[Federal Register Volume 74, Number 228 (Monday, November 30, 2009)]
[Proposed Rules]
[Pages 62664-62668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28513]
[[Page 62663]]
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Part III
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 780, 784, 816, et al.
Stream Buffer Zone and Related Rules; Proposed Rule
Federal Register / Vol. 74, No. 228 / Monday, November 30, 2009 /
Proposed Rules
[[Page 62664]]
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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 OSM-2009-0009]
RIN: 1029-AC63
Stream Buffer Zone and Related Rules
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Advance notice of proposed rulemaking; notice of intent to
prepare a supplemental environmental impact statement (SEIS).
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are seeking comments on our intention to revise our regulations
concerning the conduct of mining activities in or near streams. We have
determined that revision of the stream buffer zone (SBZ) rule published
on December 12, 2008, is necessary to implement the interagency action
plan that the Administration has developed to significantly reduce the
harmful environmental consequences of surface coal mining operations in
Appalachia, while ensuring that future mining remains consistent with
Federal law. In this notice, we describe and seek comment on the
alternatives that we are considering for revision of the SBZ rule. In
addition, we request your help in identifying significant issues,
studies, and specific alternatives that we should consider in the SEIS
for this rulemaking initiative.
The June 11, 2009, memorandum of understanding (MOU) implementing
the interagency action plan also calls for us to consider whether
revisions to other OSM regulations (including, at a minimum,
approximate original contour requirements) are needed to better protect
the environment and the public from the impacts of Appalachian surface
coal mining. We have identified addition of a definition of ``material
damage to the hydrologic balance'' as one such possibility. We invite
comment on that option as well as whether there are other OSM
regulations that could be revised to implement this provision of the
MOU.
DATES: To ensure consideration, we must receive your comments on or
before December 30, 2009.
ADDRESSES: You may submit comments by any of the following methods,
although we request that you use the Federal e-rulemaking portal if
possible:
Federal e-Rulemaking Portal: http://www.regulations.gov.
The document has been assigned Docket ID: OSM-2009-0009. Follow the
online instructions for submitting comments.
Mail, hand-delivery, or courier to: Office of Surface
Mining Reclamation and Enforcement, Administrative Record, Room 252-
SIB, 1951 Constitution Avenue, NW., Washington, DC 20240. Please
include the Docket ID (OSM-2009-0009) with your comment.
Comments that we receive after the close of the comment period (see
DATES) or sent to an address other than those listed above will not be
considered or included in the docket.
Please submit all comments and related materials that you wish us
to consider. We are not able to consider comments and materials that
were previously submitted in connection with a different rulemaking.
For information on the public availability of comments, see Part
VII of this preamble, which is entitled ``Will comments received in
response to this notice be available for review?''
FOR FURTHER INFORMATION CONTACT: Dennis Rice, Division of Regulatory
Support, Office of Surface Mining Reclamation and Enforcement, 1951
Constitution Ave., NW. MS 202-SIB, Washington, DC 20240; Telephone 202-
208-2829.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Why Are We Publishing This Notice?
II. What Does SMCRA Say About Streams?
III. What Provisions of SMCRA Form the Basis for the SBZ Rule?
IV. What Is the History of the SBZ Rule?
V. What Are the Major Provisions of the 2008 Rule?
VI. How Do We Plan To Revise Our Regulations?
VII. Will Comments Received in Response to This Notice Be Available
for Review?
I. Why Are We Publishing This Notice?
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:
Coal River Mountain Watch, et al. v. Salazar, No. 08-2212 (D.D.C.)
(``Coal River'') and National Parks Conservation Ass'n v. Salazar, No.
09-115 (D.D.C.) (``NPCA'').
In NPCA, the Government filed a motion on April 27, 2009, for
voluntary remand and vacatur of the 2008 rule. The motion was based on
Secretary of the Interior Ken Salazar's determination that OSM erred in
failing to initiate consultation with the U.S. Fish and Wildlife
Service under subsection 7(a)(2) of the Endangered Species Act, 16
U.S.C. 1536(a)(2), to evaluate possible effects of the 2008 rule on
threatened and endangered species. Granting of the Government's motion
likely would have had the effect of reinstating the 1983 version of the
SBZ rule. In Coal River, the Government filed a motion on April 28,
2009, to dismiss the complaint as moot if the court granted the motion
in NPCA.
