Excess Spoil, Coal Mine Waste, and Buffers for Waters of the United States, 48890-48926 [E7-16629]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 72, Number 164 (Friday, August 24, 2007)]
[Proposed Rules]
[Pages 48890-48926]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-16629]



[[Page 48889]]

-----------------------------------------------------------------------

Part VIII





Department of the Interior





-----------------------------------------------------------------------



Office of Surface Mining Reclamation and Enforcement



-----------------------------------------------------------------------



30 CFR Parts 780, 784, 816, and 817



Excess Spoil, Coal Mine Waste, and Buffers for Waters of the United 
States; Proposed Rule

Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / 
Proposed Rules

[[Page 48890]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 780, 784, 816, and 817

RIN 1029-AC04


Excess Spoil, Coal Mine Waste, and Buffers for Waters of the 
United States

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are proposing to amend our regulations concerning stream buffer 
zones, stream diversions, siltation structures, impoundments, and the 
creation and disposal of excess spoil and coal mine waste. Among other 
things, this proposed rule would require 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. It would apply the buffer requirement to all 
waters of the United States, not just perennial and intermittent 
streams. The rule would clearly specify the activities to which that 
requirement does and does not apply and the limitations on conducting 
activities within the buffer, either under a variance or an exception. 
It also would specify requirements to protect aquatic and other 
resources when an activity is conducted under either a variance or an 
exception.

DATES: Electronic or written comments: We will accept written comments 
on the proposed rule on or before October 23, 2007.
    Public hearings: If you wish to testify at a public hearing, you 
must submit a request before 4:30 p.m., Eastern time, on September 24, 
2007. We will hold a public hearing only if there is sufficient 
interest. Hearing arrangements, dates and times, if any, will be 
announced in a subsequent Federal Register notice. If you are a 
disabled individual who needs reasonable accommodation to attend a 
public hearing, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT.

ADDRESSES: You may submit comments, identified by docket number 1029-
AC04. by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
The proposed rule is listed under the agency name ``OFFICE OF SURFACE 
MINING RECLAMATION AND ENFORCEMENT.''
     Mail/Hand-Delivery/Courier: Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, Room 252 SIB, 1951 
Constitution Avenue, NW., Washington, DC 20240. Please identify the 
comments as pertaining to RIN 1029-AC04.
    You may submit a request for a public hearing on the proposed rule 
to the person and address specified under FOR FURTHER INFORMATION 
CONTACT. If you are disabled and require special accommodation to 
attend a public hearing, please contact the person listed under FOR 
FURTHER INFORMATION CONTACT.
    If you are commenting on the information collection aspects of this 
proposed rule, please submit your comments to the Office of Management 
and Budget, Office of Information and Regulatory Affairs, Attention: 
Interior Desk Officer, via e-mail to oira_docket@omb.eop.gov, or via 
facsimile to 202-365-6566.
    You may review the draft environmental impact statement for this 
proposed rule online at https://www.regulations.gov. At that internet 
address, the document is listed under ``Office of Surface Mining 
Reclamation and Enforcement.'' You may also review the draft 
environmental impact statement at any of the following locations:

Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, Room 101 SIB, 1951 Constitution Avenue, NW., Washington, DC 
20240, 202-208-4264.
Office of Surface Mining Reclamation and Enforcement, Appalachian 
Regional Office, Three Parkway Center, Pittsburgh, PA 15220, 412-937-
2909.
Office of Surface Mining Reclamation and Enforcement, Mid-Continent 
Regional Office, Alton Federal Bldg., 501 Belle Street, Rm 216, Alton, 
IL 62002, 618-463-6460.
Office of Surface Mining Reclamation and Enforcement, Western Regional 
Office, 1999 Broadway, Suite 3320, Denver, CO 80201-6667, 303-844-1401.

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. E-mail address: drice@osmre.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. How does this rule relate to the proposed rule published on 
January 7, 2004?
II. Why is there a need to construct fills in streams in connection 
with coal mining?
III. Why are we proposing to revise our stream buffer zone rules?
    A. What does SMCRA say about surface coal mining operations in 
or near streams?
    B. What provisions of SMCRA form the basis for the existing 
stream buffer zone rules?
    C. What is the history of the existing stream buffer zone rules?
    D. How have the existing stream buffer zone rules been 
interpreted?
IV. Why are we proposing to revise our rules concerning excess 
spoil?
V. Why are we proposing to revise our rules concerning coal mine 
waste?
VI. How are we proposing to revise our existing 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 
Waters of the United States
    D. Section 780.35: Disposal of Excess Spoil from Surface Mines
    E. Section 784.19: Disposal of Excess Spoil from 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 
Waters of the United States
    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?
VII. Are we considering any alternatives to this proposed rule?
    A. No Action Alternative
    B. Alternative 1: Preferred Alternative
    C. Alternative 2: January 7, 2004, Proposed Rule
    D. Alternative 3: Change Only the Excess Spoil Regulations
    E. Alternative 4: Change Only the Stream Buffer Zone Regulations
VIII. How do I submit comments on the proposed rule?
IX. Procedural Matters and Required Determinations

