considerations. However, the regulatory authority has the
right to impose design and construction requirements on a case-by-case
basis when it determines that those requirements are a necessary
prerequisite to making the permit application approval findings
specified in 30 CFR 773.15.
In the preamble to the proposed rule, we sought comment on (1)
whether this approach is adequate to accomplish the purposes and
requirements of SMCRA, (2) whether we should codify the sentence
concerning the right of the regulatory authority to impose
requirements, or (3) whether more specific rules are needed or
appropriate. We received no comments in response to this request.
We also received no comments on any of the proposed changes to
sections 816.71 and 817.71.
K. What does the phrase ``to the extent possible'' mean in these rules?
Sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), and 516(b)(11)
of SMCRA include the proviso that the requirements of those sections
apply ``to the extent possible.'' Some of the rules that we are
adopting today include similar language because they are based upon
those provisions of the Act. Given the wide array of circumstances to
which these requirements apply and the paucity of legislative history,
we did not propose and are not adopting a definition of the phrase ``to
the extent possible'' as part of this rulemaking. Instead, we and the
State regulatory authorities will continue to determine the meaning of
that phrase on a case-by-case basis in a manner consistent with section
102(f) of SMCRA. That section of the Act provides that one of the
purposes of SMCRA is to ``assure that the coal supply essential to the
Nation's energy requirements and to its economic and social well-being
is provided and strike a balance between protection of the environment
and agricultural productivity and the Nation's need for coal as an
essential source of energy.'' One comment from a State regulatory
authority supported this approach.
In addition, section 515(b)(1) of SMCRA requires that surface coal
mining operations be conducted ``so as to maximize the utilization and
conservation of the solid fuel resource being recovered so that
reaffecting the land in the future through surface coal mining can be
minimized.'' We believe that the ``to the extent possible'' clause in
paragraphs (b)(10)(B)(i) and (b)(24) of section 515 of SMCRA is
properly interpreted in part by applying the environmental protection
requirements of those paragraphs so as to give full force and effect to
the coal recovery performance standard in section 515(b)(1), as
reflected in the regulations at 30 CFR 816.59 and 817.59.
As adopted in this final rule, sections 780.25(d)(1), 780.35(a)(3),
780.16(d)(1), and 784.19(a)(3) require that permit applicants conduct
an analysis of alternatives for excess spoil fills and coal mine waste
disposal structures if those fills and structures involve the placement
of excess spoil or coal mine waste in or within 100 feet of a perennial
or intermittent stream. Those rules provide that, when evaluating all
reasonably possible alternatives, permit applicants must select the
alternative that would have the least overall adverse environmental
impact. The final rules specify that an alternative is reasonably
possible if it conforms to the safety, engineering, design, and
construction requirements of the regulatory program; is capable of
being done after consideration of cost, logistics, and available
technology; and is consistent with the coal recovery provisions of
section 816.59 or 817.59. In other words, nothing in the rule should be
construed as elevating environmental concerns over safety
considerations, as prohibiting the conduct of surface coal mining
operations that are not otherwise prohibited under SMCRA or other laws
or regulations, or as requiring consideration of unreasonably expensive
or technologically infeasible alternatives.
The portion of our rules that refers to ``consideration of cost,
logistics, and available technology'' is derived from the EPA
regulations at 40 CFR 230.10(a)(2), which define a practicable
alternative for purposes of section 404 of the Clean Water Act. In
interpreting this provision, the EPA/COE memorandum entitled
``Appropriate Level of Analysis Required for Evaluating Compliance with
the Section 404(b)(1) Guidelines Alternatives Requirements'' states
that ``[t]he determination of what constitutes an
[[Page 75864]]
unreasonable expense should generally consider whether the projected
cost is substantially greater than the costs normally associated with
this particular type of project.'' We have included similar language in
paragraph (d)(1)(ii)(B) of sections 780.25 and 784.16 and paragraph
(a)(3)(ii)(B) of sections 780.35 and 784.19 because (1) the concept of
a practicable alternative for purposes of section 404 of the Clean
Water Act is in some ways analogous to the determination of reasonably
possible alternatives under this rule, and (2) the principle is
consistent with the phrase ``to the extent possible'' in sections
515(b)(24) and 516(b)(11) of SMCRA. On the other hand, the fact that
one alternative may cost somewhat more than a different alternative
does not necessarily warrant exclusion of the more costly alternative
from consideration. See Part VI.D. of this preamble for a more
extensive discussion of the rationale for our use of the term
``reasonably possible'' and its consistency with statutory provisions.
On January 7, 2004 (69 FR 1036, 1047), we proposed to adopt the
phrase ``to the maximum extent possible'' as part of 30 CFR
780.18(b)(3). Several commenters suggested that we replace ``possible''
with ``practicable'' or ``technologically and economically feasible.''
Other commenters stated that the proposed language was too vague, but
they did not provide suggested replacement language.
In developing the proposed rule that we published on August 24,
2007, we decided not to propose any of the suggestions that commenters
submitted on the 2004 proposed rule. The replacement language suggested
by several commenters is no less vague or more specific than the
statutory phrase ``to the extent possible.'' Nevertheless, we again
solicited suggestions on how we could define the phrase ``to the extent
possible.'' We received no suggestions.
We also sought comment on whether we should incorporate 40 CFR
230.70 through 230.75 (part of the 404(b)(1) Guidelines) as part of our
rules to provide guidance in interpreting ``to the extent possible.''
We received one comment supporting incorporation and several comments
opposing that action. One commenter pointed out the practical and legal
problems and difficulties in having the SMCRA regulatory authority
interpret and enforce Clean Water Act requirements. In view of those
problems, and the fact that our review indicates that 40 CFR 230.70
through 230.75 would have relatively little relevance to surface coal
mining and reclamation operations, we have decided not to incorporate
those provisions as part of our regulations.
L. What does the phrase ``best technology currently available'' mean in
these rules?
Our definition of ``best technology currently available'' at 30 CFR
701.5 embraces a wide range of activities, including those that may not
be in routine use, if the regulatory authority determines they are
currently available and will work. As such, it is sufficiently flexible
to include new techniques developed over time that were not
contemplated or in use at the time the definition was promulgated.
Similarly, it is sufficiently flexible to include techniques that are
not contemplated or in use today. Consequently, we cannot state with
specificity what measures would constitute the best technology
currently available in all situations.
Our regulations at 30 CFR 816.45 and 817.45 address sediment
control measures and requirements for all surface coal mining and
reclamation operations. Paragraph (a)(1) of those sections reiterates
the requirements of sections 515(b)(10)(B)(i) and 516(b)(9)(B) of SMCRA
concerning prevention of additional contributions of suspended solids
to streamflow or runoff outside the permit area. Paragraph (b) of those
rules lists various measures that may be employed to accomplish the
sediment control requirements of paragraph (a).
At one time, paragraph (b)(2) of 30 CFR 816.46 and 817.46
prescribed siltation structures (sedimentation ponds and other
treatment facilities with point-source discharges) as the best
technology currently available for sediment control. However, that
paragraph was struck down upon judicial review because the court found
that we did not articulate a sufficient basis for the rule under the
Administrative Procedure Act. In particular, the court held that the
preamble to the rulemaking did not adequately discuss the benefits and
drawbacks of siltation structures and alternative sediment control
methods and did not enable the court ``to discern the path taken by
[the Secretary] in responding to commenters' concerns'' that siltation
structures in the West are not the best technology currently available.
See In re: Permanent Surface Mining Regulation Litigation II, Round
III, 620 F. Supp. 1519, 1566-1568 (D.D.C. July 15, 1985). On November
20, 1986 (51 FR 41961), we suspended the regulations that the court
struck down. Therefore, those regulations are no longer dispositive in
determining the best technology currently available. To avoid confusion
on the part of readers of the Code of Federal regulations, we are
removing paragraph (b)(2) of sections 816.46 and 817.46 as part of this
rulemaking.
On November 13, 1990 (55 FR 47430-47435), we proposed to revise 30
CFR 816.45, 817.45, 816.46(b)(2), and 817.46(b)(2) to reestablish
siltation structures as the best technology currently available for
sediment control on surface coal mining and reclamation operations in
areas receiving more than 26 inches of average annual precipitation.
Regulatory authorities in areas with less than that amount of
precipitation would have been able to specify alternative sediment
control measures as the best technology currently available through the
program amendment process. Most commenters opposed that approach and we
never adopted the proposed rule, in part because it could have
inhibited the development and implementation of new and innovative
practices to control sediment. We decided that the regulatory authority
should retain the discretion to determine what sediment control
practices constitute the best technology currently available.
In addition to the sediment control regulations at 30 CFR 816.45
and 817.45 and the definition of ``best technology currently
available'' in 30 CFR 701.5 discussed above, the legislative history of
section 515(b)(15)(B)(i) of SMCRA provides some guidance as to what
measures Congress considered to be the best technology currently
available at that time to control sedimentation from minesites:
Similarly, technology exists to prevent increased sediment loads
resulting from mining from reaching streams outside the permit area.
Sediment or siltation control systems are generally designed on a
mine-by-mine basis which could involve several drainage areas or on
a small-drainage-area basis which may serve several mines. There are
a number of different measures that when applied singly or in
combination can remove virtually all sediment or silt resulting from
the mining operation. A range of individual siltation control
measures includes: erosion and sediment control structures, chemical
soil stabilizers, mulches, mulch blankets, and special control
practices such as adjusting the timing and sequencing of earth
movement, pumping drainage, and establishing vegetative filter
strips.
H.R. Rep. No. 95-218 at 114 (April 22, 1977).
Furthermore, in Directive TSR-3, ``Sediment Control Using the Best
Technology Currently Available,'' dated November 2, 1987, we state that
we anticipate ``that in most cases sedimentation ponds or some other
siltation structure will be BTCA [the
[[Page 75865]]
best technology currently available]'' for sedimentation control.
Finally, the preamble to the 1990 proposed rule lists numerous
literature resources concerning the best technology currently available
for sedimentation control. See the footnotes at 55 FR 47431-47433,
November 13, 1990. The preamble notes that ``[t]he effectiveness of
specific practices may be restricted to specific areas and be dependent
upon variables such as geomorphology, hydrology, climate and
engineering design.'' Id. at 47342, col. 1.
In addition, the outcome of Ohio Valley Environmental Council v.
U.S. Army Corps of Engineers, Civ. Action No. 3:05-0784 (S.D. W. Va.,
June 13, 2007), may affect what we consider to be the best technology
currently available for sediment control below fills and impounding
structures. The district court held that the stream segment between the
toe of the fill or impounding structure and the sediment pond
embankment must be considered waters of the United States rather than
part of a waste treatment system designed to remove sediment prior to
discharge into waters of the United States below the sediment pond.
That decision is on appeal to the U.S. Court of Appeals for the Fourth
Circuit as of the date of writing of this preamble.
As previously noted, SMCRA does not limit use of the term ``best
technology currently available'' to the sediment control requirements
of sections 515(b)(10)(B)(i) and 516(b)(9)(B). Sections 515(b)(24) and
516(b)(11) of SMCRA also require use of the best technology currently
available to minimize disturbances and adverse impacts on fish,
wildlife, and related environmental values to the extent possible.
Sections 515(b)(24) and 516(b)(11) are primarily implemented by the
fish and wildlife protection performance standards at 30 CFR 816.97 and
817.97. Like the other regulations discussed in this part of the
preamble, those performance standards and the related permitting
requirements at 30 CFR 780.16 and 784.21 apply to all aspects of
surface coal mining and reclamation operations, including those
activities that are conducted in perennial and intermittent streams and
activities that occur on the surface of lands within 100 feet of
perennial or intermittent streams.
The preamble to 30 CFR 816.97(a) and 817.97(a) states that those
rules ``allow an operator to consult any technical authorities on
conservation methods to assure their compliance with the statutory
requirement for use of the best technology currently available.'' 48 FR
30317, June 30, 1983. We anticipate that state and federal fish and
wildlife, land management, and conservation agencies will be a useful
resource in assisting the permittee and the regulatory authority in
determining the best technology currently available under 30 CFR
780.16, 784.21, 816.97(a), and 817.97(a). For example, the Bureau of
Land Management within the U.S. Department of the Interior has
developed best management practices relating to stream crossings (see
http://www.blm.gov/wo/st/en/prog/energy/oil_and_gas/best_management_practices/technical_information.html) and the Utah
Division of Oil, Gas and Mining has published ``The Practical Guide to
Reclamation in Utah'' (see https://fs.ogm.utah.gov/PUB/MINES/Coal_Related/RecMan/Reclamation_Manual.pdf). Chapter 2 of the latter
document discusses stream restoration and streambank bioengineering.
In some cases, the best technology currently available may consist
primarily of minimizing the amount of land and waters affected. We
anticipate that the analysis of alternatives and site selection
requirements that we are adopting as part of the permitting
requirements for disposal of coal mine waste and excess spoil in
sections 780.25(d)(1), 784.16(d)(1), 780.35(a)(3), and 784.19(a)(3)
would be the primary means of demonstrating use of the best technology
currently available for those activities. The excess spoil minimization
and fill design and construction requirements of paragraphs (a)(1) and
(a)(2) of sections 780.35 and 784.19 are also significant. In addition,
construction methodology and mining and reclamation techniques may play
a role.
IX. Procedural Matters and Required Determinations
A. Executive Order 12866--Regulatory Planning and Review
This rule is considered a ``significant regulatory action'' under
Executive Order 12866 and is subject to review by the Office of
Management and Budget (OMB) because it may raise novel legal or policy
issues, as discussed in the preamble.
With respect to other determinations required under Executive Order
12866--
a. This rule will not have an annual effect of $100 million or more
on the economy. As discussed in the final environmental impact
statement and, to a lesser extent, this preamble, it will not adversely
affect in a material way the economy, productivity, competition, jobs,
the environment, public health or safety, or state, local, or tribal
governments or communities.
b. This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
c. This rule will not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
With respect to the assessment required by section 6(a)(3)(B)(ii)
of the executive order, the preamble discusses how the regulatory
action is consistent with the statutory mandate in sections 515(b) and
516(b) of SMCRA to prevent, to the extent possible using the best
technology currently available, additional contributions of suspended
solids to streamflow or runoff outside the permit area and to minimize,
to the extent possible using the best technology currently available,
disturbances and adverse impacts on fish, wildlife, and related
environmental values. To the extent permitted by law, the regulatory
action also promotes the President's priorities, including energy
production, and avoids undue interference with state, local, and tribal
governments in the exercise of their governmental functions. See Parts
IX.B. and IX.G. of this preamble.
We anticipate that the principal benefits of this rule will be (1)
minimization of the adverse environmental impacts stemming from the
construction of excess spoil fills and coal mine waste impoundments and
fills and (2) clarification of the circumstances in which the
prohibition in the stream buffer zone rule applies. As discussed in the
final environmental impact statement, we cannot quantify these
benefits.
The revisions are not expected to have an adverse economic impact
on states and Indian tribes or the regulated industry, although some of
the regulatory changes will result in an increase in the costs and
burdens placed on coal operators and state regulatory authorities.