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 (MOU)\1\ implementing an interagency
action plan designed to significantly reduce the harmful environmental
consequences of surface coal mining operations in six Appalachian
States,\2\ while ensuring that future mining remains consistent with
Federal law. Among other things, the MOU required that OSM develop
guidance clarifying how the 1983 SBZ rule would be applied to reduce
adverse impacts on streams if the court granted the Government's motion
in NPCA for remand and vacatur of the 2008 SBZ rule.
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\1\ The MOU can be viewed online at http://www.osmre.gov/resources/ref/mou/ASCM061109.pdf.
\2\ Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West
Virginia.
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However, on August 12, 2009, the court denied the Government's
motion in NPCA, holding that, absent a ruling on the merits,
significant new evidence, or consent of all the parties, a grant of
vacatur would allow the government to improperly bypass the procedures
set forth in the Administrative Procedure Act (APA), 5 U.S.C. 551 et
seq., for repealing an agency rule. On the same date, the court denied
the government's motion to dismiss in Coal River.
The Secretary of the Interior remains committed to reducing the
adverse impacts of Appalachian surface coal mining operations on
streams. Accomplishing that goal will involve revision or repeal of
certain elements of the 2008 rule. The rulemaking process will adhere
to the requirements of the Administrative Procedure Act, including any
applicable notice and comment requirements, consistent with the court's
decision in NPCA.
The notice that we are publishing today is the first step in the
rulemaking
[[Page 62665]]
process. We are publishing this notice to seek public input into how
the 2008 rule should be revised to better protect streams and implement
the MOU. The MOU identifies the stream buffer zone rule and our
regulations concerning approximate original contour as two rules that
we will consider revising. In this notice, we describe options that we
are considering for revision of the stream buffer zone rule. We invite
you, the public, to comment on those options, to suggest other options,
and to identify other provisions of our regulations that should be
revised to better protect the environment and the public from the
impacts of Appalachian surface coal mining. After considering the
comments, we intend to move expeditiously to develop a proposed rule
that will further clarify how streams must be protected within the
framework established by SMCRA.
At the appropriate time, we also will initiate consultation with
the U.S. Fish and Wildlife Service under subsection 7(a)(2) of the
Endangered Species Act, 16 U.S.C. 1536(a)(2), to evaluate possible
effects of a new rule on threatened and endangered species.
II. What Does SMCRA Say About 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) 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.''
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 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.'' The term
``natural water courses'' includes all types of streams--perennial,
intermittent, and ephemeral.
Section 515(c)(4)(D) provides that, in approving a permit
application for a mountaintop removal operation \3\, the regulatory
authority must require that ``no damage will be done to natural
watercourses.\4\ '' 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.''
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\3\ Under section 515(c)(2) of SMCRA, a mountaintop removal
operation is a surface coal mine that will remove an entire coal
seam or seams running through the upper fraction of a mountain,
ridge, or hill by removing all of the overburden and creating a
level plateau or a gently rolling contour with no highwalls
remaining, and capable of supporting certain specified postmining
land uses. This term is a subset of the various types of mining
commonly referred to as mountaintop mining.
\4\ The regulations implementing this provision interpret the
prohibition as applying only to natural watercourses ``below the
lowest coal seam mined.'' See 30 CFR 824.11(a)(9).
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Section 516(c) requires the regulatory authority to
suspend underground coal mining adjacent to permanent streams if an
imminent danger to inhabitants of urbanized areas, cities, towns, or
communities exists.
III. What Provisions of SMCRA Form the Basis for the SBZ Rule?
Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA served as
the basis for all four versions (1977, 1979, 1983, and 2008) of the
stream buffer zone rule with respect to surface mining activities.
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 minesite 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) * * *
(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.
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.
Commenters responding to this notice should explain how their
suggestions concerning revision of the SBZ rule are consistent with
these statutory provisions.
IV. What Is the History of the SBZ Rule?
We have had an SBZ rule in place since 1977, but the rule and its
application did not receive widespread attention until the 1990s when
concerns arose over the environmental impacts of large-scale surface
coal mining operations in central Appalachia. Surface mining in this
mountainous area of steep slopes and narrow valleys produces more spoil
material than can be returned to the site of the excavation created by
the mining operation. The excess spoil material is most commonly placed
in the valleys adjacent to the mine excavation. These valleys often
contain headwater streams. In Appalachia, intermittent streams begin in
watersheds as small as 15 acres and perennial streams begin in
watersheds as small as 41 acres, according to a study conducted by the
U.S. Geological Survey.\5\
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\5\ 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.
