[Federal Register Volume 75, Number 117 (Friday, June 18, 2010)]
[Proposed Rules]
[Pages 34666-34669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14727]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Chapter VII
RIN 1029-AC63
Stream Protection Rule; Environmental Impact Statement
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; notice of intent to prepare an environmental
impact statement.
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[[Page 34667]]
SUMMARY: On April 30, 2010,\1\ we, the Office of Surface Mining
Reclamation and Enforcement (OSM), published a Notice of Intent to
prepare an environmental impact statement. This new Notice of Intent
supersedes the April Notice of Intent, expands the scoping
opportunities to include open houses, and outlines possible
alternatives to the proposed action. OSM intends to prepare an
environmental impact statement (EIS) under section 102(2)(C) of the
National Environmental Policy Act of 1969 (NEPA) to analyze the effects
of potential rule revisions under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act) to improve protection of
streams from the adverse impacts of surface coal mining operations. We
are requesting comments for the purpose of determining the scope of the
EIS.
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\1\ 75 FR 22723 (April 30, 2010).
DATES: To ensure consideration, we must receive your electronic or
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written comments by July 30, 2010.
ADDRESSES: You may submit comments by any of the following methods,
although we request that you use electronic mail if possible:
Electronic mail: Send your comments to [email protected].
Mail, hand-delivery, or courier: Send your comments to
Office of Surface Mining Reclamation and Enforcement, Administrative
Record, Room 252-SIB, 1951 Constitution Avenue, NW., Washington, DC
20240.
Open Houses: Written and oral comments will be accepted at
the Open House sessions, which are discussed in Section V of this
Notice.
FOR FURTHER INFORMATION CONTACT: John Craynon, Chief, Division of
Regulatory Support, Office of Surface Mining Reclamation and
Enforcement, 1951 Constitution Ave., NW., MS 202-SIB, Washington, DC
20240; Telephone 202-208-2866.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Why are we publishing a new Notice of Intent?
II. Why are we planning to revise our rules?
III. What is the proposed Federal action?
IV. What are the possible alternatives?
V. How do I submit comments?
VI. How do I request to participate as a cooperating agency?
I. Why are we publishing a new Notice of Intent?
On April 30, 2010, we published a Notice of Intent to prepare an
environmental impact statement for a proposed Stream Protection Rule.
We have decided to expand the scoping opportunities to include several
open houses in various coal producing areas of the U.S. We have also
included possible alternatives under consideration for each element of
the proposed action. Finally, we have extended the scoping period to
July 30, 2010.
II. Why are we planning to revise our rules?
On December 12, 2008 (73 FR 75814-75885), we published a final rule
modifying the circumstances under which mining activities may be
conducted in or near perennial or intermittent streams. That rule,
which this notice refers to as the 2008 rule, took effect January 12,
2009. A total of nine organizations challenged the validity of the rule
in two complaints filed on December 22, 2008, and January 16, 2009
(amended complaint filed February 17, 2009): Coal River Mountain Watch,
et al. v. Salazar, No. 08-2212 (D.DC) (``Coal River'') and National
Parks Conservation Ass'n v. Salazar, No. 09-115 (D.DC) (``NPCA'').
Under the terms of a settlement agreement signed by the parties on
March 19, 2010, we agreed to use best efforts to sign a proposed rule
by February 28, 2011, and a final rule by June 29, 2012. We also agreed
to consult with the Fish and Wildlife Service pursuant to the
Endangered Species Act, as appropriate, prior to signing the final
action. On April 2, 2010, the court granted the parties' motion to hold
the judicial proceedings in abeyance.
However, we had already decided to change the rule following the
change of Administrations on January 20, 2009. On June 11, 2009, the
Secretary of the Department of the Interior, the Administrator of the
U.S. Environmental Protection Agency (EPA), and the Acting Assistant
Secretary of the Army (Civil Works) entered into a memorandum of
understanding \2\ (MOU) implementing an interagency action plan
designed to significantly reduce the harmful environmental consequences
of surface coal mining operations in six Appalachian states, while
ensuring that future mining remains consistent with Federal law. Among
other things, under the MOU we committed to consider revisions to key
provisions of our rules, including the 2008 rule and approximate
original contour requirements, to better protect the environment and
public health from the impacts of Appalachian surface coal mining.
