Excess Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams, 75814-75885 [E8-29150]
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Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Parts 780, 784, 816, and 817
[Docket ID No.: OSM–2007–0007]
RIN 1029–AC04
Excess Spoil, Coal Mine Waste, and
Buffers for Perennial and Intermittent
Streams
AGENCY: Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule.
SUMMARY: We, the Office of Surface
Mining Reclamation and Enforcement
(OSM), are amending our regulations
concerning stream buffer zones, streamchannel diversions, siltation structures,
impoundments, excess spoil, and coal
mine waste. Among other things, this
rule requires that surface coal mining
operations be designed to minimize the
creation of excess spoil and the adverse
environmental impacts of fills
constructed to dispose of excess spoil
and coal mine waste. We have revised
the stream buffer zone rule to more
closely reflect the underlying provisions
of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA), to
adopt related permit application
requirements, to require that
disturbance of perennial and
intermittent streams and their buffer
zones generally be avoided unless it is
not reasonably possible to do so, to
identify exceptions to the requirement
to maintain an undisturbed buffer zone
for perennial and intermittent streams,
and to clarify the relationship between
SMCRA and the Clean Water Act.
DATES: This rule is effective January 12,
2009. The incorporation by reference of
the publication listed in the rule is
approved by the Director of the Federal
Register as of January 12, 2009.
FOR FURTHER INFORMATION CONTACT:
Dennis G. Rice, Office of Surface Mining
Reclamation and Enforcement, U.S.
Department of the Interior, 1951
Constitution Avenue, NW., Washington,
DC 20240. Telephone: 202–208–2829.
You can find additional information
concerning OSM, this rule, and related
documents on OSM’s home page on the
Internet at https://www.osmre.gov.
SUPPLEMENTARY INFORMATION:
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Table of Contents
I. What does SMCRA say about surface coal
mining operations in or near streams?
II. What provisions of SMCRA form the basis
for our stream buffer zone rules?
III. What is the history of our stream buffer
zone rules?
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A. Legislative History of SMCRA
B. Initial Regulatory Program
C. Permanent Regulatory Program (1979
Rules)
D. Permanent Regulatory Program
Revisions (1983 Rules)
E. How has the 1983 stream buffer zone
rule been applied and interpreted?
F. What rulemaking actions have we
proposed to clarify the 1983 rule?
IV. What is the relationship between SMCRA
and the Clean Water Act with respect to
this rule?
V. How did we obtain public input?
VI. What general comments did we receive
on the proposed rule?
A. We Should Discourage the Mining and
Use of Coal as a Power Source Because
of the Role That the Combustion of Coal
Plays in Climate Change
B. We Should Withdraw the Proposed Rule
and Enforce the 1983 Stream Buffer
Zone, the Meaning of Which Is Clear as
Written
C. We Should Not Adopt Any Rule That
Facilitates Mountaintop Mining
Operations or the Filling of Streams
D. We Should Ensure the Protection of
Headwater Streams by Requiring
Maintenance of an Undisturbed Buffer
Between Mining Activities and Streams
E. We Have Not Accorded Sufficient
Importance to the Environmental
Protection Purposes of SMCRA
F. EPA Cannot Legally Concur With the
Revised Stream Buffer Zone Rules
Because They Violate the Clean Water
Act
G. The Applicability of the Final Rules
Should Be Limited to Steep-Slope Areas
and Mountaintop Removal Operations
H. The Stream Buffer Zone Rule Is
Unnecessary and Should Be Removed in
Its Entirety
VII. Why did we decide against applying the
stream buffer zone rule to all waters of
the United States (WOTUS)?
VIII. Section-by-section analysis: How are we
revising our rules?
A. Sections 780.14 and 784.23: Operation
Plan: Maps and Plans
B. Sections 780.25 and 784.16:
Reclamation Plan: Siltation Structures,
Impoundments, Refuse Piles, and Coal
Mine Waste Impounding Structures
C. Sections 780.28 and 784.28: Activities in
or Adjacent to Perennial or Intermittent
Streams
D. Section 780.35: Disposal of Excess Spoil
(Surface Mines)
E. Section 784.19: Disposal of Excess Spoil
(Underground Mines)
F. Sections 816.11 and 817.11: Signs and
Markers
G. Sections 816.43 and 817.43: Diversions
H. Sections 816.46 and 817.46: Siltation
Structures
I. Sections 816.57 and 817.57: Activities in
or Adjacent to Perennial or Intermittent
Streams
J. Sections 816.71 and 817.71: General
Requirements for Disposal of Excess
Spoil
K. What Does the Phrase ‘‘to the extent
possible’’ mean in these rules?
L. What does the phrase ‘‘best technology
currently available’’ mean in these rules?
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IX. Procedural Matters and Required
Determinations
I. What does SMCRA say about surface
coal mining operations in or near
streams?
SMCRA contains three references to
streams, two references to watercourses,
and several provisions that indirectly
refer to activities in or near streams.
Section 507(b)(10) 1 requires that
permit applications include ‘‘the name
of the watershed and location of the
surface stream or tributary into which
surface and pit drainage will be
discharged.’’ However, this provision
has no relevance to mining-related
activities in or near streams or to the
existing or proposed buffer zone rules.
Section 515(b)(18) requires that
surface coal mining and reclamation
operations ‘‘refrain from the
construction of roads or other access
ways up a stream bed or drainage
channel or in such proximity to such
channel so as to seriously alter the
normal flow of water.’’
Section 516(c) requires the regulatory
authority to suspend underground coal
mining under permanent streams if an
imminent danger to inhabitants exists.
However, this provision is not relevant
to a discussion of the stream buffer zone
rules because, in response to litigation
concerning the 1983 version of 30 CFR
817.57, we stipulated that ‘‘this
regulation is directed only to
disturbance of surface lands by surface
activities associated with underground
mining.’’ In re: Permanent Surface
Mining Regulation Litigation II-Round
II, 21 ERC 1725, 1741, footnote 21
(D.D.C. 1984).
Section 515(b)(22)(D) provides that
sites selected for the disposal of excess
spoil must ‘‘not contain springs, natural
water courses or wet weather seeps
unless lateral drains are constructed
from the wet areas to the main
underdrains in such a manner that
filtration of the water into the spoil pile
will be prevented.’’ In adopting this
provision, Congress could have chosen
to exclude perennial and intermittent
streams (or other waters) from the scope
of ‘‘natural water courses,’’ but it did
not do so. In addition, the fact that this
provision of the Act authorizes disposal
of excess spoil in areas containing
natural watercourses, springs, and seeps
further suggests that Congress did not
intend to prohibit placement of excess
spoil in perennial or intermittent
1 30 U.S.C. 1257(b)(10). SMCRA, Pub. L. 95–87,
is codified at 30 U.S.C. 1201–1328. Thus, for
example, SMCRA section 102 is codified at 30
U.S.C. 1202, SMCRA section 515 is codified at 30
U.S.C. 1265, and SMCRA section 516 is codified at
30 U.S.C. 1266.
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streams. The term ‘‘natural
watercourses’’ includes all types of
streams—perennial, intermittent, and
ephemeral. Springs and seeps are
groundwater discharges. To the extent
that those discharges provide
intermittent or continuous flow in a
channel, they are included within the
scope of our definitions in 30 CFR 701.5
of ‘‘intermittent stream’’ and ‘‘perennial
stream,’’ respectively. The definition of
‘‘intermittent stream,’’ which is based
upon technical literature, includes any
‘‘stream or reach of a stream that is
below the local water table for at least
some part of the year, and obtains its
flow from both surface runoff and
ground water discharge.’’ Furthermore,
in litigation under the Clean Water Act,
the U.S. Court of Appeals for the Fourth
Circuit cited section 515(b)(22) of
SMCRA as supporting the statement in
its decision that ‘‘it is beyond dispute
that SMCRA recognized the possibility
of placing excess spoil material in
waters of the United States even though
those materials do not have a beneficial
purpose.’’ See Kentuckians for the
Commonwealth, Inc. v. Rivenburgh, 317
F.3d 425, 443 (4th Cir. 2003).
Section 515(c)(4)(D) provides that, in
approving a permit application for a
mountaintop removal operation, the
regulatory authority must require that
‘‘no damage will be done to natural
watercourses.’’ The regulations
implementing this provision clarify that
the prohibition applies only to natural
watercourses ‘‘below the lowest coal
seam mined.’’ See 30 CFR 824.11(a)(9).
Furthermore, section 515(c)(4)(E) of the
Act specifies that ‘‘all excess spoil
material not retained on the
mountaintop shall be placed in
accordance with the provisions of
subsection (b)(22) of this section.’’ By
including this proviso, Congress
recognized that not all excess spoil
generated by mountaintop removal
operations could be retained on benches
or placed within the mined-out area.
And by cross-referencing section
515(b)(22), Congress authorized
placement of excess spoil from
mountaintop removal operations in
natural watercourses, provided all
requirements of section 515(b)(22) are
met. In the steep-slope terrain of central
Appalachia, excess spoil typically can
most feasibly be placed in valley fills.
In addition, the legislative history of
section 515(f) of SMCRA indicates that
Congress anticipated that coal mine
waste impoundments would be
constructed in perennial and
intermittent streams:
In order to assure that mine waste
impoundments used for the disposal of
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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
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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 nonimpounding coal refuse piles on areas
containing springs, natural or man-made
watercourses, or wet-weather seeps if
the design includes diversions and
underdrains. Not all areas containing
springs, watercourses, or wet-weather
seeps are perennial or intermittent
streams, but some are, which means that
refuse piles may be constructed in
streams.
II. What provisions of SMCRA form the
basis for our stream buffer zone rules?
Paragraphs (b)(10)(B)(i) and (24) of
section 515 of SMCRA served as the
basis for all three previous versions
(1977, 1979, and 1983) of the stream
buffer zone rule with respect to surface
mining activities. Those sections also
serve as the basis for the revised rule at
30 CFR 816.57 that we are adopting
today. Section 515(b)(10)(B)(i) requires
that surface coal mining operations be
conducted so as to prevent the
contribution of additional suspended
solids to streamflow or runoff outside
the permit area to the extent possible
using the best technology currently
available. Section 515(b)(24) requires
that surface coal mining and
reclamation operations be conducted to
minimize disturbances to and adverse
impacts on fish, wildlife, and related
environmental values ‘‘to the extent
possible using the best technology
currently available.’’
In context, section 515(b)(10)(B)(i)
provides that the performance standards
adopted under SMCRA must require
that surface coal mining and
reclamation operations—
(10) minimize the disturbances to the
prevailing hydrologic balance at the 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) * * *
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(B)(i) conducting surface coal mining
operations so as to prevent, to the extent
possible using the best technology currently
available, additional contributions of
suspended solids to streamflow, or runoff
outside the permit area, but in no event shall
contributions be in excess of requirements set
by applicable State or Federal law.
*
*
*
*
*
Section 515(b)(24) requires that
surface coal mining and reclamation
operations be conducted in a manner
that—
To the extent possible using the best
technology currently available, minimize[s]
disturbances and adverse impacts of the
operation on fish, wildlife, and related
environmental values, and achieve[s]
enhancement of such resources where
practicable.
The common thread in both
provisions is the requirement for use of
the best technology currently available
to achieve the requirements of those
provisions to the extent possible.
Paragraphs (b)(9)(B) and (11) of
section 516 of SMCRA form the basis for
the stream buffer zone rule at 30 CFR
817.57, which applies to surface
activities associated with underground
mines. Those provisions of section 516
are substantively equivalent to
paragraphs (b)(10)(B)(i) and (24) of
section 515 of SMCRA, respectively,
except that section 516(b)(9)(B) also
includes the provisions found in section
515(b)(10)(E) regarding the avoidance of
channel deepening or enlargement. In
the remainder of this preamble, we often
refer only to the section 515 paragraphs,
with the understanding that, unless
otherwise stated or implied by context,
references to those paragraphs should be
read as including their section 516
counterparts.
III. What is the history of our stream
buffer zone rules?
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A. Legislative History of SMCRA
SMCRA does not establish or require
a buffer zone for streams or other
waters. In 1972, the U.S. House of
Representatives passed a bill (H.R. 6482)
that included a flat prohibition on
mining within 100 feet of any ‘‘body of
water, stream, pond, or lake to which
the public enjoys use and access, or
other private property.’’ This
prohibition appeared in the counterpart
to what is now section 522(e) of the Act.
However, the bill never became law and
the provision did not appear in
subsequent versions of SMCRA
legislation.
B. Initial Regulatory Program
As part of the regulations
implementing the initial regulatory
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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 § 715.12.
The rule does not specify the
conditions under which the regulatory
authority may authorize operations
within the buffer zone.
C. Permanent Regulatory Program (1979
Rules)
The original version of our permanent
program regulations, as published on
March 13, 1979, included more
extensive stream buffer zone rules at 30
CFR 816.57 (for surface mining
operations) and 817.57 (for underground
mining operations). Specifically, the
1979 version of section 816.57 provided
that no land within 100 feet of a
perennial stream or a stream with a
biological community shall be disturbed
by surface mining activities, except in
accordance with §§ 816.43–816.44 [the
stream diversion regulations], unless the
regulatory authority specifically
authorizes surface mining activities
closer to or through such a stream upon
finding that the original stream channel
will be restored; and during and after
the mining, the water quantity and
quality from the stream section within
100 feet of the surface mining activities
shall not be adversely affected.
Paragraph (c) of the 1979 rule provided
that a biological community existed if
the stream at any time contained an
assemblage of two or more species of
arthropods or molluscan animals that
were adapted to flowing water for all or
part of their life cycle, dependent upon
a flowing water habitat, reproducing or
could reasonably be expected to
reproduce in the water body where they
are found, and longer than 2 millimeters
at some stage of the part of their life
cycle spent in the flowing water habitat.
The counterpart regulation for
underground mining at 30 CFR 817.57
was identical except that it substituted
the term ‘‘surface operations and
facilities’’ for ‘‘surface mining
activities’’ and clearly indicated that the
restrictions were limited to ‘‘surface
areas.’’
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The preamble to the 1979 rules
explains that the purpose of the revised
rules was to implement paragraphs
(b)(10) and (b)(24) of section 515 of the
Act. 44 FR 15176, March 13, 1979. It
states that ‘‘[b]uffer zones are required
to protect streams from the adverse
effects of sedimentation and from gross
disturbance of stream channels,’’ but
that ‘‘if operations can be conducted
within 100 feet of a stream in an
environmentally acceptable manner,
they may be approved.’’ Id. In addition,
it states that ‘‘[t]he 100-foot limit is
based on typical distances that should
be maintained to protect stream
channels from sedimentation,’’ but that,
while the 100-foot standard provides a
simple rule for enforcement purposes,
‘‘site-specific variation should be made
available when the regulatory authority
has an objective basis for either
increasing or decreasing the width of
the buffer zone.’’ Id.
D. Permanent Regulatory Program
Revisions (1983 Rules)
In 1983, we revised the stream buffer
zone rules to delete the requirement that
the original stream channel be restored,
to replace the biological community
criterion for determining which nonperennial streams must be protected
under the rule with a requirement for
protection of all intermittent streams,
and to add a requirement for a finding
that the proposed mining activities will
not cause or contribute to a violation of
applicable state or federal water quality
standards and will not adversely affect
the environmental resources of the
stream. See 48 FR 30312, June 30, 1983.
In 1983, we also adopted revised
performance standards for coal
preparation plants not located within
the permit area of a mine. We decided
not to apply the stream buffer zone rule
to those preparation plants. See 30 CFR
827.12 and the preamble to those rules
at 48 FR 20399, May 5, 1983.
The preamble to the 1983 stream
buffer zone rules reiterates the general
rationale for adoption of a stream buffer
zone rule that we specified in the
preamble to the 1979 rules. It identifies
the reason for replacing the biological
community threshold with the
intermittent stream threshold as a
matter of improving the ease of
administration and eliminating the
possibility of applying the rule to
ephemeral streams and other relatively
insignificant water bodies:
The biological-community standard was
confusing to apply since there are areas with
ephemeral surface waters of little biological
or hydrologic significance which, at some
time of the year, contain a biological
community as defined by previous
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§ 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 § 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 environmentalresource 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 § 816.57 is
intended to protect significant biological
values in streams, the primary objective
of the rule is to provide protection for
the hydrologic balance and related
environmental values of perennial and
intermittent streams.’’ Id. at 30313. It
further states that ‘‘[t]he 100-foot limit is
used to protect streams from
sedimentation and help preserve
riparian vegetation and aquatic
habitats.’’ Id. at 30314.
We also stated that we removed the
requirement to restore the original
stream channel in deference to the
stream-channel diversion requirements
of 30 CFR 816.43 and 817.43 and to
clarify that there does not have to be a
stream diversion for mining to occur
inside the buffer zone. Id.
Finally, the preamble states that we
added the finding concerning ‘‘other
environmental resources of the stream’’
to clarify ‘‘that regulatory authorities
will be allowed to consider factors other
than water quantity and quality in
making buffer-zone determinations’’ and
‘‘to provide a more accurate reflection of
the objectives of Sections 515(b)(10) and
515(b)(24) of the Act.’’ Id. at 30316.
Revised 30 CFR 816.57(a) (1983)
provided that ‘‘[n]o land within 100 feet
of a perennial stream or an intermittent
stream shall be disturbed by surface
mining activities, unless the regulatory
authority specifically authorizes surface
mining activities closer to, or through,
such a stream.’’ The rule further
provided that the regulatory authority
may authorize such activities only upon
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finding that surface mining activities
will not cause or contribute to the
violation of applicable State or Federal
water quality standards, and will not
adversely affect the water quantity and
quality or other environmental
resources of the stream; and if there will
be a temporary or permanent streamchannel diversion, it will comply with
§ 816.43.
The 1983 version of the stream buffer
zone rule for underground mining at 30
CFR 817.57 is identical except for
substitution of the term ‘‘underground
mining activities’’ for ‘‘surface mining
activities.’’
The National Wildlife Federation
challenged this regulation as being
inconsistent with sections 515(b)(10)
and (24) of the Act, primarily because it
deleted the biological community
threshold for stream protection.