I. How does this rule relate to the proposed rule published on January 
7, 2004?

    On January 7, 2004 (69 FR 1036), we published a proposed rule to 
amend our excess spoil, stream buffer zone, and stream diversion 
regulations. The preamble to that proposed rule contains an extensive 
discussion of the purpose and need for the proposed rule and pertinent 
background information. We will not fully repeat that information in

[[Page 48891]]

this preamble, but we will supplement that information as appropriate.
    On February 26, 2004 (69 FR 8899), we announced the schedule and 
arrangements for five hearings on the proposed rule, and extended the 
time allowed for receipt of comments by 30 days until April 7, 2004. On 
March 30, 2004, we held public hearings in Harriman, Tennessee; Hazard, 
Kentucky; Charleston, West Virginia; Pittsburgh, Pennsylvania; and 
Washington, DC. Approximately 200 people testified at the five 
hearings. We received approximately 32,000 written comments. 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. The proposed rule that we are 
publishing today reflects that decision and replaces the proposed rule 
published on January 7, 2004.

II. Why is there a need to construct fills in streams in connection 
with coal mining?

    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. The most 
economically feasible disposal areas are 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.''
    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. 
The remaining fills approved during that time are located in Alaska, 
Alabama, Ohio, Pennsylvania, and Washington. This survey is discussed 
in greater detail in the draft environmental impact statement (DEIS) 
that accompanies this proposed rule. You may review the DEIS for this 
proposed rule online at https://www.regulations.gov. At that internet 
address, the document is listed under ``Office of Surface Mining 
Reclamation and Enforcement.'' A notice announcing the availability of 
the DEIS was published in this edition of the Federal Register. That 
notice also lists OSM offices and public libraries in Kentucky, 
Tennessee, Virginia, and West Virginia where you may review the DEIS.
    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.
    Underground mines also may result in the filling of some stream 
segments. 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 normally 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 in 
fills.
    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). Coal processing waste 
normally is placed in disposal sites near the plant. The slurry is 
usually impounded behind dams constructed of coarse refuse in a valley 
adjacent to the plant.
    The previously mentioned 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. 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.
    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, the U.S. Fish and Wildlife Service, 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

[[Page 48892]]

Programmatic Environmental Impact Statement'' (EPA 9-03-R-00013, EPA 
Region 3, June 2003) and is available at https://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 https://www.epa.gov/region3/mtntop/pdf/mtm-vf_fpeis_full-
document.pdf.
    According to the draft EIS referenced in the preceding paragraph, 
approximately 5,700 excess spoil fills were approved between 1985 and 
2001 in the central Appalachian coalfields. These fills, if 
constructed, would cover approximately 724 miles of intermittent and 
perennial streams, which is about 1.2 percent of the approximately 
59,000 miles of intermittent and perennial streams within the central 
Appalachian coal fields (EPA 9-03-R-00013, Chapter IV.B-2 and Table 
III.K-8).
    The draft EIS, as incorporated into the final EIS, also contains 
the following statements regarding actual and projected impacts:
     ``Impacts (including valley fills and other permit 
features) * * * based on ten years (1992-2002) of permit footprints 
were 1,208 miles (2.05%) of the 58,998 stream miles in the EIS study 
area.'' (EPA 9-03-R-00013, Chapter IV.B-1)
     ``If valley fill construction continued at this historical 
rate documented in the Fill Inventory for the next seventeen years 
(2003-2020), an additional 724 miles (for a total of 2.4%) could be 
impacted.'' (EPA 9-03-R-00013, Chapter IV.B-2)
     ``If that rate (for permit footprints) continued for 
another 10 years, a total of 4.10% would be impacted by 2013.'' (EPA 9-
03-R-00013, Chapter IV.B-1)