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\2\ The MOU can be viewed online at http://www.osmre.gov/resources/ref/mou/ASCM061109.pdf.
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Consequently, on November 30, 2009, we published an advance notice
of proposed rulemaking (ANPR) soliciting comments on ten potential
rulemaking alternatives. See 74 FR 62664-62668. In addition, consistent
with the MOU, we invited the public to identify other rules that we
should revise. We also announced our intent to prepare a supplement to
the EIS developed in connection with the 2008 rule.
We received approximately 32,750 comments during the 30-day comment
period that closed December 30, 2009. After evaluating the comments, we
determined that development of a comprehensive stream protection rule
(one that is much broader in scope than the 2008 rule) would be the
most appropriate and effective method of achieving the goals set forth
in the MOU and the ANPR. We believe that this holistic approach will
better protect streams and related environmental values. It would not
be fair, appropriate, scientifically valid or consistent with the
principles of SMCRA to apply the new protections only in central
Appalachia, as some commenters on the ANPR advocated. Streams are
ecologically significant regardless of the region in which they are
located. The broader scope of the stream protection rule means that we
will need to prepare a new environmental impact statement rather than
the supplement to the 2008 EIS that we originally intended to prepare.
III. What is the proposed Federal action?
The proposed Federal action consists of revisions to various
provisions of our rules to improve protection of streams from the
impacts of surface coal mining operations nationwide. Principal
elements of the proposed action include--
Collection of Baseline Data. Adding more extensive and
more specific permit application requirements concerning baseline data
on hydrology, geology, and aquatic biology; the determination of the
probable hydrologic consequences of mining; and the hydrologic
reclamation plan; as well as more specific requirements for the
cumulative hydrologic impact assessment.
Definition of Material Damage to Hydrologic Balance.
Defining the term ``material damage to the hydrologic balance outside
the permit area.'' This term is critically important because, under
section 510(b)(3) of SMCRA, the regulatory authority may not approve a
permit application unless the proposed
[[Page 34668]]
operation has been designed to prevent material damage to the
hydrologic balance outside the permit area. This term includes streams
downstream of the mining operation and above underground mines.
Mining Activities In or Near Streams. Revising the
regulations governing mining activities in or near streams, including
mining through streams.
Additional Monitoring Requirements. Adding more extensive
and more specific monitoring requirements for surface water,
groundwater, and aquatic biota during mining and reclamation.
Corrective Action Thresholds. Establishing corrective
action thresholds.
Land Forming and Fill Optimization. Revising the
backfilling and grading rules, excess spoil rules, and approximate
original contour restoration requirements to incorporate landform
restoration principles and reduce discharges of total dissolved solids.
Approximate Original Contour Exceptions. Limiting
variances and exceptions from approximate original contour restoration
requirements.
Reforestation. Requiring reforestation of previously
wooded areas.
Permit Coordination. Requiring that the regulatory
authority coordinate the SMCRA permitting process with Clean Water Act
permitting activities to the extent practicable.
Financial Assurances for Long-Term Discharges of
Pollutants. Codifying the financial assurance provisions of OSM's March
31, 1997, policy statement \3\ on correcting, preventing, and
controlling acid/toxic mine drainage and clarifying that those
provisions apply to all long-term discharges of pollutants, not just
pollutants for which effluent limitations exist.
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\3\ See the document entitled ``Acid Mine Drainage Policy'' at
http://www.osmre.gov/guidance/significant_guidance.shtm.
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Stream Definitions. Updating the definitions of perennial,
intermittent, and ephemeral streams.
IV. What are the possible alternatives?
We are in the process of developing alternatives for the proposed
Federal action. Comments received in response to this notice will
assist us in that process.