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The 1983 version of the SBZ rule prohibited disturbance of land
within 100 feet of an intermittent or perennial stream unless the
regulatory authority found that the conduct of mining activities
``closer to, or through, such a stream'' would not cause or contribute
to the violation of State or Federal water quality standards and would
not adversely affect the water quantity or
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quality or other environmental resources of the stream. The 1983 rule
has been the subject of litigation.\6\ For a more detailed history of
the SBZ rule, please refer to the discussion in the preamble to the
2008 rule (73 FR 75816-75818, December 12, 2008).
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\6\ In 1999, the U. S. District Court for the Southern District
of West Virginia held that the West Virginia version of the SBZ rule
prohibited the creation of fills that bury streambeds because (1)
nothing in the State or Federal rules supports an interpretation
that would exempt the regulatory authority from its obligation to
make the buffer zone findings for the segment of the stream that
lies within the footprint of the fill, and (2) burying a stream
segment would impermissibly destroy that segment. Bragg v.
Robertson, 72 F. Supp. 2d 642 (S.D. W. Va. 1999). That decision was
overturned on appeal on other grounds (lack of jurisdiction under
the Eleventh Amendment to the U. S. Constitution). Bragg v. West
Virginia Coal Ass'n, 248 F.3d 275 (4th Cir. 2001), cert. denied, 534
U.S. 1113 (2002). In a second case, the appellate court stated in
its opinion that it is beyond dispute that SMCRA recognizes the
possibility of placing excess spoil material in waters of the United
States. Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317
F.3d 425, 442-443 (4th Cir. 2003).
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V. What Are the Major Provisions of the 2008 Rule?
The 2008 rule replaced the 1983 version of the SBZ rule at 30 CFR
816.57(a)(1) and 817.57(a)(1), which prohibited disturbance of land
within 100 feet of a perennial or intermittent stream unless the
regulatory authority authorized the proposed activities after finding
that conducting those activities ``closer to, or through, such a
stream'' would not cause or contribute to the violation of applicable
State or Federal water quality standards and would not adversely affect
the water quantity or quality or other environmental resources of the
stream. The 2008 rule replaced that requirement with new provisions at
30 CFR 780.28(d) and (e) and 784.28(d) and (e).
Under the 2008 rule at 30 CFR 780.28(d) and 784.28(d), the conduct
of activities within a perennial or intermittent stream (with the
exception of activities conducted in connection with construction of a
stream-channel diversion or in connection with a coal preparation plant
located outside the permit area of a mine) is prohibited unless the
regulatory authority finds that avoiding disturbance of the stream is
not reasonably possible and that the plans submitted with the
application meet all applicable requirements in paragraphs (b) and (c)
of 30 CFR 816.57 or 817.57. Among other things, those paragraphs
require that, to the extent possible, the operator use the best
technology currently available to prevent the contribution of suspended
solids to streamflow or runoff outside the permit area and to minimize
disturbances and adverse impacts on fish, wildlife, and related
environmental values. Under 30 CFR 780.28(d)(2) and 784.28(d)(2), every
permit approving disturbance of a perennial or intermittent stream must
include a permit condition requiring that the permittee demonstrate
compliance with the Clean Water Act before conducting any activities
that require authorization or certification under the Clean Water Act.
Under the 2008 rule at 30 CFR 780.28(e) and 784.28(e), activities
on the surface of land within 100 feet of a perennial or intermittent
stream are prohibited unless the permit applicant demonstrates, and the
regulatory authority finds, either that it is not reasonably possible
to avoid disturbance of the buffer zone or that avoidance of
disturbance is not necessary to meet the fish and wildlife and
hydrologic balance protection requirements of the regulatory program.
The regulatory authority also must find that the plans submitted by the
applicant demonstrate that the operation will, to the extent possible,
use the best technology currently available to prevent the contribution
of suspended solids to streamflow or runoff outside the permit area and
to minimize disturbances and adverse impacts on fish, wildlife, and
related environmental values.