However, the court rejected that
challenge, finding without elaboration
that the ‘‘regulation is not in conflict
with either section 515(b)(10) or
515(b)(24).’’ In re: Permanent Surface
Mining Regulation Litigation II—Round
II, 21 ERC 1725, 1741–1742 (D.D.C.
1984).
The court also noted that the
Secretary had properly justified the rule
change on the grounds that the previous
rule was confusing and difficult to
apply without protecting areas of little
biological significance. Unfortunately,
the new criterion (intermittent streams)
has proven as difficult to apply as the
biological community standard that it
replaced. The definition of ‘‘intermittent
stream’’ in 30 CFR 701.5 has two parts,
separated by an ‘‘or.’’ The first part
defines all streams with a drainage area
of one square mile as intermittent. This
part of the definition is the aspect that
was litigated and upheld for its clarity
of application. However, the second part
of the definition includes all streams
and stream segments that are below the
local water table for part of the year and
that derive at least part of their flow
from groundwater discharge. This part
of the definition has been more difficult
to apply in practice. In fact, some States
use biological criteria for making that
determination.
Industry also challenged 30 CFR
817.57(a) to the extent that it included
all underground mining activities.
However, industry withdrew its
challenge when the Secretary stipulated
that the rule would apply only to
surface lands and surface activities
associated with underground mining.
See footnote 21, id. at 1741.
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E. How has the 1983 stream buffer zone
rule been applied and interpreted?
Historically, we and the State
regulatory authorities have applied the
1983 stream buffer zone rule in a
manner that allowed the placement of
excess spoil fills, refuse piles, slurry
impoundments, and sedimentation
ponds in intermittent and perennial
streams. However, as discussed at
length in the preamble to the January 7,
2004 proposed rule (69 FR 1038–1042),
which we never finalized, there has
been considerable controversy over the
proper interpretation of both the Clean
Water Act and our 1983 rules as they
apply to the placement of fill material
in or near perennial and intermittent
streams. As evidenced by past litigation
and the comments that we received on
the proposed rule that we published on
August 24, 2007, some interpretations of
our 1983 rule are at odds with the
underlying provisions of SMCRA.
We first placed our interpretation of
the 1983 stream buffer zone rules in
writing in a document entitled
‘‘Summary Report—West Virginia
Permit Review—Vandalia Resources,
Inc. Permit No. S–2007–98.’’ According
to our annual oversight reports for West
Virginia for 1999 and 2000, that
document stated that the stream buffer
zone rule does not apply to the footprint
of a fill placed in a perennial or
intermittent stream as part of a surface
coal mining operation. On June 4, 1999,
in West Virginia Highlands Conservancy
v. Babbitt, Civ. No. 1:99CV01423
(D.D.C.), the plaintiffs challenged the
validity of that document, alleging that
it constituted rulemaking in violation of
the Administrative Procedure Act. In an
order filed September 23, 1999, the
court approved an unopposed motion to
dismiss the case as moot.
In a lawsuit filed in the U.S. District
Court for the Southern District of West
Virginia in July 1998, plaintiffs asserted
that the stream buffer zone rule allows
mining activities through or within the
buffer zone for a perennial or
intermittent stream only if the activities
are minor incursions. They argued that
the rule did not allow substantial
segments of the stream to be buried
underneath excess spoil fills or other
mining-related structures. On October
20, 1999, the district court ruled in favor
of the plaintiffs on this point, holding
that the stream buffer zone rule applies
to all segments of a stream, including
those segments within the footprint of
an excess spoil fill, not just to the
stream as a whole. The court also stated
that the construction of fills in perennial
or intermittent streams is inconsistent
with the language of 30 CFR
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816.57(a)(1), which provides that the
regulatory authority may authorize
surface mining activities within a
stream buffer zone only after finding
that the proposed activities ‘‘will not
adversely affect the water quantity and
quality or other environmental
resources of the stream.’’ See Bragg v.
Robertson, 72 F. Supp. 2d 642, 660–663
(S.D. W. Va., 1999).
The U.S. Court of Appeals for the
Fourth Circuit ultimately reversed the
district court on other grounds (lack of
jurisdiction under the Eleventh
Amendment to the U.S. Constitution)
without reaching the merits of the
district court’s holding on the
applicability of the stream buffer zone
rule. Bragg v. West Virginia Coal
Association, 248 F.3d 275, 296 (4th Cir.
2001), cert. denied, 534 U.S. 1113
(2002).
In a different case, the same district
court stated that SMCRA and the stream
buffer zone rule do not authorize
disposal of overburden in streams:
‘‘SMCRA contains no provision
authorizing disposal of overburden
waste in streams, a conclusion further
supported by the buffer zone rule.’’
Kentuckians for the Commonwealth,
Inc. v. Rivenburgh, 204 F. Supp. 2d 927,
942 (S.D. W. Va. 2002).
The U.S. Court of Appeals for the
Fourth Circuit subsequently rejected the
district court’s interpretation, stating
that ‘‘SMCRA does not prohibit the
discharge of surface coal mining excess
spoil in waters of the United States.’’
Kentuckians for the Commonwealth,
Inc. v. Rivenburgh, 317 F.3d 425, 442
(4th Cir. 2003). The court further stated
that ‘‘it is beyond dispute that SMCRA
recognizes the possibility of placing
excess spoil material in waters of the
United States even though those
materials do not have a beneficial
purpose.’’ Id. at 443.
The court explained the basis for its
statements as follows:
Section 515(b)(22)(D) of SMCRA authorizes
mine operators to place excess spoil material
in ‘‘springs, natural water courses or wet
weather seeps’’ so long as ‘‘lateral drains are
constructed from the wet areas to the main
underdrains in such a manner that filtration
of the water into the spoil pile will be
prevented.’’ 30 U.S.C. § 1265(b)(22)(D). In
addition, § 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. § 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 § 404 of
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the Clean Water Act to provide a clear intent
to limit the term ‘‘fill material’’ to material
deposited for a beneficial primary purpose.
Id. at 443.
The preamble to the proposed rule
that we published on January 7, 2004,
but which we never adopted in final
form, contains additional discussion of
litigation and related matters arising
from the 1983 stream buffer zone rules.
See especially Part I.B.1. at 69 FR 1038–
1040.
F. What rulemaking actions have we
proposed to clarify the 1983 rule?
On January 7, 2004 (69 FR 1036), we
proposed to revise our stream buffer
zone rules to retain the prohibition on
disturbance of land within 100 feet of a
perennial or intermittent stream, but
alter the findings that the regulatory
authority must make before granting a
variance to this requirement. The
revised rule would have replaced the
Clean Water Act-oriented findings in the
1983 rule with a SMCRA-based
requirement that the regulatory
authority find in writing that the
activities will, to the extent possible,
use the best technology currently
available to prevent additional
contributions of suspended solids to the
section of stream within 100 feet
downstream of the mining activities and
outside the area affected by mining
activities; and minimize disturbances
and adverse impacts on fish, wildlife,
and other related environmental values
of the stream. The proposed rule also
would have required that operations be
designed to minimize the creation of
excess spoil.
Numerous commenters asked us to
consider other alternatives to the
proposed rule. Some commenters also
asked that we prepare an environmental
impact statement (EIS) on the proposed
action. On June 16, 2005 (70 FR 35112),
we announced our intent to prepare an
EIS on the proposed rule changes. We
also stated that we intended to consider
additional alternatives and to publish a
new proposed rule to coincide with the
release of a draft EIS.
On August 24, 2007 (72 FR 48890), we
published a new, extensively revised
proposed rule and a notice of
availability of the draft EIS. That
proposed rule replaced the one we
published on January 7, 2004. The
August 24, 2007, proposed rule forms
the basis for the final rule that we are
adopting today. This final rule is
intended to clarify the scope and
meaning of the stream buffer zone rule,
consistent with underlying statutory
authority, and to ensure that regulatory
authorities, mine operators, other
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governmental entities, landowners, and
citizens all can have a common
understanding of what the stream buffer
zone rule does and does not require.
The final rule also includes additional
permitting requirements intended to
ensure that operations are designed to
minimize the creation of excess spoil
and to require consideration of
alternatives to the disposal of excess
spoil and coal mine waste in perennial
or intermittent streams or their buffer
zones to minimize the adverse impacts
on fish, wildlife, and related
environmental values to the extent
possible using the best technology
currently available.
The revised stream buffer zone rule
that we are adopting today attempts to
minimize disputes and
misunderstandings associated with
application of the 1983 rule. The revised
rule distinguishes between those
situations in which maintenance of an
undisturbed buffer between mining and
reclamation activities and a perennial or
intermittent stream constitutes the best
technology currently available to
implement the underlying statutory
provisions (sections 515(b)(10)(B)(i) and
(24) and 516(b)(9)(B) and (11) of
SMCRA) and those situations in which
maintenance of a buffer is neither
feasible nor appropriate.
IV. What is the relationship between
SMCRA and the Clean Water Act with
respect to this rule?
In this final rule, we are adding
paragraph (f) of sections 780.28 and
784.28 and paragraph (d) of sections
816.57 and 817.57 to clarify the
relationship between SMCRA and the
Clean Water Act with respect to
activities conducted in or near perennial
and intermittent streams. We are
adopting these paragraphs to address
concerns arising from the fact that this
final rule removes language that
previously appeared in sections
816.57(a) and 817.57(a) that specifically
prohibited the conduct of mining
activities within 100 feet of a perennial
or intermittent stream unless the
regulatory authority found that those
activities would not cause or contribute
to the violation of applicable State or
Federal water quality standards and
would not adversely affect the water
quantity and quality or other
environmental resources of the stream.
We are removing that requirement
because its language more closely
resembles the Clean Water Act than the
underlying provisions of SMCRA. See
Parts II, VIII.C., and VIII.I. of this
preamble for further discussion of
sections 780.28, 784.28, 816.57, and
817.57 and the provisions of SMCRA
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that provide the basis for the stream
buffer zone rule.
None of the revisions to the stream
buffer zone rule or other elements of
this final rule affect a mine operator’s
responsibility to comply with effluent
limitations or other requirements of the
Clean Water Act. The requirements of
the Clean Water Act have independent
force and effect regardless of the terms
of the SMCRA permit. The independent
effect of the Clean Water Act is
recognized in section 702(a) of SMCRA,
which provides that—
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Nothing in this Act shall be construed as
superseding, amending, modifying, or
repealing the * * * [t]he Federal Water
Pollution Control Act [Clean Water Act]
[citations omitted], the State laws enacted
pursuant thereto, or other Federal laws
relating to the preservation of water quality.
30 U.S.C. 1292(a).
In interpreting this statutory provision
with respect to effluent limitations
adopted as part of our initial regulatory
program, the U.S. Court of Appeals for
the D.C. Circuit held that ‘‘where the
Secretary’s regulation of surface coal
mining’s hydrologic impact overlaps
EPA’s, the Act expressly directs that the
Federal Water Pollution Control Act and
its regulatory framework are to control
so as to afford consistent effluent
standards nationwide.’’ In re Surface
Mining Regulation Litigation, 627 F.2d
1346, 1367 (D.C. Cir. 1980).
In today’s final rule, we are adding
paragraph (f)(2) of sections 780.28 and
784.28 and paragraph (d) of sections
816.57 and 817.57(d) to reiterate and
further clarify this relationship between
SMCRA and the Clean Water Act. The
new rules emphasize that issuance of a
SMCRA permit is not a substitute for the
reviews, authorizations, and
certifications required under the Clean
Water Act and does not authorize
initiation of surface coal mining
operations for which the applicant has
not obtained all necessary
authorizations, certifications, and
permits under the Clean Water Act.
Consistent with the approach
described above, our existing
regulations at 30 CFR 816.42 and 817.42
provide that discharges of water from
areas disturbed by surface or
underground mining activities shall be
made in compliance with all applicable
State and Federal water quality laws
and regulations and with the effluent
limitations for coal mining promulgated
by the U.S. Environmental Protection
Agency set forth in 40 CFR part 434.
Nothing in the final rule that we are
adopting today would alter or affect the
requirements of 30 CFR 816.42 or
817.42.
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SMCRA and the Clean Water Act
provide for separate regulatory programs
with different purposes and very
different permitting requirements and
procedures. In addition, SMCRA and
the Clean Water Act differ considerably
with respect to jurisdiction. For
example, unlike SMCRA, the Clean
Water Act does not directly regulate
groundwater. The Clean Water Act
focuses primarily on regulating
discharges of pollutants into waters of
the United States, whereas SMCRA
regulates a broad universe of
environmental and other impacts of
surface coal mining and reclamation
operations. As stated in the legislative
history of SMCRA:
Statutory authority to regulate the adverse
environmental effects of surface and
underground coal mining under the Federal
Water Pollution Control Act [Clean Water
Act], as amended, is limited to the treatment
or removal of any pollutants into the waters
of the United States. * * * The Federal
Water Pollution Control Act, as amended,
can deal only with a part of the problem. The
FWPCA does not contain the statutory
authority for the establishment of standards
and regulations requiring comprehensive
preplanning and designing for appropriate
mine operating and reclamation procedures
to ensure protection of public health and
safety and to prevent the variety of other
damages to the land, the soil, the wildlife,
and the aesthetic and recreational values that
can result from coal mining. The statute also
lacks the regulatory authority to deal with the
discharge of pollutants from abandoned
surface and underground coal mines.
H. Rep. No. 94–1445 at 90–91 (1976),
emphasis in original.
Section 508(a)(9) of SMCRA requires
that each permit application include
‘‘the steps to be taken to comply with
applicable air and water quality laws
and regulations and any applicable
health and safety standards.’’ Our
regulations at 30 CFR 780.18(b)(9) and
784.13(b)(9) similarly require that each
permit application include:
A description of steps to be taken to
comply with the requirements of the Clean
Air Act (42 U.S.C. 7401 et seq.), and the
Clean Water Act (33 U.S.C. 1251 et seq.), and
other applicable air and water quality laws
and regulations and health and safety
standards.
In keeping with section 508(a)(9) of
SMCRA, today’s rule also includes new
provisions in paragraph (f)(1) of sections
780.28 and 784.28 reiterating that every
permit application must identify the
authorizations that the applicant
anticipates will be needed under
sections 401, 402, and 404 of the Clean
Water Act, 33 U.S.C. 1341, 1342, and
1344, and describe the steps that the
permit applicant has taken or will take
to procure those authorizations.
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The Clean Water Act establishes a
comprehensive program designed to
‘‘restore and maintain the chemical,
physical, and biological integrity of the
Nation’s waters.’’ 33 U.S.C. 1251(a). To
achieve this goal, it prohibits the
discharge of pollutants into navigable
waters except as in compliance with
specified provisions of the Clean Water
Act, including a provision that allows
for discharges authorized by a National
Pollutant Discharge Elimination System
(NPDES) permit. 33 U.S.C. 1311(a) and
1342(a). At 33 U.S.C. 1362(7), the Clean
Water Act defines ‘‘navigable waters’’ as
‘‘waters of the United States,’’ a term
which the Corps and EPA define at 33
CFR 328.3 and 40 CFR 232.2,
respectively. The proper scope of that
definition has been extensively litigated
and EPA and the Corps have issued
supplemental guidance to reflect the
outcome of that litigation.
The Clean Water Act authorizes the
discharge of pollutants into waters of
the United States under two different
permit programs. Section 404 authorizes
discharges of dredged or fill material,
while section 402 applies to all other
pollutants. 33 U.S.C. 1344, 1342.
Section 404 is primarily administered
by the Corps, with the exception of
those States and Indian tribes that have
assumed the program pursuant to
section 404(g). In both cases, EPA
provides input and has oversight
authority and responsibilities. Section
402 (NPDES) permits are issued by EPA
or states and Indian tribes that EPA has
authorized to administer the NPDES
program under section 402(b).
Section 401 of the Clean Water Act
requires that each applicant for a federal
license or permit submit a certification
from the state in which the discharge
originates. The certification must state
that the discharge will comply with
federal and state water quality
requirements. 33 U.S.C. 1341(a)(1). ‘‘No
license or permit shall be granted until
the certification required by this section
has been obtained or has been waived’’
and ‘‘[n]o license or permit shall be
granted if certification has been denied
by the State.’’ Id. Section 401(d) further
provides that the state certifications
‘‘shall become a condition on any
Federal license or permit subject to the
provisions of this section.’’ Id. at
1341(d).
Section 402 of the Clean Water Act
governs discharges of pollutants other
than dredged or fill material. 33 U.S.C.
1342. Permits issued under this section
are known as NPDES permits. They
typically contain technology-based
numerical standards called effluent
limitations that restrict the amount of
specified pollutants that may be
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discharged. 33 U.S.C. 1311, 1362(11).
EPA has developed industry-wide
technology-based wastewater effluent
limitations for surface coal mining and
reclamation operations. Those effluent
limitations are codified in 40 CFR part
434. NPDES permits also must include
any more stringent limitations necessary
to meet state water quality standards. 33
U.S.C. 1311(b)(1)(C), 1342(a). EPA may
authorize states to issue NPDES permits,
but EPA retains authority to enforce the
requirements of the Clean Water Act.
Section 404 of the Clean Water Act
authorizes the Secretary of the Army,
through the Corps, to regulate
discharges of dredged and fill material
through a permitting process. 33 U.S.C.
1344. On May 9, 2002 (67 FR 31129–
31143), the Corps and EPA adopted a
revised definition of ‘‘fill material’’ in
33 CFR 323.2(e) and 40 CFR 232.2,
respectively, that includes ‘‘overburden
from mining or other excavation
activities.’’ In the same rulemaking, the
Corps and EPA also adopted a revised
definition of ‘‘discharge of fill material’’
in 33 CFR 323.2(f) and 40 CFR 232.2,
respectively. The revised definition
provides that ‘‘[t]he term generally
includes, without limitation, the * * *
placement of overburden, slurry, or
tailings or similar mining-related
materials.’’ Therefore, any mining
overburden or coal mine waste used to
replace any waters of the United States,
or portion thereof, with dry land or to
change the bottom elevation of any
waters of the United States, or portion
thereof, is classified as fill material for
purposes of the Clean Water Act.
To implement section 404, the Corps
may issue either individual permits
under 33 CFR parts 320 through 328 or
general permits under 33 CFR part 330.
See 33 U.S.C. 1344(a) and (e). Both
individual and general permits must
comply with guidelines issued by EPA
under section 404(b)(1), 33 U.S.C.