We will prepare a draft EIS after we complete the initial stages of
scoping and identify which rulemaking alternatives will be analyzed in
detail. Following release of the draft EIS, we anticipate publishing a
notice of proposed rulemaking.
Listed below are some of the possible alternatives, in addition to
the No Action Alternative, that we are considering for each element of
the proposed action:
Additional Requirements for Collection of Baseline Data.
Add requirements that permit applicants provide more specific and
comprehensive baseline data addressing factors such as: (1) Duration of
sampling needed to demonstrate seasonal variations in hydrology, e.g.,
12 months, 24 months, or other duration; (2) Frequency of sampling for
various types of baseline data, e.g., monthly, quarterly, annually; (3)
Location of sampling, e.g., downstream, upstream, off-permit; (4)
Aquatic biological communities subject to sampling; and (5) Chemical,
physical, and hydrologic parameters to be sampled.
Definition of Material Damage to Hydrologic Balance.
Alternatives for defining the term ``material damage'' include: (1) Any
impairment of a physical, chemical, or biological function of the
hydrologic balance; (2) Any quantifiable adverse impact on the quality
or quantity of surface or groundwater or the biological condition of a
stream that would preclude or diminish use of the water or stream; (3)
Any ongoing violation of water quality standards; and (4)
Differentiating between short term vs. long term impairment.
Mining Activities In or Near Streams. Alternatives for
regulating mining activities in, through, or near streams include: (1)
Prohibiting disturbance of streams with a biological community unless
the permit applicant demonstrates the ability to restore stream form
and function; (2) Prohibiting activities and disturbances in all
streams with a biological community, irrespective of the ability of the
permit applicant to restore form and function; (3) Prohibiting
activities in or near streams; (4) Reinstating the 1983 stream buffer
zone rule; and (5) Addressing whether fills should be included or
excluded in these restrictions.
Additional Monitoring Requirements. Permittees would be
required to provide additional monitoring data based on the following
considerations: (1) Duration of monitoring, e.g., through final bond
release; (2) Frequency of sampling, e.g., continuous, weekly, monthly,
quarterly, annually; (3) Location of sampling, e.g., downstream,
upstream, off-permit; (4) Biological components subject to sampling;
(5) Sampling parameters, e.g., chemical, physical, hydrologic; and (6)
Regular review of monitoring data by regulatory authority, e.g.,
annually, at mid-term review, at permit renewal.
Corrective Action Thresholds. Alternatives for determining
the circumstances under which the permittee must take corrective action
to prevent material damage to the hydrologic balance include: (1)
Developing numerical water quality thresholds based on biological
criteria; (2) Developing action thresholds based on water quality trend
analysis; and (3) Defining key parameters for which thresholds will be
established.
Landforming and Fill Optimization. Alternatives for
evaluating land configuration and handling of excess spoils include:
(1) Restoring landforms including slope, aspect, and elevation on both
backfilled areas and excess spoil fills; (2) Allowing postmining
elevations to exceed premining elevations when necessary to restore
premining topographic features; (3) Revising requirements to minimize
creation of excess spoil by maximizing the amount of spoil returned to
the mined-out area; (4) Revising requirements to minimize excess spoil
footprints; and (5) Banning excess fill placement in streams.
Approximate Original Contour Exceptions. Alternatives
under consideration include: (1) Modifying requirements to ensure that
exceptions from approximate original contour restoration requirements
do not result in additional damage to streams with a biological
community; (2) Prohibiting ``mountain top'' mining (would require a
statutory change); and (3) Adding requirements to ensure approved
postmining land uses are achievable and feasible.
Reforestation. Alternatives under consideration include:
(1) Requiring reforestation of mined lands to premining diversity and
stocking or some percentage of premining diversity and stocking; (2)
Requiring reforestation of all mined lands capable of supporting
forested land uses; (3) Requiring reforestation of mined lands to the
extent compatible with postmining land use; (4) Requiring reforestation
and revegetation of mined lands with native species; and (5) Minimizing
forest fragmentation.