III. Why are we proposing to revise our stream buffer zone rules?

    In regulating surface coal mining operations, OSM and State 
regulatory authorities have historically applied the 1983 stream buffer 
zone rules in 30 CFR 816.57 and 817.57 in a manner that allows excess 
spoil fills, refuse piles, coal mine waste impoundments, and 
sedimentation ponds to be located in perennial and intermittent streams 
under certain circumstances. However, as discussed below, there has 
been considerable controversy over the proper interpretation of the 
1983 rules. Some of those interpretations appear to be at odds with the 
underlying provisions of the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). Therefore, Federal action is needed to end the 
ambiguity in interpretation of the stream buffer zone rules 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 rules do and do not require, consistent 
with underlying statutory authority.
    As discussed below, two Federal appellate court decisions are 
relevant to our reconsideration of the 1983 stream buffer zone rules. 
One of those decisions concluded that SMCRA does not prohibit placement 
of excess spoil in waters of the United States. It further recognized 
that section 515(b)(22) of SMCRA contemplated the placement of excess 
spoil in such waters. The other decision reversed contrary district 
court decisions 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 rules. Nevertheless, we believe that both the public 
and the regulated community would best be served by revising the 1983 
stream buffer zone rules to clearly specify the scope of their 
applicability.
    The revisions that we are proposing today represent an attempt to 
minimize disputes and misunderstandings associated with application of 
the existing rules. The revised rules distinguish between those 
situations in which maintenance of an undisturbed buffer between mining 
and reclamation activities and waters of the United States 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 because the 
activities inherently involve placement of fill material in waters of 
the United States. Examples of the latter category of activities 
include mining through streams and the construction of excess spoil 
fills, refuse piles, slurry impoundments, and in-stream sedimentation 
ponds. Those activities are governed by other regulations.
    We are also proposing changes to better conform the rule language 
to the underlying provisions of SMCRA and to expand the scope of the 
rule to include all waters of the United States instead of just 
perennial and intermittent streams as under the existing rules. 
Finally, we are proposing to reorganize the rules in recognition of the 
fact that the review and approval of proposals to disturb the surface 
of lands within buffer zones is a permitting action, not a performance 
standard. At present, the buffer zone rules are part of the performance 
standards in subchapter K. We are proposing to move portions of those 
rules to new sections 780.28 and 784.28, which would be part of the 
permitting requirements of subchapter G.
    The history of the existing stream buffer zone rules, their 
statutory basis, and the impetus for our proposed rule changes are 
discussed at length below. A detailed rationale for our proposed 
changes to the existing buffer zone rules appears in Parts VI.C. and 
VI.I. of this preamble.

A. 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) 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.
    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

[[Page 48893]]

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 springs and seeps further suggests that Congress 
did not intend to prohibit placement of excess spoil in perennial or 
intermittent streams. Springs and seeps constitute 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, the U.S. Court of Appeals for 
the Fourth Circuit cited section 515(b)(22) as the basis for its 
statement 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.'' 
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). However, 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. As discussed in Part II of this preamble, 
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 waters of the United States, but 
some are, which means that refuse piles may be constructed in streams 
or other waters of the United States.

B. What provisions of SMCRA form the basis for the existing stream 
buffer zone rules?

    Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA provide 
the basis for the existing stream buffer zone rule at 30 CFR 816.57, 
which applies 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.''
    Paragraphs (b)(9)(B) and (11) of section 516 of SMCRA form the 
basis for the existing stream buffer zone rule at 30 CFR 817.57, which 
applies to surface activities associated with underground mines. Those 
section 516 provisions 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. Therefore, in the remainder of this

[[Page 48894]]

preamble, we generally refer only to the section 515 paragraphs, with 
the understanding that, unless otherwise indicated, references to those 
paragraphs should be read as including their section 516 counterparts.

C. What is the history of the existing stream buffer zone rules?

SMCRA and Its Legislative History
    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.
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.
Permanent Regulatory Program (1979 Rules)
    The original version of the 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 reads as follows:

    (a) No land within 100 feet of a perennial stream or a stream 
with a biological community determined according to paragraph (c) 
below 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--
    (1) That the original stream channel will be restored; and
    (2) 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.
    (b) The area not to be disturbed shall be designated a buffer 
zone and marked as specified in Sec.  816.11.
    (c) A stream with a biological community shall be determined by 
the existence in the stream at any time of an assemblage of two or 
more species of arthropods or molluscan animals which are:
    (1) Adapted to flowing water for all or part of their life 
cycle;
    (2) Dependent upon a flowing water habitat;
    (3) Reproducing or can reasonably be expected to reproduce in 
the water body where they are found; and
    (4) 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 sections 515(b)(10) and (24) 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.
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.
    The preamble 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 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

[[Page 48895]]

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 (1983) reads as follows:

    (a) No 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 
regulatory authority may authorize such activities only upon finding 
that--
    (1) 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
    (2) If there will be a temporary or permanent stream-channel 
diversion, it will comply with Sec.  816.43.
    (b) The area not to be disturbed shall be designated as a buffer 
zone, and the operator shall mark it as specified in Sec.  816.11.