Based on surveys conducted to prepare the supporting statements for
this rule under the Paperwork Reduction Act, we estimate that the total
annual cost increase for operators will be approximately $240,500,
while the total annual cost increase for state regulatory authorities
will be approximately $24,200. These increases are a result of the
requirement to prepare and document the plans, analyses and findings
required by the revised rules. The cost increases will principally
affect those coal operators and states (Kentucky, Virginia, and West
Virginia) located in the steep-slope terrain of the central Appalachian
[[Page 75866]]
coalfields, where the bulk of excess spoil is generated. Because all
regulatory authorities in the Appalachian coalfields have implemented
policies to minimize the volume of excess spoil disposed of outside the
mined-out area, and because many operators already conduct alternative
analyses to satisfy requirements under section 404 of the Clean Water
Act, we expect no significant additional costs of implementing these
regulatory changes. There may be other minor increases in costs
associated with the new permitting requirements, in particular the
alternatives analysis required for the disposal of excess spoil and
coal mine waste in or near perennial and intermittent streams.
B. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not considered a significant energy action under
Executive Order 13211. The revisions contained in this rule will not
have a significant effect on the supply, distribution, or use of
energy.
C. Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The revisions are expected to have only minimal adverse economic impact
on the regulated industry, including small entities. Further, the rule
will produce no adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States enterprises
to compete with foreign-based enterprises in domestic or export
markets. This determination is based upon the following analysis:
Baseline of Small Coal Mining Entities
The Small Business Administration (SBA) uses the North American
Industry Classification System Codes (NAICS) to establish size
standards for small businesses in the coal mining industry. The NAICS
classification for the coal mining industry is code 2121. Subsets of
this sector include Bituminous Coal and Lignite Surface Mining (code
212111), Bituminous Coal Underground Mining (code 212112), and
Anthracite Mining (code 212113).
The size standard established for each of these categories is 500
or fewer employees for each business concern and associated affiliates.
SBA considers business concerns to be affiliates when one concern
``controls or has the power to control the other, or a third party or
parties controls or has the power to control both.''
The U.S. Census Bureau maintains statistics related to business
employment, payroll and employment size categories for each NAICS
description. Census Bureau data for 2005 show a total of 735 coal-
mining firms employing a total of 74,260 persons. Of those firms, 672
had fewer than 500 employees. Those firms employed a total of 22,809
persons.
Data available from MSHA and the Energy Information Administration
indicate that in 2006, there were 806 coal-mining firms employing a
total of 81,891 persons and producing a total of 1,162,750,000 tons of
coal. Within that total, there were 775 coal-mining firms with fewer
than 500 employees. Those firms employed a total of 28,749 persons and
produced a total of 247,400,000 tons of coal.
Thus, MSHA data indicate that in 2006 small coal-mining firms
comprised 96 percent of the total number of coal-mining firms in the
United States. Those firms employed 35 percent of the total number of
persons engaged in coal mining nationwide and produced 21 percent of
the nation's coal.
Baseline of Potentially Affected Entities
The principal change that could impact small coal mining firms is
the requirement to minimize the volume of excess spoil generated at a
particular mine site. Kentucky, Virginia, West Virginia, and Tennessee
account for 98.6 percent of the total number of excess spoil fills
approved nationwide in permits issued between October 2001 and June
2005. Thus, the baseline of potentially impacted entities has been
limited to the coal-producing region of central Appalachia, which
includes eastern Kentucky, Virginia, southern West Virginia, and
Tennessee.
According to MSHA data, there were 389 coal-mining firms with fewer
than 500 employees operating in central Appalachia in 2006. That number
is approximately 23 percent of the total number of small coal-mining
firms in the United States. The following data summarize coal
production and employment in central Appalachia:
Total coal production: 236,127,000 tons.
Gross revenue from coal production: $11,275,064,250 (average price:
$47.75 per ton).
Coal-mining firms with fewer than 500 employees: 389.
Coal produced by those firms: 87,447,368 tons.
Gross revenue from those firms: $4,175,611,822 (average price:
$47.75 per ton).
Section 507(c) of SMCRA provides that an operator does not qualify
for the small operator assistance program if the total annual
production at all locations attributed to that operator exceeds 300,000
tons. We determined that 325 of the 389 firms within central Appalachia
that MSHA identified as small entities produced less than 300,000 tons
of coal per year.
Number of Potentially Affected Entities
According to MSHA data, in 2006 the 389 small coal-mining entities
in central Appalachia operated a total of 765 mines, as shown in this
table:
----------------------------------------------------------------------------------------------------------------
Percent of total
number of mines
Number of small Number of mines operated by
State coal-mining operated by small entities
entities small entities in central
Appalachia
----------------------------------------------------------------------------------------------------------------
Kentucky.................................................. 224 397 51
Tennessee................................................. 10 35 5
Virginia.................................................. 52 107 14
West Virginia............................................. 103 226 30
-----------------------------------------------------
Total................................................. 389 765 100
----------------------------------------------------------------------------------------------------------------
[[Page 75867]]
We conducted an evaluation of permits issued in West Virginia
between October 2001 and June 2005 to determine the number of stream
miles impacted by excess spoil and coal mine waste fills permitted
during that time. We used a sample of 110 of the 270 permits issued in
West Virginia during that period. The sample included 28 permits for
underground mining operations and 82 permits for surface mines and
other types of mining-related operations regulated under SMCRA. A
review of that data indicated that 4 percent (4) of all permits had
refuse disposal facilities, 29 percent (24) of the permits for surface
mines had excess spoil fills, and 4 percent (1) of the permits for
underground mines had an excess spoil fill.
To collect information on excess spoil, we conducted an evaluation
of 92 new permits issued in Kentucky during 2006. The data indicate
that 64 percent of small surface mining operations have permits
authorizing construction of excess spoil fills. Those fills will
generate 32 percent of the total projected volume of fill material to
be produced by surface mines in Kentucky. In addition, 67 percent of
the small underground operations have permits authorizing construction
of excess spoil fills. Those fills will generate 91 percent of the
total projected volume of fill material to be produced by underground
mines in Kentucky.
Extrapolating the data from the reviews of permits in Kentucky and
West Virginia to all mines operated by small entities in central
Appalachia, we estimate that the rule will impact 191 of the 389 small
coal-mining entities in central Appalachia, based on the assumption
that 64% (143) of the small entities in Kentucky will construct excess
spoil fills and that 29% (48) of the small entities in West Virginia,
Virginia, and Tennessee will do so.
Economic Impact on Potentially Affected Entities
We do not believe there will be any significant economic impact
upon small entities. Only two new types of compliance costs would
affect operators of coal mines: costs of an alternatives analysis for
disposal of coal mine waste and/or excess spoil; and costs of
minimizing the volume of excess spoil to the extent possible. It is not
possible to quantify compliance costs for all potentially affected
small entities because each mine site is unique and the operational
costs of complying with the rule will vary.
Under the final rule, an operator must design and construct a mine
to minimize both the volume of excess spoil created and the adverse
impacts of excess spoil fills and coal mine waste disposal facilities
on fish, wildlife, and related environmental values. Whenever a permit
application proposes to place excess spoil or coal mine waste in or
within 100 feet of a perennial or intermittent stream, the final rule
requires the permit applicant to identify a range of reasonably
possible alternatives and select the alternative with the least overall
adverse impact on fish, wildlife, and related environmental values. In
determining whether an alternative is reasonable, the applicant must
consider cost, logistics, and the availability of technology.
Based on discussions with mining consultants, developing the
alternatives analysis for the permit application will cost between
$10,000 and $15,000 per permit. However, most operators will incur
little to no additional cost to provide the alternatives analysis
because the Corps of Engineers usually requires a similar analysis to
satisfy Clean Water Act requirements.
With respect to operational costs, Section IV of a draft
environmental impact statement \5\ issued in 2003 by the U.S.
Environmental Protection Agency, the U.S. Army Corps of Engineers, the
U.S. Fish and Wildlife Service, OSM, and the West Virginia Department
of Environmental Protection contains the following discussion of fill
minimization costs:
---------------------------------------------------------------------------
\5\ ``Mountaintop Mining/Valley Fills in Appalachia Draft
Programmatic Environmental Impact Statement'' (EPA 9-03-R-00013, EPA
Region 3, June 2003).
Fill minimization may increase operational costs to the mining
operator because spoil that must be returned to the mine site has
higher handling costs than the current practice of end-dump valley
fill construction. * * * While not a direct comparison, and somewhat
dated, the regulatory analysis that we used for the permanent
program regulations indicated that placing spoil in lifts versus
end-dumping to build valley fills added 17 cents/ton to the cost of
---------------------------------------------------------------------------
mining coal in central Appalachia.
The same document estimates the cost of compliance with a West
Virginia Department of Environmental Protection policy intended to
minimize the volume of excess spoil at 50 cents to one dollar for each
cubic yard of spoil that, as a result of the policy, is retained on the
mined-out area rather than placed in an excess spoil fill. We will use
the West Virginia estimate as the cost of compliance with the fill
minimization provisions of this final rule. However, some of those
costs are offset by reduced mitigation expenses under other state and
federal laws because compliance with the policy typically results in
substantially reducing the length of stream segments impacted.
We have analyzed the impact on eastern Kentucky small coal mine
operators in more detail because more data is available from that
state. We estimate that coal mines operated by the 143 small coal-
mining entities in Kentucky with excess spoil fills will generate 32
percent (114,514,880 cubic yards) of the 357,829,000 cubic yards of
excess spoil approved in all surface mine permits issued in 2006 in
Kentucky. If we assume that the requirement to minimize the placement
of spoil outside the mined-out area would require small entities to
reduce the volume of excess spoil fills by 25 percent, then those
entities will have to retain approximately 28,628,720 additional cubic
yards within the mined out area for the permits that they received in
2006. Further assuming that the unit cost for placing this amount of
excess spoil within the mined-out area would be the same as in West
Virginia (50 cents to one dollar per cubic yard), the total cost of
this placement to small coal-mining entities in Kentucky will range
from $14 million to $28 million, or an average of $98,000 to $196,000
per small entity with excess spoil.
We do not have sufficient data to perform a similar calculation for
small coal-mining entities in the other three states. However, we can
use the average cost per small entity with excess spoil in Kentucky to
project a reasonable range of costs for small coal-mining entities in
the remaining central Appalachian states. Specifically, the 48
potentially impacted small entities in Tennessee, Virginia, and West
Virginia could incur an additional cost of $4.7 million to $9.4
million.
Combining the projections for the 143 small entities in Kentucky
and the 48 small entities in other states results in an estimated total
cost ranging between $18.7 million and $37.4 million for all 191 small
entities projected to be impacted.
In the aggregate, the 224 small coal-mining entities in eastern
Kentucky produced 41,587,096 tons of coal in 2006. At an average price
of $47.75 per ton, the gross revenue from that production equals
$1,985,783,800, with $1,270,901,653 of that amount attributable to the
64% (143) of the small entities that we project will be impacted by
this rule. Thus, the estimated cost of compliance with the requirement
to minimize the placement of spoil outside the mined-out area is
projected to range from 1.1 percent to 2.2 percent of the gross revenue
for the 143 potentially impacted eastern Kentucky small coal-mining
entities.
[[Page 75868]]
At the same average price of $47.75 per ton, gross revenue in 2006
for the other 165 small coal-mining entities in central Appalachia
equals $2,985,783,834, of which $635,050,116 is attributable to the 29%
(48) of those entities that we project will be impacted by this rule.
Therefore, at an average price of $47.75 per ton, gross revenue in 2006
totals $1,905,951,769 for the 191 central Appalachian small entities
that we project will be impacted by this rule.
Extrapolating this data to the central Appalachian region as a
whole, we estimate the cost of compliance will range between $18.7
million and $37.4 million, which translates to a range of 0.98 percent
to 1.9 percent of the total gross revenue ($1,905,951,769) generated by
potentially impacted small coal-mining entities in central Appalachia.
This estimate is based on the assumption that only 48 (29%) of the 165
small coal-mining entities in Tennessee, Virginia, and West Virginia
produce excess spoil, while 64% (143) of the 224 Kentucky small coal-
mining entities do so.
All regulatory authorities in central Appalachia have already
implemented policies to minimize the volume of excess spoil placed
outside the mined-out area, which means that, based on surveys
conducted under the Paperwork Reduction Act, we expect that operators
will incur no significant additional costs to implement these
regulatory changes.
We received no comments on the proposed rule from small
municipalities (those with 50,000 or fewer residents) or local public
entities such as water authorities. We anticipate that the final rule
will not have any significant impact on those entities because, as
discussed in the final environmental impact statement (EIS) for this
rulemaking, we do not expect that the rule will either increase or
decrease mining activities, either nationwide or in central Appalachia.
Pages IV-165 and IV-166 of the final EIS discuss the lack of impact of
this rule on the economy of the coal mining regions.
D. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. Based on the analysis in
paragraphs A and C above, we have determined that the rule will not--
a. Have an annual effect on the economy of $100 million or more.
b. Cause a major increase in costs or prices for consumers,
individual industries, Federal, state, or local government agencies, or
geographic regions.
c. Have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
E. Unfunded Mandates
This rule will not impose an unfunded mandate on state, local, or
tribal governments or the private sector of more than $100 million per
year. The rule will not have a significant or unique effect on state,
tribal, or local governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1534) is not required.
F. Executive Order 12630--Takings
This rule does not affect property rights. It governs how coal may
be mined rather than whether it may be mined. For this reason and based
on the discussion in the preamble and the analysis in the final
environmental impact statement, we have determined that the rule will
not have significant takings implications.
G. Executive Order 13132--Federalism
This rule does not alter or affect the relationship between states
and the Federal Government. Therefore, the rule will not have
significant Federalism implications. Consequently, there is no need to
prepare a Federalism assessment.
H. Executive Order 12988--Civil Justice Reform
The Office of the Solicitor for the Department of the Interior has
determined that this rule will not unduly burden the judicial system
and that it meets the requirements of sections 3(a) and 3(b)(2) of the
Executive Order.
I. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
We have evaluated the potential effects of this rule on federally
recognized Indian tribes and have determined that no consultation or
coordination is required because the rule will not have substantial
direct effects on the relationship between the Federal Government and
Indian tribes or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
J. Paperwork Reduction Act
In accordance with 44 U.S.C. 3501 et seq., we sought comments on
the collections of information contained in the proposed rule for
modifications to 30 CFR parts 780, 784, 816, and 817. We received no
comments from the public regarding these collections of information.
The Office of Management and Budget has approved the information
collection activities for these parts and assigned control numbers
1029-0128 for sections 780.25, 780.28, and 780.35 (to be consolidated
into 1029-0036 upon approval); 1029-0039 for part 784; and 1029-0047
for parts 816 and 817. The expiration date for these collections of
information is December 31, 2011. These collections estimate the burden
as follows:
30 CFR Part 780, Sections 780.25, 780.28, and 780.35
Title: Surface Mining Permit Applications-Minimum Requirements for
Reclamation and Operation Plan.