1344(b)(1). Those guidelines, which are
codified at 40 CFR part 230, are referred
to as the ‘‘404(b)(1) Guidelines.’’ The
404(b)(1) Guidelines generally prohibit
the permitting of projects where there
‘‘is a practicable alternative to the
proposed discharge which would have
less adverse impact on the aquatic
ecosystem, so long as the alternative
does not have other significant adverse
environmental consequences.’’ 40 CFR
230.10(a). Under 40 CFR 230.10(a)(2),
‘‘[a]n alternative is practicable if it is
available and capable of being done
after taking into consideration cost,
existing technology, and logistics in
light of overall project purposes.’’
The guidelines specify that the Corps
must ensure that the proposed fill will
not cause significantly adverse effects
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on human health or welfare, aquatic life,
and aquatic ecosystems. 40 CFR
230.10(c)(1) through (c)(3). To comply
with this requirement, the Corps must
make a written determination of the
effects of a proposed activity ‘‘on the
physical, chemical, and biological
components of the aquatic
environment.’’ 40 CFR 230.11. See also
33 CFR 320.4(b)(4) and 325.2(a)(6) for
requirements for individual permits.
The 404(b)(1) Guidelines also provide
that ‘‘no discharge of dredged or fill
material shall be permitted unless
appropriate and practicable steps have
been taken which will minimize
potential adverse impacts of the
discharge on the aquatic ecosystem.’’ 40
CFR 230.10(d). One way the Corps can
reduce the potential adverse impacts
associated with filling activity is to
require compensatory mitigation. See 33
CFR 325.4(a)(3) and 320.4(r) for
individual permits and General
Condition 20 (72 FR 11193, March 12,
2007) for nationwide permits under 33
CFR part 330. This differs substantially
from SMCRA, which provides no
authority to require compensatory
mitigation.
Section 404(e) of the Clean Water Act
authorizes the Corps to ‘‘issue general
permits on a State, regional, or
nationwide basis for any category of
activities involving discharges of
dredged or fill material if the Secretary
[of the Army] determines that the
activities in such category are similar in
nature, will cause only minimal adverse
environmental effects when performed
separately, and will have only minimal
cumulative adverse effects on the
environment,’’ provided the general
permit is based upon the guidelines
developed under section 404(b)(1) of the
Clean Water Act.
The Corps has exercised its authority
under section 404(e) to issue general
nationwide permits (NWPs) for surface
coal mining operations under SMCRA
(NWP 21), coal remining activities
under SMCRA (NWP 49), and
underground coal mining activities
under SMCRA (NWP 50). Those permits
apply only if the activities are
authorized under a SMCRA permit or an
application for the activities is being
processed as part of an integrated permit
processing procedure. See 72 FR 11092,
11184, and 11191, March 12, 2007. In
issuing NWPs 21, 49, and 50, the Corps
has determined that the activities
covered by those permits are in
compliance with the 404(b)(1)
Guidelines. That is, the Corps has
determined that these activities will
cause only minimal adverse
environmental effects when performed
separately and will have only minimal
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cumulative adverse effects on the
environment.
As the Corps states in the preamble to
the most recent version of its general
permits—
When we issue the NWPs, we fully comply
with the requirements of the 404(b)(1)
Guidelines at 40 CFR 230.7, which govern
the issuance of general permits under section
404. For the section 404 NWPs, each decision
document contains a 404(b)(1) Guidelines
analysis. Section 230.7(b) of the 404(b)(1)
Guidelines requires only a ‘‘written
evaluation of the potential individual and
cumulative impacts of the categories of
activities to be regulated under the general
permit.’’ Since the required evaluation must
be completed before the NWP is issued, the
analysis is predictive in nature. The
estimates of potential individual and
cumulative impacts, as well as the projected
compensatory mitigation that will be
required, are based on the best available data
from the Corps district offices, based on past
use of NWPs.
72 FR 11094, March 12, 2007.
In the preamble to NWP 21, the Corps
states that ‘‘the analyses and
environmental protection performance
standards required by SMCRA, in
conjunction with the pre-construction
notification requirement, are generally
sufficient to ensure that NWP 21
activities result in minimal individual
and cumulative adverse impacts on the
aquatic environment.’’ 72 FR 11114. The
most critical element in the Corps’
determination that NWP 21 meets the
Clean Water Act requirements for
general permits is the fact that NWP 21
requires a preconstruction notification
from the applicant, followed by a review
of the project by the Corps, and then a
written determination from the Corps
before the activities covered by NWP 21
may be initiated. As the Corps states in
the preamble—
We believe our process for NWP 21 ensures
that activities authorized by the NWP result
in no more than minimal adverse impacts to
the aquatic environment because each project
is reviewed on a case-by-case basis and the
district engineer either makes a minimal
impacts determination on the project or
asserts discretionary authority and requires
an individual permit. Also, because of the
case-by-case review and the requirement for
written verification, we do not agree that it
is necessary to prohibit discharges of dredged
or fill material into perennial streams.
*
*
*
*
*
The pre-construction notification
requirements of all NWPs allows for a caseby-case review of activities that have the
potential to result in more than minimal
adverse effects to the aquatic environment. If
the adverse effects on the aquatic
environment are more than minimal, then the
district engineer can either add special
conditions to the NWP authorization to
ensure that the activity results in no more
than minimal adverse environmental effects
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or exercise discretionary authority to require
an individual permit.
72 FR 11114.
Furthermore, at 72 FR 11117, the
Corps states that—
The Corps does not assume that other state
or Federal agencies conduct a review that is
comparable to the section 404(b)(1)
Guidelines. Although analysis of offsite
alternatives is not required in conjunction
with general permits, each proposed project
is evaluated for onsite avoidance and
minimization, in accordance with general
condition 20, and is not authorized under the
NWP if the adverse impacts to waters of the
United States are more than minimal.
At 72 FR 11094, the Corps explains
that—
NWPs 21, 49, and 50 are a special case, in
that they authorize activities for which
review of environmental impacts, including
impacts to aquatic resources, is separately
required under other Federal authorities (e.g.,
Surface Mining Control and Reclamation Act
(SMCRA) permits for coal mining activities).
The Corps believes it would be unnecessarily
duplicative to separately require the same
substantive analyses through an individual
permit application as are already required
under SMCRA. However, through the preconstruction notification review process, the
district engineer will consider the analyses
prepared for the SMCRA permit and exercise
discretionary authority to require an
individual permit in cases where the district
engineer determines, after considering
avoidance and reclamation activities
undertaken pursuant to SMCRA, that the
residual adverse effects are not minimal. The
project sponsor is required to obtain written
verification prior to commencing work.
Thus, the Corps uses SMCRA permit
application data and analyses as a
starting point to determine whether a
proposed operation qualifies for
authorization under NWP 21, but it does
not rely upon that information
exclusively. Nor does the Corps
presume that issuance of a SMCRA
permit is evidence of compliance with
Clean Water Act requirements. See 72
FR 11115, which states that—
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The Corps understands coal mining is
covered by many environmental regulations;
however the Corps has determined that
SMCRA, in its current form, does not remove
the need, either legally or substantively, for
independent authorization under Section 404
of the Clean Water Act. Consequently, this
NWP does not duplicate the SMCRA permit
process.
The principles in the preceding
discussion concerning NWP 21 also
apply to NWPs 49 and 50. See 72 FR
11148–49 and 11151–52.
The preamble to General Condition
27, which applies to NWPs 21, 49, and
50, describes the Corps’ decisionmaking
process as follows:
In reviewing the PCN [preconstruction
notification] for the proposed activity, the
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district engineer will determine whether the
activity authorized by the NWP will result in
more than minimal individual or cumulative
adverse environmental effects or may be
contrary to the public interest. * * * If the
district engineer determines that the activity
complies with the terms and conditions of
the NWP and that the adverse effects on the
aquatic environment are minimal, after
considering mitigation, the district engineer
will notify the permittee and include any
conditions the district engineer deems
necessary. The district engineer must
approve any compensatory mitigation
proposal before the permittee commences
work. * * *
If the district engineer determines that the
adverse effects of the proposed work are
more than minimal, then the district engineer
will notify the applicant either: (1) That the
project does not qualify for authorization
under the NWP and instruct the applicant on
the procedures to seek authorization under
an individual permit; (2) that the project is
authorized under the NWP subject to the
applicant’s submission of a mitigation plan
that would reduce the adverse effects on the
aquatic environment to the minimal level; or
(3) that the project is authorized under the
NWP with specific modifications or
conditions. Where the district engineer
determines that mitigation is required to
ensure no more than minimal adverse effects
occur to the aquatic environment, the activity
will be authorized within the 45-day PCN
period. The authorization will include the
necessary conceptual or specific mitigation
or a requirement that the applicant submit a
mitigation plan that would reduce the
adverse effects on the aquatic environment to
the minimal level. When mitigation is
required, no work in waters of the United
States may occur until the district engineer
has approved a specific mitigation plan.
72 FR 11195–1196, March 12, 2007.
The preamble also notes that, before
beginning any activities covered by the
preconstruction notification, the person
submitting the notification must obtain
a state water quality certification under
section 401 of the Clean Water Act in
those states that do not issue an
unconditional certification for the
nationwide permits.
As the preceding discussion
demonstrates, we believe that
maintaining the distinction between the
SMCRA and Clean Water Act regulatory
programs is both administratively and
legally appropriate. We do not believe
the requirements of this final rule are
duplicative of requirements under the
Clean Water Act. However, consistent
with section 713(a) of SMCRA, we
encourage SMCRA regulatory
authorities and the agencies
administering the Clean Water Act to
share permit application data and
environmental analyses to streamline
the permitting processes under SMCRA
and the Clean Water Act.
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V. How did we obtain public input?
We published the proposed rule on
which this final rule is based on August
24, 2007, (72 FR 48890–48926). In
response to requests from the public, we
held public hearings on the proposed
rule in Charleston, West Virginia;
Hazard, Kentucky; Knoxville,
Tennessee; and Washington,
Pennsylvania on October 24, 2007. We
also held public meetings in Big Stone
Gap, Virginia on October 24, 2007, and
in Alton, Illinois on November 1, 2007.
In addition, we extended the comment
period, which was originally scheduled
to close October 23, 2007, until
November 23, 2007. See 72 FR 57504,
October 10, 2007.
Approximately 750 persons attended
the public hearings and meetings. Of the
attendees, 212 provided testimony, with
21 supporting the proposed rule and the
remainder opposed. In addition to the
testimony offered at the hearings and
meetings, we received more than 43,000
written or electronic comments on the
proposed rule. In general, most
commenters opposed the proposed rule,
primarily because they viewed the rule
as facilitating mountaintop mining and
construction of excess spoil fills in
streams. Commenters representing the
coal industry generally supported the
proposed rule, except for the proposed
revisions to (1) apply the buffer zone
requirement to waters of the United
States rather than to perennial and
intermittent streams and (2) require an
analysis of alternatives for disposal of
excess spoil and coal mine waste.
Comments from state regulatory
authorities and other governmental
entities were mixed in terms of support
for or opposition to the rule.
In developing the final rule, we
considered all comments that were
germane to the proposed rule. In the
remainder of this preamble, we
summarize the comments received and
discuss our disposition of those
comments.
VI. What general comments did we
receive on the proposed rule?
A. We Should Discourage the Mining
and Use of Coal as a Power Source
Because of the Role That the
Combustion of Coal Plays in Climate
Change
Many commenters expressed
opposition to the use of coal as a fuel
for the generation of electricity,
expressing concern about its role in
climate change. We acknowledge the
commenters’ concerns. However,
regulations adopted under SMCRA are
not the appropriate venue to address
climate change issues. Coal-fired power
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plants produce more than half of the
electricity used in the United States and
the use of coal as a fuel for power
generation is likely to increase. Nothing
in SMCRA authorizes us to regulate
electric power generation facilities or to
adopt regulations or take other actions
for the purpose of reducing the use of
coal for the generation of electricity or
to require carbon sequestration. Indeed,
in SCMRA, Congress repeatedly
mentions the importance of coal to the
Nation, including the continued
production of coal as an energy source.
Section 101(b) of SMCRA states that
‘‘coal mining operations presently
contribute significantly to the Nation’s
energy requirements.’’ Section 101(d)
refers to ‘‘the expansion of coal mining
to meet the Nation’s energy needs’’ and
section 101(j) notes that ‘‘surface and
underground coal mining operations
* * * contribute to the economic wellbeing, security, and general welfare of
the Nation.’’ Section 102(f) specifies that
one of the purposes of SMCRA is to
‘‘assure that the coal supply essential to
the Nation’s energy requirements and to
its economic and social well-being is
provided.’’ That paragraph also provides
that one of the purposes of SMCRA is
to ‘‘strike a balance between protection
of the environment and agricultural
productivity and the Nation’s need for
coal as an essential source of energy.’’
Taken together, these passages and the
other purposes of SMCRA listed in
section 102 indicate that the regulatory
provisions of SMCRA were enacted not
to discourage the production or use of
coal but rather to ensure that coal is
mined in a manner that respects
property rights and minimizes adverse
impacts on land and water resources
and communities. As stated in section
102(a) of SMCRA, in enacting SMCRA,
Congress intended to ‘‘establish a
nationwide program to protect society
and the environment from the adverse
effects of surface coal mining
operations.’’ (Emphasis added.) There is
no indication that Congress intended
that the Act operate as a means of
regulating the burning and use of coal
as opposed to the manner and locations
in which coal is mined.
The lack of regulatory authority does
not mean that we are indifferent to the
potential problems posed by climate
change from greenhouse gas emissions
like carbon dioxide. In cooperation with
industry, academia, conservation
organizations, individual landowners,
and others, we developed the
Appalachian Regional Reforestation
Initiative, which encourages both the
reclamation of mined lands in a manner
that is favorable to tree growth and the
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planting of trees as part of the mine
reclamation process. Young forests,
especially robustly growing young
hardwood forests like those found on
reclaimed minesites that use the forestry
reclamation approach encouraged under
the Appalachian Regional Reforestation
Initiative, are generally recognized as an
effective means of removing carbon
dioxide from the atmosphere.
B. We Should Withdraw the Proposed
Rule and Enforce the 1983 Stream
Buffer Zone, the Meaning of Which Is
Clear as Written
Many commenters argued that we
should withdraw the proposed rule and
instead fully implement and enforce the
1983 version of the stream buffer zone
rule at 30 CFR 816.57 and 817.57.
According to the commenters, there is
no need to clarify the meaning of the
1983 rule because the plain language of
that rule precludes the construction of
excess spoil and coal mine waste fills in
perennial and intermittent streams. The
commenters stated that the proposed
rule is a reversal of the 1983 rule, not
a clarification, because it specifies that
excess spoil fills, refuse piles, and
certain other activities conducted in the
stream as part of surface coal mining
operations are not subject to the
prohibition on disturbance of the stream
buffer zone.
We disagree with the commenters’
interpretation of the 1983 rule.
Historically, both the 1983 rule and its
state counterparts have been applied in
a manner that has allowed the
construction of fills in perennial and
intermittent streams as part of surface
coal mining operations, provided those
fills comply with all other applicable
requirements of the SMCRA regulatory
program and with all pertinent
requirements under the Clean Water
Act. In other words, the 1983 stream
buffer zone rule applied only to
activities within 100 feet of a perennial
or intermittent stream. It did not apply
to activities planned to occur in
intermittent or perennial streams.
Maintaining a 100-foot buffer zone to
protect the stream’s water quality and
environmental resources makes sense
only if the stream segment adjacent to
the buffer zone is to remain intact. This
historical interpretation and application
of the stream buffer zone rule is in
harmony with a statement of the U.S.
Court of Appeals for the Fourth Circuit
in Kentuckians for the Commonwealth,
Inc. v. Rivenburgh, 317 F.3d 425, 443
(4th Cir. 2003) (‘‘it is beyond dispute
that SMCRA recognized the possibility
of placing excess spoil material in
waters of the United States’’). Several
industry commenters stated that to
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apply the rule in any other way would
be nonsensical and that applying the
rule to activities that are designed to
take place in stream channels would
seriously impair the viability of coal
mining in central Appalachia. The
historical application of the 1983 rule
closely resembles the revised stream
buffer zone rules that we are adopting
today. Consequently, the revised rules
are in fact a clarification of the 1983
rule, not a reversal of that rule.
C. We Should Not Adopt Any Rule That
Facilitates Mountaintop Mining
Operations or the Filling of Streams
Many commenters objected to the
proposed rule based on the perception
that the rule would facilitate
mountaintop removal operations and
other large-scale surface mines and
related mining techniques currently
used to extract coal from the
mountainous regions of central
Appalachia. The commenters cited the
damage that those operations allegedly
cause to streams, hardwood forests, fish
and wildlife, water supplies, and the
landscape and culture of Appalachia as
justification for prohibiting that type of
mining. We understand the
commenters’ concerns.
However, the perception that the
proposed rule or this final rule would
remove an obstacle to mountaintop
removal operations or other large-scale
mining operations is inaccurate. As we
explained in the preamble to the
proposed rule, our changes to the stream
buffer zone rule are intended to clarify
when and how that rule applies,
consistent with the historical
application of the 1983 rule under both
SMCRA and the Clean Water Act. Our
revisions are not intended to restrict
coal removal. Nor are they intended to
promote or discourage any particular
method of mining, including
mountaintop removal.
In enacting SMCRA, Congress did not
ban mountaintop removal operations or
the construction of excess spoil fills in
streams. Indeed, section 515(c) of
SMCRA specifically authorizes the use
of mountaintop removal methods to
recover coal seams in steep-slope areas,
and section 515(b)(22)(D) allows the
construction of excess spoil fills in areas
that ‘‘contain springs, natural water
courses, or wet weather seeps’’ if a
proper drainage system is installed. As
stated in section 102(f), two of the Act’s
purposes are to ‘‘assure the coal supply
essential to the Nation’s energy
requirements and to its economic and
social well-being is provided’’ and to
‘‘strike a balance between protection of
the environment and agricultural
productivity and the Nation’s need for
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coal as an essential source of energy.’’