Under the 2008 rule at 30 CFR 816.57(a)(1) and (b) and 817.57(a)(1)
and (b), certain activities are exempt from the buffer zone
requirements of 30 CFR 780.28(e) and 784.28(e) to the extent that the
regulatory authority has approved filling the stream segment under 30
CFR 780.28(d) or 784.28(d) or diverting the stream segment under 30 CFR
816.43(b) or 817.43(b). In other words, if a stream segment will cease
to exist in its original location as a result of mining activities, the
rule provides that there is no need to protect the buffer zone for that
stream segment. The activities to which this exemption applies include
stream-channel diversions, construction of stream crossings,
construction of sedimentation pond embankments, and construction of
excess spoil fills and coal mine waste disposal facilities.
The 2008 rule provides that mining operations must return as much
of the overburden as possible to the excavation created by the mine.
See 30 CFR 780.35(a)(1) and 784.19(a)(1). The 2008 rule also requires
that mine operators minimize the volume of excess spoil generated by
mining operations and design and construct fills to be no larger than
needed to accommodate the anticipated volume of excess spoil to be
generated. See 30 CFR 780.35(a)(2) and 784.19(a)(2).
The 2008 rule further provides that the operator must avoid
constructing excess spoil fills, refuse piles, or slurry impoundments
in perennial and intermittent streams to the extent possible. When
avoidance is not possible, the rule requires that the operator identify
a range of reasonable alternatives for disposal and placement of the
excess spoil or coal mine waste, evaluate the environmental impacts of
each alternative, and select the alternative with the least overall
adverse impact on fish, wildlife, and related environmental values. See
30 CFR 780.25(d)(1), 780.35(a)(3), 784.16(d)(1), and 784.19(a)(3).
The 2008 rule states 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. See 30 CFR 780.28(f)(2), 784.28(f)(2), 816.57(a)(2), and
817.57(a)(2). In particular, the rule requires that the SMCRA permit
include a condition prohibiting any disturbance of a perennial or
intermittent stream before obtaining all necessary Clean Water Act
authorizations. See 30 CFR 780.28(d)(2) and 784.28(d)(2).
VI. How Do We Plan To Revise Our Regulations?
We intend to revise our regulations in a manner consistent with the
provisions of SMCRA and the MOU. Part III.A. of the MOU provides that
we will review our ``existing regulatory authorities and procedures to
determine whether regulatory modifications should be proposed to better
protect the environment and public health from the impacts of
Appalachian surface coal mining.'' It further provides that, at a
minimum, we will consider revisions to the stream buffer zone rule and
our requirements concerning approximate original contour. This notice
focuses on revisions to the stream buffer zone rule, but we invite
commenters to suggest other provisions of our regulations that could or
should be revised to accomplish the objectives of the MOU.
To comply with the National Environmental Policy Act, we intend to
prepare a supplement to the final environmental impact statement (FEIS)
for the 2008 rule (OSM-EIS-34).\7\ The
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supplement (SEIS) will include and discuss additional information on
the impacts of mining on streams and related resources. It also will
evaluate additional action alternatives in detail, while incorporating
by reference the programmatic analyses in the FEIS, to the extent
appropriate. This approach will enable us to meet our National
Environmental Policy Act obligations in a cost-effective and timely
manner. As provided in 40 CFR 1502.9(c)(4), we will prepare and process
the SEIS in the same fashion as a standard environmental impact
statement, exclusive of scoping. In other words, we will prepare both a
draft SEIS, which will be subject to public comment, and a final SEIS.
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\7\ 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 http://www.regulations.gov. The Document ID number is
OSM-2007-0008-0553. A copy of the FEIS is also available for
inspection in the South Interior Building, Room 101, 1951
Constitution Avenue, NW., Washington, DC 20240.
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Any proposed revisions of our rules must be consistent with the
provisions of SMCRA, as discussed in Parts II and III of this notice.
We also note that section 102(f) of SMCRA 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.''
Comments that you provide in response to this advance notice will
help us determine which alternatives will be developed in the SEIS and
the proposed rule. We encourage commenters to be as detailed as
possible and to explain how any suggested regulatory changes are
consistent with SMCRA and the rulemaking authority that we have under
SMCRA.
The alternatives described below are not necessarily mutually
exclusive. After evaluating the comments received, we may decide not to
propose some of the alternatives listed here. We also may decide to
propose some combination of the listed alternatives, variations of
those alternatives, new alternatives suggested by commenters, or new
alternatives that we develop. The public will have another opportunity
to comment when the proposed rule is published.