OMB Control Number: 1029-0128 (To be consolidated into 1029-0036).
Summary: Section 506(a) of SMCRA, 30 U.S.C. 1256(a), requires that
persons obtain a permit before conducting surface coal mining
operations. Sections 507 and 508, 30 U.S.C. 1257 and 1258,
respectively, establish application requirements, including a
reclamation plan. The regulations in 30 CFR 780.25, 780.28, and 780.35
implement these statutory provisions with respect to coal mine waste,
excess spoil, impoundments, siltation structures, and mining in or near
perennial or intermittent streams. The regulatory authority uses the
information submitted in the permit application to determine whether
the reclamation plan will achieve the reclamation and environmental
protection requirements of the Act and regulatory program. Without this
information, OSM and state regulatory authorities could not make the
findings that section 510 of SMCRA, 30 U.S.C. 1260, requires before a
permit application for surface coal mining operations may be approved.
Bureau Form Number: None.
Frequency of Collection: Once.
Description of Respondents: Applicants for surface coal mining
permits and state regulatory authorities.
Total Annual Respondents: 270 applicants and 24 state regulatory
authorities.
Total Annual Burden Hours: 47,380.
[[Page 75869]]
Summary of Annual Burden to Respondents for 30 CFR 780.15, 780.25, 780.28, and 780.35
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hours
Section Number of Number of Hours per Hours per state Total hours currently Difference
applications state reviews application review requested approved
--------------------------------------------------------------------------------------------------------------------------------------------------------
780.15................................ 0 0 0 0 0 8 (8)
780.25................................ 225 221 123 25.2 33,250 14,155 19,095
780.28................................ 270 264 10 10 5,340 0 5,340
780.35................................ 170 168 27 25 8,790 12,660 (3,870)
-----------------------------------------------------------------------------------------------------------------
Totals............................ .............. .............. 160 60.2 47,380 26,823 20,557
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-Labor Cost Burden: $202,000.
30 CFR Part 784
Title: Underground Mining Permit Applications-Minimum Requirements
for Reclamation and Operation Plan.
OMB Control Number: 1029-0039.
Summary: Among other things, section 516(d) of SMCRA, 30 U.S.C.
1266(d), in effect requires applicants for permits for underground coal
mines to prepare and submit an operation and reclamation plan for coal
mining activities as part of the application. The regulatory authority
uses this information to determine whether the plan will achieve the
reclamation and environmental protection requirements of the Act and
regulatory program. Without this information, OSM and state regulatory
authorities could not approve permit applications for underground coal
mines and related facilities.
Bureau Form Number: None.
Frequency of Collection: Once.
Description of Respondents: Applicants for underground coal mine
permits and state regulatory authorities.
Total Annual Respondents: 62 applicants and 24 state regulatory
authorities.
Total Annual Burden Hours: 21,761.
Information Collection Summary for 30 CFR Part 784
--------------------------------------------------------------------------------------------------------------------------------------------------------
Currently
Industry Industry State State Total approved Program Change to
Section responses hours per responses hours per hours burden changes Adjustment burden
response response requested hours hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
784.11...................................... 62 4 61 3 431 347 0 84 84
.12........................................ 25 6 24 2.25 204 198 0 6 6
.13........................................ 62 53 61 4.5 3,561 3,101 0 460 460
.14........................................ 62 40 61 8.75 3,014 3,063 0 -49 -49
.15........................................ 62 6 61 1 433 398 0 35 35
.16........................................ 62 16 61 10 1,602 814 801 -13 788
.17........................................ 1 6 1 5 11 99 -95 7 -88
.18........................................ 28 8 27 2 278 278 0 0 0
.19........................................ 47 9 46 12 975 583 369 23 392
.20........................................ 62 12 61 4 988 1,004 0 -16 -16
.21........................................ 62 4 61 8 736 245 0 491 491
.22........................................ 62 24 61 6 1,854 1,404 0 450 450
.23........................................ 62 40 61 7.5 2,938 2,954 0 -16 -16
.24........................................ 62 20 61 4.5 1,515 1,392 0 123 123
.25........................................ 34 6 33 4 336 346 0 -10 -10
.28........................................ 49 10 48 10 970 0 970 0 970
.29........................................ 62 16 61 5 1,297 331 0 966 966
.30........................................ 62 8 61 2 618 628 0 -10 -10
-----------------------------------------------------------------------------------------------------------
Totals.................................. .......... .......... .......... .......... 21,761 17,185 2,045 2,531 4,576
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-Labor Cost Burden: $612,106.
30 CFR Parts 816 and 817
Title: Permanent Program Performance Standards--Surface and
Underground Mining Activities.
OMB Control Number: 1029-0047.
Summary: Sections 515 and 516 of SMCRA provide that permittees
conducting coal mining and reclamation operations must meet all
applicable performance standards of the regulatory program approved
under the Act. The information collected is used by the regulatory
authority in monitoring and inspecting surface coal mining and
reclamation operations to ensure that they are conducted in compliance
with the requirements of the Act.
Bureau Form Number: None.
Frequency of Collection: Once, on occasion, quarterly and annually.
Description of Respondents: Coal mine operators, permittees, permit
applicants, and state regulatory authorities.
Total Annual Respondents: 4764 permittees and 24 state regulatory
authorities
Total Annual Burden Hours: 1,092,430.
[[Page 75870]]
Information Collection Summary for 30 CFR Parts 816 and 817
--------------------------------------------------------------------------------------------------------------------------------------------------------
Currently
Section Industry Industry hours State State hours Total hours ,LI>approved Changes to
responses per response responses per response requested burden hours burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
.41................................... 68,900 6.5 0 0 447,850 447,850 0
.43................................... 616 16 270 5 11,206 4,480 6,726
.49................................... 17,592 6 0 0 105,552 126,144 (20,592)
.57................................... 0 0 0 0 0 30,800 (30,800)
.62................................... 38,480 4 0 0 153,920 101,010 52,910
.64................................... 962 4 0 0 3,848 3,848 0
.67................................... 150,072 1.2 0 0 180,086 180,086 0
.68................................... 962 12 0 0 11,544 11,544 0
.71................................... 9,072 8 0 0 72,576 475,136 (402,560)
.81................................... 0 0 0 0 0 15,528 (15,528)
.83 & .87.............................. 7,764 3 0 0 23,292 23,292 0
.116.................................. 880 80 2 100 70,600 70,600 0
817.121................................ 80 4 0 0 320 320 0
817.122................................ 1,638 .5 0 0 819 816 3
.131.................................. 335 16 331 .5 5,526 5,360 166
.151.................................. 481 11 0 0 5,291 5,291 0
Totals............................. 297,834 .............. 603 .............. 1,092,430 1,502,105 (409,675)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Under 30 CFR 816/817.41, the water monitoring reports required under the National Pollutant Discharge Elimination System (NPDES) are not counted
as an OSM burden.
Non-Labor Cost Burden: $371,064.
These burden estimates include time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collections of information. We
may not conduct or sponsor and you are not required to respond to a
collection of information unless we display a currently valid OMB
control number. These control numbers are identified in sections
780.10, 784.10, 816.10, and 817.10 of 30 CFR parts 780, 784, 816, and
817, respectively.
You should direct any comments on the accuracy of our burden
estimates; ways to enhance the quality, utility, and clarity of the
information to be collected; and ways to minimize the burden of
collection on respondents, to the Information Collection Clearance
Officer, Office of Surface Mining Reclamation and Enforcement, 1951
Constitution Ave, NW., Room 202 SIB, Washington, DC 20240.
K. National Environmental Policy Act
This rule constitutes a major Federal action significantly
affecting the quality of the human environment under the National
Environmental Policy Act of 1969 (NEPA). Therefore, we have prepared a
final environmental impact statement (FEIS) pursuant to section
102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C). The FEIS, which is entitled
``OSM-EIS-34: Proposed Revisions to the Permanent Program Regulations
Implementing the Surface Mining Control and Reclamation Act of 1977
Concerning the Creation and Disposal of Excess Spoil and Coal Mine
Waste and Stream Buffer Zones,'' is available on the Internet at
www.regulations.gov. The Docket ID number is OSM-2007-0008. A copy of
the FEIS is also available for inspection as part of the administrative
record for this rulemaking in the South Interior Building, Room 101,
1951 Constitution Avenue, NW., Washington, DC 20240.
Both we and EPA published notices of availability of the FEIS on
October 24, 2008 (73 FR 63510 and 63470, respectively). The wait period
for the FEIS under 40 CFR 1506.10(b)(2) expired November 24, 2008.
During that period, we received approximately 930 comments. However,
the vast majority of commenters did not address the FEIS. Instead, the
commenters variously expressed opposition to mountaintop removal
operations, the placement of fill material in streams, mining
activities adjacent to streams, or all or part of the proposed rule
that we published on August 24, 2007, for which the comment period
closed almost one year earlier (November 23, 2007). Some commenters
opposed EPA concurrence with the final rule. A few commenters urged
adoption of a wider buffer zone for streams to provide greater
environmental protection. To the limited extent that commenters
referred to the FEIS, they generally either expressed a preference for
one of the alternatives (usually the no action alternative) or
criticized the FEIS for not analyzing in detail the alternative
prohibiting all mining activities within the stream buffer zone. There
were no comments that raised substantive issues or identified
significant errors or admissions that would necessitate reconsideration
of the adequacy of the FEIS.
The preamble to this final rule serves as the ``Record of
Decision'' under NEPA. Because of the length of the preamble, we have
prepared the following concise summary of the FEIS and the decisions
made in the final rule relative to the alternatives considered in the
FEIS.
Because of the comments we received on the proposed rule and draft
EIS, the final rule differs somewhat from the proposed rule, which
means that the preferred alternative in the final EIS differs somewhat
from the preferred alternative in the draft EIS. In making these
changes and in developing the final rule, we used the EIS to understand
the potential environmental impacts.
Alternatives Considered
The draft and final environmental impact statements contain an
analysis of five rulemaking alternatives, which are summarized below.
Alternative 1 is both the preferred alternative and the environmentally
preferable alternative; it forms the basis for the final rule that we
are adopting today.
No Action Alternative
Under this alternative, we would not adopt any new or revised
rules. The current regulations applicable to excess spoil generation,
coal mine waste disposal, fill construction, and stream buffer zones
would remain unchanged.
One state regulatory authority supported this alternative because
it would require no changes in state regulatory programs.
[[Page 75871]]
Alternative 1: Preferred Alternative
Under this alternative, as set forth in the draft EIS, we would
revise our rules to--
Require the permit applicant to demonstrate that the
operation has been designed to minimize the volume of excess spoil to
the extent possible.
Require that excess spoil fills be designed and
constructed to be no larger than needed to accommodate the anticipated
volume of excess spoil that the proposed operation will generate.
Require that permit applicants for operations that would
generate excess spoil develop various alternative excess spoil disposal
plans in which the size, numbers, configuration, and locations of the
fills vary; submit an analysis of the environmental impacts of those
alternatives; and select the alternative with the least overall adverse
environmental impact or demonstrate to the satisfaction of the
regulatory authority why implementation of that alternative is not
possible.
Require that excess spoil fills be constructed in
accordance with the plans approved in the permit and in a manner that
minimizes disturbances to and adverse impacts on fish, wildlife, and
related environmental values to the extent possible, using the best
technology currently available.
Require that permit applicants for operations that would
include coal mine waste disposal structures identify alternative
disposal methods and alternative locations for any disposal structures;
analyze the viability and environmental impacts of each alternative;
and select the alternative with the least overall adverse environmental
impact or demonstrate to the satisfaction of the regulatory authority
why implementation of that alternative is not possible.
Revise the stream buffer zone rules to apply to all waters
of the United States and modify the permit application requirements
accordingly; identify those activities that are not subject to the
prohibition on conducting mining and reclamation activities on the
surface of lands within 100 feet of waters of the United States;
consolidate and revise requirements for stream-channel diversions in 30
CFR 816.43 and 817.43, and replace the existing findings regarding
stream water quantity and quality and State and Federal water quality
standards with language that better correlates with the underlying
provisions of SMCRA (paragraphs (b)(10)(B)(i) and (b)(24) of section
515 and paragraphs (b)(9)(B) and (b)(11) of section 516).
However, after evaluating the comments that we received on the
draft EIS and the proposed rule, we substantially revised the preferred
alternative. A description of the modified preferred alternative
appears below, organized by subject (excess spoil, coal mine waste,
stream buffer zones):
Excess Spoil
This alternative would revise 30 CFR 780.35 and 784.19 to require
that a permit application in which the applicant proposes to generate
excess spoil include a demonstration, to the satisfaction of the
regulatory authority, that the operation is designed to minimize, to
the extent possible, the volume of excess spoil that the operation will
generate, thus ensuring that spoil is returned to the mined-out area to
the extent possible, taking into consideration applicable regulations
concerning restoration of the approximate original contour, safety,
stability, and environmental protection and the needs of the proposed
postmining land use. The revised regulations would also require a
demonstration, prepared to the satisfaction of the regulatory
authority, that the designed maximum cumulative volume of all proposed
excess spoil fills within the permit area is no larger than the
capacity needed to accommodate the anticipated cumulative volume of
excess spoil that the operation will generate, as approved by the
regulatory authority.
The revised regulations also would provide that the applicant must
design the operation to avoid placement of excess spoil in or within
100 feet of a perennial or intermittent stream to the extent possible.
The purpose of this provision is to minimize adverse impacts on fish,
wildlife, and related environmental values. If avoidance is not
possible, the applicant would have to explain, to the satisfaction of
the regulatory authority, why an alternative that does not involve
placement of excess spoil in or within 100 feet of a perennial or
intermittent stream is not reasonably possible. In addition, the
applicant would have to identify a reasonable range of alternatives
that vary with respect to the number, size, location, and configuration
of proposed fills. The applicant would have to identify only those
alternatives that are reasonably possible and that are likely to differ
in terms of impacts on fish, wildlife, and related environmental
values.
An alternative would be reasonably possible if it conformed to the
safety, engineering, design, and construction requirements of the
regulatory program and is capable of being done after consideration of
cost, logistics, and available technology. The fact that one
alternative may cost somewhat more than a different alternative would
not necessarily warrant exclusion of the more costly alternative from
consideration. However, an alternative generally could be considered
unreasonable if its cost was substantially greater than the costs
normally associated with this type of project. In addition, to be
considered reasonable, a potential alternative would have to be
consistent with the coal recovery provisions of 30 CFR 816.59 and
817.59, which provide that mining activities must be conducted so as to
maximize the utilization and conservation of the coal, while utilizing
the best appropriate technology currently available to maintain
environmental integrity, so that reaffecting the land in the future
through surface coal mining operations is minimized.
The applicant would have to analyze the impacts of each of the
identified alternatives on fish, wildlife, and related environmental
values, taking into consideration both terrestrial and aquatic
ecosystems. For every alternative that would involve placement of
excess spoil in a perennial or intermittent stream, the analysis must
include an evaluation of impacts on the physical, chemical, and
biological characteristics of the stream downstream of the proposed
fill, including seasonal variations in temperature and volume, changes
in stream turbidity or sedimentation, the degree to which the excess
spoil may introduce or increase contaminants, and the effects on
aquatic organisms and the wildlife that is dependent upon the stream.