    We revised the stream buffer zone rule for underground mining at 30 
CFR 817.57 in identical fashion 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 much 
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.

D. How have the existing stream buffer zone rules been interpreted?

    Historically, we and the State regulatory authorities have applied 
the 1983 stream buffer zone rules as allowing 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), 
there has been considerable controversy over the proper interpretation 
of both the Clean Water Act and the 1983 rules as they apply to the 
placement of fill material in and near perennial and intermittent 
streams. Some interpretations of our 1983 rules appear to be 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 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:


[[Page 48896]]


    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, 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.

IV. Why are we proposing to revise our rules concerning excess spoil?

    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, to the extent possible, excess spoil 
and coal mine waste disposal facilities are located and designed to 
minimize adverse impacts on the hydrologic balance, streams and other 
aquatic resources, fish, wildlife, and related environmental values.
    Our existing regulations pertaining to the disposal of excess spoil 
primarily focus on ensuring that fills are safe and stable. To 
complement the proposed rule changes concerning buffers for waters of 
the United States, we propose to revise our excess spoil rules by 
adding several requirements focused on environmental considerations, 
including minimization of the adverse environmental impacts of fill 
construction in waters of the United States. The proposed rule changes 
would implement, in part, the requirement at 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 and through section 515(b)(22)(I), which requires that the 
placement of excess spoil meet ``all other provisions of this Act.''
    The proposed rules (see the discussion of specific rule changes in 
Part VI of this preamble) require that surface coal mining operations 
be designed to minimize the creation of excess spoil to the extent 
possible. They also specify 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 environmental impacts of 
the operation by minimizing the amount of land and waters disturbed to 
construct excess spoil fills. The proposed rules further require that 
the permit application include an analysis of the environmental impacts 
of a reasonable range of alternatives for disposal of excess spoil, 
including variations in the number, size, location, and configuration 
of proposed fills. The analysis must consider impacts on both 
terrestrial and aquatic ecosystems. To the extent possible, the 
applicant must select the alternative with the least overall adverse 
environmental impact, including adverse impacts on water quality and 
aquatic ecosystems. The proposed rule clarifies that an alternative is 
possible if it is capable of being done after consideration of cost, 
logistics, and available technology, and that the least costly 
alternative may not be selected at the expense of environmental 
protection solely on the basis of cost. If another alternative 
considered would be more environmentally protective than the 
alternative selected by the applicant, the application must 
demonstrate, to the satisfaction of the regulatory authority, that 
implementation of the more environmentally protective alternative is 
not possible. In addition, when construction of the excess spoil fill 
would involve placement of excess spoil in waters of the United States, 
the proposed rule specifies certain factors that must be considered as 
part of the evaluation of environmental impacts 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.
    We are proposing these rule changes to improve the analysis of 
permit applications and permitting decisions under SMCRA. We recognize 
that SMCRA itself does not require an analysis of alternatives. 
However, we believe that the alternatives analysis that we propose to 
require is a reasonable means of implementing sections 515(b)(24) and 
516(b)(11) of SMCRA. Those provisions of the law require 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.
    The addition of requirements for an alternatives analysis and 
selection of the alternative with the least overall adverse 
environmental impact (to the extent possible) also may facilitate the 
coordinated processing of coal mining permit applications 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. For 
example, Nationwide Permits 21, 49, and 50, which authorize placement 
of excess spoil and coal mine waste in waters of the United States as 
part of surface coal mining operations, are predicated upon issuance of 
a SMCRA permit or participation in an integrated permitting process. 
See 72 FR 11092, 11184 and 11191, March 12, 2007. A person seeking 
authorization under one of these nationwide permits must submit a 
preconstruction notification to the U.S. Army Corps of Engineers 
(Corps). The Corps then must review the notification and issue a 
decision on whether the proposed activities lie within the scope of the 
nationwide permit or whether an individual permit is necessary under 
section 404 of the Clean Water Act. While an alternatives analysis is 
not listed as a required element of the preconstruction notification 
that must be submitted to the U.S. Army Corps of Engineers under 
Nationwide Permits 21, 49, and 50, we believe that such an analysis may 
assist the Corps in evaluating preconstruction notifications that 
involve construction

