[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Notices]
[Pages 3126-3128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1013]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-R03-OW-2009-0985; FRL-9254-8]
Final Determination of the Assistant Administrator for Water
Pursuant to Section 404(c) of the Clean Water Act Concerning the Spruce
No. 1 Mine, Logan County, WV
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This is a notice of EPA's Final Determination pursuant to
section 404(c) of the Clean Water Act to withdraw the specification of
Pigeonroost Branch, Oldhouse Branch, and their tributaries, within
Logan County, West Virginia, as a disposal site for dredged or fill
material in connection with construction, operation, and reclamation of
the Spruce No. 1 Surface Mine, as authorized by DA Permit No.
199800436-3 (Section 10: Coal River). This determination also prohibits
the specification of the defined area constituting Pigeonroost Branch,
Oldhouse Branch, and their tributaries for use as a disposal site
associated with future surface coal mining that would be expected to
result in a nature and scale of adverse chemical, physical, and
biological effects similar to the Spruce No. 1 mine. EPA's
determination is based upon a finding that the discharge of dredged or
fill material associated with the construction and operation of the
Spruce No. 1 Mine would result in unacceptable adverse effects on
wildlife.
DATES: Effective Date: The effective date of the Final Determination is
January 13, 2011.
ADDRESSES: U.S. Environmental Protection Agency, Office of Water,
Wetlands Division, Mail Code 4502T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. EPA has established a docket for this action
under Docket ID No. EPA-R03-OW-2009-0985. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information may not be publicly available, e.g., CBI
or other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through http://www.regulations.gov or in hard copy at the Water Docket,
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Water Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: Mr. Chris Hunter, Office of Wetlands,
Oceans, and Watersheds; U.S. Environmental Protection Agency, Mail Code
4502T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Additional
information and copies of EPA's Final Determination are available at
the following Web site: http://www.epa.gov/404c/.
SUPPLEMENTARY INFORMATION: Section 404(c) of the CWA, 33 U.S.C.
1344(c), authorizes EPA to prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal site.
EPA is authorized to restrict or deny the use of any defined area for
specification (including the withdrawal of specification) as a disposal
site, whenever it determines, after notice and opportunity for public
hearing, that the discharge of such materials into such area will have
an unacceptable adverse effect on municipal water supplies, shellfish
beds and fishery areas (including spawning and breeding areas),
wildlife, or recreational areas.
EPA's regulations for implementing section 404(c) are set forth in
40 CFR part 231. Four major steps in the process are: (1) The Regional
Administrator's notice to the U.S. Army Corps of Engineers (the Corps),
the applicant or permittee, the property owner, and the State, as
appropriate, of the intention to initiate the section 404(c) process;
(2) the Regional Administrator's publication of a Proposed
Determination to withdraw, deny, restrict, or prohibit the use of the
site, soliciting public comment and offering an opportunity for a
public hearing; (3) the Regional Administrator's recommendation to the
Assistant Administrator for Water at EPA Headquarters to withdraw,
deny, restrict, or prohibit the use of the site (Recommended
Determination); and, (4) the Assistant Administrator for Water's
[[Page 3127]]
Final Determination to affirm, modify, or rescind the Regional
recommendation.
As a result of significant new scientific information confirming
and strengthening EPA's concerns regarding the environmental effects of
mountaintop mining operations, and in particular those operations on
the scope and scale of the Spruce No. 1 Mine, EPA Region III initiated
the Clean Water Act Sec. 404(c) process for the Spruce No. 1 Mine on
October 16, 2009. The Spruce No. 1 Mine, as authorized in 2007 by
Department of the Army (DA) Permit No. 199800436-3 (Section 10: Coal
River), is one of the largest mountaintop mining projects ever
authorized in West Virginia. The DA Permit authorizes the Mingo Logan
Coal Company to construct six valley fills, associated sedimentation
structures, and other discharges of fill material to the Right Fork of
Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch, and their
tributaries. If fully constructed, the project will disturb
approximately 2,278 acres (about 3.5 square miles) and bury
approximately 7.48 miles of streams beneath 110 million cubic yards of
excess spoil.\1\
---------------------------------------------------------------------------
\1\ EPA's Final Determination addresses only the 6.6 miles of
fill authorized in Pigeonroost Branch, Oldhouse Branch, and their
tributaries. While the permit also authorizes construction of valley
fills and other discharges to the Right Fork of Seng Camp Creek and
its tributaries, EPA is not withdrawing specification of those
waters, in part because some of those discharges have already
occurred and because the stream resources in Right Fork of Seng Camp
Creek were subject to a higher level of historic and ongoing human
disturbance than those found in Pigeonroost Branch or Oldhouse
Branch. Due to litigation and an agreement with environmental
groups, represented by Ohio Valley Environmental Coalition,
operations following the issuance of this DA Permit have been
limited to the Seng Camp Creek watershed, and as part of that
agreement one valley fill is partially constructed.