If the applicant prepared an analysis of alternatives for the proposed
fill under 40 CFR 230.10 to meet Clean Water Act requirements, the
applicant could initially submit a copy of that analysis with the
application in lieu of complying with the analytical requirements
detailed in the preceding sentence. The regulatory authority would
determine whether and to what extent the analysis prepared for Clean
Water Act purposes satisfies the analytical requirements under this
alternative.
The applicant would be required to select the alternative with the
least overall adverse impact on fish, wildlife, and related
environmental values, including adverse impacts on water quality and
terrestrial and aquatic ecosystems.
Finally, under the preferred alternative, we would revise the
performance standards concerning
[[Page 75872]]
excess spoil at 30 CFR 816.71 and 817.71 by adding a requirement that
the permittee construct the fill in accordance with the design and
plans approved in the permit. We also would add a provision requiring
the permittee to place excess spoil in a location and manner that would
minimize disturbances and adverse impacts on fish, wildlife, and
related environmental values to the extent possible, using the best
technology currently available.
Coal Mine Waste
This alternative would revise our coal mine waste disposal
regulations in a fashion similar to what we proposed for excess spoil
disposal. The permitting regulations at 30 CFR 780.25 and 784.16 would
be revised to provide that the applicant must design the operation to
avoid placement of coal mine waste in or within 100 feet of perennial
or intermittent stream to the extent possible. If avoidance is not
reasonably possible, the applicant would have to identify a reasonable
range of alternative locations or configurations for any proposed
refuse piles or coal mine waste impoundments. The applicant would have
to identify only alternatives that are reasonably possible and that are
likely to differ in terms of impacts on fish, wildlife, and related
environmental values. The fact that one alternative may cost somewhat
more than a different alternative would not necessarily warrant
exclusion of the more costly alternative from consideration. However,
an alternative generally could be considered unreasonable if its cost
is substantially greater than the costs normally associated with this
type of project. In addition, to be considered reasonable, a potential
alternative would have to be consistent with the coal recovery
provisions of 30 CFR 816.59 and 817.59, which provide that mining
activities must be conducted so as to maximize the utilization and
conservation of the coal, while utilizing the best appropriate
technology currently available to maintain environmental integrity, so
that reaffecting the land in the future through surface coal mining
operations is minimized.
The applicant would have to analyze the impacts of each of the
identified alternatives on fish, wildlife, and related environmental
values, taking into consideration both terrestrial and aquatic
ecosystems. For every alternative that would involve placement of coal
mine waste in a perennial or intermittent stream, the analysis would
have to include an evaluation of the impacts on the physical, chemical,
and biological characteristics of the stream downstream of the proposed
refuse pile or slurry impoundment, including seasonal variations in
temperature and volume, changes in stream turbidity or sedimentation,
the degree to which the coal mine waste may introduce or increase
contaminants, and the effects on aquatic organisms and the wildlife
that is dependent upon the stream. If the applicant prepared an
analysis of alternatives for the proposed refuse pile or slurry
impoundment under 40 CFR 230.10 to meet Clean Water Act requirements,
the applicant could initially submit a copy of that analysis with the
application in lieu of complying with the analytical requirements
detailed in the preceding sentence. The regulatory authority would then
determine whether and to what extent the analysis prepared for Clean
Water Act purposes satisfies the analytical requirements under this
alternative.
The applicant would be required to select the alternative with the
least overall adverse impact on fish, wildlife, and related
environmental values, including adverse impacts on water quality and
aquatic and terrestrial ecosystems.
Stream Buffer Zones
This alternative would add new regulations at 30 CFR 780.28 and
784.28 to establish permit application requirements and regulatory
authority review responsibilities if mining or related regulated
activities are proposed in or within 100 feet of a perennial or
intermittent stream. The new requirements, which would reflect the
SMCRA provisions upon which the stream buffer zone rule is based, would
replace the findings that the regulatory authority must make under
existing 30 CFR 816.57(a)1) and 817.57(a)(1) before authorizing
activities within 100 feet of a perennial or intermittent stream. The
findings in the existing rule include several Clean Water Act-related
provisions that would be removed under this alternative.
When an applicant proposes to conduct activities in the stream
itself, the preferred alternative would require that the applicant
demonstrate that avoiding disturbance of the stream is not reasonably
possible. The applicant also would have to demonstrate that the
activities would comply with all applicable regulations concerning use
of the best technology currently available to prevent contributions of
additional suspended solids to streamflow or runoff outside the permit
area to the extent possible and to minimize disturbances and adverse
impacts on fish, wildlife, and related environmental values to the
extent possible. Before approving the proposed activities in the
stream, the regulatory authority would have to prepare written findings
concurring with those demonstrations.
When an applicant proposes to conduct activities within the buffer
zone but not within the stream itself, the preferred alternative would
require that the applicant demonstrate that avoiding disturbance of the
stream buffer zone either is not reasonably possible or is not
necessary to meet the hydrologic balance and fish and wildlife
protection requirements of the regulatory program. The applicant also
would have to identify any lesser buffer zone that he or she proposes
to maintain and explain how the lesser buffer zone, together with any
other protective measures proposed, constitute the best technology
currently available to prevent contributions of additional suspended
solids to streamflow or runoff outside the permit area to the extent
possible and to minimize disturbances and adverse impacts on fish,
wildlife, and related environmental values to the extent possible.
Before approving the applicant's proposed activities in the stream
buffer zone, the regulatory authority would have to prepare written
findings concurring with the demonstration and explanation in the
application.
In all cases, the new rules would require that the applicant
identify the authorizations and certifications that would be needed
under the Clean Water Act and its implementing regulations. The
preferred alternative would clarify that, while the SMCRA permit may be
issued in advance of any necessary Clean Water Act authorization,
issuance of a SMCRA permit does not allow the permittee to initiate any
activities for which Clean Water Act authorization or certification is
needed.
Under the preferred alternative, we also would revise the stream
buffer zone performance standards at 30 CFR 816.57 and 817.57 to
provide that the requirement to maintain an undisturbed buffer around a
perennial or intermittent stream does not apply to those stream
segments for which the regulatory authority approves one or more of the
following activities:
Diversion of a perennial or intermittent stream.
Placement of bridge abutments, culverts, or other
structures in or within 100 feet of a perennial or intermittent stream
to facilitate crossing of the stream by roads, railroads, conveyors,
pipelines, utilities, or similar facilities.
Construction of sedimentation pond embankments in a
perennial or
[[Page 75873]]
intermittent stream, including the pool or storage area created by the
embankment.
Construction of excess spoil fills and coal mine waste
disposal facilities in a perennial or intermittent stream.
Each of these activities would remain subject to all other existing
performance standards, including standards that regulate the
environmental impacts of the activities. Thus, for example, all surface
activities conducted in or within 100 feet of a perennial or
intermittent stream must comply with SMCRA sections 515(b)(10)(B)(i)
and 515(b)(24) and various regulations implementing those statutory
provisions. Also, paragraph (b) of 30 CFR 816.57 and 817.57 (1983),
which requires that buffer zones be marked, would be deleted and merged
with our other signs and markers requirements at 30 CFR 816.11(e) and
817.11(e).
In the draft EIS, we also sought comment on a variant of this
alternative, which would revise the buffer zone rule to apply to all
waters of the United States and would eliminate paragraph (a)(2) of 30
CFR 816.57 and 817.57 (1983), which contained a redundant requirement
for a finding that stream-channel diversions will comply with 30 CFR
816.43 or 817.43. However, the variant otherwise would retain much of
the 1983 stream buffer zone rule language at 30 CFR 816.57(a) and
817.57(a), with several modifications. The first modification would
revise paragraph (a)(1), which required that the regulatory authority
find that the ``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,'' by inserting the clause ``as
indicated by issuance of a certification under section 401 of the Clean
Water Act or a permit under section 402 or 404 of the Clean Water Act''
after ``State or Federal water quality standards,'' by replacing the
phrase ``adversely affect'' with ``significantly degrade,'' and by
replacing the phrase ``of the stream'' with ``of the waters outside the
permit area.'' In addition, this variant would add a new finding that
would require minimization of disturbances and adverse impacts on fish,
wildlife, and other related environmental values of the waters to the
extent possible using the best technology currently available.
Apart from its expansion to include all waters of the United
States, this variant would largely preserve the status quo in terms of
application of the 1983 stream buffer zone rule. The revised rule
language would be more consistent than the existing rule language with
the historical application of the 1983 stream buffer zone rule, which
we discussed earlier in Parts III.D. and III.E. of this preamble. The
change from ``adversely affect'' to ``significantly degrade'' would
replace language of uncertain provenance with language similar to that
found in the 404(b)(1) Guidelines at 40 CFR 230.10(c), which pertains
to placement of dredged or fill materials in waters of the United
States under section 404 of the Clean Water Act. The proposed new
finding in paragraph (a)(3) would reiterate the requirements of section
515(b)(24) of SMCRA.
We sought comment on the benefits and drawbacks of this variant as
contrasted with the buffer zone rule changes that we proposed. In
particular, we invited comment on the extent to which our rules can or
should incorporate broad references to Clean Water Act requirements and
use Clean Water Act terminology in place of SMCRA terminology. We also
invited comment on whether and how our preferred alternative and this
variant differ in terms of impact on the ability of proposed surface
coal mining and reclamation operations to qualify for a nationwide
permit under section 404 of the Clean Water Act.
We received very few comments in response to this request. Those
that we did receive generally opposed adoption of the variant because
of the change from ``adversely affect'' to ``significantly degrade''
and, in one case, replacing the phrase ``of the stream'' with ``of the
waters outside the permit area.''
Alternative 2: January 7, 2004, Proposed Rule
Under this alternative, we would revise our regulations in a manner
similar to that set forth in our January 7, 2004, proposed rule (69 FR
1036). In essence, the changes to our excess spoil regulations would be
generally analogous to the changes described in Alternative 1, but we
would not make similar changes to our coal mine waste disposal rules.
With respect to the stream buffer zone rules, we would retain the
prohibition on disturbance of land within 100 feet of a perennial or
intermittent stream, but alter the findings that the regulatory
authority must make before granting a variance to this requirement. The
revised rule would replace the findings in the 1983 stream buffer zone
rule with a requirement that the regulatory authority find in writing
that the activities would, to the extent possible, use the best
technology currently available to--
(1) Prevent additional contributions of suspended solids to the
section of stream within 100 feet downstream of the mining activities,
and outside the area affected by mining activities; and
(2) Minimize disturbances and adverse impacts on fish, wildlife,
and other related environmental values of the stream.
Under this alternative, persons seeking to conduct surface mining
activities (or, for underground mines, surface activities) on the
surface of lands within the buffer zone of a perennial or intermittent
stream would have to seek and obtain a variance from the regulatory
authority in all cases, even if the stream segment is to be diverted or
filled. There would be no categorical exceptions for certain activities
as there are under Alternative 1.
Essentially, Alternative 2 differs from Alternative 1 in the
following respects: Under Alternative 2, the changes to the excess
spoil regulations would be generally analogous to the changes described
in Alternative 1, with the exception that an alternatives analysis
would be required in every case in which an operation generated excess
spoil, not just those for those operations that propose to place excess
spoil in or within 100 feet of a perennial or intermittent stream. In
addition, Alternative 2 would not amend the coal mine waste disposal
rules. With respect to the stream buffer zone rule, Alternative 2,
unlike Alternative 1, would not establish separate permitting
requirements for proposed activities in or within 100 feet of a
perennial or intermittent stream. Unlike Alternative 1, Alternative 2
provides no exception from the requirement to either avoid the buffer
zone or obtain a variance from the regulatory authority. The findings
required for a variance also differ. Most significantly, under
Alternative 2, applicants would not need to demonstrate--and the
regulatory authority would not need to find--that it is not reasonably
possible to avoid disturbing the stream or its buffer zone.
Several industry commenters supported adoption of this alternative,
primarily because it would reduce ambiguity associated with the 1983
stream buffer zone rule and included more modest excess spoil
minimization and alternatives analysis requirements than Alternative 1.
In addition, they noted favorably that, unlike the preferred
alternative, Alternative 2 would not use the term ``waters of the
United States'' in lieu of perennial or intermittent streams in
defining the scope of the stream buffer zone rule, and did not include
requirements for an
[[Page 75874]]
alternatives analysis of proposals to place coal mine waste in or near
waters of the United States.
Alternative 3: Change Only the Excess Spoil Regulations
Under this alternative, we would revise our excess spoil
regulations as described in Alternative 1. We would not revise our coal
mine waste disposal rules or the stream buffer zone regulations.
This alternative received little support from commenters. One
industry commenter opposed it because it included requirements for an
alternatives analysis of proposals to place coal mine waste and excess
spoil in or near waters of the United States.
Alternative 4: Change Only the Stream Buffer Zone Regulations
Under this alternative, we would revise our stream buffer zone
regulations as described in Alternative 1. We would not revise our
excess spoil or coal mine waste disposal regulations.
This alternative received some support from those commenters who
saw no benefit and many difficulties with our proposed excess spoil and
coal mine waste disposal requirements, as described in the preferred
alternative, but who wanted to see the controversy surrounding the
stream buffer zone rule resolved.
Decision
We are adopting the preferred alternative as described in the final
EIS. The final rule and the preferred alternative in the final EIS
differ from the proposed rule and the preferred alternative in the
draft EIS in several respects. The most significant differences are
summarized below:
1. In the final rule, we retained the scope of the 1983 stream
buffer zone rule, which included only perennial and intermittent
streams, rather than adopting those provisions of our proposed rules
that would have applied the buffer zone restrictions to waters of the
United States. As discussed in Part VII of this preamble, almost all
commenters who opined on this issue opposed the proposed change to
waters of the United States. In general, commenters preferred the
relatively well-understood concept of perennial and intermittent
streams as opposed to the uncertain meaning of the term waters of the
United States.
2. In response to concerns that the proposed rule did not
adequately protect headwater streams, we added a requirement that the
operation be designed to avoid placement of excess spoil or coal mine
waste in or within 100 feet of perennial or intermittent streams to the
extent possible.
3. We extensively revised the rule to clearly differentiate between
permit application requirements and findings required for approval of
activities that would take place in perennial or intermittent streams
and the requirements and findings for those activities that would
disturb only the buffer zone for those streams. Specifically, in the
final rule, new sections 780.28 and 784.28 provide that, as a
prerequisite for approval of activities in a perennial or intermittent
stream, the permit applicant must demonstrate, and the regulatory
authority must find, that it is not reasonably possible to avoid
disturbance of the stream or its buffer zone. In addition, the SMCRA
permit must include a condition requiring a demonstration of compliance
with all applicable Clean Water Act authorization or certification
requirements before the permittee may conduct any activities in the
stream for which authorization or certification is required under the
Clean Water Act. For activities that would occur within the buffer
zone, but not in the stream itself, the final rule provides that the
permit applicant must demonstrate, and the regulatory authority must
find, that avoiding disturbance of the buffer zone either is not
reasonably possible or is not necessary to meet the fish and wildlife
and hydrologic balance protection requirements of the regulatory
program.