When Congress wanted to place certain
lands off-limits to coal mining, in whole
or in part, or to prohibit certain types of
mining, in whole or in part, it did so by
including provisions in the Act to that
effect. See, e.g., section 522
[‘‘Designating Areas Unsuitable for
Surface Coal Mining’’], section 510(b)(5)
[alluvial valley floors west of the
hundredth meridian], and section 516(c)
[underground coal mining under
urbanized areas]. Otherwise, SMCRA
and its implementing regulations
establish how coal is to be mined, not
whether it may be mined. The
regulations that we are adopting today
are consistent with the statute in that
they are intended to minimize the
adverse impacts of surface coal mining
operations on fish, wildlife, and related
environmental values without
prohibiting the use of specific methods
of mining or the recovery of coal from
lands that have not been designated as
unsuitable for surface coal mining
operations.
Most fill material placed in streams in
connection with coal mining is a result
of the need to dispose of excess spoil
generated by mining operations
conducted in areas consisting of steep
slopes and narrow valleys. To remove
coal by surface mining methods, the
formerly solid rock strata overlying the
coal seam must be broken up into
fragments and excavated. The broken
rock fragments (referred to as spoil) are
separated by numerous voids, resulting
in a significant increase in volume over
the volume of solid rock in place before
mining. The increase in volume varies
considerably depending upon the nature
of the rock and the mining method, but
the industry average is about 25 percent.
Returning all spoil to the mined-out area
in steep-slope terrain would create
highly unstable conditions and in most
cases is physically impossible.
Consequently, some spoil must be
permanently placed outside the minedout area in engineered fills, typically in
the upper reaches of valleys adjacent to
the mine. As defined in 30 CFR 701.5,
spoil not needed to restore the
approximate original contour and
disposed of in locations other than the
mined-out area is considered ‘‘excess
spoil.’’
The central Appalachian coalfields
are characterized by highly eroded
plateaus dissected by numerous narrow,
deeply incised valleys with steep side
slopes. In this region, even small valleys
may contain intermittent and perennial
streams. For example, in a study
conducted in West Virginia, the United
States Geological Survey found that, on
average, perennial streams begin in
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watersheds as small as 40.8 acres and
intermittent streams in watersheds as
small as 14.5 acres. See Katherine S.
Paybins, Flow Origin, Drainage Area,
and Hydrologic Characteristics for
Headwater Streams in Mountaintop
Coal-Mining Region of Southern West
Virginia, Water Resources Investigations
Report 02–4300, U.S. Geological Survey,
2003, p. 1. Consequently, the
construction of excess spoil fills in
those valleys often involves burying the
upper reaches of perennial and
intermittent streams.
A further description of the existing
environment of the central Appalachian
coalfields can be found in the draft and
final environmental impact statements
issued in 2003 and 2005, respectively,
by the U.S. Environmental Protection
Agency (EPA), the U.S. Army Corps of
Engineers (COE or the Corps), the U.S.
Fish and Wildlife Service (FWS), OSM,
and the West Virginia Department of
Environmental Protection. The draft
EIS, which the final EIS incorporates by
reference, contains the bulk of that
description. The draft EIS is entitled
‘‘Mountaintop Mining/Valley Fills in
Appalachia Draft Programmatic
Environmental Impact Statement’’ (EPA
9–03–R–00013, EPA Region 3, June
2003) and is available at 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/mtmvf_fpeis_full-document.pdf.
Underground mines also may result in
the filling of some stream segments
where other viable options may not
exist, especially in steep-slope areas.
Rock and other overburden materials
removed as part of the cut made to
expose the coal seam into which the
mine entries and ventilation shafts are
driven typically are used to construct an
adjoining bench upon which mine
offices, parking lots, equipment, and
other support facilities are located. This
process is referred to as ‘‘facing up’’ the
mine. Any material removed as part of
the face-up operation that is not used to
construct the bench or placed in
temporary storage for use in restoring
the approximate original contour and
reclaiming the face-up area once the
mine closes permanently is excess spoil.
Should such excess spoil exist, it would
be placed in fills on adjacent hillsides
or in adjoining valleys. Underground
mining operations also may involve the
excavation of non-coal waste rock from
underground tunnels. The waste rock,
which we define as underground
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development waste, is typically brought
to the surface and placed either in
refuse piles or in excess spoil fills that
meet the requirements for refuse piles,
as required by 30 CFR 817.71(i).
Activities associated with coal
preparation plants also may result in the
filling of some stream segments. These
plants clean coal by removing
impurities, especially ash,
incombustible rock, and sulfur. They
create large quantities of coal processing
waste, including both a very fine
fraction, which is often suspended in
water in a semi-liquid form (slurry) and
a coarse fraction (refuse). The slurry is
usually impounded behind dams
constructed of coarse refuse in a valley
adjacent to the plant.
One industry commenter stated that
underground coal mining in central
Appalachia depends on fills in mostly
intermittent streams to store material
from mine bench and stockpile
construction and for sedimentation
ponds and road crossings. The
commenter also noted that coal
processing waste is deposited in valley
fills associated with coal preparation
plants. Therefore, according to the
commenter, without valley fills, coal
mining in central Appalachia is
doomed. While the commenter’s
statement may be somewhat of an
exaggeration, there is little doubt that a
prohibition on placement of excess spoil
and coal mine waste in perennial or
intermittent streams would have a
significant adverse impact not only on
surface mines, but also on underground
mines and coal preparation plants.
Pages 7–8 of the final report dated
January 13, 2003, for an economic study
prepared for us by Hill & Associates,
Inc. (Contract No. CT212142) contains
the following discussion:
We received strong input from the mining
community that it is an egregious mistake to
ignore impacts of the valley fill limitations
on deep mines, especially new ones. First,
many deep mines are co-dependent on
related surface mines for quality blending
requirements and even economic averaging
arrangements. Eliminating or reducing the
surface mining has a direct impact on the
viability of the deep mining in these
instances. Second, the typical reject rate in
Central Appalachia from a wash plant
associated with a deep mine is about 50%.
Thus, for every one ton of coal mined, one
ton of refuse is placed in a valley fill or
related impoundment. In fact, the valley fills
associated with wash plant refuse are
generally among the larger valley fills
associated with coal mining (with generally
larger watershed) but are fewer in number
than surface mining valley fills. Third, the
construction of a new deep mine involves
other valley fill issues. Often, a new deep
mine is accompanied by a new wash plant
with a new valley fill for refuse.
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The Hill & Associates report uses the
term ‘‘deep mines’’ for underground
mines and the term ‘‘wash plants’’ for
coal preparation plants. In addition, in
the report, the term ‘‘valley fills’’
includes all excess spoil fills and coal
mine waste disposal facilities
constructed as part of a surface mine.
The following excerpt from a colloquy
between Senators Howard Baker of
Tennessee and Henry Jackson of
Washington concerning S. 425, a 1973
bill that was a precursor to SMCRA,
illustrates that Congress was cognizant
of the potential scale of mountaintop
removal operations and the attendant
fills:
Mr. BAKER. Mr. President, the last
question I have to put, so that we may look
this squarely in the face, is this: Would the
distinguished chairman of the committee say
certainly that what we are doing is
sanctioning mountain top mining to the
extent where whole mountains may be
stripped down to ground level, and the
storage of millions of tons of overburden may
be placed in the hollows, creating hundreds
of thousands of acres of new flat land, and
that if we are going to adopt this variance
which I intend to support, we should do it
with our eyes wide open to the fact that
whole mountains may disappear from the
landscape?
Mr. JACKSON. The answer is, yes, of
course * * *. What we want to do is achieve
the twin objectives, here, of being able to
maintain a mining operation that will be
satisfactory from an economic point of view,
but also that will be environmentally
acceptable.
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119 Cong. Rec. S33314 (daily ed.
October 9, 1973).
D. We Should Ensure the Protection of
Headwater Streams by Requiring
Maintenance of an Undisturbed Buffer
Between Mining Activities and Streams
A number of commenters emphasized
that headwater streams and mature
forest cover are important to maintain
the health of the ecological and
biological functions of the entire stream.
According to the commenters,
numerous studies have clearly
demonstrated that stream buffer zones
of native vegetation (generally
hardwood forests in the central
Appalachian coal mining region)
represent the best technology currently
available for protecting the functions of
headwater streams.
We agree with the commenters that
headwater streams make a significant
contribution to ecosystem function and
the ecological productivity of
downstream flows. We also agree that,
in the absence of other considerations,
precluding surface coal mining and
reclamation operations in or near
headwater streams may be the best
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technology currently available to protect
the fish, wildlife, and related
environmental values associated with
those streams.
However, the universal protection of
mature forest cover and headwater
streams all the way to the top of the
ridge or the head of the stream would
preclude viable surface mining
operations in almost all cases, especially
in Appalachia. Sections 515(b)(24) and
516(b)(11) of SMCRA provide that
surface coal mining and reclamation
operations must use the best technology
currently available to minimize
disturbances to and adverse impacts on
fish, wildlife, and related environmental
values, but only ‘‘to the extent
possible.’’ The ‘‘to the extent possible’’
clause in these statutory provisions
recognizes that, because surface coal
mining operations inherently involve
significant disturbance of the land,
those operations necessarily result in
some disturbances to and adverse
impacts on fish, wildlife, and related
environmental values. Therefore, the
determination of what constitutes the
best technology currently available to
minimize those adverse impacts is a
site-specific determination that must be
made in the context of the site’s
geologic, topographic, and ecological
characteristics (including the location of
the coal) and the nature of the mining
operation. This approach is consistent
with our regulatory definition of ‘‘best
technology currently available’’ in 30
CFR 701.5, a definition that has
remained unchanged since 1979. For
example, it is almost never possible to
conduct surface coal mining operations
without disturbing ephemeral streams,
especially in a mesic environment. In
those cases, the best technology
currently available would focus on how
the site is reclaimed after mining, in
particular, use of the revegetation,
restoration, and fish and wildlife habitat
enhancement measures mentioned in
sections 816.97 and 817.97 of our rules.
In addition, many surface coal mining
operations necessarily involve
disturbance of intermittent or perennial
streams and all or part of the buffer zone
for the stream segment in which the
activities listed in paragraphs (b)(1)
through (b)(4) of sections 816.57 and
817.57 of this final rule occur. For
example, in 2000 in West Virginia, a
team consisting of representatives from
OSM, the West Virginia Division of
Environmental Protection, industry, and
the environmental community
completed an engineering evaluation of
14 proposed mine sites, which were
representative of all proposed mining
sites in West Virginia. As summarized
on page 2 of the report, the team
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concluded that prohibiting construction
of fills in intermittent and perennial
streams would have a dramatic impact
on coal recovery:
Limiting valley fills to the ephemeral
streams resulted in significant or total loss of
the coal resource for 9 of the 11 mine sites
when compared to the original mine site
plans. All of the coal resource was lost for
6 of the 11 mine sites. By restricting fills to
the ephemeral streams, the total coal
recovery is estimated at 18.6 million tons, a
90.9 percent reduction. The original estimate
was 186 million tons. The team noted that
even if smaller fills could be constructed,
they would impact nearly every available
valley, possibly increasing the overall
environmental impact.
Hence, this final rule does not
absolutely prohibit the conduct of
surface activities in intermittent or
perennial streams, nor does it require
maintenance of an undisturbed buffer
between surface activities and the
intermittent or perennial stream in
situations where it is not possible to do
so because of the nature of the proposed
surface coal mining operations. In other
words, avoidance of any disturbance to
the stream and maintenance of an
undisturbed buffer for the stream is not
required if avoidance would preclude
the conduct of surface coal mining and
reclamation operations.
However, in keeping with the
statutory requirement to use the best
technology currently available to the
extent possible, and in response to the
commenters’ concerns, we have revised
the rule to include a requirement that,
when a permit application includes a
proposal to disturb a perennial or
intermittent stream or land within 100
feet of such a stream, the permit
applicant must demonstrate to the
satisfaction of the regulatory authority
that avoiding disturbance of a perennial
or intermittent stream or lands within
100 feet of such a stream is not
reasonably possible. See paragraphs
(b)(1), (c)(1), (d)(1), and (e)(1) of sections
780.28 and 784.28, paragraph (d)(1)(i) of
sections 780.25 and 784.16, and
paragraph (a)(3)(i) of sections 780.35
and 784.19 of the final rule. Those
provisions of our final rule use the term
‘‘reasonably possible’’ to clarify that the
phrase ‘‘to the extent possible’’ in
sections 515(b)(24) and 516(b)(11) of
SMCRA should not be interpreted as
requiring the use of any theoretically
possible approach to compliance with
the minimization requirement without
regard to cost or other provisions of
SMCRA. Those provisions include
section 515(b)(1), which requires that
surface coal mining operations be
conducted ‘‘so as to maximize the
utilization and conservation of the solid
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fuel resource being recovered so that
reaffecting the land in the future
through surface coal mining can be
minimized,’’ and section 102(f), which
specifies that one of the purposes of
SMCRA is to ensure that the coal supply
essential to the nation’s energy
requirements is provided. Section 102(f)
also calls for establishment of a
regulatory program that balances
environmental protection and coal
production. We believe that our final
rule strikes that balance by using the
term ‘‘reasonably possible’’ to interpret
and apply the requirements of sections
515(b)(24) and 516(b)(11) of the Act.
A survey of all coal mining permits
issued between October 1, 2001, and
June 30, 2005, indicates that coal
mining activities authorized by those
permits will directly affect about 535
miles of streams nationwide, of which
324 miles (60.6 percent) are in the
central Appalachian coalfields. Based
on data from the West Virginia permits,
we estimate that approximately twothirds of the 324 miles will be
permanently covered by excess spoil
fills and coal mine waste disposal
facilities. When segments of headwater
streams are buried permanently by
excess spoil or mine waste fills, the
discharge from the toe of the fill is
equivalent to a spring. The groin ditches
associated with the fill are too steep to
fully replicate the buried stream
segment. As discussed in the
environmental impact statement for this
rulemaking, typically, the stream
segment downstream of the discharge
from the toe of the fill has a higher base
flow rate and lower peak flows than it
did before construction of the fill. The
temperature of the flow is also cooler
and less variable than that of the
original stream. Most of the remaining
miles of stream directly affected by
mining operations should experience
only temporary adverse environmental
impacts, chiefly as a result of mining
through those streams. In those cases,
the streams are diverted and relocated
while the mining operation proceeds
through the streambed. When mining is
completed, the stream is restored to its
original location unless the relocation is
permanent.
Finally, our existing rules require that
fills be revegetated in a manner
consistent with the approved
postmining land use. In time, we
anticipate that hardwood forests will be
reestablished on most fill surfaces in
Appalachia.
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E. We Have Not Accorded Sufficient
Importance to the Environmental
Protection Purposes of SMCRA
Several commenters objected to our
repeated references to section 102(f) of
SMCRA in the preamble to the proposed
rule. Section 102(f) provides that one of
the purposes of SMCRA is to ‘‘assure
that the coal supply essential to the
Nation’s energy requirements and to its
economic and social well-being is
provided’’ and to ‘‘strike a balance
between protection of the environment
and agricultural productivity and the
Nation’s need for coal as an essential
source of energy.’’ 30 U.S.C. 1202(f).
The commenters allege that, in
developing our proposed rule, we
completely ignored the other purposes
listed in section 102, in particular those
in paragraphs (a) [‘‘establish a
nationwide program to protect society
and the environment from the adverse
effects of surface coal mining
operations’’], (c) [‘‘assure that surface
coal mining operations are not
conducted where reclamation as
required by this Act is not feasible’’],
and (d) [‘‘assure that surface coal mining
operations are so conducted as to
protect the environment’’]. The
commenters argue that the result is to
skew the analysis of SMCRA in favor of
resource development while
overlooking negative impacts to streams,
water quality, and fish habitat. The
commenters made these arguments in
the context of advocating protection for
headwater streams and interpreting the
1983 rule in a manner that would
preclude the construction of excess
spoil fills and coal mine waste disposal
facilities in streams.
We disagree with the commenters’
allegations. The purposes of SMCRA in
section 102 explain what Congress
intended to accomplish through the
specific provisions found in the rest of
the Act. They do not provide
independent rulemaking authority. In
particular, they do not provide authority
to adopt regulations that would
preclude surface coal mining operations
on lands where those operations are not
otherwise prohibited by SMCRA. Any
regulations adopted under SMCRA (as
well as any interpretation of an existing
rule) must be consistent with the
specific provisions of the Act. The
environmental protection standards and
other provisions of title V of the Act set
out specific requirements, consistent
with the environmental protection and
other purposes of SMCRA, for the
regulation of surface coal mining and
reclamation operations. Therefore, any
regulations implementing title V must
be consistent with and based upon the
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75825
provisions of that title. The purposes in
section 102 can provide support or
guidance for a regulation, but in and of
themselves they do not establish
requirements or authority for a
regulation and they do not suffice to
justify adoption of a regulation (or
interpretation of an existing regulation)
that is inconsistent with specific
requirements or other provisions of the
Act.
Within title V, section 515(c)
expressly requires that our regulations
establish provisions under which
mountaintop removal mining operations
may be permitted: ‘‘Each State program
may and each Federal program shall
include procedures pursuant to which
the regulatory authority may permit
[mountaintop removal] operations.’’ 30
U.S.C. 1265(c)(1). Adoption of a rule (or
interpretation of an existing rule) to
prohibit placement of excess spoil and
coal mine waste in streams, as the
commenters advocate on the basis of the
environmental protection purposes of
paragraphs (a), (c), and (d) of section
102 of SMCRA, would be inconsistent
with this provision of SMCRA because
mountaintop removal operations—and
most other types of mining operations in
steep-slope areas—typically cannot be
conducted without construction of
excess spoil fills in streams. In a study
conducted in West Virginia, the United
States Geological Survey found that, on
average, perennial streams begin in
watersheds as small as 40.8 acres and
intermittent streams in watersheds as
small as 14.5 acres. See Katherine S.
Paybins, Flow Origin, Drainage Area,
and Hydrologic Characteristics for
Headwater Streams in Mountaintop
Coal-Mining Region of Southern West
Virginia, Water Resources Investigations
Report 02–4300, U.S. Geological Survey,
2003, p.1. Industry commenters also
asserted that underground mining
operations in central Appalachia would
be severely curtailed by such a
limitation because those operations
need to construct fills to contain
underground development waste
generated by the face-up and other
aspects of mine construction. It would
be difficult to construct those fills in
steep-slope areas without impacting an
intermittent or perennial stream.