We are considering the following alternatives for revising the
stream buffer zone rule and related rules:
1. Proposing to repeal the existing SBZ rules (30 CFR 780.28,
784.28, 816.57, and 817.57) and replace them with the 1983 version of
the SBZ rule at 30 CFR 816.57 and 817.57, with conforming revisions to
the signs and markers requirements of 30 CFR 816.11 and 817.11. This
alternative also would include a proposal to either repeal or make
conforming revisions to 30 CFR 780.25(d)(1), 780.35(a)(3),
784.16(d)(1), and 784.19(a)(3), because those provisions contain
permitting requirements specific to applications that propose to
construct coal mine waste impoundments, refuse piles, or excess spoil
fills in or within 100 feet of perennial or intermittent streams. In
addition, this alternative could include a proposal to replace the 2008
version of the stream-channel diversion requirements of 30 CFR 816.43
and 817.43 with the 1983 version of those requirements, which includes
a reference to the SBZ rule.
We request comment on whether reinstatement of the language in the
1983 SBZ rule would be appropriate, and, if so, how that language
should be interpreted to promote stream protection in a way that is
fully consistent with SMCRA.
2. Proposing to apply the prohibitions and restrictions of the
stream buffer zone rule to all segments of all perennial and
intermittent streams and to the surface of all lands within 100 feet of
those streams. One variation of this alternative could be to establish
a rebuttable presumption that the placement of excess spoil or coal
mine waste in an intermittent or perennial stream is prohibited because
it would result in an unacceptable level of environmental damage.
Another variation could be to prohibit placement of excess spoil or
coal mine waste in perennial and intermittent streams and restrict
placement in ephemeral streams.
3. Proposing to revise 30 CFR 816.57 and 817.57 to provide that the
SMCRA regulatory authority may authorize mining activities in a
perennial or intermittent stream, or on the surface of land within 100
feet of such a stream, only if those activities (1) would not violate
Sections 401 and 402 of the Clean Water Act; (2) would not violate
Section 404 of the Clean Water Act; (3) would not significantly degrade
the water quantity or quality or other environmental resources of the
stream; and (4) would minimize disturbances and adverse impacts on
fish, wildlife, and other related environmental values of the stream to
the extent possible using the best technology currently available. A
variation on this option would revise criterion (3) to prohibit
significant degradation of the water quantity or quality or other
environmental resources of the stream ``outside the permit area.''
4. Proposing numerical limits on fill size, the percentage of a
watershed disturbed by mining operations at any one time, or total
stream miles covered by fills in each watershed. The 2005 final
programmatic environmental impact statement on mountaintop mining and
valley fills found that existing studies provided an insufficient basis
to determine a bright-line threshold of the nature described in this
alternative.\8\
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\8\ ``Mountaintop Mining/Valley Fills in Appalachia Final
Programmatic Environmental Impact Statement,'' (EPA 9-03-R-05002,
EPA Region 3, October 2005), pp. 27-28; available at http://www.epa.gov/region03/mtntop/eis2005.htm.
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We invite comment on whether scientific information is now
available that might provide a sufficient basis for establishing
numerical limits of the nature described in this alternative. We
encourage commenters to suggest specific thresholds, together with the
rationale for those thresholds.
5. Proposing a quantitative or qualitative threshold beyond which
further damage to water quality or aquatic life in a particular
watershed would be prohibited. We encourage commenters to identify
potential thresholds and explain why those thresholds should be
established. We also encourage commenters to discuss how thresholds
could be harmonized with Clean Water Act requirements and the Clean
Water Act permitting process.
6. Proposing to adopt by regulation the watershed approach
described in the following language from the preamble to the 2008 rule
\9\:
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\9\ 73 FR 75849, December 12, 2008.
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
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in downstream waters.
We invite comment on how we could best incorporate this approach
into our regulations in a manner that is consistent with SMCRA.
7. Proposing a definition of the term ``material damage to the
hydrologic balance.'' Section 510(b)(3) of SMCRA, 30 U.S.C. 1260(b)(3),
prohibits the
[[Page 62668]]
regulatory authority from approving any permit application unless the
regulatory authority first prepares an ``assessment of the probable
cumulative impact of all anticipated mining in the area on the
hydrologic balance,'' which is known as the cumulative hydrologic
impact assessment (CHIA). That section of SMCRA also provides that,
after preparing the CHIA, the regulatory authority must make a finding
as to whether the proposed operation ``has been designed to prevent
material damage to the hydrologic balance outside the permit area.''