4. We revised the rules governing the disposal of coal mine waste
and placement of excess spoil to require identification and analysis of
alternatives only when the applicant proposes to place coal mine waste
or excess spoil in or within 100 feet of a perennial or intermittent
stream. In addition, as revised, the final rule provides that the
permit applicant need identify only those reasonably possible
alternatives that are likely to differ significantly in terms of
impacts on fish, wildlife, and related environmental values. The
proposed rule would have required identification of a reasonable range
of alternatives, which could have included alternatives that are
possible from a technological perspective, but are impracticable
because of cost or other considerations. The final rule specifies that
an alternative is reasonably possible if it--
(A) Conforms to the safety, engineering, design, and construction
requirements of the regulatory program.
(B) Is capable of being done after consideration of cost,
logistics, and available technology. The fact that one alternative may
cost somewhat more than a different alternative does not necessarily
warrant exclusion of the more costly alternative from consideration.
However, an alternative generally may be considered unreasonable if its
cost is substantially greater than the costs normally associated with
that type of project.
(C) Is consistent with the provisions of 30 CFR 816.59/817.59,
which require maximization of coal recovery to minimize the likelihood
that the land will be reaffected by mining operations in the future.
5. The final rule requires a permit applicant proposing to place
excess spoil or coal mine waste in or within 100 feet of a perennial or
intermittent stream to select the alternative with the least overall
adverse impact on fish, wildlife, and related environmental values. The
proposed rule would have allowed an applicant to select a less
protective alternative based upon a demonstration that the most
protective alternative was not possible. However, under the revised
final rule, an applicant need only identify and consider reasonably
possible alternatives, which means that this provision of the proposed
rule is no longer appropriate or relevant.
6. The final rule clarifies that the stream buffer zone requirement
does not apply to any stream segment for which a stream-channel
diversion is approved and constructed. The proposed rule would have
applied the exception only to mining through streams, which has limited
utility in the context of underground mines. Furthermore, it would be
illogical to apply the buffer zone requirement to any stream segment
that has been diverted, regardless of the reason for the diversion,
because there is no longer a need or purpose for a buffer zone for a
former stream channel from which all flows have been diverted.
Environmental Effects of the Alternatives
The information obtained in the course of preparing this EIS
indicates that the proposed Federal action may have the most
significant effects in the central Appalachian coal fields,
particularly eastern Kentucky, southwestern Virginia, and southern West
Virginia. The steep-slope terrain, ample rainfall, and abundant
surface-minable reserves of high quality bituminous coal in these areas
help explain why 98% of all excess spoil fills nationally and
approximately 61 percent of the stream miles directly impacted by
mining are located in these areas.
[[Page 75875]]
Alternatives 1, 2, and 3 would revise the excess spoil regulations
to enhance consideration of the environmental effects of fill
construction by requiring that applicants minimize the volume of spoil
placed outside the mined-out area, design and construct excess spoil
fills to reduce the amount of land and water directly affected outside
the mined-out area, and configure fills to minimize adverse impacts on
fish, wildlife, and related environmental values. States in the central
Appalachian coalfields (Kentucky, Virginia, Tennessee, and West
Virginia) have taken various steps in accordance with their approved
SMCRA regulatory programs to implement similar actions, so the impacts
of the excess spoil elements of alternatives likely would be limited by
the changes already made by those states.
We do not anticipate that the revisions that Alternatives 1, 2, and
4 would make to the stream buffer zone rule would have any major on-
the-ground consequences because we do not expect that those revisions
would alter the rate at which surface coal mining and reclamation
operations are impacting perennial and intermittent streams. Between
1992 and 2002, we estimate that coal mining operations directly
impacted 1,208 miles of stream in the central Appalachian coal fields,
which constitutes 2.05 percent of the total stream miles in the central
Appalachian coal fields. At this rate, 4.1% of the total stream miles
in central Appalachia would be directly impacted within the subsequent
10 years. The miles of stream directly impacted by excess spoil fills
for permits issued between 1985 and 2001 is 724 miles, which is
approximately 1.2 percent of the streams in central Appalachia. If fill
construction continued at this rate, an additional 724 miles of
headwater streams would be buried in the next 17 years (by 2018). This
trend likely would decline as surface-minable coal reserves in central
Appalachia are depleted in the next few decades.
Alternative 1 is uniquely different from the other alternatives in
that it incorporates changes to reduce the adverse impacts of coal mine
waste disposal facilities (refuse piles and slurry impoundments) on
fish, wildlife, and related environmental values. We anticipate that
these changes would positively impact the environment.
We estimate that the combination of the excess spoil and coal mine
waste provisions in Alternative 1 would result in slight positive
effects on the human environment with respect to direct hydrologic
impacts, water quality, and aquatic fauna when compared to the ``no
action'' alternative. In the final rule, we are adopting this
alternative, which is both the most environmentally protective
alternative and the preferred alternative.
Mitigation, Monitoring and Enforcement
We have adopted all practicable means to avoid or minimize
environmental harm from the alternative selected. SMCRA's permitting
requirements and performance standards generally require avoidance or
minimization of adverse impacts to important environmental resources,
and our regulations do likewise. In particular, this final rule
requires that surface coal mining operations be designed to minimize
the amount of spoil placed outside the mined-out area, thus minimizing
the amount of land disturbed. The final rule also requires that, to the
extent possible, surface coal mining and reclamation operations be
designed to avoid disturbance of perennial or intermittent streams and
the surface of lands within 100 feet of those streams. If avoidance is
not reasonably possible, the rule requires that the permit applicant
develop and analyze a reasonable range of reasonably possible
alternatives and select the alternative that would have the least
overall adverse impact on fish, wildlife, and related environmental
values.
Each SMCRA regulatory program includes five major elements:
Permitting requirements and procedures, performance bonds to guarantee
reclamation in the event that the permittee defaults on any reclamation
obligations, performance standards to which the operator must adhere,
inspection and enforcement to maintain compliance with performance
standards and the terms and conditions of the permit, and a process for
the designation of lands as unsuitable for surface coal mining
operations. Under 30 CFR 730.5, 732.15, and 732.17, each state
regulatory program must be no less effective than our regulations in
achieving the requirements of the Act. We conduct oversight of each
state's implementation of its approved regulatory program.
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 1, 2008,
C. Stephen Allred,
Assistant Secretary, Land and Minerals Management.
0
For the reasons set forth in the preamble, the Department revises 30
CFR parts 780, 784, 816, and 817 as set forth below.
PART 780--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS
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.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of this part and assigned clearance number 1029-0036. Sections 507 and
508 of SMCRA contain permit application requirements for surface coal
mining activities, including a requirement that the application include
an operation and reclamation plan. The regulatory authority uses this
information to determine whether the proposed surface coal mining
operation will achieve the environmental protection requirements of the
Act and regulatory program. Without this information OSM and state
regulatory authorities could not approve permit applications for
surface coal mines and related facilities. Persons intending to conduct
such operations must respond to obtain a benefit. A Federal agency may
not conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
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) * * *
[[Page 75876]]
(11) Locations of each siltation structure, permanent water
impoundment, refuse pile, and coal mine waste impoundment for which
plans are required by Sec. 780.25 of this part, and the location of
each fill for the disposal of excess spoil for which plans are required
under Sec. 780.35 of this part.
(c) Except as provided in Sec. Sec. 780.25(a)(2), 780.25(a)(3),
780.35, 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 must be prepared by, or under the
direction of, and certified by a qualified registered professional
engineer, a professional geologist, or, in any state that authorizes
land surveyors to prepare and certify 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. Revise paragraph (c)(2) and add paragraph (c)(4);
0
C. Revise paragraph (d); and
0
D. Remove paragraphs (e) and (f).
The revisions and addition read as follows:
Sec. 780.25 Reclamation plan: Siltation structures, impoundments, and
refuse piles.
(a) General. Each application must include a general plan and a
detailed design plan for each proposed siltation structure,
impoundment, and refuse pile within the proposed permit area.
(1) Each general plan must--
* * * * *
(2)(i) Impoundments meeting the criteria for Significant Hazard
Class or High Hazard Class (formerly Class B or C) dams in ``Earth Dams
and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, July 2005),
published by the U.S. Department of Agriculture, Natural Resources
Conservation Service, must comply with the requirements of this section
for structures that meet the criteria in Sec. 77.216(a) of this title.
Technical Release No. 60 (TR-60) is hereby incorporated by reference.
The Director of the Federal Register approves this incorporation by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may
review and download the incorporated document from the Natural
Resources Conservation Service's Web site at http://www.info.usda.gov/scripts/lpsiis.dll/TR/TR_210_60.htm. You may inspect and obtain a
copy of this document which is on file at the Administrative Record
Room, Office of Surface Mining Reclamation and Enforcement, 1951
Constitution Avenue, NW., Washington, DC 20240. For information on the
availability of this document at OSM, call 202-208-2823. You also may
inspect a copy of this document 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.
(ii) Each detailed design plan for a structure that meets the
criteria in Sec. 77.216(a) of this title must--
(A) 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;
(B) Include any geotechnical investigation, design, and
construction requirements for the structure;
(C) Describe the operation and maintenance requirements for each
structure; and
(D) Describe the timetable and plans to remove each structure, if
appropriate.
* * * * *
(c) * * *
(2) Each plan for an impoundment meeting the criteria in Sec.
77.216(a) of this title must comply with the requirements of Sec.
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 must be
submitted to the regulatory authority as part of the permit
application.
* * * * *
(4) If the structure meets the Significant Hazard Class or High
Hazard Class criteria for dams in TR-60 or meets the criteria of Sec.
77.216(a) of this chapter, each plan must include a stability analysis
of the structure. The stability analysis must include, but not be
limited to, strength parameters, pore pressures, and long-term seepage
conditions. The plan also must 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.
(d) Coal mine waste impoundments and refuse piles. If you, the
permit applicant, propose to place coal mine waste in a refuse pile or
impoundment, or if you plan to use coal mine waste to construct an
impounding structure, you must comply with the applicable requirements
in paragraphs (d)(1) through (d)(3) of this section.
(1) Addressing impacts to perennial and intermittent streams and
related environmental values. You must design the operation to avoid
placement of coal mine waste in or within 100 feet of a perennial or
intermittent stream to the extent possible. If avoidance is not
possible, you must--
(i) Explain, to the satisfaction of the regulatory authority, why
an alternative coal mine waste disposal method or an alternative
location or configuration that does not involve placement of coal mine
waste in or within 100 feet of a perennial or intermittent stream is
not reasonably possible.
(ii) Identify a reasonable range of alternative locations or
configurations for any proposed refuse piles or coal mine waste
impoundments. This provision does not require identification of all
potential alternatives. You need identify only those reasonably
possible alternatives that are likely to differ significantly in terms
of impacts on fish, wildlife, and related environmental values. An
alternative is reasonably possible if it meets all the following
criteria:
(A) The alternative conforms to the safety, engineering, design,
and construction requirements of the regulatory program.
(B) The alternative is capable of being done after consideration of
cost, logistics, and available technology. The fact that one
alternative may cost somewhat more than a different alternative does
not necessarily warrant exclusion of the more costly alternative from
consideration. However, an alternative generally may be considered
unreasonable if its cost is substantially greater than the costs
normally associated with this type of project.
(C) The alternative is consistent with the coal recovery provisions
of Sec. 816.59 of this chapter.
(iii) Analyze the impacts of the alternatives identified in
paragraph (d)(1)(ii) of this section on fish, wildlife, and related
environmental values. The analysis must consider impacts on both
aquatic and terrestrial ecosystems.
(A) For every alternative that proposes placement of coal mine
waste in a perennial or intermittent stream, the analysis required
under paragraph (d)(1)(iii) of this section must include an evaluation
of impacts on the physical, chemical, and biological characteristics of
the stream downstream of the proposed refuse pile or coal mine waste
impoundment, including seasonal variations in temperature and volume,
changes in stream turbidity or sedimentation, the degree to which the
[[Page 75877]]
coal mine waste may introduce or increase contaminants, and the effects
on aquatic organisms and the wildlife that is dependent upon the
stream.
(B) If you have prepared an analysis of alternatives for the
proposed impoundment or refuse pile under 40 CFR 230.10 to meet Clean
Water Act requirements, you may initially submit a copy of that
analysis in lieu of the analysis required under paragraph
(d)(1)(iii)(A) of this section. The regulatory authority will determine
the extent to which that analysis satisfies the requirements of
paragraph (d)(1)(iii)(A) of this section.
(iv) Select the alternative with the least overall adverse impact
on fish, wildlife, and related environmental values, including adverse
impacts on water quality and aquatic and terrestrial ecosystems.
(2) Design requirements for refuse piles. Refuse piles must be
designed to comply with the requirements of Sec. Sec. 816.81 and
816.83 of this chapter.
(3) Design requirements for impoundments and impounding structures.
Impounding structures constructed of or intended to impound coal mine
waste must be designed to comply with the requirements of Sec. Sec.
816.81 and 816.84 of this chapter, which incorporate the requirements
of paragraphs (a) and (c) of Sec. 816.49 of this chapter. In
addition,--
(i) The plan for each structure that meets the criteria of Sec.
77.216(a) of this title must comply with the requirements of Sec.
77.216-2 of this title; and
(ii) Each plan for a coal mine waste impoundment must contain the
results of a geotechnical investigation to determine the structural
competence of the foundation that will support the proposed impounding
structure and the impounded material. An engineer or engineering
geologist must plan and supervise the geotechnical investigation. In
planning the investigation, the engineer or geologist must--
(A) Determine the number, location, and depth of borings and test
pits using current prudent engineering practice for the size of the
impoundment and the impounding structure, the quantity of material to
be impounded, and subsurface conditions.
(B) Consider the character of the overburden and bedrock, the
proposed abutment sites for the impounding structure, and any adverse
geotechnical conditions that may affect the particular impoundment.
(C) Identify all springs, seepage, and groundwater flow observed or
anticipated during wet periods in the area of the proposed impoundment.
(D) Consider the possibility of mudflows, rock-debris falls, or
other landslides into the impoundment or impounded material.
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6. Add Sec. 780.28 to read as follows:
Sec. 780.28 Activities in or adjacent to perennial or intermittent
streams.
(a) Applicability. (1) In general. Except as otherwise provided in
paragraph (a)(2) of this section, this section applies to applications
to conduct surface mining activities in perennial or intermittent
streams or on the surface of lands within 100 feet, measured
horizontally, of perennial or intermittent streams.
(2) Exceptions. (i) Coal preparation plants not located within the
permit area of a mine. This section does not apply to applications
under Sec. 785.21 of this chapter for coal preparation plants that are
not located within the permit area of a mine.