In addition, section 515(b)(22)(D) of
SMCRA authorizes the placement of
excess spoil in areas that ‘‘contain
springs, natural water courses, or wet
weather seeps’’ if proper underdrains
are constructed. Ephemeral,
intermittent, and perennial streams are
all natural watercourses. Springs are
groundwater discharges. Discharges
from springs typically form intermittent
or perennial streams. In relevant part,
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our rules at 30 CFR 701.5 define an
‘‘intermittent stream’’ as a stream or
reach of a stream that obtains its flow
from both surface runoff and ground
water discharge.’’ Therefore, by
authorizing placement of excess spoil in
areas that contain springs and natural
watercourses, section 515(b)(22)(D) of
SMCRA clearly allows construction of
excess spoil fills in intermittent and
perennial streams, provided the
necessary underdrains are installed.
Interpreting the purposes of SMCRA
listed in paragraphs (a), (c), and (d) of
section 102 as authorizing adoption of a
rule (or interpretation of an existing
rule) to effectively prohibit construction
of excess spoil fills in perennial and
intermittent streams thus would be
inconsistent with section 515(b)(22)(D)
of SMCRA and, by extension, section
515(c) of SMCRA.
F. EPA Cannot Legally Concur With the
Revised Stream Buffer Zone Rules
Because They Violate the Clean Water
Act
Section 501(a)(B) of SMCRA specifies
that we must obtain the written
concurrence of the EPA Administrator
with respect to regulations that relate to
air or water quality standards published
under the authority of either the Clean
Air Act or the Clean Water Act. That
provision applies to some of the changes
that we are making in this final rule.
Several commenters stated that EPA
cannot legally concur with the proposed
rule because it would result in
significant degradation to the aquatic
ecosystem in violation of the Clean
Water Act regulations at 40 CFR
230.10(c), which are part of the
404(b)(1) Guidelines. The commenters
argue that, by eliminating the provision
in the 1983 stream buffer zone rule that
required a finding that the proposed
activity would not cause or contribute to
a violation of state or federal water
quality standards and would not
adversely affect the water quality,
quantity, or other environmental
resources of the stream, the proposed
rule would implicitly allow effects that
are both adverse and significant.
According to the commenters, this
result would be inconsistent with 40
CFR 230.10(c), which provides that,
subject to an exception that is not
germane here, ‘‘no discharge of dredged
or fill material shall be permitted which
will cause or contribute to significant
degradation of the waters of the United
States.’’ In addition, 40 CFR 230.10(a)
provides that ‘‘no discharge of dredged
or fill material shall be permitted if
there is a practicable alternative to the
proposed discharge which would have
less adverse impact on the aquatic
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ecosystem, so long as the alternative
does not have other significant adverse
environmental consequences.’’
Therefore, according to the commenters,
this final rule would violate the Clean
Water Act, which would mean that EPA
has no basis under the Clean Water Act
for concurrence with the final rule.
Another commenter argues the rule is
not consistent with the Clean Water Act
because it authorizes waste assimilation
in streams, which the Clean Water Act
prohibits.
We do not agree with the commenters.
Section 501(a)(B) of SMCRA does not
establish a requirement that the EPA
Administrator’s concurrence be based
upon provisions of the Clean Water Act.
Moreover, the requirements of the Clean
Water Act apply independently of any
regulations adopted under SMCRA. See
section 702(a)(2) of SMCRA, which
provides that nothing in SMCRA ‘‘shall
be construed as superseding, amending,
modifying, or repealing’’ the Clean
Water Act or any regulations or state
laws adopted under authority of that
law. Our final rules at 30 CFR
780.28(f)(2), 784.28(f)(2), 816.57(a)(2),
and 817.57(a)(2) reiterate this
relationship between SMCRA and the
Clean Water Act and emphasize that
issuance of a SMCRA permit does not
authorize initiation of surface coal
mining operations for which the
applicant has not obtained all necessary
authorizations, certifications, and
permits under the Clean Water Act.
Therefore, EPA’s concurrence with the
final rule is not contrary to the Clean
Water Act.
G. The Applicability of the Final Rules
Should Be Limited to Steep-Slope Areas
and Mountaintop Removal Operations
The Pennsylvania regulatory authority
recommended that we not proceed with
this rulemaking because it would
impose additional burdens on
Pennsylvania, create uncertainty for
both citizen groups and mine operators,
and would likely lead to extensive and
costly litigation. According to the
commenter, the rule’s benefits would
not offset the unfunded burdens,
uncertainties and litigation that would
result from adoption of the regulations.
Pennsylvania also stated that if we
proceed with a final rule, that rule
should not require all states to change
their programs to address a matter that
is an issue only in those few states that
have mountaintop removal operations
and steep-slope mining. Instead,
Pennsylvania recommended that we use
the specific authority of section 515 of
SMCRA to craft a rule tailored to
mountaintop removal operations and
steep-slope mining. The National
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Mining Association made similar
comments with respect to our proposed
excess spoil rules, arguing that the
rulemaking record does not demonstrate
a need for applying the excess spoil
rules to any other areas.
We do not agree with the commenters’
recommendations. We believe that
perennial and intermittent streams
potentially affected by excess spoil fills
and coal mine waste disposal facilities
in non-steep-slope areas and areas
outside central Appalachia merit the
same protection as streams in central
Appalachia. Furthermore, states that
may have very few operations involving
placement of excess spoil or coal mine
waste in perennial or intermittent
streams would incur only minimal
additional resource costs in processing
applications for those operations.
The vast majority of excess spoil fills
that involve placement of excess spoil
in perennial or intermittent streams are
located in steep-slope areas of central
Appalachia. However, those structures
are occasionally constructed in streams
in other states and other areas. For
example, with respect to excess spoil
fills, a nationwide survey of all coal
mining permits issued between October
1, 2001, and June 30, 2005, found that
those permits included a total of 1,612
excess spoil fills, of which 1,589 (98.6
percent) are located in the central
Appalachian coalfields. Specifically,
most of the fills approved in those
permits are located in Kentucky (1,079),
West Virginia (372), and Virginia (125),
with 13 approved in Tennessee.
However, the remaining fills approved
during that time are located in Alaska,
Alabama, Ohio, Pennsylvania, and
Washington, so we believe that
sufficient basis exists for a national
rulemaking. This survey is discussed in
greater detail in the environmental
impact statement that accompanies this
rule.
Surface coal mining operations
nationwide generate coal mine waste.
Except in very flat terrain, refuse piles
and especially slurry impoundments are
constructed in stream valleys. There is
no basis for limiting the scope of our
coal mine waste rules to steep-slope
areas or mountaintop removal mining.
In addition, the stream buffer zone
rule is national in scope, as are the
stream diversion rules. The frequency of
use of those rules has little relationship
to topography or type of mining. Surface
coal mining operations routinely
encounter perennial and intermittent
streams in both steep-slope and nonsteep-slope areas. The changes that we
have made to the stream buffer zone
rules, especially the new permit
application requirements for operations
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that propose to disturb the surface of
lands within 100 feet of a perennial or
intermittent stream and the revised
findings that the regulatory authority
must make before approving an
exception to the buffer zone
requirement, have universal
applicability and utility, as do the
changes to the stream diversion rules.
Finally, we do not agree with the
commenter’s characterization of the rule
as creating uncertainty. To the contrary,
this rule is intended in part to address
and resolve the controversy and
uncertainty surrounding the 1983
stream buffer zone rule. The permitting
decisions that the regulatory authority
must make under this final rule differ
little in complexity from those that the
regulatory authority must make under
other provisions of the existing rules. As
in the case of other situations in which
the regulatory authority must apply
subjective requirements, we anticipate
that the regulatory authority will use
best professional judgment in
determining compliance. Therefore, we
decline to adopt the commenter’s
recommendations.
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H. The Stream Buffer Zone Rule Is
Unnecessary and Should be Removed in
Its Entirety
Several commenters advocated
completely removing the stream buffer
zone rule, noting that nothing in
SMCRA mandates adoption of such a
rule. One commenter noted that removal
of the stream buffer zone rule would be
the most effective method of eliminating
ambiguity from the federal regulations
concerning fill construction. The
commenters stated that maintaining a
stream buffer zone rule is not needed to
provide SMCRA-mandated
environmental protection and that the
statute and regulations are replete with
other regulatory requirements that
directly address the concerns for which
the stream buffer zone rule was adopted.
We considered the option
recommended by the commenters, but
decided to retain the stream buffer zone
rule. With respect to perennial and
intermittent streams, we believe that the
rule serves a useful role in establishing
a buffer zone as the best technology
currently available to comply with the
statutory requirements to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values, provided maintenance of a
buffer zone is reasonably possible. See
the discussion in Part VI.D. of this
preamble.
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VII. Why did we decide against
applying the stream buffer zone rule to
all waters of the United States
(WOTUS)?
On August 24, 2007, we proposed to
revise the scope of our stream buffer
zone rules at 30 CFR 816.57 and 817.57,
which applied to perennial and
intermittent streams, to apply to all
waters of the United States, which
would include certain lakes, ponds,
wetlands, and reaches of ephemeral
streams. We had two reasons for
proposing this change. First, the scope
of the statutory provisions that form the
basis for the stream buffer zone rule, i.e.,
sections 515(b)(10)(B)(i) and (24) and
516(b)(9)(B) and (11) of SMCRA, is not
limited to perennial or intermittent
streams. Instead, those provisions
broadly require that, to the extent
possible using the best technology
currently available, surface coal mining
operations be conducted so as to
prevent additional contributions of
suspended solids to streamflow or
runoff outside the permit area and that
surface coal mining and reclamation
operations be conducted so as to
minimize disturbances to and adverse
impacts on fish, wildlife, and related
environmental values. Sedimentation
and sediment-laden runoff from mine
sites could degrade those values.
Second, we anticipated that achieving
greater consistency with the
terminology used in regulatory
programs under the Clean Water Act
would remove one obstacle to better
coordination and streamlining of the
SMCRA and Clean Water Act permitting
processes.
In the preamble to the proposed rule,
we requested comment on whether the
increased regulatory consistency and
other benefits of adopting the term
WOTUS would outweigh the
jurisdictional and other problems
associated with use of that term as part
of the SMCRA regulatory program. See
72 FR 48900, August 24, 2007. We
found little public support for the
proposed change.
All three iterations of the stream
buffer zone rule that we adopted since
the enactment of SMCRA have applied
only to perennial and intermittent
streams or subsets thereof. Many
commenters opposed disturbing that
regulatory stability, noting that our rules
at 30 CFR 701.5 define perennial and
intermittent streams in a wellunderstood manner consistent with
other generally accepted definitions of
those terms. They expressed concern
that use of WOTUS would be confusing
because that term has no clearly
established legal or programmatic
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75827
meaning. The commenters stated that
the various organizational units of the
Corps and EPA vary greatly in their
interpretation and application of the
term WOTUS and that the scope of that
term is constantly evolving as the courts
struggle to define the jurisdictional
reach of the Clean Water Act. One
commenter noted that the Supreme
Court has been unable to agree on even
a single governing principle for
WOTUS. See Solid Waste Agency of
Northern Cook County v. U.S. Army
Corps of Eng’rs, 531 U.S. 159 (2001)
(SWANCC); Rapanos v. U.S., 547 U.S.
715 (2006). The commenter concluded
that ‘‘OSM should not anchor its
regulatory program on such an unstable
foundation,’’ a sentiment shared by
other commenters.
We received numerous comments to
the effect that the proposed rule change
would be unnecessary and possibly
counterproductive because the
definitions of perennial and intermittent
streams in both our rules and state
regulatory programs under SMCRA are
clear and relatively straightforward to
implement, while WOTUS is not. The
Virginia regulatory authority
commented that adding lakes, ponds,
and wetlands to the scope of the buffer
zone rule would probably not be much
of a change to that agency’s existing
practice, apart from the matter of
obtaining jurisdictional determinations,
but that it would replace an established
and effective regulatory term with no
real benefit gained.
Several commenters opposed
changing the scope of our stream buffer
zone rules to WOTUS because the
unsettled and subjective meaning of that
term would spawn considerable
uncertainty, which would be contrary to
our stated objective of clarifying the
existing stream buffer zone rules. The
National Mining Association elaborated
upon this argument as follows:
When OSM revised the [stream buffer
zone] rule in 1983, the principal reason for
limiting the rule to perennial and
intermittent streams was because the earlier
version referencing streams with a biological
community was confusing and difficult to
apply. This, according to the agency, ‘‘led to
confusion on the part of operators’’
attempting to apply the amorphous and illdefined biological community standard. In
response to challenges from several
environmental groups, the federal district
court upheld the agency’s reasoning holding
that ‘‘it is precisely this type of justification,
based on practical experience and expertise
that justifies such a change.’’ Moreover, the
court noted that the stream buffer zone rule
is not the only, or the most important, one
in OSM’s regulation[s] to implement
§§ 515(b)(10) and (24). [Footnotes omitted.]
* * * Here the practical experience discloses
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that changing the scope of the rule to
WOTUS will be even more confusing and
difficult to apply than the 1979 rule due to
the vague and confusing status of the
meaning of waters of the United States.
The Association also expressed
concern that the adoption of WOTUS, a
Clean Water Act term that we have no
authority to interpret or define, could
have unintended impacts on SMCRA
regulatory programs and the regulated
community because we have no control
over how that term may be defined in
the future.
Several commenters expressed
concern that the use of WOTUS would
greatly delay the SMCRA permitting
process because of the need to obtain
jurisdictional determinations from the
U.S. Army Corps of Engineers in
accordance with a guidance document
issued by EPA and the Corps on June 5,
2007, entitled ‘‘Clean Water Act
Jurisdiction Following the U.S. Supreme
Court’s Decision in Rapanos v. United
States & Carabell v. United States,’’
https://www.epa.gov/owow/wetlands/
pdf/RapanosGuidance6507.pdf.
According to the commenters, that
document appears to require that permit
applicants seek jurisdictional
determinations from the Corps in many
more situations than was the case before
issuance of the guidance document. The
National Mining Association stated that
the Corps already has a massive backlog
of requests for jurisdictional
determinations. Because we are not
adopting the use of WOTUS for other
reasons, we did not investigate the
accuracy of these comments. However,
for informational purposes, we note that
the Corps also issued Regulatory
Guidance Letter No. 08–02 on June 26,
2008. That letter provides further
guidance on jurisdictional
determinations and related procedures.
The National Mining Association
stated that it supports coordination of
and reduction of duplication between
the SMCRA and Clean Water Act
permitting processes, but that, based on
its experience in promoting that goal
during the past seven years, it did not
see any realistic probability that
changing the focus of the buffer zone
rule from perennial and intermittent
streams to WOTUS would achieve that
goal. The Association also stated that it
did not foresee any discernible
environmental benefits from the
proposed change in focus.
Comments submitted on behalf of 12
national environmental organizations
also strongly opposed the proposed use
of WOTUS to define the scope of the
stream buffer zone rule:
One of the most perplexing aspects of the
proposed rule is OSM’s plan to change the
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bodies of water to which stream buffer zone
provisions apply. If adopted, the rule would
no longer apply to all perennial and
intermittent streams, but instead would cover
‘‘waters of the United States.’’ Although this
is touted as providing ‘‘increased
environmental protection and consistency
with the Clean Water Act,’’ less protection
and more confusion seems inevitable if the
proposal is adopted.
To begin with, this proposal appears to be
a solution in search of a problem. OSM
acknowledges: ‘‘we do not anticipate that this
change in terminology will result in a
significant expansion in the applicability of
our rules because the vast majority of waters
that may be affected by surface coal mining
and reclamation operations are perennial and
intermittent streams.’’ By itself, this fact is
not a reason to reject the proposal; we agree
with the idea that a wide range of water
bodies ought to be protected from miningrelated damage, as SMCRA contains
provisions that seek to protect water bodies
beyond streams. However, in view of the
other problems discussed below with linking
the Stream Buffer Zone rule to ‘‘waters of the
United States’’ under the Clean Water Act,
the likely incremental benefit of including
other water bodies does not justify the
change.
If there is one thing that conservation
groups, the federal government, and the coal
mining companies probably can agree on in
this rulemaking, it is that it is not clear today
what aquatic features qualify as ‘‘waters of
the United States,’’ at least without further
factual inquiry. As a result of two Supreme
Court decisions and unhelpful ‘‘guidance’’ by
EPA and the Army Corps of Engineers, some
have come to the conclusion that even
certain streams may not qualify as ‘‘waters of
the United States’’ protected by the Clean
Water Act’s core programs.
*
*
*
*
*
Were the Stream Buffer Zone rule to be
amended by the proposed rule to apply to
‘‘waters of the United States,’’ then, we have
significant concern that it may be applied to
only a subset of perennial and intermittent
streams, whereas it historically has applied
to all such streams. Effectively, implementing
this change may lead to the proposed rule
protecting fewer streams than the Stream
Buffer Zone rule has in the past * * *.
Finally, we do not believe that it is
feasible, as OSM suggests, to resolve these
jurisdictional issues by having ‘‘the SMCRA
regulatory authority * * * consult and
coordinate with the Corps of Engineers in
situations in which there is a question as to
whether waters within or adjacent to the
proposed permit area are waters of the
United States under the Clean Water Act.’’ As
the OSM may or not be aware, it is the EPA,
not the Corps, that has the responsibility for
determining which water bodies are ‘‘waters
of the United States’’ for purposes of the 404
program and the entire Clean Water Act.
The EPA, working in conjunction with the
Corps, is just beginning to make many
jurisdictional and non-jurisdictional
determinations using Rapanos as a guide,
and the preliminary indications are that the
process is very time-consuming and, more
importantly, may be so arbitrary that it is
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leading to waters being declared unprotected
when they in fact should remain
jurisdictional.
Three commenters (the U.S. Fish and
Wildlife Service, the Geologic Resources
and Water Resources Divisions of the
National Park Service, and the
Pennsylvania Fish and Boat
Commission) expressly supported the
proposed use of WOTUS in defining the
scope of the stream buffer zone rules.