---------------------------------------------------------------------------
Following initiation of the Section 404(c) process, EPA Region III
communicated with representatives of Mingo Logan (a subsidiary of Arch
Coal, Inc.) and the Corps both in person and by telephone and
electronic mail on several occasions to determine whether corrective
action would be taken to address EPA Region III's concerns. However,
corrective action was not taken to resolve EPA's concerns. On April 2,
2010, EPA Region III published in the Federal Register a Proposed
Determination to prohibit, restrict, or deny the specification or the
use for specification (including withdrawal of specification) of
certain waters at the project site as disposal sites for the discharge
of dredged or fill material for the construction of the Spruce No. 1
Surface Mine. EPA Region III took this step because it believed that
discharges authorized by DA Permit No. 199800436-3 (Section 10: Coal
River) would result in a significant loss of wildlife habitat and also
cause significant degradation of downstream aquatic ecosystems and
therefore could have unacceptable adverse effects on wildlife. A public
hearing regarding the Proposed Determination was conducted on May 18,
2010. EPA Region III received more than 100 oral comments and more than
50,000 written comments both supporting and opposing its Proposed
Determination.
On September 24, 2010, EPA Region III submitted to EPA Headquarters
its Recommended Determination that the specification embodied in DA
Permit No. 199800436-3 (Section 10: Coal River) of Pigeonroost Branch
and Oldhouse Branch as disposal sites for discharges of dredged or fill
material for construction of the Spruce No. 1 Surface Mine be
withdrawn. EPA Region III based this recommendation upon a conclusion
that the discharges of dredged or fill material to Pigeonroost Branch
and Oldhouse Branch for the purpose of constructing the Spruce No. 1
Surface Mine as authorized would likely have unacceptable adverse
effects on wildlife.
The U.S. Fish and Wildlife Service (USFWS), in its comments on both
the Proposed and Recommended Determinations, concurred with EPA Region
III's conclusion that the project, as authorized, would result in
unacceptable adverse effects on wildlife and that this conclusion is
supported by the available scientific information. USFWS also noted
that it has consistently expressed concerns regarding the loss of
headwater streams and adjacent riparian and terrestrial habitats
associated with the Spruce No. 1 Mine, as well as its likely impacts on
downstream water quality, aquatic organisms, and terrestrial and
aquatic wildlife that depend on those resources.
Following receipt of the Recommended Determination, and consistent
with EPA's Section 404(c) regulations, EPA Headquarters provided an
opportunity for the project's proponents to propose corrective actions
intended to prevent the unacceptable adverse environmental impacts
presented in the Recommended Determination. On November 16, 2010, a
consultation meeting was held at EPA Headquarters in Washington, DC to
discuss the Region III Recommended Determination and potential
corrective actions that could be undertaken to avoid the unacceptable
adverse impacts that were of concern to EPA. Participants at the
meeting included the EPA Assistant Administrator for Water; the EPA
Region III Regional Administrator; other EPA staff; representatives
from Arch Coal, Inc. (parent company of Mingo Logan) and their legal
counsel; the United Company (a mineral rights owner) and their legal
counsel; the West Virginia Department of Environmental Protection, and
the District Engineer of the Corps' Huntington District. At that
meeting, and in subsequent communications, Arch Coal did not provide
EPA with corrective actions that would meaningfully address the likely
unacceptable adverse effects outlined in Region III's Recommended
Determination.
Following review of the public comments received, existing and
recently developed scientific data, and EPA Region III's Recommended
Determination, EPA has concluded that the discharge of dredged or fill
material to Pigeonroost Branch and Oldhouse Branch, in connection with
the construction of valley fills and sedimentation ponds, as authorized
by DA Permit No. 199800436-3 (Section 10: Coal River), will result in
unacceptable adverse effects on wildlife. The administrative record
developed in this case fully supports the conclusion that the Spruce
No. 1 Surface Mine will have unacceptable adverse effects to wildlife,
due to the filling of Pigeonroost Branch, Oldhouse Branch, and their
tributaries. In addition, the administrative record demonstrates that
the Spruce No. 1 Surface Mine will have unacceptable adverse effects on
wildlife downstream of the project site as a result of increased
pollution that the project will contribute to downstream waters.