(ii) Stream-channel diversions. Paragraphs (b) through (e) of this
section do not apply to diversions of perennial or intermittent
streams, which are governed by Sec. 780.29 of this part and Sec.
816.43 of this chapter.
(b) Application requirements for surface mining activities in a
perennial or intermittent stream. If you propose to conduct one or more
of the activities listed in paragraphs (b)(2) through (b)(4) of Sec.
816.57 of this chapter in a perennial or intermittent stream, your
application must demonstrate that--
(1) Avoiding disturbance of the stream is not reasonably possible;
and
(2) The proposed activities will comply with all applicable
requirements in paragraphs (b) and (c) of Sec. 816.57 of this chapter.
(c) Application requirements for surface mining activities within
100 feet of a perennial or intermittent stream. If you propose to
conduct surface mining activities within 100 feet of a perennial or
intermittent stream, but not in the stream itself, and those activities
would occur on land subject to the buffer requirement of Sec.
816.57(a)(1) of this chapter, your application must--
(1) Demonstrate that avoiding disturbance of land within 100 feet
of the stream either is not reasonably possible or is not necessary to
meet the fish and wildlife and hydrologic balance protection
requirements of the regulatory program;
(2) Identify any lesser buffer that you propose to implement
instead of maintaining a 100-foot undisturbed buffer between surface
mining activities and the perennial or intermittent stream; and
(3) Explain how the lesser buffer, together with any other
protective measures that you propose to implement, constitute the best
technology currently available to--
(i) Prevent the contribution of additional suspended solids to
streamflow or runoff outside the permit area to the extent possible, as
required by Sec. Sec. 780.21(h) and 816.41(d)(1) of this chapter; and
(ii) Minimize disturbances and adverse impacts on fish, wildlife,
and related environmental values to the extent possible, as required by
Sec. Sec. 780.16(b) and 816.97(a) of this chapter.
(d) Approval requirements for activities in a perennial or
intermittent stream. Before approving any surface mining activities in
a perennial or intermittent stream, the regulatory authority must--
(1) Find in writing that--
(i) Avoiding disturbance of the stream is not reasonably possible;
and
(ii) The plans submitted with the application meet all applicable
requirements in paragraphs (b) and (c) of Sec. 816.57 of this chapter.
(2) Include a permit condition requiring a demonstration of
compliance with the Clean Water Act in the manner specified in Sec.
816.57(a)(2) of this chapter before the permittee may conduct any
activities in a perennial or intermittent stream that require
authorization or certification under the Clean Water Act.
(e) Approval requirements for activities within 100 feet of a
perennial or intermittent stream. Before approving any surface mining
activities that would disturb the surface of land subject to the buffer
requirement of Sec. 816.57(a)(1) of this chapter, the regulatory
authority must find in writing that--
(1) Avoiding disturbance of the surface of land within 100 feet of
the stream either is not reasonably possible or is not necessary to
meet the fish and wildlife and hydrologic balance protection
requirements of the regulatory program; and
(2) The measures proposed under paragraphs (c)(2) and (c)(3) of
this section constitute the best technology currently available to--
(i) Prevent the contribution of additional suspended solids to
streamflow or runoff outside the permit area to the extent possible, as
required by Sec. Sec. 780.21(h) and 816.41(d)(1) of this chapter; and
(ii) Minimize disturbances and adverse impacts on fish, wildlife,
and related environmental values to the extent possible, as required by
Sec. Sec. 780.16(b) and 816.97(a) of this chapter.
[[Page 75878]]
(f) Relationship to the Clean Water Act. (1) In all cases, your
application must identify the authorizations and certifications that
you anticipate will be needed under sections 401, 402, and 404 of the
Clean Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps
that you have taken or will take to procure those authorizations and
certifications.
(2) The regulatory authority will process your application and may
issue the permit before you obtain all necessary authorizations and
certifications under the Clean Water Act, 33 U.S.C. 1251 et seq.,
provided your application meets all applicable requirements of
subchapter G of this chapter. However, issuance of a permit does not
authorize you to initiate any activities for which Clean Water Act
authorization or certification is required. Information submitted and
analyses conducted under subchapter G of this chapter may inform the
agency responsible for authorizations and certifications under sections
401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and
1344, but they are not a substitute for the reviews, authorizations,
and certifications required under those sections of the Clean Water
Act.
0
7. Revise Sec. 780.35 to read as follows:
Sec. 780.35 Disposal of excess spoil.
(a) If you, the permit applicant, propose to generate excess spoil
as part of your operation, you must include the following items in your
application--
(1) Demonstration of minimization of excess spoil. A demonstration,
prepared to the satisfaction of the regulatory authority, that the
operation has been designed to minimize, to the extent possible, the
volume of excess spoil that the operation will generate, thus ensuring
that spoil is returned to the mined-out area to the extent possible,
taking into consideration applicable regulations concerning restoration
of the approximate original contour, safety, stability, and
environmental protection and the needs of the proposed postmining land
use.
(2) Capacity demonstration. A demonstration, prepared to the
satisfaction of the regulatory authority, that the designed maximum
cumulative volume of all proposed excess spoil fills within the permit
area is no larger than the capacity needed to accommodate the
anticipated cumulative volume of excess spoil that the operation will
generate, as approved by the regulatory authority under paragraph
(a)(1) of this section.
(3) Discussion of how you will address impacts to perennial and
intermittent streams and related environmental values. You must design
the operation to avoid placement of excess spoil in or within 100 feet
of a perennial or intermittent stream to the extent possible. If
avoidance is not possible, you must--
(i) Explain, to the satisfaction of the regulatory authority, why
an alternative that does not involve placement of excess spoil in or
within 100 feet of a perennial or intermittent stream is not reasonably
possible.
(ii) Identify a reasonable range of alternatives that vary with
respect to the number, size, location, and configuration of proposed
fills. This provision does not require identification of all potential
alternatives. You need identify only those reasonably possible
alternatives that are likely to differ significantly in terms of
impacts on fish, wildlife, and related environmental values. An
alternative is reasonably possible if it meets all the following
criteria:
(A) The alternative conforms to the safety, engineering, design,
and construction requirements of the regulatory program;
(B) The alternative is capable of being done after consideration of
cost, logistics, and available technology. The fact that one
alternative may cost somewhat more than a different alternative does
not necessarily warrant exclusion of the more costly alternative from
consideration. However, an alternative generally may be considered
unreasonable if its cost is substantially greater than the costs
normally associated with this type of project.
(C) The alternative is consistent with the coal recovery provisions
of Sec. 816.59 of this chapter.
(iii) Analyze the impacts of the alternatives identified in
paragraph (a)(3)(ii) of this section on fish, wildlife, and related
environmental values. The analysis must consider impacts on both
terrestrial and aquatic ecosystems.
(A) For every alternative that proposes placement of excess spoil
in a perennial or intermittent stream, the analysis must include an
evaluation of impacts on the physical, chemical, and biological
characteristics of the stream downstream of the proposed fill,
including seasonal variations in temperature and volume, changes in
stream turbidity or sedimentation, the degree to which the excess spoil
may introduce or increase contaminants, and the effects on aquatic
organisms and the wildlife that is dependent upon the stream.
(B) If you have prepared an analysis of alternatives for the
proposed fill under 40 CFR 230.10 to meet Clean Water Act requirements,
you may initially submit a copy of that analysis with your application
in lieu of the analysis required by paragraph (a)(3)(iii)(A) of this
section. The regulatory authority will determine the extent to which
that analysis satisfies the analytical requirements of paragraph
(a)(3)(iii)(A) of this section.
(iv) Select the alternative with the least overall adverse impact
on fish, wildlife, and related environmental values, including adverse
impacts on water quality and aquatic and terrestrial ecosystems.
(4) Location. Maps and cross-section drawings showing the location
of all proposed disposal sites and structures. You must locate fills on
the most moderately sloping and naturally stable areas available,
unless the regulatory authority approves a different location based
upon the alternatives analysis under paragraph (a)(3) of this section
or on other requirements of the Act and this chapter. Whenever
possible, you must place fills upon or above a natural terrace, bench,
or berm if that location would provide additional stability and prevent
mass movement.
(5) Design plans. Detailed design plans for each structure,
prepared in accordance with the requirements of this section and
Sec. Sec. 816.71 through 816.74 of this chapter. You must design the
fill and appurtenant structures using current prudent engineering
practices and any additional design criteria established by the
regulatory authority.
(6) Geotechnical investigation. The results of a geotechnical
investigation of each proposed disposal site, with the exception of
those sites at which spoil will be placed only on a pre-existing bench
under Sec. 816.74 of this chapter. You must conduct sufficient
foundation investigations, as well as any necessary laboratory testing
of foundation material, to determine the design requirements for
foundation stability for each site. The analyses of foundation
conditions must take into consideration the effect of underground mine
workings, if any, upon the stability of the fill and appurtenant
structures. The information submitted must include--
(i) The character of the bedrock and any adverse geologic
conditions in the proposed disposal area.
(ii) A survey identifying all springs, seepage, and groundwater
flow observed or anticipated during wet periods in the area of the
proposed disposal site.
(iii) A survey of the potential effects of subsidence of subsurface
strata as a result of past and future mining operations.
(iv) A technical description of the rock materials to be utilized
in the
[[Page 75879]]
construction of disposal structures containing rock chimney cores or
underlain by a rock drainage blanket.
(v) A stability analysis including, but not limited to, strength
parameters, pore pressures, and long-term seepage conditions. This
analysis must be accompanied by a description of all engineering design
assumptions and calculations and the alternatives considered in
selecting the design specifications and methods.
(7) Operation and reclamation plans. Plans for the construction,
operation, maintenance, and reclamation of all excess spoil disposal
structures in accordance with the requirements of Sec. Sec. 816.71
through 816.74 of this chapter.
(8) Additional requirements for keyway cuts or rock-toe buttresses.
If keyway cuts or rock-toe buttresses are required under Sec.
816.71(d) of this chapter, the number, location, and depth of borings
or test pits, which must be determined according to the size of the
spoil disposal structure and subsurface conditions. You also must
provide the engineering specifications used to design the keyway cuts
or rock-toe buttresses. Those specifications must be based upon the
stability analysis required under paragraph (a)(7)(v) of this section.
(b) Design certification. A qualified registered professional
engineer experienced in the design of earth and rock fills must certify
that the design of all fills and appurtenant structures meets the
requirements 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.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of this part and assigned clearance number 1029-0039. Collection of
this information is required under section 516(d) of SMCRA, which in
effect requires applicants for permits for underground coal mines to
prepare and submit an operation and reclamation plan for coal mining
activities as part of the application. The regulatory authority uses
this information to determine whether the plan will achieve the
reclamation and environmental protection requirements of the Act and
regulatory program. Without this information, OSM and state regulatory
authorities could not approve permit applications for underground coal
mines and related facilities. Persons intending to conduct such
operations must respond to obtain a benefit. A Federal agency may not
conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
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 add paragraph (c)(4);
0
C. Revise paragraph (d); and
0
D. Remove paragraphs (e) and (f).
The revisions and addition read as follows:
Sec. 784.16 Reclamation plan: Siltation structures, impoundments, and
refuse piles.
(a) General. Each application must include a general plan and a
detailed design plan for each proposed siltation structure,
impoundment, and refuse pile within the proposed permit area.
(1) Each general plan must--
* * * * *
(2)(i) Impoundments meeting the criteria for Significant Hazard
Class or High Hazard Class (formerly Class B or C) dams in ``Earth Dams
and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, July 2005),
published by the U.S. Department of Agriculture, Natural Resources
Conservation Service, must comply with the requirements of this section
for structures that meet the criteria in Sec. 77.216(a) of this title.
Technical Release No.60 (TR-60) is hereby incorporated by reference.
The Director of the Federal Register approves this incorporation by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may
review and download the incorporated document from the Natural
Resources Conservation Service's Web site at http://www.info.usda.gov/scripts/lpsiis.dll/TR/TR_210_60.htm. You may inspect and obtain a
copy of this document which is on file at the Administrative Record
Room, Office of Surface Mining Reclamation and Enforcement, 1951
Constitution Avenue, NW., Washington, DC 20240. For information on the
availability of this document at OSM, call 202-208-2823. You also may
inspect a copy of this document 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.
(ii) Each detailed design plan for a structure that meets the
criteria in Sec. 77.216(a) of this title must--
(A) 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;
(B) Include any geotechnical investigation, design, and
construction requirements for the structure;
(C) Describe the operation and maintenance requirements for each
structure; and
(D) Describe the timetable and plans to remove each structure, if
appropriate.
* * * * *
(c) * * *
(2) Each plan for an impoundment meeting the criteria in Sec.
77.216(a) of this title must comply with the requirements of Sec.
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 must be
submitted to the regulatory authority as part of the permit
application.
* * * * *
(4) If the structure meets the Significant Hazard Class or High
Hazard Class criteria for dams in TR-60 or meets the criteria of Sec.
77.216(a) of this chapter, each plan must include a stability analysis
of the structure. The stability analysis must include, but not be
limited to, strength parameters, pore pressures, and long-term seepage
conditions. The plan also must 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.
(d) Coal mine waste impoundments and refuse piles. If you, the
permit applicant, propose to place coal mine waste in a refuse pile or
impoundment, or if you plan to use coal mine waste to construct an
impounding structure, you must comply with the applicable requirements
in paragraphs (d)(1) through (d)(3) of this section.
(1) Addressing impacts to perennial and intermittent streams and
related environmental values. You must design the operation to avoid
placement of coal mine waste in or within 100 feet of a perennial or
intermittent stream to the extent possible. If avoidance is not
possible, you must--
[[Page 75880]]
(i) Explain, to the satisfaction of the regulatory authority, why
an alternative coal mine waste disposal method or an alternative
location or configuration that does not involve placement of coal mine
waste in or within 100 feet of a perennial or intermittent stream is
not reasonably possible.
(ii) Identify a reasonable range of alternative locations or
configurations for any proposed refuse piles or coal mine waste
impoundments. This provision does not require identification of all
potential alternatives. You need identify only those reasonably
possible alternatives that are likely to differ significantly in terms
of impacts on fish, wildlife, and related environmental values. An
alternative is reasonably possible if it meets all the following
criteria:
(A) The alternative conforms to the safety, engineering, design,
and construction requirements of the regulatory program.
(B) The alternative is capable of being done after consideration of
cost, logistics, and available technology. The fact that one
alternative may cost somewhat more than a different alternative does
not necessarily warrant exclusion of the more costly alternative from
consideration. However, an alternative generally may be considered
unreasonable if its cost is substantially greater than the costs
normally associated with this type of project.
(C) The alternative is consistent with the coal recovery provisions
of Sec. 817.59 of this chapter.
(iii) Analyze the impacts of the alternatives identified in
paragraph (d)(1)(ii) of this section on fish, wildlife, and related
environmental values. The analysis must consider impacts on both
aquatic and terrestrial ecosystems.