However, two of the three expressed
concern that the change might reduce
the protection afforded to perennial and
intermittent streams. The U.S. Fish and
Wildlife Service stated that it supported
the use of WOTUS ‘‘as a matter of
regulatory consistency and sound public
policy, but remains concerned about the
unsettled nature of jurisdictional
determinations in headwater streams’’
in the wake of recent Supreme Court
decisions. The Service requested that
we work with them ‘‘to develop a
process to monitor the extent to which
intermittent or perennial streams are
determined not to be ‘waters of the
U.S.’ ’’ The Pennsylvania Fish and Boat
Commission strongly urged that we also
retain the rule’s applicability to
perennial and intermittent streams
because application of those terms in
the SMCRA context is not dependent
upon a jurisdictional determination by
the U.S. Army Corps of Engineers. The
Commission expressed the fear that
adoption of WOTUS without also
retaining the rule’s applicability to
perennial and intermittent streams
‘‘would weaken or reduce the protection
on most streams, especially headwater
streams.’’
The Geologic Resources and Water
Resources Divisions of the National Park
Service stated that they fully supported
the proposed change because many
high-value aquatic ecosystems are
neither perennial nor intermittent
streams. According to the commenter,
the proposed rule change would not
place an undue burden or impact on
operators, especially when considering
the environmental benefits that would
be realized through protecting a more
inclusive set of aquatic systems,
including wetlands, lakes, and ponds.
The commenter stated that the National
Park Service routinely seeks permits
through local Corps offices and has
never found that this requirement
imposed a burden or had a substantial
impact on the completion of any project.
After evaluating the comments
received, we find the arguments against
adoption of WOTUS persuasive. The
final rule that we are adopting today
retains the status quo with respect to the
scope of the stream buffer zone rule; i.e.,
that rule will continue to apply to
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perennial and intermittent streams
rather than to WOTUS. Rather than
attempting to introduce Clean Water Act
terminology and procedures into
regulations implementing SMCRA, we
believe that the more prudent and
defensible course of action is to adopt
terminology and requirements based on
provisions of SMCRA. SMCRA does not
use the term WOTUS in establishing
regulatory requirements for surface coal
mining operations, but it does refer to
streams. At the same time, section
702(a) of SMCRA clearly specifies that
nothing in SMCRA may be construed as
superseding, amending, modifying, or
repealing the Clean Water Act or its
implementing regulations. Therefore,
issuance of a SMCRA permit does not
authorize the permittee to initiate
activities for which a permit,
certification, or other authorization is
required under the Clean Water Act.
The final rules at 30 CFR 780.28(f)(2),
784.28(f)(2), 816.57(a)(2), and
817.57(a)(2) that we are adopting today
reiterate that fact.
One commenter strongly disagreed
with our statement in the preamble to
proposed 30 CFR 780.28 and 784.28 that
we did not anticipate that switching
from perennial and intermittent streams
to WOTUS would result in a significant
expansion in the applicability of our
rules because the vast majority of waters
that may be affected by surface coal
mining and reclamation operations are
perennial and intermittent streams. This
comment is now moot in light of our
decision not to adopt WOTUS.
We also wish to clarify that we use
the terms perennial, intermittent, and
ephemeral streams, as defined in 30
CFR 701.5, to implement the SMCRA
regulatory program. Our definitions of
those terms do not affect jurisdictional
determinations under the Clean Water
Act. The Corps and EPA are responsible
for making those jurisdictional
determinations.
Although we have decided not to
adopt WOTUS as part of the stream
buffer zone rule, our existing rules will
continue to provide protection to lakes,
ponds, wetlands, and, to some extent,
ephemeral streams by other means.
Those rules fully implement the
statutory provisions that form the basis
for the stream buffer zone rule, i.e.,
sections 515(b)(10)(B)(i) and (24) and
516(b)(9)(B) and (11) of SMCRA, which
require that, to the extent possible using
the best technology currently available,
surface coal mining operations be
conducted so as to prevent additional
contributions of suspended solids to
streamflow or runoff outside the permit
area and that surface coal mining and
reclamation operations be conducted so
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as to minimize disturbances to and
adverse impacts on fish, wildlife, and
related environmental values.
Most significantly, 30 CFR 780.16(b)
and 784.21(b) require that each permit
application include a fish and wildlife
protection and enhancement plan. The
plan must describe how, to the extent
possible, using the best technology
currently available, the operator will
minimize disturbances and adverse
impacts on fish, wildlife, and related
environmental values during surface
coal mining and reclamation operations
and how enhancement of those
resources will be achieved where
practicable. The plan must be consistent
with the requirements of 30 CFR 816.97
or 817.97 and it must include protective
measures to be taken during the active
mining phase. The rule lists the
establishment of buffer zones as one
example of those protective measures.
Under 30 CFR 816.97(a) and
817.97(a), the operator must, to the
extent possible, using the best
technology currently available,
minimize disturbances and adverse
impacts on fish and wildlife and related
environmental values and must achieve
enhancement of those resources where
practicable. Paragraph (f) of 30 CFR
816.97 and 817.97 provides that the
operator must avoid disturbances to,
enhance where practicable, restore, or
replace wetlands and riparian
vegetation along rivers and streams and
bordering ponds and lakes. Paragraph (f)
also requires that the operator avoid
disturbances to, enhance where
practicable, or restore habitats of
unusually high value for fish and
wildlife.
With respect to water quality, 30 CFR
780.21(h) and 784.14(g) require that
each permit application include a
hydrologic reclamation plan indicating
how the relevant requirements of 30
CFR part 816 or 817, including sections
816.41 through 816.43 or 817.41
through 817.43, will be met. The plan
must be specific to local hydrologic
conditions and it must contain the steps
to be taken to minimize disturbances to
the hydrologic balance within the
permit and adjacent areas. Under 30
CFR 816.41(a) and 817.41(a), all surface
and underground mining and
reclamation activities must be
conducted to minimize disturbance of
the hydrologic balance within the
permit and adjacent areas.
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VIII. Section-by-section analysis: How
are we revising our rules?
A. Sections 780.14 and 784.23
Operation Plan: Maps and Plans
As proposed, we are revising 30 CFR
780.14(b)(11) and 784.23(b)(10) by
replacing the terms ‘‘coal processing
waste bank’’ and ‘‘coal processing waste
dam and embankment’’ with ‘‘refuse
pile’’ and ‘‘coal mine waste impounding
structure’’ to employ terminology
consistent with the definitions and
performance standards that we adopted
September 26, 1983. See the discussion
under the heading ‘‘Changes to conform
to 1983 rule revisions’’ in Part VIII.B. of
this preamble for a more detailed
explanation.
In addition, as proposed, we are
replacing the references to sections
780.35(c) and 816.71(b) in the former
version of section 780.14(c) with a
reference to section 780.35 to be
consistent with other changes that we
are making to those rules. Those
changes include moving the design
certification requirement formerly
located in section 816.71(b) to section
780.35(b) to consolidate permitting
requirements. In similar fashion, as
proposed, we are deleting the reference
to section 817.71(b) formerly located in
section 784.23(c) because we are moving
the design certification provisions
previously located in section 817.71(b)
to section 784.19(b) to consolidate
permitting requirements. There is no
need for a replacement cross-reference
because section 784.23(c) already crossreferences section 784.19 in its entirety.
We received no comments concerning
the proposed changes discussed above.
B. Sections 780.25 and 784.16
Reclamation Plan: Siltation Structures,
Impoundments, Refuse Piles, and Coal
Mine Waste Impounding Structures
1. Changes To Conform to 1983
Revisions to Definitions and
Performance Standards
On September 26, 1983 (48 FR 44006),
we revised the definitions and
performance standards in our
regulations relating to coal mine waste
to be more consistent with the
terminology used by the Mine Safety
and Health Administration (MSHA). As
we stated at 48 FR 44009, col. 1, ‘‘[i]t is
undesirable to have two regulatory
programs for the same subject that
contain conflicting standards or which
use fundamentally different
terminology.’’
Among other things, we adopted
definitions of three new terms in 30 CFR
701.5. ‘‘Coal mine waste’’ is defined as
‘‘coal processing waste and
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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 semiliquid material.’’ The latter two terms
are consistent with the terminology of
MSHA’s rules. ‘‘Refuse pile’’ replaces
the term ‘‘coal processing waste bank’’
previously used in our rules, while
‘‘impounding structure’’ incorporates
(but is not limited to) all structures that
our rules previously referred to as coal
processing waste dams or embankments.
In concert with the new definition of
coal mine waste, we revised our
performance standards at 30 CFR
817.71–817.74 to eliminate the language
that combined underground
development waste with excess spoil for
purposes of performances standards for
underground mines. Because the
definition of coal mine waste includes
underground development waste, we
revised our rules to specify that the
disposal of underground development
waste is subject to the performance
standards for refuse piles (30 CFR
817.83) rather than the performance
standards for the disposal of excess
spoil that applied under the old rules.
However, we did not revise our
permitting requirements in a similar
fashion at that time. Therefore, in our
August 24, 2007, proposed rule, we
proposed to modify our regulations in
30 CFR parts 780 and 784 to harmonize
those rules with our 1983 changes to the
definitions and performance standards
concerning coal mine waste. In essence,
in the proposed rule, we replaced the
term ‘‘coal processing waste banks’’
with ‘‘refuse piles’’ and the term ‘‘coal
processing waste dams and
embankments’’ with references to coal
mine waste impounding structures.
As proposed, this final rule revises
the heading and contents of sections
780.25 and 784.16 by replacing the
terms ‘‘coal processing waste bank’’ and
‘‘coal processing waste dam and
embankment’’ with ‘‘refuse pile’’ and
‘‘coal mine waste impounding
structure.’’ With these changes, our
permitting requirements concerning
coal mine waste employ terminology
consistent with the definitions and
performance standards for coal mine
waste that we adopted on September 26,
1983.
We received no comments on the
revisions discussed above. However,
some industry commenters opposed the
September 26, 1983, rule changes that
classified underground development
waste as coal mine waste and required
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that coal mine waste (including
underground development waste)
disposed of outside the mine workings
and excavations be placed in
accordance with 30 CFR 817.83, which
contains the performance standards for
refuse piles. The commenters argued
that underground development waste
should be treated as excess spoil, not
coal mine waste. The commenters’
objections are untimely. The definition
of coal mine waste in 30 CFR 701.5 is
now a matter of settled law, as is the
performance standard at 30 CFR
817.81(a), which requires that coal mine
waste disposed of outside the mine
workings and excavations be placed in
designated coal mine waste disposal
areas within the permit area. The
existing regulations at 30 CFR 817.71(i)
allow coal mine waste to be placed in
excess spoil fills with the approval of
the regulatory authority, but only if the
waste is nontoxic and non-acid-forming
and only if the waste is placed in
accordance with 30 CFR 817.83 (the
requirements for refuse piles).
Several commenters expressed
concern that the 1983 rule’s
classification of underground
development waste as coal mine waste
could prohibit the use of underground
development material for construction
of face-up areas, support facilities, and
other beneficial uses. We do not
understand how underground
development waste could be used for
the construction of face-up areas
because the face-up of the mine must be
completed and construction of mine
adits must begin before underground
development waste would be produced.
Perhaps the commenters are interpreting
the 1983 rules as classifying material
removed as part of the face-up of the
underground mine as underground
development waste. If so, the
commenters are misreading those rules.
Nothing in the definitions of coal mine
waste or underground development
waste classifies face-up materials as
either coal mine waste or underground
development waste. In addition, nothing
in our existing rules or the rules that we
are adopting today would prohibit the
use of underground development waste
for construction of support facilities or
other mining-related uses, provided the
use of the waste for those purposes
complies with all regulatory program
requirements applicable to those uses.
The final rules that we are adopting
today apply only to the permanent
disposal of coal mine waste (including
underground development waste), not
to the temporary use of those materials
for mining-related purposes.
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2. Paragraph (a)(2)
This paragraph sets forth design
requirements for all impoundments
other than low hazard impoundments.
As proposed, we are removing the last
sentence of former paragraph (a)(2) of
sections 780.25 and 784.16 and
redesignating the remainder of that
paragraph as paragraph (a)(2)(i) of those
sections. We are redesignating the last
sentence of former paragraph (a)(2) as
paragraph (a)(2)(ii). In addition, we are
redesignating former subparagraphs
(a)(2)(i) through (iv) of sections 780.25
and 784.16 as subparagraphs (a)(2)(ii)(A)
through (D) of those sections. We are
making these redesignations because
both the last sentence of former
paragraph (a)(2) and former
subparagraphs (i) through (iv) apply to
all structures meeting the criteria of 30
CFR 77.216(a), while the remainder of
former paragraph (a)(2) applies only to
those impoundments that meet the Class
B or C criteria (now the Significant
Hazard Class or High Hazard Class
criteria, respectively) for dams in the
U.S. Department of Agriculture, Natural
Resources Conservation Service (NRCS)
publication Technical Release No. 60,
‘‘Earth Dams and Reservoirs.’’
As proposed, we are revising
redesignated paragraph (a)(2)(i) of
sections 780.25 and 784.16 to update
the incorporation by reference of the
NRCS publication ‘‘Earth Dams and
Reservoirs,’’ Technical Release No. 60
(210–VI–TR60, October 1985), by
replacing the reference to the October
1985 edition with a reference to the
superseding July 2005 edition.
Consistent with the terminology in the
newer edition, we are replacing
references to Class B or C dam criteria
with references to Significant Hazard
Class or High Hazard Class dam criteria,
respectively. Only the terminology has
changed—the actual criteria remain the
same as before. The newer publication
is not available from the National
Technical Information Service, but is
available online from the Natural
Resources Conservation Service (the
successor to the Soil Conservation
Service). Consequently, we are deleting
the ordering information pertinent to
the National Technical Information
Service and replacing it with the URL
(Web address) at which the publication
may be reviewed and from which it may
be downloaded without charge. We are
also updating the address and location
of our administrative record room and
updating the URL information (Web
address) for the National Archives and
Records Administration.
We received no comments on the
changes discussed above.
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3. Paragraph (c)
Paragraph (c) contains design
requirements that apply to all
impoundments. To improve clarity and
consistency with other regulations, we
are revising paragraph (c)(2) of sections
780.25 and 784.16 as proposed by
replacing the term ‘‘Mine Safety and
Health Administration’’ with a citation
to 30 CFR 77.216(a), which contains the
MSHA impoundment criteria to which
paragraph (c)(2) refers. Revised
paragraph (c)(2) requires that plans for
impoundments meeting MSHA criteria
comply with MSHA’s impoundment
design requirements at 30 CFR 77.216–
2. We are deleting the requirement that
those plans also comply with 30 CFR
77.216–1. The deleted requirement is
not germane to permit applications and
plans because it contains signage
requirements that apply only to
impoundments that already exist or are
under construction. We are also making
two nonsubstantive changes: Replacing
‘‘shall’’ with ‘‘must’’ in keeping with
plain language principles and, in the
second sentence, deleting an obsolete
reference to paragraph (a).
The final rule also includes a new
paragraph (c)(4). We originally proposed
to redesignate paragraph (f) of sections
780.25 and 784.16 as paragraph (e) of
those sections. In a nonsubstantive
editorial revision, we are instead
redesignating paragraph (f) [paragraph
(e) in our 2007 proposed rule] as
paragraph (c)(4) of sections 780.25 and
784.16. The paragraph in question
applies only to impoundments that meet
certain criteria in NRCS Technical
Release No. 60 or the criteria of 30 CFR
77.216(a). It has no relevance to other
types of siltation structures or to refuse
piles. Therefore, it is more appropriate
as part of paragraph (c), which applies
to all types of impoundments, including
coal mine waste impoundments, rather
than as a separate paragraph (e).
Consistent with this redesignation, we
are also deleting the references to
paragraphs (b) [siltation structures] and
(d) [coal mine waste impoundments and
refuse piles] that appeared in proposed
paragraph (e). Final paragraph (c)(4) is
otherwise identical to proposed
paragraph (e). As proposed, we also are
revising this paragraph to be consistent
with the terminology in the July 2005
edition of NRCS Technical Release No.
60 by replacing references to Class B or
C dam criteria with references to
Significant Hazard Class or High Hazard
Class dam criteria, respectively. Only
the terminology has changed; the actual
criteria remain the same as before.
We received no comments on the
changes discussed above.
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4. Paragraph (d) Introductory Language
The final rule includes new
introductory language specifying that an
applicant for a permit must comply with
all applicable requirements in
paragraphs (d)(1) through (3) if the
applicant proposes to place coal mine
waste in a refuse pile or impoundment
or use coal mine waste to construct an
impounding structure. This
requirement, which is not new, is a
nonsubstantive editorial change that
reflects the structure of the final rule.
5. Paragraph (d)(1)
We have extensively revised
paragraph (d)(1) of sections 780.25 and
784.16 in response to comments. Final
sections 780.25(d)(1) and 784.16(d)(1)
are identical except that the reference to
section 816.59 in section 780.25(d)(1) is
replaced with a reference to 817.59 in
section 784.16(d)(1).
This new paragraph contains
requirements for minimizing adverse
environmental impacts on perennial
and intermittent streams and adjacent
areas when a permit application
proposes to construct a refuse pile or
slurry impoundment or to use coal mine
waste to construct an impounding
structure. We are adopting these
requirements under the authority of
sections 515(b)(24) and 516(b)(11) of
SMCRA. Those statutory provisions
require that, to the extent possible using
the best technology currently available,
surface coal mining and reclamation
operations be conducted to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values.
Discussion of General Comments
Received on Paragraph (d)(1)
Several commenters argued that we
have no authority to adopt these
regulations because section 515(f) of
SMCRA, which contains requirements
for refuse piles and slurry
impoundments, only mentions criteria
related to safety, not environmental
protection. We do not agree with the
commenters. SMCRA contains
numerous environmental protection
requirements, including those set forth
in sections 515(b)(24) and 516(b)(11),
that apply to all surface coal mining and
reclamation operations and all aspects
of those operations, including the
disposal of coal mine waste. The fact
that section 515(f) does not mention
environmental protection in no way
suggests that coal mine waste disposal
facilities need not comply with the
environmental protection provisions of
SMCRA or that we lack the authority to
adopt regulations establishing
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75831
environmental protection requirements
for those facilities.