EPA has determined that unacceptable adverse impacts to Pigeonroost
Branch, Oldhouse Branch, and their tributaries will occur through the
direct burial of 6.6 miles of high-quality stream habitat, including
all wildlife in this watershed that utilize these streams for all or
part of their life cycles (e.g., macroinvertebrate, salamander, fish,
and water-dependent bird populations). Pigeonroost Branch, Oldhouse
Branch, and their tributaries contain diverse and high-quality wildlife
communities that are consistent with the ecological richness of high-
quality Appalachian headwater stream systems. With their adjacent
riparian areas, these streams provide important habitat for 84 taxa of
macroinvertebrates, up to 46 species of amphibians and reptiles, 4
species of crayfish, and 5 species of fish, as well as birds, bats, and
other mammals. As some of the last remaining high quality,
[[Page 3128]]
least-disturbed headwater stream habitat within the sub-basin, these
streams not only support resident wildlife, but also provide ecosystem
functions for downstream waters, serve as refugia for aquatic life and
potential sources for recolonizing nearby waters, and ultimately serve
to maintain the aquatic ecosystem integrity in the sub-basin and the
rich animal diversity in the ecoregion.
Burial of Pigeonroost Branch, Oldhouse Branch, and their
tributaries will also result in unacceptable adverse effects on
wildlife downstream through the removal of functions performed by the
buried streams and by transformation of the buried areas into pollution
sources that will contribute contaminants to downstream waters. Based
on recent peer-reviewed literature, as well as available data from
adjacent mine sites and from the active portion of the Spruce No. 1
Mine, EPA has concluded that the full construction of the Spruce No. 1
Mine will transform these headwater streams from high-quality habitat
into sources of pollutants (particularly total dissolved solids and
selenium) that will travel downstream and adversely impact the wildlife
communities that utilize these downstream waters. Increased pollutant
levels will lead to loss of macroinvertebrate communities and
population shifts to more pollution-tolerant taxa, specifically the
extirpation of ecologically important macroinvertebrates. Through the
loss of stream macroinvertebrate communities, there will be, in turn,
substantial effects on fish, amphibian, and bird populations that rely
on these communities as a food source.
Furthermore, the increased loading of pollutants to downstream
receiving waters will increase the potential for harmful golden algal
blooms, while increased selenium exposure will result in impaired
salamander populations and adverse effects to the reproduction of fish
and bird species, thus harming the ability of these local populations
to rebound. The loss of macroinvertebrate prey populations, increased
risk of harmful golden algal blooms, and additional exposure to
selenium will have an unacceptable adverse effect on the 26 fish
species found in Spruce Fork (the receiving stream for Pigeonroost
Branch and Oldhouse Branch), and will also have an unacceptable adverse
effect on amphibians, reptiles, crayfish, and bird species that depend
on downstream waters for food or habitat.
Furthermore, these adverse impacts do not comply with the
requirements of the Clean Water Act (CWA) and EPA's implementing
regulations under section 404(b)(1). EPA has determined that the Spruce
No. 1 Surface Mine fails to adequately evaluate less environmentally
damaging alternatives, will cause or contribute to significant
degradation of waters of the United States (especially when considered
in the context of the significant cumulative losses and impairment of
streams across the Central Appalachian ecoregion), and lacks
compensatory mitigation to adequately offset the impacts to Pigeonroost
Branch and Oldhouse Branch. These failures to comply with the
Guidelines serve to strengthen EPA's judgment about the unacceptability
of the significant adverse impacts that will occur.
Based on these findings and pursuant to section 404(c) of the CWA,
EPA's Final Determination withdraws the specification of Pigeonroost
Branch, Oldhouse Branch, and their tributaries, as described in DA
Permit No. 199800436-3 (Section 10: Coal River), as a disposal site for
the discharge of dredged or fill material for the purpose of
construction, operation, and reclamation of the Spruce No. 1 Surface
Mine. This Final Determination also prohibits the specification of the
defined area constituting Pigeonroost Branch, Oldhouse Branch, and
their tributaries for use as a disposal site associated with future
surface coal mining that would be expected to result in a nature and
scale of adverse chemical, physical, and biological effects similar to
the Spruce No. 1 mine. This Final Determination does not affect
discharges to Seng Camp Creek as authorized in DA Permit No.
19980043603 (Section 10: Coal River) associated with the Spruce No.1
Surface Mine.
EPA continues to work effectively with the Corps, the mining
industry, and the public to evaluate proposed Appalachian surface coal
mining projects and to enable permitting of environmentally responsible
mining projects that authorize continued coal production while
preventing unacceptable adverse effects on wildlife.
Dated: January 13, 2011.
Peter S. Silva,
Assistant Administrator, Office of Water.
[FR Doc. 2011-1013 Filed 1-18-11; 8:45 am]
BILLING CODE 6560-50-P