When we adopted our hydrologic information regulations at 30 CFR
780.21 and 784.14, which implement section 510(b)(3) in part, we did
not include a definition of ``material damage to the hydrologic
balance'' or establish fixed criteria for that term ``because the
gauges for measuring damage may vary from area to area and from
operation to operation.'' \10\ We seek comment on whether understanding
of the relevant hydrology and the associated technology have advanced
since 1983 to the degree that there is now support for a definition
that would include specific criteria and consistent measures for
material damage to the hydrologic balance, and, if so, what that
definition might be.
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\10\ 48 FR 43973, September 26, 1983.
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We also seek comment on how we could, or whether we should, propose
to revise the definition of cumulative impact area at 30 CFR 701.5,\11\
the CHIA regulations at 30 CFR 780.21(g) and 784.14(f), and the
regulations at 30 CFR 780.21(f) and 784.14(e), which concern the
determination of the probable hydrologic consequences of mining, to
incorporate elements that are consistent with the manner and standards
by which the Corps of Engineers determines potential cumulative adverse
impacts on waters of the United States when evaluating a permit
application for the discharge of fill material under section 404 of the
Clean Water Act.
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\11\ ``Cumulative impact area means the area, including the
permit area, within which impacts resulting from the proposed
operation may interact with the impacts of all anticipated mining on
surface- and ground-water systems. Anticipated mining shall include,
at a minimum, the entire projected lives through bond release of:
(a) The proposed operation, (b) all existing operations, (c) any
operations for which a permit application has been submitted to the
regulatory authority, and (d) all operations required to meet
diligent development requirements for leased Federal coal for which
there is actual mine development information available.''
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8. Proposing to require that a SMCRA permit applicant concurrently
submit the SMCRA permit application to the SMCRA regulatory authority,
the National Pollutant Discharge Elimination System permitting entity
(EPA or a delegated State agency), the U.S. Army Corps of Engineers,
EPA, and the State agency responsible for certification under section
401 of the Clean Water Act. This alternative would facilitate
coordinated permitting under SMCRA and the Clean Water Act for projects
proposing mining or related activities in waters of the United States.
9. Proposing more detailed permit application requirements and
performance standards for stream-channel diversions and restoration of
streams. We also are considering proposing specific requirements for
premining stream condition surveys and monitoring or bond release
requirements apart from compliance with stream-channel construction
criteria and revegetation requirements. We invite comment on whether we
should propose additional requirements of this nature and, if so, what
those requirements should include.
10. Proposing provisions that would apply only to mountaintop
removal operations and operations on steep slopes. This approach would
largely limit the impact of the rulemaking to portions of Kentucky,
Virginia, and West Virginia, the three States in which the vast
majority of fills are constructed. States that do not have steep slopes
or that do not allow mining on steep slopes would not be affected. In
addition, we could propose to modify 30 CFR 824.11(a)(9), which applies
to mountaintop removal operations, to apply the prohibition in section
515(c)(4)(D) of SMCRA on damaging natural watercourses to all natural
watercourses, not just to natural watercourses ``below the lowest seam
mined.''
Finally, we invite you to identify other provisions of our
regulations, such as the provisions concerning approximate original
contour, that you believe we should consider revising in order to
better protect the environment and the public from the impacts of
Appalachian surface coal mining, consistent with Part III.A. of the
MOU.
Consistent with the requirements of the Administrative Procedure
Act, we will publish in the Federal Register any regulations that we
may subsequently propose. That notice will provide the public with an
opportunity to review and comment on the proposed regulations.
VII. Will Comments Received in Response to This Notice Be Available for
Review?
Yes. All comments that we receive prior to the close of the comment
period (see DATES) will be available for review on http://www.regulations.gov. 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. You may request in your comment that we withhold your personal
identifying information from public review, but we cannot guarantee
that we will be able to do so.
Dated: November 20, 2009.
Wilma A. Lewis,
Assistant Secretary, Land and Minerals Management.
[FR Doc. E9-28513 Filed 11-24-09; 4:15 pm]
BILLING CODE 4310-05-P