Industry commenters strongly
opposed the requirement in proposed
paragraph (d)(1) for an analysis of
alternatives for placement of coal mine
waste. The commenters cited a variety
of reasons, including excessive costs,
delays in permitting, the probable lack
of environmental benefits, the potential
for conflict between the SMCRA
regulatory authority’s application of the
alternatives analysis requirement and
the approach adopted by the Clean
Water Act permitting authority,
duplication of effort with the Clean
Water Act, a lack of justification under
SMCRA, exceeding the intent of
SMCRA, and a fear that this requirement
could result in a never-ending cycle of
analysis and litigation concerning
whether the correct alternative was
selected by the permit applicant and
approved by the state regulatory
authority. Many commenters stated that
the requirement for an alternatives
analysis has no basis in SMCRA and
instead appears to be a mixture of
provisions borrowed from the National
Environmental Policy Act and the Clean
Water Act.
Nothing in the proposed alternatives
analysis requirement in paragraph (d)(1)
of sections 780.25 and 784.16 of the
final rule is based upon the National
Environmental Policy Act. We
respectfully disagree with those
commenters who argued that the
requirement for an alternatives analysis
is a Clean Water Act requirement that
has no basis or justification under
SMCRA and that exceeds the intent of
SMCRA. We acknowledge that we
derived this element of our proposed
rules from the alternatives analysis
requirements of the 404(b)(1) Guidelines
in 40 CFR part 230, which include the
substantive environmental criteria used
in evaluating activities regulated under
section 404 of the Clean Water Act.
However, we concluded that a modified
version of the alternatives analysis
requirements in the 404(b)(1) Guidelines
is an appropriate means of obtaining the
background data and analyses that both
the applicant and the regulatory
authority need to make informed
decisions concerning compliance with
the requirements of sections 515(b)(24)
and 516(b)(11) of SMCRA, which
provide that surface coal mining and
reclamation operations must be
conducted to minimize disturbances to
and adverse impacts on fish, wildlife,
and related environmental values to the
extent possible, using the best
technology currently available.
Therefore, paragraphs (d)(1)(ii) and
(d)(1)(iii) of sections 780.25 and 784.16
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of this final rule apply the alternatives
analysis requirement to all applications
that propose to place coal mine waste in
or within 100 feet of a perennial or
intermittent stream. In addition,
paragraph (d)(1)(iii)(A) of these sections
of the final rule applies more detailed
analytical requirements to applications
that propose to place coal mine waste in
perennial or intermittent streams as
opposed to applications that propose to
place coal mine waste only within 100
feet of those streams.
A few commenters criticized the
analysis of alternatives provisions of the
proposed rule because they did not
completely parallel the requirements of
the 404(b)(1) Guidelines in 40 CFR part
230. At least one commenter
recommended that we incorporate the
404(b)(1) Guidelines by reference. We
do not find this recommendation
appropriate because the 404(b)(1)
Guidelines are designed to implement
the Clean Water Act, while our
regulations implement SMCRA and
must be based upon SMCRA
requirements. Under section 702(a) of
SMCRA, nothing in SMCRA may be
construed as amending, modifying,
repealing, or superseding any Clean
Water Act requirement. However, there
is also nothing in SMCRA that would
compel or authorize us to adopt
regulations that parallel or incorporate
Clean Water Act requirements.
SMCRA and the Clean Water Act
provide for separate regulatory programs
with different purposes and very
different permitting requirements and
procedures. In addition, as other
commenters noted, SMCRA and the
Clean Water Act differ considerably
with respect to jurisdiction. The Clean
Water Act focuses on regulating
discharges of pollutants into waters of
the United States, whereas SMCRA
regulates a broad universe of
environmental and other impacts of
surface coal mining and reclamation
operations, including impacts on water
quantity, water quality, and terrestrial
and aquatic ecosystems. We encourage
coordination and cooperation between
SMCRA regulatory authorities and the
agencies administering the Clean Water
Act. See the memorandum of
understanding entitled ‘‘Memorandum
of Understanding among the U.S. Army
Corps of Engineers, the U.S. Office of
Surface Mining, the U.S. Environmental
Protection Agency, and the U.S. Fish
and Wildlife Service for the Purpose of
Providing Concurrent and Coordinated
Review and Processing of Surface Coal
Mining Applications Proposing
Placement of Dredged and/or Fill
Material in Waters of the United States,’’
which took effect February 8, 2005, and
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the provisions of this final rule that
authorize the SMCRA regulatory
authority to accept an analysis of
alternatives completed for Clean Water
Act purposes as meeting the
requirements for an analysis of
alternatives under this final rule, when
and to the extent appropriate. However,
we believe that maintaining the
distinction between those programs is
both administratively and legally
appropriate. That conclusion is
supported by the comments that we
received from both industry and state
regulatory authorities.
Many industry commenters,
supported by some, but not all, state
regulatory authority commenters, stated
that the proposed alternatives analysis
requirement would introduce a major
new element of uncertainty, and result
in costly and wasteful duplication of
effort on the part of permit applicants
and state regulatory authorities. The
commenters stated that this element of
our proposed rule was inconsistent with
our statement in the preamble to that
rule that a primary reason for the
rulemaking was to provide improved
clarity and reduction of uncertainty
regarding the meaning of the
regulations. One commenter stated that
at best the alternatives analysis
requirement ‘‘adds yet another layer of
redundant paperwork and analysis as it
duplicates the federally-administered
404 process. At worst, OSM has set the
stage for conflicts between the section
404 program and the largely stateimplemented SMCRA programs.’’ The
commenter further stated that by
imposing an alternatives analysis
requirement on state regulatory
authorities, we are ‘‘flirting
dangerously’’ with creating conflicting
alternatives analyses because ‘‘the goals
and objectives of SMCRA and
corresponding state statutes may be
different than those of the Corps and
EPA under section 404.’’
While we understand the
commenters’ apprehensions, these
comments are speculative in nature.
There may be some initial uncertainty
as regulatory authorities establish
procedures and criteria for
implementation of the alternative
analysis requirements and determining
least overall adverse impact on fish,
wildlife, and related environmental
values under this rule, but that
uncertainty should subside once those
procedures and criteria are in place.
The Interstate Mining Compact
Commission, writing on behalf of
member state regulatory authorities,
argued that the alternative analysis
requirement is duplicative of
requirements under the Clean Water Act
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that are already encompassed by the
SMCRA permitting scheme. As
discussed elsewhere in this preamble,
we believe that the alternatives analysis
requirement that we are adopting as part
of this final rule differs from and serves
a somewhat different purpose than the
alternatives analysis requirement under
the regulations and other documents
implementing section 404 of the Clean
Water Act. To the extent that
duplication may exist, we encourage
states to coordinate the processing of
coal mining permit applications with
the U.S. Army Corps of Engineers in
accordance with a memorandum of
understanding entitled ‘‘Memorandum
of Understanding among the U.S. Army
Corps of Engineers, the U.S. Office of
Surface Mining, the U.S. Environmental
Protection Agency, and the U.S. Fish
and Wildlife Service for the Purpose of
Providing Concurrent and Coordinated
Review and Processing of Surface Coal
Mining Applications Proposing
Placement of Dredged and/or Fill
Material in Waters of the United States,’’
which took effect February 8, 2005. This
final rule also authorizes the SMCRA
regulatory authority to accept an
analysis of alternatives completed for
Clean Water Act purposes as meeting
the requirements for an analysis of
alternatives under this final rule, when
and to the extent appropriate.
The Commission and some, but not
all, commenters representing individual
state regulatory authorities also opposed
the alternatives analysis requirement in
the proposed rule because of state fiscal
constraints and fear of the ‘‘potentially
overwhelming’’ time and effort that
would be required for state permitting
personnel to adequately review and
analyze alternatives.
We anticipate that few, if any, state
regulatory authorities will experience a
significant increase in demands on their
resources as a result of the alternatives
analysis requirement in the final rule.
West Virginia, one of the states most
impacted by the rule, supported the
proposed rule. Kentucky, another state
that would be significantly impacted,
estimated that, on average, the new
requirement would add ten hours to the
time required to process a permit
application. We believe that the
intangible environmental benefits of the
rule (increased scrutiny of efforts to
minimize adverse impacts on fish,
wildlife, and related environmental
values associated with perennial and
intermittent streams) will outweigh
what we anticipate will be a modest
increase in demand on state regulatory
authority resources.
The U.S. Fish and Wildlife Service
requested that we work with the Service
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to build a process into the alternative
analysis requirements in the final rule to
protect unique and high value fish and
wildlife resources. In response, we note
that our fish and wildlife protection
rules at 30 CFR 816.97(f) and 817.97(f)
already require that the operator ‘‘avoid
disturbances to, enhance where
practicable, or restore habitats of
unusually high value for fish and
wildlife.’’ In addition, our permitting
rules at 30 CFR 780.16 and 784.21
provide a role for the Service in
determining fish and wildlife data
collection requirements and reviewing
the fish and wildlife protection plan in
the permit application. Therefore,
addition of the provision requested by
the Service is not necessary.
Discussion of Specific Provisions of
Paragraph (d)(1)
In the final rule, the first sentence of
paragraph (d)(1) of sections 780.25 and
784.16 provides that the permit
applicant must design the operation to
avoid placement of coal mine waste in
or within 100 feet of perennial and
intermittent streams to the extent
possible. We added this provision in
response to EPA concerns and
numerous comments urging greater
protection for headwater streams
because of their ecological importance
and contribution to the function of the
stream as a whole. In effect, the new
sentence identifies avoiding placement
of coal mine waste in or within 100 feet
of perennial or intermittent streams as
the preferred method of complying with
the SMCRA requirement to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values with respect to those streams.
That is, whenever avoidance of
disturbance is reasonably possible, the
rule establishes avoidance as the best
technology currently available to meet
the requirements of sections 515(b)(24)
and 516(b)(11) of SMCRA, which
require minimization of disturbances
and adverse impacts to fish, wildlife,
and related environmental values to the
extent possible using the best
technology currently available. This
provision of the final rule is consistent
with our stream buffer zone rules at 30
CFR 816.57 and 817.57, which establish
maintenance of an undisturbed buffer
for perennial and intermittent streams
as the best technology currently
available to meet the requirements of
sections 515(b)(24) and 516(b)(11) of
SMCRA, provided maintenance of an
undisturbed buffer is reasonably
possible.
However, the final rule does not and
cannot mandate avoidance in all cases
for all stream segments. The provisions
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of SMCRA underlying this rule require
minimization of disturbances and
adverse impacts on fish, wildlife, and
related environmental values only ‘‘to
the extent possible.’’ Avoiding
disturbance of the stream and
maintenance of an undisturbed buffer
zone for that stream is the ultimate
means of minimizing adverse impacts
on fish, wildlife, and related
environmental values and hence is the
default best technology currently
available to comply with the statutory
minimization requirement. However,
there is sometimes no viable alternative
to the construction of coal mine waste
disposal facilities in perennial or
intermittent streams and their buffer
zones, in which case avoidance is not
reasonably possible. Under those
circumstances, SMCRA—and hence this
final rule—do not require avoidance.
Instead, the applicant must propose
other methods of complying with the
minimization requirement that are
consistent with the proposed surface
coal mining operations. We do not
interpret SMCRA as authorizing us to
prohibit surface coal mining operations
in situations other than those
specifically set forth in the Act.
However, SMCRA does not override
prohibitions that apply under other laws
and regulations. Any such requirements
and prohibitions will continue to apply
according to the terms of those laws and
regulations.
Paragraph (d)(1)(i) of the final rule
requires that the permit applicant
explain, to the satisfaction of the
regulatory authority, why an alternative
coal mine waste disposal method or an
alternative location or configuration that
does not involve placement of coal mine
waste in or within 100 feet of a
perennial or intermittent stream is not
reasonably possible. We added this
requirement to reinforce the provision
in paragraph (d)(1) of the final rule
establishing avoidance of placement of
coal mine waste in or within 100 feet of
a perennial or intermittent stream,
whenever avoidance is reasonably
possible, as the best technology
currently available to comply with the
statutory requirement for minimization
of disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible using the
best technology currently available.
Paragraph (d)(1)(ii) of the final rule
provides that, if the permit applicant is
unable to design the operation to avoid
placement of coal mine waste in or
within 100 feet of a perennial or
intermittent stream, the application
must identify a reasonable range of
alternative locations or configurations
for any proposed refuse piles or coal
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mine waste impoundments. A number
of commenters on a similar provision in
the proposed rule expressed concern
that this provision was too vague and
could be interpreted as requiring an
unlimited number of alternatives,
including those that have no possibility
of being implemented. In response to
this concern, we have added language
clarifying that this provision does not
require identification of all potential
alternatives and that only those
reasonably possible alternatives that are
likely to differ significantly in terms of
impacts on fish, wildlife, and related
environmental values need be identified
and considered. The latter provision is
consistent with the policies to which
EPA and the Corps adhere in
implementing section 404 of the Clean
Water Act. See the EPA/COE
memorandum entitled ‘‘Appropriate
Level of Analysis Required for
Evaluating Compliance with the Section
404(b)(1) Guidelines Alternatives
Requirements.’’
In response to the commenters’
concerns, we also added language to
paragraph (d)(1)(ii) of the final rule
specifying that an alternative is
reasonably possible if it conforms to the
safety, engineering, design, and
construction requirements of the
regulatory program; is capable of being
done after consideration of cost,
logistics, and available technology; and
is consistent with the coal recovery
provisions of sections 816.59 and
817.59. In other words, nothing in the
rule should be construed as elevating
environmental concerns over safety
considerations, as prohibiting the
conduct of surface coal mining
operations that are not otherwise
prohibited under SMCRA or other laws
or regulations, or as requiring
consideration of unreasonably
expensive or technologically infeasible
alternatives.
The portion of this rule that refers to
‘‘consideration of cost, logistics, and
available technology’’ is derived from
the EPA regulations at 40 CFR
230.10(a)(2), which define a practicable
alternative for purposes of section 404
of the Clean Water Act. In interpreting
this provision, the EPA/COE
memorandum entitled ‘‘Appropriate
Level of Analysis Required for
Evaluating Compliance with the Section
404(b)(1) Guidelines Alternatives
Requirements’’ states that ‘‘[t]he
determination of what constitutes an
unreasonable expense should generally
consider whether the projected cost is
substantially greater than the costs
normally associated with this particular
type of project.’’ We have included
similar language in paragraph
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(d)(1)(ii)(B) of the final rule because (1)
the concept of a practicable alternative
for purposes of section 404 of the Clean
Water Act is in some ways analogous to
the determination of reasonably possible
alternatives under this rule, and (2) the
principle is consistent with the phrase
‘‘to the extent possible’’ in sections
515(b)(24) and 516(b)(11) of SMCRA.
See Part VI.D. of this preamble for a
more extensive discussion of the
rationale for our use of the term
‘‘reasonably possible’’ and its
consistency with statutory provisions.
The final rule does not include the
provision in paragraph (d)(1)(i)(C) of the
proposed rule stating that the least
costly alternative may not be selected at
the expense of environmental protection
solely on the basis of cost. One
commenter objected to the proposed
provision as being too extreme and
subject to misinterpretation, noting that
there may be situations in which cost
could and should be the determining
factor. We agree. Nothing in SMCRA
compels adoption of this provision. In
lieu of this provision, we have added
language to paragraph (d)(1)(ii)(B) of the
final rule clarifying that the fact that one
alternative may cost somewhat more
than a different alternative does not
necessarily warrant exclusion of the
more costly alternative from
consideration. We believe that the
revised language is more consistent with
sections 515(b)(24) and 516(b)(11) of
SMCRA, which require use of the best
technology currently available, but only
to the extent possible.
Paragraph (d)(1)(iii) of the final rule
provides that any application proposing
to place coal mine waste in or within
100 feet of a perennial or intermittent
stream must include an analysis of the
impacts of the alternatives identified in
paragraph (d)(1)(ii) on fish, wildlife, and
related environmental values. The
analysis must consider impacts on both
terrestrial and aquatic ecosystems.
These provisions are substantively
identical to the corresponding
provisions in the proposed rule.
Paragraph (d)(1)(iii)(A) of the final
rule provides that, for every alternative
that proposes placement of coal mine
waste in a perennial or intermittent
stream, the analysis must include an
evaluation of impacts on the physical,
chemical, and biological characteristics
of the stream downstream of the
proposed refuse pile or coal mine waste
impoundment, including seasonal
variations in temperature and volume,
changes in stream turbidity or
sedimentation, the degree to which the
coal mine waste may introduce or
increase contaminants, and the effects
on aquatic organisms and the wildlife
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that is dependent upon the stream. As
discussed below, this paragraph of the
final rule includes a number of changes
from the proposed rule as a result of the
comments that we received on the
proposed rule.
One commenter stated that—
[T]he components of an alternatives
analysis for a coal mine disposal activity, as
set forth in proposed 30 CFR 784.16(d)(1)(ii),
should be subdivided for clarity and certain
of the components should be reconsidered in
terms of their purpose or value. As written,
30 CFR 784.16(d)(1)(ii) requires ‘‘* * * an
evaluation of short-term and long-term
impacts on the aquatic ecosystem, both
individually and on a cumulative basis’’ and
goes on to specify that the evaluation ‘‘must
consider impacts on the physical, chemical,
and biological characteristics of downstream
flow, including seasonal variations in
temperature and volume, changes in stream
turbidity or sedimentation, the degree to
which the coal mine waste may introduce or
increase contaminants, the effects on aquatic
organisms and the extent to which wildlife
is dependent upon those organisms.’’ As
strung together, these requirements create a
number of ambiguities, which will lead to
problems in interpretation. The list also
includes terms that have no recognized
meaning, such as ‘‘biological characteristics
of downstream flows.’’ In addition to these
ambiguities, this section also requires
assessments that are new to the regulation of
mining activities, including assessments of
the effects of turbidity and of secondary
impacts on wildlife that may be dependent
on aquatic organisms in a potentially affected
water body. In the absence of commonly
recognized guidelines, the results of these
assessments will be virtually impossible to
validate.