(A) For every alternative that proposes placement of coal mine
waste in a perennial or intermittent stream, the analysis must include
an evaluation of impacts on the physical, chemical, and biological
characteristics of the stream downstream of the proposed refuse pile or
coal mine waste impoundment, including seasonal variations in
temperature and volume, changes in stream turbidity or sedimentation,
the degree to which the coal mine waste may introduce or increase
contaminants, and the effects on aquatic organisms and the wildlife
that is dependent upon the stream.
(B) If you have prepared an analysis of alternatives for the
proposed impoundment or refuse pile under 40 CFR 230.10 to meet Clean
Water Act requirements, you may initially submit a copy of that
analysis in lieu of the analysis required under paragraph
(d)(1)(iii)(A) of this section. The regulatory authority will determine
the extent to which that analysis satisfies the requirements of
paragraph (d)(1)(iii)(A) of this section.
(iv) Select the alternative with the least overall adverse impact
on fish, wildlife, and related environmental values, including adverse
impacts on water quality and aquatic and terrestrial ecosystems.
(2) Design requirements for refuse piles. Refuse piles must be
designed to comply with the requirements of Sec. Sec. 817.81 and
817.83 of this chapter.
(3) Design requirements for impoundments and impounding structures.
Impounding structures constructed of or intended to impound coal mine
waste must be designed to comply with the requirements of Sec. Sec.
817.81 and 817.84 of this chapter, which incorporate the requirements
of paragraphs (a) and (c) of Sec. 817.49 of this chapter. In
addition,--
(i) The plan for each structure that meets the criteria of Sec.
77.216(a) of this title must comply with the requirements of Sec.
77.216-2 of this title; and
(ii) Each plan for a coal mine waste impoundment must contain the
results of a geotechnical investigation to determine the structural
competence of the foundation that will support the proposed impounding
structure and the impounded material. An engineer or engineering
geologist must plan and supervise the geotechnical investigation. In
planning the investigation, the engineer or geologist must--
(A) Determine the number, location, and depth of borings and test
pits using current prudent engineering practice for the size of the
impoundment and the impounding structure, the quantity of material to
be impounded, and subsurface conditions.
(B) Consider the character of the overburden and bedrock, the
proposed abutment sites for the impounding structure, and any adverse
geotechnical conditions that may affect the particular impoundment.
(C) Identify all springs, seepage, and groundwater flow observed or
anticipated during wet periods in the area of the proposed impoundment.
(D) Consider the possibility of mudflows, rock-debris falls, or
other landslides into the impoundment or impounded material.
0
11. Revise Sec. 784.19 to read as follows:
Sec. 784.19 Disposal of excess spoil.
(a) If you, the permit applicant, propose to generate excess spoil
as part of your operation, you must include the following items in your
application--
(1) Demonstration of minimization of excess spoil. A demonstration,
prepared to the satisfaction of the regulatory authority, that the
operation has been designed to minimize, to the extent possible, the
volume of excess spoil that the operation will generate, thus ensuring
that spoil is returned to the mined-out area to the extent possible,
taking into consideration applicable regulations concerning restoration
of the approximate original contour, safety, stability, and
environmental protection and the needs of the proposed postmining land
use.
(2) Capacity demonstration. A demonstration, prepared to the
satisfaction of the regulatory authority, that the designed maximum
cumulative volume of all proposed excess spoil fills within the permit
area is no larger than the capacity needed to accommodate the
anticipated cumulative volume of excess spoil that the operation will
generate, as approved by the regulatory authority under paragraph
(a)(1) of this section.
(3) Discussion of how you will address impacts to perennial and
intermittent streams and related environmental values. You must design
the operation to avoid placement of excess spoil in or within 100 feet
of a perennial or intermittent stream to the extent possible. If
avoidance is not possible, you must--
(i) Explain, to the satisfaction of the regulatory authority, why
an alternative that does not involve placement of excess spoil in or
within 100 feet of a perennial or intermittent stream is not reasonably
possible.
(ii) Identify a reasonable range of alternatives that vary with
respect to the number, size, location, and configuration of proposed
fills. This provision does not require identification of all potential
alternatives. You need identify only those reasonably possible
alternatives that are likely to differ significantly in terms of
impacts on fish, wildlife, and related environmental values. An
alternative is reasonably possible if it meets all the following
criteria:
(A) The alternative conforms to the safety, engineering, design,
and construction requirements of the regulatory program;
(B) The alternative is capable of being done after consideration of
cost, logistics, and available technology. The fact that one
alternative may cost somewhat more than a different alternative does
not necessarily warrant exclusion of the more costly alternative from
consideration. However, an alternative generally may be considered
unreasonable if its cost is substantially
[[Page 75881]]
greater than the costs normally associated with this type of project.
(C) The alternative is consistent with the coal recovery provisions
of Sec. 817.59 of this chapter.
(iii) Analyze the impacts of the alternatives identified in
paragraph (a)(3)(ii) of this section on fish, wildlife, and related
environmental values. The analysis must consider impacts on both
terrestrial and aquatic ecosystems.
(A) For every alternative that proposes placement of excess spoil
in a perennial or intermittent stream, the analysis must include an
evaluation of impacts on the physical, chemical, and biological
characteristics of the stream downstream of the proposed fill,
including seasonal variations in temperature and volume, changes in
stream turbidity or sedimentation, the degree to which the excess spoil
may introduce or increase contaminants, and the effects on aquatic
organisms and the wildlife that is dependent upon the stream.
(B) If you have prepared an analysis of alternatives for the
proposed fill under 40 CFR 230.10 to meet Clean Water Act requirements,
you may initially submit a copy of that analysis with your application
in lieu of the analysis required by paragraph (a)(3)(iii)(A) of this
section. The regulatory authority will determine the extent to which
that analysis satisfies the analytical requirements of paragraph
(a)(3)(iii)(A) of this section.
(iv) Select the alternative with the least overall adverse impact
on fish, wildlife, and related environmental values, including adverse
impacts on water quality and aquatic and terrestrial ecosystems.
(4) Location. Maps and cross-section drawings showing the location
of all proposed disposal sites and structures. You must locate fills on
the most moderately sloping and naturally stable areas available,
unless the regulatory authority approves a different location based
upon the alternatives analysis under paragraph (a)(3) of this section
or on other requirements of the Act and this chapter. Whenever
possible, you must place fills upon or above a natural terrace, bench,
or berm if that location would provide additional stability and prevent
mass movement.
(5) Design plans. Detailed design plans for each structure,
prepared in accordance with the requirements of this section and
Sec. Sec. 817.71 through 817.74 of this chapter. You must design the
fill and appurtenant structures using current prudent engineering
practices and any additional design criteria established by the
regulatory authority.
(6) Geotechnical investigation. The results of a geotechnical
investigation of each proposed disposal site, with the exception of
those sites at which spoil will be placed only on a pre-existing bench
under Sec. 817.74 of this chapter. You must conduct sufficient
foundation investigations, as well as any necessary laboratory testing
of foundation material, to determine the design requirements for
foundation stability for each site. The analyses of foundation
conditions must take into consideration the effect of underground mine
workings, if any, upon the stability of the fill and appurtenant
structures. The information submitted must include--
(i) The character of the bedrock and any adverse geologic
conditions in the proposed disposal area.
(ii) A survey identifying all springs, seepage, and groundwater
flow observed or anticipated during wet periods in the area of the
proposed disposal site.
(iii) A survey of the potential effects of subsidence of subsurface
strata as a result of past and future mining operations.
(iv) A technical description of the rock materials to be utilized
in the construction of disposal structures containing rock chimney
cores or underlain by a rock drainage blanket.
(v) A stability analysis including, but not limited to, strength
parameters, pore pressures, and long-term seepage conditions. This
analysis must be accompanied by a description of all engineering design
assumptions and calculations and the alternatives considered in
selecting the design specifications and methods.
(7) Operation and reclamation plans. Plans for the construction,
operation, maintenance, and reclamation of all excess spoil disposal
structures in accordance with the requirements of Sec. Sec. 817.71
through 817.74 of this chapter.
(8) Additional requirements for keyway cuts or rock-toe buttresses.
If keyway cuts or rock-toe buttresses are required under Sec.
817.71(d) of this chapter, the number, location, and depth of borings
or test pits, which must be determined according to the size of the
spoil disposal structure and subsurface conditions. You also must
provide the engineering specifications used to design the keyway cuts
or rock-toe buttresses. Those specifications must be based upon the
stability analysis required under paragraph (a)(7)(v) of this section.
(b) Design certification. A qualified registered professional
engineer experienced in the design of earth and rock fills must certify
that the design of all fills and appurtenant structures meets the
requirements of this section.
0
12. Amend Sec. 784.23 by removing ``817.71(b),'' in paragraph (c) and
revising paragraph (b)(10) to read as follows:
Sec. 784.23 Operation plan: Maps and plans.
* * * * *
(b) * * *
(10) Locations of each siltation structure, permanent water
impoundment, refuse pile, and coal mine waste impoundment for which
plans are required by Sec. 784.16 of this part, and the location of
each fill for the disposal of excess spoil for which plans are required
under Sec. 784.19 of this part.
* * * * *
0
13. Add Sec. 784.28 to read as follows:
Sec. 784.28 Surface activities in or adjacent to perennial or
intermittent streams.
(a) Applicability. (1) In general. Except as otherwise provided in
paragraph (a)(2) of this section, this section applies to underground
mining permit applications that propose to conduct surface activities
in perennial or intermittent streams or on the surface of lands within
100 feet, measured horizontally, of perennial or intermittent streams.
(2) Exceptions. (i) Coal preparation plants not located within the
permit area of a mine. This section does not apply to applications
under Sec. 785.21 of this chapter for coal preparation plants that are
not located within the permit area of a mine.
(ii) Stream-channel diversions. Paragraphs (b) through (e) of this
section do not apply to diversions of perennial or intermittent
streams, which are governed by Sec. 784.29 of this part and Sec.
817.43 of this chapter.
(b) Application requirements for activities in a perennial or
intermittent stream. If you propose to conduct one or more of the
activities listed in paragraphs (b)(2) through (b)(4) of Sec. 817.57
of this chapter in a perennial or intermittent stream, your application
must demonstrate that--
(1) Avoiding disturbance of the stream is not reasonably possible;
and
(2) The proposed activities will comply with all applicable
requirements in paragraphs (b) and (c) of Sec. 817.57 of this chapter.
(c) Application requirements for surface activities within 100 feet
of a perennial or intermittent stream. If you propose to conduct
surface activities within 100 feet of a perennial or intermittent
stream, but not in the stream itself, and those activities would occur
on the surface of land subject to
[[Page 75882]]
the buffer requirement of Sec. 817.57(a)(1) of this chapter, your
application must--
(1) Demonstrate that avoiding disturbance of land within 100 feet
of the stream either is not reasonably possible or is not necessary to
meet the fish and wildlife and hydrologic balance protection
requirements of the regulatory program;
(2) Identify any lesser buffer that you propose to implement
instead of maintaining a 100-foot undisturbed buffer between surface
activities and the perennial or intermittent stream; and
(3) Explain how the lesser buffer, together with any other
protective measures that you propose to implement, constitute the best
technology currently available to--
(i) Prevent the contribution of additional suspended solids to
streamflow or runoff outside the permit area to the extent possible, as
required by Sec. Sec. 784.14(g) and 817.41(d)(1) of this chapter; and
(ii) Minimize disturbances and adverse impacts on fish, wildlife,
and related environmental values to the extent possible, as required by
Sec. Sec. 784.21(b) and 817.97(a) of this chapter.
(d) Approval requirements for activities in a perennial or
intermittent stream. Before approving any surface activities in a
perennial or intermittent stream, the regulatory authority must--
(1) Find in writing that--
(i) Avoiding disturbance of the stream is not reasonably possible;
and
(ii) The plans submitted with the application meet all applicable
requirements in paragraphs (b) and (c) of Sec. 817.57 of this chapter.
(2) Include a permit condition requiring a demonstration of
compliance with the Clean Water Act in the manner specified in Sec.
817.57(a)(2) of this chapter before the permittee may conduct any
activities in a perennial or intermittent stream that require
authorization or certification under the Clean Water Act.
(e) Approval requirements for surface activities within 100 feet of
a perennial or intermittent stream. Before approving any surface
activities that would disturb the surface of land subject to the buffer
requirement of Sec. 817.57(a)(1) of this chapter, the regulatory
authority must find in writing that--
(1) Avoiding disturbance of the surface of land within 100 feet of
the stream either is not reasonably possible or is not necessary to
meet the fish and wildlife and hydrologic balance protection
requirements of the regulatory program; and
(2) The measures proposed under paragraphs (c)(2) and (c)(3) of
this section constitute the best technology currently available to--
(i) Prevent the contribution of additional suspended solids to
streamflow or runoff outside the permit area to the extent possible, as
required by Sec. Sec. 784.14(g) and 817.41(d)(1) of this chapter; and
(ii) Minimize disturbances and adverse impacts on fish, wildlife,
and related environmental values to the extent possible, as required by
Sec. Sec. 784.21(b) and 817.97(a) of this chapter.
(f) Relationship to the Clean Water Act. (1) In all cases, your
application must identify the authorizations and certifications that
you anticipate will be needed under sections 401, 402, and 404 of the
Clean Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps
that you have taken or will take to procure those authorizations and
certifications.
(2) The regulatory authority will process your application and may
issue the permit before you obtain all necessary authorizations and
certifications under the Clean Water Act, 33 U.S.C. 1251 et seq.,
provided your application meets all applicable requirements of
subchapter G of this chapter. However, issuance of a permit does not
authorize you to initiate any activities for which Clean Water Act
authorization or certification is required. Information submitted and
analyses conducted under subchapter G of this chapter may inform the
agency responsible for authorizations and certifications under sections
401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and
1344, but they are not a substitute for the reviews, authorizations,
and certifications required under those sections of the Clean Water
Act.
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.
0
15. Section 816.10 is revised to read as follows:
Sec. 816.10 Information collection.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of this part and assigned clearance number 1029-0047. Collection of
this information is required under section 515 of SMCRA, which provides
that permittees conducting surface coal mining and reclamation
operations must meet all applicable performance standards of the
regulatory program approved under the Act. The regulatory authority
uses the information collected to ensure that surface mining activities
are conducted in compliance with the requirements of the applicable
regulatory program. Persons intending to conduct such operations must
respond to obtain a benefit. A Federal agency may not conduct or
sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
0
16. In Sec. 816.11, revise paragraph (e) to read as follows:
Sec. 816.11 Signs and markers.
* * * * *
(e) Buffer markers. The boundaries of any buffer to be maintained
between surface mining activities and a perennial or intermittent
stream in accordance with Sec. Sec. 780.28 and 816.57 of this chapter
must be clearly marked to avoid disturbance by surface mining
activities.
* * * * *
0
17. Amend Sec. 816.43 as follows:
0
A. Remove the last sentence of paragraph (a)(3);
0
B. Redesignate paragraph (a)(4) as paragraph (a)(5) and add a new
paragraph (a)(4);
0
C. Revise paragraphs (b)(1) and (b)(4); and
0
D. Add paragraph (b)(5).
The revisions and additions will read as follows:
Sec. 816.43 Diversions.