Permit Coordination. A provision under consideration
includes: (1) Enhancing coordination of SMCRA and Clean Water Act
regulatory programs consistent with the 2009 Memorandum of
Understanding among DOI, Army Corps of Engineers, and EPA; and (2)
Standardizing data collection and
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management to enhance sharing among regulatory agencies and the public.
Long-Term Discharges of Pollutants. A provision under
consideration includes: (1) Incorporating our March 31, 1997 policy
statement (see footnote 3 above) into SMCRA regulations and clarifying
that those provisions apply to all long-term discharges of pollutants.
Stream Definitions. Alternatives under consideration
include: (1) Updating the current definitions of perennial,
intermittent, and ephemeral streams to include biological criteria; (2)
Retaining the current definitions with the 1-square mile criterion for
intermittent streams removed; (3) Adopting the stream definitions used
by the Corps of Engineers--``waters of the United States''-- in place
of stream definitions; and (4) Using a flow-based (hydraulic)
definition with no reference to biological condition.
V. How do I submit comments?
Consistent with 43 CFR 46.235, we invite all interested persons,
organizations, and agencies to provide comments, suggestions, and any
other information relevant to the scope of the EIS, the scope of the
proposed Federal action, potential alternatives for the proposed
Federal action, and studies and impacts that the EIS should address.
See ADDRESSES for the methods by which we will accept comments.
We also anticipate conducting several open houses in various
locations in coal producing regions of the U.S. in July 2010. The
following locations are under consideration: Morgantown, WV; Beckley,
WV; Hazard, KY; Birmingham, AL; Evansville, IN; Carbondale, IL;
Fairfield, TX; Farmington, NM; and Gillette, WY. The open houses will
provide an opportunity for the public to review information and provide
oral and written comments regarding the scope of the issues to be
addressed and identification of the significant issues related to the
proposed action and possible alternatives. Information regarding the
specific dates and locations will be posted on OSM's Web site, http://www.osmre.gov, and in local news media.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment, including your personal identifying
information, may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so. Comments that we receive after the close of the comment
period (see DATES) or sent to an address other than those listed in
ADDRESSES may not be considered.
If you previously submitted comments in response to the ANPR or the
April 30, 2010 Notice of Intent, you do not need to resubmit them. We
will consider all ANPR and April 30th comments as part of this EIS
scoping process.
VI. How do I request to participate as a cooperating agency?
Consistent with 43 CFR 46.225, we, the lead agency, invite eligible
Federal, state, tribal, and local governmental entities to indicate
whether they have an interest in being a cooperating agency in the
preparation of the EIS. Qualified entities are those with jurisdiction
by law, as defined in 40 CFR 1508.15, or special expertise, as defined
in 40 CFR 1508.26. Potential cooperating agencies should consider their
authority and capacity to assume the responsibilities of a cooperating
agency and make the necessary resources available in a timely manner,
as discussed in the document entitled ``Factors for Determining
Cooperating Agency Status,''\4\ which is Attachment 1 to the Council on
Environmental Quality's January 30, 2002, Memorandum for the Heads of
Federal Agencies: Cooperating Agencies in Implementing the Procedural
Requirements of the National Environmental Policy Act. We will not be
able to provide financial assistance to cooperating agencies. If you
previously indicated that you were interested in being a cooperating
agency, no further action is required.
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\4\ See http://ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagencymemofactors.html.
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If you have an interest in participating as a cooperating agency,
please contact the person listed in FOR FURTHER INFORMATION CONTACT and
identify those aspects of the EIS process in which you are interested
in participating. The regulations at 43 CFR 46.230 and Items 4 through
6 in the document discussed in the preceding paragraph list the
activities in which cooperating agencies may wish to participate.
Dated: June 10, 2010.
Sterling Rideout,
Assistant Director, Program Support.
[FR Doc. 2010-14727 Filed 6-17-10; 8:45 am]
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