[[Page 48897]]

of an excess spoil fill, refuse pile, or slurry impoundment.
    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 proposed additions 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 proposing today would not prohibit 
coal production. If the creation of excess spoil as part of a surface 
coal mining operations is unavoidable, the proposed rules would not 
prevent construction of the fills needed to accommodate the excess 
spoil. Instead, the rules that we are proposing are intended to ensure 
that surface coal mining operations are planned and conducted in a 
manner that minimizes adverse environmental impacts from the 
construction of fills for the disposal of excess spoil. 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 rule changes.
    Since the mid-1990s, 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. Adopting 
regulations that clearly establish limits on excess spoil generation 
and fill capacity and that require an analysis of alternatives when 
selecting locations and designs for fills would reinforce the basis for 
those policies, 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 would best be 
served by the adoption of national regulations to clarify environmental 
considerations concerning the generation and disposal of excess spoil.
    We also are taking this opportunity to propose to consolidate most 
fill design and permitting requirements in the permit application 
regulations at 30 CFR 780.35 and 784.19, rather than splitting them 
between those regulations and the performance standards at 30 CFR 
816.71 and 817.71, as they are at present. In addition, we are 
proposing to revise those rules to be more consistent with plain 
language principles, to eliminate redundancies, and to remove 
inconsistencies between the performance standards and the permitting 
requirements. We invite comment on whether further changes would be 
useful or desirable in achieving these goals.

V. Why are we proposing to revise our rules concerning coal mine waste?

    As noted in the first paragraph of Part IV of this preamble, our 
reasons for proposing revisions to our coal mine waste disposal rules 
are similar to the reasons for which we are proposing changes to our 
excess spoil disposal rules. In steep-slope areas, coal mine waste 
disposal facilities are similar to excess spoil fills in that they are 
often placed in valleys containing perennial and intermittent streams 
and other waters of ecological significance. Consequently, to minimize 
the environmental impacts of those structures 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, we are proposing to revise our coal mine waste 
disposal rules in a manner similar to the proposed changes to the 
excess spoil rules by requiring consideration of other methods of 
handling coal mine waste, an analysis of alternative locations for coal 
mine waste disposal facilities, and, to the extent possible, selection 
of the alternative with the least overall adverse environmental impact.

Additional Proposed Changes to Permitting Rules Concerning Coal Mine 
Waste

    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 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 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 performance 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

[[Page 48898]]

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. We are taking this opportunity to propose to 
modify our regulations in 30 CFR parts 780 and 784 to harmonize those 
rules with the 1983 changes to the definitions and performance 
standards concerning coal mine waste. In essence, we are proposing to 
replace references to coal processing waste banks and coal processing 
waste dams and embankments with references to refuse piles and coal 
mine waste impounding structures, respectively.
    Also, because the definition of coal mine waste, as adopted on 
September 26, 1983, includes both coal processing waste and underground 
development waste, we are proposing to restructure the permitting 
regulations to take this change into account. In particular, 30 CFR 
784.19, which is currently entitled ``Underground Development Waste,'' 
even though it refers to the disposal of both underground development 
waste and excess spoil, would be retitled ``Disposal of Excess Spoil.'' 
The language of that section also would be revised to eliminate 
references to underground development waste, which would instead be 
regulated under the refuse pile provisions of revised 30 CFR 784.16, 
consistent with the 1983 changes to the performance standards. The new 
language of 30 CFR 784.19 would parallel the language of 30 CFR 780.35 
(the permit application requirements for the disposal of excess spoil 
generated by surface mining activities), which the existing rule 
incorporates by reference. Adding specific language in place of the 
cross-reference to section 780.35 would make this rule consistent with 
the pattern established in most of our other rules for surface and 
underground mines (i.e., 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 would allow the incorporation of cross-references to the 
appropriate underground mining performance standards in part 817 rather 
than having to use the existing cross-references in 30 CFR 780.35 to 
the surface mining performance standards in part 816.
    We are also proposing to delete the cross-references to 30 CFR 
77.216-1 in 30 CFR 780.25(e) and 784.16(e) because 30 CFR 77.216-1 
consists solely of signage requirements and does not include any design 
requirements. Consequently, there is no purpose in cross-referencing 30 
CFR 77.216-1 in our permitting rules. The cross-reference to 30 CFR 
77.216-2, which contains design requirements for impoundments and 
impounding structures, would remain.

VI. How are we proposing to revise our existing rules?

A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans

    We propose to revise 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 stan