(a) * * *
(4) A permanent diversion or a stream channel restored after the
completion of mining must be designed and constructed so as to restore
or approximate the premining characteristics of the original stream
channel, including any natural riparian vegetation, to promote the
recovery and enhancement of the aquatic habitat.
* * * * *
(b) * * *
(1) The regulatory authority may approve the diversion of perennial
or intermittent streams within the permit area if the diversion is
located and designed to minimize adverse impacts on fish, wildlife, and
related environmental values to the extent possible, using the best
technology currently available. The permittee must construct and
maintain the diversion in accordance with the approved design.
* * * * *
[[Page 75883]]
(4) A permanent stream-channel diversion or a stream channel
restored after the completion of mining must be designed and
constructed using natural channel design techniques so as to restore or
approximate the premining characteristics of the original stream
channel, including the natural riparian vegetation and the natural
hydrological characteristics of the original stream, to promote the
recovery and enhancement of the aquatic habitat and to minimize adverse
alteration of stream channels on and off the site, including channel
deepening or enlargement, to the extent possible.
(5) A qualified registered professional engineer must separately
certify both the design and construction of all diversions of perennial
and intermittent streams and all stream restorations. The design
certification must certify that the design meets the design
requirements of this section and any design criteria set by the
regulatory authority. The construction certification must certify that
the stream-channel diversion or stream restoration meets all
construction requirements of this section and is in accordance with the
approved design.
* * * * *
Sec. 816.46 [Amended]
0
18. In Sec. 816.46, remove paragraph (b)(2) and redesignate paragraphs
(b)(3) through (b)(6) as (b)(2) through (b)(5), respectively.
0
19. Revise Sec. 816.57 to read as follows:
Sec. 816.57 Hydrologic balance: Activities in or adjacent to
perennial or intermittent streams.
(a)(1) Buffer requirement. Except as provided in paragraph (b) of
this section and consistent with paragraph (a)(2) of this section, you,
the permittee or operator, may not conduct surface mining activities
that would disturb the surface of land within 100 feet, measured
horizontally, of a perennial or intermittent stream, unless the
regulatory authority authorizes you to do so under Sec. 780.28(e) of
this chapter.
(2) Clean Water Act requirements. Surface mining activities,
including those activities in paragraphs (b)(1) through (b)(4) of this
section, may be authorized in perennial or intermittent streams only
where those activities would not cause or contribute to the violation
of applicable State or Federal water quality standards developed
pursuant to the Clean Water Act, as determined through certification
under section 401 of the Clean Water Act or a permit under section 402
or 404 of the Clean Water Act.
(b) Exception. The buffer requirement of paragraph (a) of this
section does not apply to those segments of a perennial or intermittent
stream for which the regulatory authority, in accordance with Sec.
780.28(d) of this chapter or Sec. 816.43(b)(1) of this part, approves
one or more of the activities listed in paragraphs (b)(1) through
(b)(4) of this section.
(1) Diversion of a perennial or intermittent stream. You must
comply with all other applicable requirements of the regulatory
program, including the requirements of Sec. 816.43(b) of this part for
the permanent or temporary diversion of a perennial or intermittent
stream.
(2) Placement of bridge abutments, culverts, or other structures in
or within 100 feet of a perennial or intermittent stream to facilitate
crossing of the stream by roads, railroads, conveyors, pipelines,
utilities, or similar facilities. You must comply with all other
applicable requirements of the regulatory program, including the
requirements of Sec. Sec. 816.150, 816.151, and 816.181 of this part,
as appropriate.
(3) Construction of sedimentation pond embankments in a perennial
or intermittent stream. This provision extends to the pool or storage
area created by the embankment. You must comply with all other
applicable requirements of the regulatory program, including the
requirements of Sec. 816.45(a) of this part. Under Sec. 816.56 of
this part, you must remove and reclaim all sedimentation pond
embankments before abandoning the permit area or seeking final bond
release unless the regulatory authority approves retention of the pond
as a permanent impoundment under Sec. 816.49(b) of this part and
provisions have been made for sound future maintenance by the permittee
or the landowner in accordance with Sec. 800.40(c)(2) of this chapter.
(4) Construction of excess spoil fills and coal mine waste disposal
facilities in a perennial or intermittent stream. You must comply with
all other applicable requirements of the regulatory program, including
the requirements of paragraphs (a) and (f) of Sec. 816.71 of this part
for excess spoil fills and the requirements of Sec. Sec. 816.81(a),
816.83(a), and 816.84 of this part for coal mine waste disposal
facilities.
(c) Additional clarifications. All surface mining activities
conducted in or within 100 feet of a perennial or intermittent stream
must comply with paragraphs (b)(10)(B)(i) and (b)(24) of section 515 of
the Act and the regulations implementing those provisions of the Act,
including--
(1) The requirement in Sec. 816.41(d)(1) of this part that surface
mining activities be conducted according to the plan approved under
Sec. 780.21(h) of this chapter and that earth materials, ground-water
discharges, and runoff be handled in a manner that prevents, to the
extent possible using the best technology currently available,
additional contribution of suspended solids to streamflow outside the
permit area; and otherwise prevents water pollution.
(2) The requirement in Sec. 816.45(a) that appropriate sediment
control measures be designed, constructed, and maintained using the
best technology currently available to prevent, to the extent possible,
additional contributions of sediment to streamflow or to runoff outside
the permit area.
(3) The requirement in Sec. 816.97(a) of this part that the
operator must, to the extent possible using the best technology
currently available, minimize disturbances and adverse impacts on fish
and wildlife and related environmental values and achieve enhancement
of those resources where practicable.
(4) The requirement in Sec. 816.97(f) of this part that the
operator avoid disturbances to, enhance where practicable, restore, or
replace wetlands, habitats of unusually high value for fish and
wildlife, and riparian vegetation along rivers and streams and
bordering ponds and lakes.
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. You, the permittee or operator, must place excess
spoil 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;
(3) Ensure that the final fill is suitable for reclamation and
revegetation compatible with the natural surroundings and the approved
postmining land use; and
(4) Minimize disturbances to and adverse impacts on fish, wildlife,
and related environmental values to the extent possible, using the best
technology currently available.
(b) Static safety factor. The fill must be designed and constructed
to attain a minimum long-term static safety factor of 1.5. The
foundation and abutments of
[[Page 75884]]
the fill must be stable under all conditions of construction.
(c) Compliance with permit. You, the permittee or operator, must
construct the fill in accordance with the design and plans submitted
under Sec. 780.35 of this chapter and approved as part of the permit.
(d) Special requirement for steep-slope conditions. When the slope
in the disposal area exceeds 2.8h:1v (36 percent), or any lesser slope
designated by the regulatory authority based on local conditions, you,
the permittee or operator, must construct keyway cuts (excavations to
stable bedrock) or rock-toe buttresses to ensure fill stability.
* * * * *
PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND
MINING ACTIVITIES
0
21. The authority citation for part 817 is revised 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.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of this part and assigned clearance number 1029-0047. Collection of
this information is required under section 516 of SMCRA, which provides
that permittees conducting underground coal mining operations must meet
all applicable performance standards of the regulatory program approved
under the Act. The regulatory authority uses the information collected
to ensure that surface mining activities are conducted in compliance
with the requirements of the applicable regulatory program. Persons
intending to conduct such operations must respond to obtain a benefit.
A Federal agency may not conduct or sponsor, and you are not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
0
23. In Sec. 817.11, revise paragraph (e) to read as follows:
Sec. 817.11 Signs and markers.
* * * * *
(e) Buffer markers. The boundaries of any buffer to be maintained
between surface activities and a perennial or intermittent stream in
accordance with Sec. Sec. 784.28 and 817.57 of this chapter must be
clearly marked to avoid disturbance by surface operations and
facilities.
* * * * *
0
24. Amend Sec. 817.43 as follows:
0
A. Remove the last sentence of paragraph (a)(3);
0
B. Redesignate paragraph (a)(4) as paragraph (a)(5) and add a new
paragraph (a)(4);
0
C. Revise paragraphs (b)(1) and (b)(4); and
0
D. Add paragraph (b)(5).
The revisions and additions will read as follows:
Sec. 817.43 Diversions.
(a) * * *
(4) A permanent diversion or a stream channel restored after the
completion of mining must be designed and constructed so as to restore
or approximate the premining characteristics of the original stream
channel, including any natural riparian vegetation, to promote the
recovery and enhancement of the aquatic habitat.
* * * * *
(b) * * *
(1) The regulatory authority may approve the diversion of perennial
or intermittent streams within the permit area if the diversion is
located and designed to minimize adverse impacts on fish, wildlife, and
related environmental values to the extent possible, using the best
technology currently available. The permittee must construct and
maintain the diversion in accordance with the approved design.
* * * * *
(4) A permanent stream-channel diversion or a stream channel
restored after the completion of mining must be designed and
constructed using natural channel design techniques so as to restore or
approximate the premining characteristics of the original stream
channel, including the natural riparian vegetation and the natural
hydrological characteristics of the original stream, to promote the
recovery and enhancement of the aquatic habitat and to minimize adverse
alteration of stream channels on and off the site, including channel
deepening or enlargement, to the extent possible.
(5) A qualified registered professional engineer must separately
certify both the design and construction of all diversions of perennial
and intermittent streams and all stream restorations. The design
certification must certify that the design meets the design
requirements of this section and any design criteria set by the
regulatory authority. The construction certification must certify that
the stream-channel diversion or stream restoration meets all
construction requirements of this section and is in accordance with the
approved design.
* * * * *
Sec. 817.46 [Amended]
0
25. In Sec. 817.46, remove paragraph (b)(2) and redesignate paragraphs
(b)(3) through (b)(6) as (b)(2) through (b)(5), respectively.
0
26. Revise Sec. 817.57 to read as follows:
Sec. 817.57 Hydrologic balance: Surface activities in or adjacent to
perennial or intermittent streams.
(a)(1) Buffer requirement. Except as provided in paragraph (b) of
this section and consistent with paragraph (a)(2) of this section, you,
the permittee or operator, may not conduct surface activities that
would disturb the surface of land within 100 feet, measured
horizontally, of a perennial or intermittent stream, unless the
regulatory authority authorizes you to do so under Sec. 784.28(e) of
this chapter.
(2) Clean Water Act requirements. Surface activities, including
those activities in paragraphs (b)(1) through (b)(4) of this section,
may be authorized in perennial or intermittent streams only where those
activities would not cause or contribute to the violation of applicable
State or Federal water quality standards developed pursuant to the
Clean Water Act, as determined through certification under section 401
of the Clean Water Act or a permit under section 402 or 404 of the
Clean Water Act.
(b) Exception. The buffer requirement of paragraph (a) of this
section does not apply to those segments of a perennial or intermittent
stream for which the regulatory authority, in accordance with Sec.
784.28(d) of this chapter or Sec. 817.43(b)(1) of this part, approves
one or more of the activities listed in paragraphs (b)(1) through
(b)(4) of this section.
(1) Diversion of a perennial or intermittent stream. You must
comply with all other applicable requirements of the regulatory
program, including the requirements of Sec. 817.43(b) of this part for
the permanent or temporary diversion of a perennial or intermittent
stream.
(2) Placement of bridge abutments, culverts, or other structures in
or within 100 feet of a perennial or intermittent stream to facilitate
crossing of the stream by roads, railroads, conveyors, pipelines,
utilities, or similar facilities. You must comply with all other
applicable requirements of the regulatory program, including the
requirements of Sec. Sec. 817.150, 817.151, and 817.181 of this part,
as appropriate.
(3) Construction of sedimentation pond embankments in a perennial
or intermittent stream. This provision extends to the pool or storage
area created by the embankment. You must
[[Page 75885]]
comply with all other applicable requirements of the regulatory
program, including the requirements of Sec. 817.45(a) of this part.
Under Sec. 817.56 of this part, you must remove and reclaim all
sedimentation pond embankments before abandoning the permit area or
seeking final bond release unless the regulatory authority approves
retention of the pond as a permanent impoundment under Sec. 817.49(b)
of this part and provisions have been made for sound future maintenance
by the permittee or the landowner in accordance with Sec. 800.40(c)(2)
of this chapter.
(4) Construction of excess spoil fills and coal mine waste disposal
facilities in a perennial or intermittent stream. You must comply with
all other applicable requirements of the regulatory program, including
the requirements of paragraphs (a) and (f) of Sec. 817.71 of this part
for excess spoil fills and the requirements of Sec. Sec. 817.81(a),
817.83(a), and 817.84 of this part for coal mine waste disposal
facilities.
(c) Additional clarifications. All surface activities conducted in
or within 100 feet of a perennial or intermittent stream must comply
with paragraphs (b)(9)(B) and (b)(11) of section 516 of the Act and the
regulations implementing those provisions of the Act, including--
(1) The requirement in Sec. 817.41(d)(1) of this part that surface
activities be conducted according to the plan approved under Sec.
784.14(g) of this chapter and that earth materials, ground-water
discharges, and runoff be handled in a manner that prevents, to the
extent possible using the best technology currently available,
additional contribution of suspended solids to streamflow outside the
permit area; and otherwise prevents water pollution.
(2) The requirement in Sec. 817.45(a) that appropriate sediment
control measures be designed, constructed, and maintained using the
best technology currently available to prevent, to the extent possible,
additional contributions of sediment to streamflow or to runoff outside
the permit area.
(3) The requirement in Sec. 817.97(a) of this part that the
operator must, to the extent possible using the best technology
currently available, minimize disturbances and adverse impacts on fish
and wildlife and related environmental values and achieve enhancement
of those resources where practicable.
(4) The requirement in Sec. 817.97(f) of this part that the
operator avoid disturbances to; enhance where practicable; restore; or
replace wetlands, habitats of unusually high value for fish and
wildlife, and riparian vegetation along rivers and streams and
bordering ponds and lakes.
0
27. In Sec. 817.71, remove paragraph (k) and revise paragraphs (a)
through (d) to read as follows:
Sec. 817.71 Disposal of excess spoil: General requirements.
(a) General. You, the permittee or operator, must place excess
spoil 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;
(3) Ensure that the final fill is suitable for reclamation and
revegetation compatible with the natural surroundings and the approved
postmining land use; and
(4) Minimize disturbances to and adverse impacts on fish, wildlife,
and related environmental values to the extent possible, using the best
technology currently available.
(b) Static safety factor. The fill must be designed and constructed
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) Compliance with permit. You, the permittee or operator, must
construct the fill in accordance with the design and plans submitted
under Sec. 784.19 of this chapter and approved as part of the permit.
(d) Special requirement for steep-slope conditions. When the slope
in the disposal area exceeds 2.8h:1v (36 percent), or any lesser slope
designated by the regulatory authority based on local conditions, you,
the permittee or operator, must construct keyway cuts (excavations to
stable bedrock) or rock-toe buttresses to ensure fill stability.
* * * * *
[FR Doc. E8-29150 Filed 12-11-08; 8:45 am]
BILLING CODE 4310-05-P