We have revised the rule to replace
the potentially confusing phrase
‘‘biological characteristics of
downstream flows’’ with clearer
language requiring information on the
biological characteristics of the stream
downstream of the proposed refuse pile
or coal mine waste impoundment. See
paragraph (d)(1)(iii)(A) of final sections
780.25 and 784.16. We also replaced the
requirement for an evaluation of the
extent to which wildlife is dependent
upon aquatic organisms with a
requirement for an evaluation of the
effects of the proposed operation on
wildlife that is dependent upon the
stream. In addition, we decided not to
adopt the portion of proposed paragraph
(d)(1)(ii) requiring that the analysis
include an evaluation of the short-term
and long-term impacts of each
alternative on the aquatic ecosystem,
both individually and on a cumulative
basis. This proposed requirement is
subsumed within the other analytical
requirements of the final rule and would
not likely result in the submission of
any meaningful additional information.
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However, we did not make further
changes in response to this comment
because the commenter did not explain
how the requirements should be
subdivided for clarity or why or how
they create ambiguity. With respect to
the commenter’s statement that the
assessments required by this rule will be
impossible to validate in the absence of
commonly recognized guidelines, we
believe that the commenter may have
misunderstood the purpose of the
evaluation required by this rule. The
data and analyses required by this rule
are intended only to facilitate
comparisons of the relative impacts of
various alternatives on fish, wildlife,
and related environmental values, not to
establish reclamation standards. To the
extent that the commenter may have
meant that there are no generally
accepted protocols for evaluating some
of the listed characteristics, we believe
that regulatory authorities have the
technical capability to develop any
needed protocols specific to conditions
within their states.
One state regulatory authority urged
us to revise the rule to include
consideration of impacts such as traffic,
dust and noise on local residents who
may be affected by a proposed
operation. While we encourage permit
applicants to consider these factors in
designing their operations, we do not
consider them to be disturbances or
adverse impacts on fish, wildlife, and
related environmental values within the
context of sections 515(b)(24) and
516(b)(11) of SMCRA. Therefore, we are
not including those factors as required
components of the alternatives analysis
under paragraph (d)(1)(iii) of the final
rule.
Paragraph (d)(1)(iii)(B) of the final
rule allows the applicant to submit an
analysis of alternatives prepared under
40 CFR 230.10 for Clean Water Act
purposes in lieu of the analysis of
impacts on fish, wildlife, and related
environmental values required under
paragraph (d)(1)(iii)(A) of the final rule.
The regulatory authority will determine
the extent to which that analysis
satisfies the requirements of paragraph
(d)(1)(iii)(A) of the final rule. These
provisions of the final rule are similar
to their counterparts in the proposed
rule.
One commenter expressed dismay
that the rule did not require that the
regulatory authority accept the Clean
Water Act analysis of alternatives as
fully meeting the requirements of this
rule. We do not believe that addition of
this requirement to our rules would be
appropriate because the alternatives
analysis required under the final rule
must address all environmental impacts
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(both aquatic and terrestrial) of surface
coal mining operations, whereas the
analysis of alternatives required under
Clean Water Act regulations focuses on
impacts to waters of the United States.
However, under the final rule, the
SMCRA regulatory authority has the
discretion to determine that an analysis
of alternatives conducted for Clean
Water Act purposes satisfies the
requirements for an analysis of
alternatives under this final rule, in
whole or in part, as appropriate.
Paragraph (d)(1)(iv) of the final rule
requires selection of the alternative with
the least overall adverse impact on fish,
wildlife, and related environmental
values, including adverse impacts on
water quality and aquatic and terrestrial
ecosystems, to the extent possible. The
proposed rule included an additional
sentence specifying that if the applicant
proposes to select a different alternative,
the applicant must demonstrate, to the
satisfaction of the regulatory authority,
why implementation of the more
environmentally protective alternative
is not possible. The final rule does not
include this sentence because we have
determined that it is neither needed nor
appropriate in view of the other changes
that we have made to the rule.
Specifically, we have added language to
paragraph (d)(1)(ii) of the final rule
limiting the alternatives that the
applicant must identify to only those
alternatives that are reasonably possible.
In addition, we have added paragraph
(d)(1)(i), which requires that the permit
applicant explain, to the satisfaction of
the regulatory authority, why an
alternative that does not involve
placement of coal mine waste in or
within 100 feet of a perennial or
intermittent stream is not reasonably
possible.
The combination of these two changes
means that the sentence in the proposed
rule is no longer logical or appropriate
because the only alternatives considered
under the final rule are those that are
reasonably possible, which means that,
within the universe of reasonably
possible alternatives identified, the
applicant must select the alternative
with the least overall adverse impact on
fish, wildlife, and related environmental
values. In other words, the sentence in
the proposed rule no longer has any
relevance or meaning because, under
the final rule, the applicant does not
have the option of proposing
alternatives that are not reasonably
possible. Given that change, the final
rule provides that the applicant must
select the alternative with the least
overall adverse impact on fish, wildlife,
and related environmental values.
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Some commenters requested that we
define or explain the term ‘‘least overall
adverse environmental impact.’’ We do
not believe that a meaningful definition
is possible, given the somewhat
subjective nature of the term and the
site-specific nature of determinations
under this rule. We expect that persons
preparing permit applications and
regulatory authority personnel
reviewing those applications will use
their best professional judgment in
applying this standard. Consistent with
the commonly accepted meaning of the
words ‘‘overall’’ and ‘‘environmental,’’
we have modified the rule to clarify that
the scope of the term includes impacts
to terrestrial ecosystems, not just
impacts to water quality and aquatic
ecosystems. The relative importance of
these three components, as well as the
constituents of each of those
components, will vary from site to site.
Therefore, they are not readily defined
in a national rule. However, we have
replaced the term ‘‘least overall adverse
environmental impact’’ with the term
‘‘least overall adverse impact on fish,
wildlife, and related environmental
values’’ to be consistent with the
terminology of sections 515(b)(24) and
516(b)(11) of SMCRA and to provide
greater clarity.
EPA encouraged both permit
applicants and SMCRA regulatory
authorities to use a watershed approach
in determining which alternative would
have the least overall adverse impact on
fish, wildlife, and related environmental
values:
A watershed approach expands the
informational and analytic basis of site
selection decisions to ensure impacts are
considered on a watershed scale rather than
only project by project. The idea being
locational factors (e.g., hydrology,
surrounding land use) are important to
evaluating the indirect and cumulative
impacts of the project. Watershed planning
efforts can identify and prioritize where
preservation of existing aquatic resources are
important for maintaining or improving the
quality (and functioning) of downstream
resources. The objective of this evaluation is
to maintain and improve the quantity and
quality of the watershed’s aquatic resources
and to ensure water quality standards
(numeric and narrative criteria, antidegradation, and designated uses) are met in
downstream waters.
Permit applicants should work with federal
and state regulatory authorities to identify
appropriate and available information, such
as existing watershed plans, or in the absence
of such plans, existing information on
current watershed conditions and needs, past
and current mining (and other development)
trends, cumulative impacts of past, present,
and reasonable foreseeable future mining
activities, and chronic environmental
problems (e.g., poor water quality, CWA
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75835
303(d)-listed streams, etc.) in the watershed.
The regulatory authorities can also provide
information on the appropriate watershed
scale to consider. The level of data and
analysis for implementing a watershed
approach should be commensurate with the
scale of the project, to the extent appropriate
and reasonable.
We agree that the analysis of potential
alternatives required under paragraph
(d)(1)(ii) should appropriately consider
the overall condition of the aquatic
resources in the watershed, including
any impacts from previous mining
activities.
6. Proposed Paragraph (d)(2)
In the proposed rule, paragraph (d)(2)
of sections 780.25 and 784.16 provided
that each application for an operation
that will generate or dispose of coal
mine waste must describe the steps to
be taken to avoid or, if avoidance is not
possible, to minimize the adverse
environmental impacts that may result
from the construction of refuse piles and
coal mine waste impoundments and
impounding structures. The preamble to
the proposed rule explained that this
requirement applied to construction,
maintenance, and reclamation of the
alternative selected under paragraph
(d)(1)(i)(C).
EPA recommended that we revise the
rule to incorporate the concepts of
avoidance and minimization of adverse
environmental impacts into the
alternatives analysis required by
paragraph (d)(1) of sections 780.25 and
784.16 rather than placing them in a
separate paragraph. EPA stated that the
intended purpose of the alternatives
analysis is to determine the means by
which coal mine waste could be
disposed of with the least adverse
environmental impact. EPA further
recommended removal of the preamble
language in the proposed rule that
specifies that the avoidance and
minimization requirements in proposed
paragraph (d)(2) only apply to the
alternatives selected under proposed
paragraph (d)(1)(i)(C). According to
EPA, these changes would reduce
potential uncertainty regarding the
appropriate factors to consider in the
alternatives analysis and would
reinforce the requirement to evaluate
different project locations and design
elements when assessing the viability
and environmental impacts of each
location.
After considering these comments and
the changes that we made to paragraph
(d)(1) in the final rule, we have decided
not to adopt proposed paragraph (d)(2)
because provisions of that paragraph are
now redundant and unnecessary. Under
30 CFR 816.97(a) and 817.97(a), the
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operator must, to the extent possible,
using the best technology currently
available, minimize disturbances and
adverse impacts on fish and wildlife
and related environmental values and
must achieve enhancement of those
resources where practicable. Paragraph
(f) of 30 CFR 816.97 and 817.97
provides that the operator must avoid
disturbances to, enhance where
practicable, restore, or replace wetlands
and riparian vegetation along rivers and
streams and bordering ponds and lakes.
That paragraph also requires that the
operator avoid disturbances to, enhance
where practicable, or restore habitats of
unusually high value for fish and
wildlife. Paragraph (b)(1) of 30 CFR
780.16 and 784.21 requires that the fish
and wildlife protection and
enhancement plan in the permit
application be consistent with the
requirements of 30 CFR 816.97 and
817.97, respectively. Therefore,
proposed paragraph (d)(2) would not
add any requirements that are not
already found in 30 CFR 816.97 and
817.97.
In addition, as revised in the final
rule, paragraph (d)(1) of sections 780.25
and 784.16 provides that permit
applicants must design their operations
to avoid placement of coal mine waste
in or within 100 feet of a perennial or
intermittent stream to the extent
possible. This new provision establishes
avoidance of disturbance of perennial
and intermittent streams and their
buffer zones as the best technology
currently available to comply with the
requirement under sections 515(b)(24)
and 516(b)(11) to minimize disturbances
and adverse impacts on fish, wildlife,
and related environmental values.
However, the statutory minimization
requirement applies only ‘‘to the extent
possible,’’ and, given the realities of
geology (which dictates where coal is
located), topography, and mining
mechanics and economics, it is not
always possible to implement the
ultimate form of minimization, which is
avoidance of disturbances, and still
conduct surface coal mining operations.
Consequently, paragraph (d)(1) of the
final rule requires that the applicant
avoid disturbance only to the extent
possible. Paragraph (d)(1)(i) of the
revised final rule provides that, when a
permit applicant proposes to construct a
refuse pile or coal mine waste
impounding structure in or within 100
feet of a perennial or intermittent
stream, the applicant must explain, to
the satisfaction of the regulatory
authority, why an alternative that does
not involve placement of coal mine
waste in or within 100 feet of a
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perennial or intermittent stream is not
reasonably possible. Therefore, adoption
of proposed paragraph (d)(2) is no
longer appropriate because, as revised,
paragraph (d)(1) of the final rule
requires consideration of avoidance as
part of the alternatives analysis and
selection process.
7. Paragraphs (d)(2) and (3)
As proposed, we are combining
former paragraphs (d) and (e) of sections
780.25 and 784.16, which contained
design requirements for coal processing
waste banks, and former paragraph (e),
which contained design requirements
for coal processing waste dams and
embankments, into a substantially
revised paragraph (d). Paragraph (d)(2),
which contains design requirements
specific to refuse piles, corresponds to
former paragraph (d). Paragraph (d)(3),
which contains design requirements
specific to impoundments and
impounding structures constructed of or
intended to impound coal mine waste,
corresponds to former paragraph (e).
Because of changes in other provisions
of paragraph (d), the nomenclature in
the final rule differs slightly from the
proposed rule in that proposed
paragraph (d)(3) is codified as paragraph
(d)(2) in the final rule and proposed
paragraph (d)(4) is codified as paragraph
(d)(3) in the final rule.
As proposed, final paragraph (d)(2) of
sections 780.25 and 784.16 does not
include the cross-reference to section
816.84 formerly found in section
780.25(d) and the cross-reference to
section 817.84 formerly found in section
784.16(d). We are deleting those crossreferences because final sections
780.25(d)(2) and 784.16(d)(2) pertain
only to refuse piles, not to the coal mine
waste impounding structures to which
sections 816.84 and 817.84 apply. The
deletion is not a substantive change
because the former version of the rules
did not pertain to coal mine waste
impounding structures either.
Similarly, as proposed, final
paragraph (d)(3) of sections 780.25 and
784.16 does not include the crossreference to section 816.83 formerly
found in section 780.25(e) and the crossreference to section 817.83 formerly
found in section 784.16(e). We are
deleting those cross-references because
final sections 780.25(d)(3) and
784.16(d)(3) pertain only to coal mine
waste impoundments and impounding
structures, not to the refuse piles to
which sections 816.83 and 817.83
apply. The deletion is not a substantive
change because the former version of
the rules did not pertain to refuse piles
either.
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In addition, revised paragraph (d)(3)
of sections 780.25 and 784.16 does not
contain the requirement formerly found
in sections 780.25(e) and 784.16(e) that
each plan for an impounding structure
comply with 30 CFR 77.216–1. As
proposed, we are deleting this crossreference because 30 CFR 77.216–1 does
not include any design requirements.
Instead, that rule consists solely of
MSHA requirements for signage for
existing impoundments and
impoundments under construction.
Consequently, there is no reason to
retain this cross-reference because the
referenced requirement is not relevant
to preparation of plans or permit
applications for proposed
impoundments. Final paragraph (d)(3)
retains the requirement that each plan
for an impounding structure comply
with 30 CFR 77.216–2, which contains
design requirements for impoundments
and impounding structures.
We received no comments on the
changes discussed above.
C. Sections 780.28 and 784.28 Activities
in or Adjacent to Perennial or
Intermittent Streams
As explained in the preamble to the
proposed rule, we are adding new
sections 780.28 and 784.28 because the
review and approval of proposals to
disturb the surface of lands within 100
feet of perennial and intermittent
streams is a permitting action, not a
performance standard. Consequently, as
proposed, we are moving the permitting
aspects of the stream buffer zone rules,
which were formerly codified at 30 CFR
816.57(a)(1) and 817.57(a)(1) as part of
the performance standards in
subchapter K, to new sections 780.28
and 784.28, which are part of the
permitting requirements of subchapter
G. We are also extensively revising the
proposed rules in response to
comments.
Sections 780.28 and 784.28 replace
the rules formerly located at 30 CFR
816.57(a)(1) and 817.57(a)(1), which
provided that the regulatory authority
may authorize activities on the surface
of lands within 100 feet of a perennial
or intermittent stream only upon finding
that the activities will not cause or
contribute to the violation of applicable
State or Federal water quality standards
and will not adversely affect the water
quantity and quality or other
environmental resources of the stream.
As discussed in Part VII of this
preamble, we have decided to retain the
scope of the original rules, which
applied to perennial and intermittent
streams, rather than change the scope to
waters of the United States, as we
proposed on August 24, 2007.
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In the proposed rule, paragraph (a) of
sections 780.28 and 784.28 defined their
applicability, paragraph (b) established
mapping requirements, paragraph (c)
contained permit application
requirements for obtaining a variance
from the prohibition on disturbance of
the buffer zone established under
section 816.57 or section 817.57,
paragraph (d) contained standards for
regulatory authority approval of a
requested variance, paragraph (e)
established permit application and
regulatory authority approval
requirements for activities that are not
subject to the prohibition on
disturbance of the buffer zone, and
paragraph (f) explained the relationship
between our rules and Clean Water Act
requirements.
One commenter suggested that we
streamline and simplify both the
structure of these sections and their
contents. The commenter requested that
we modify the rule to more clearly
distinguish between activities that will
be conducted in the buffer zone for a
perennial or intermittent stream and
those that are planned to be conducted
in the stream itself. The commenter also
requested that we avoid describing the
stream buffer zone requirement as a
‘‘prohibition’’ and argued that the new
mapping requirements in proposed
paragraph (b) were unnecessary. We
have accepted these comments and
revised the rules accordingly. However,
we did not adopt the actual rewrite of
the rules that the commenter provided.
In addition, while sections 780.28 and
784.28 of the final rule do not refer to
the stream buffer zone requirements of
sections 816.57 and 817.57 as a
prohibition, we do not agree with the
commenter that use of that term would
be an incorrect characterization. We
continue to use that term in the
preamble when appropriate.
We also extensively restructured and
revised these sections of the proposed
rule in response to numerous comments
(1) urging greater protection for
headwater streams in view of their
importance to the function and
productivity of the stream as a whole,
and (2) emphasizing that maintenance
of undisturbed buffer zones of mature
native vegetation is the best technology
currently available to achieve the
requirements of sections 515(b)(24) and
516(b)(11) of the Act concerning
minimization of disturbances and
adverse impacts on fish, wildlife, and
related environmental values.
Commenters objected to our preamble
discussion of these sections in the
proposed rule in which we stated that
a rule establishing a buffer zone as the
best technology currently available
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would be inconsistent with the
definition of ‘‘best technology currently
available’’ in 30 CFR 701.5 because it
would not provide sufficient flexibility
to accommodate advances in science
and technology. In particular,
commenters noted that we cited no
technical or other support for the
proposition that there are equally
effective alternatives to buffer zones for
purposes of meeting the requirements of
sections 515(b)(24) and 516(b)(11) of
SMCRA, which require that surface coal
mining and reclamation operations be
conducted so as to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible using the
best technology currently available.
Our discussion of the meaning of best
technology currently available in the
preamble to the proposed rule focused
on sediment control and meeting the
requirements of sections 515(b)(10)(B)(i)
and 516(b)(9)(B) of SMCRA, which
provide that surface coal mining
operations must be conducted in a
manner that prevents, to the extent
possible using the best technology
currently available, additional
contributions of suspended solids to
streamflow or to runoff outside the
permit area. We are not repeating that
discussion in this preamble, although it
remains valid with respect to sediment
control. However, sediment control is
the focus of only two of the four
statutory provisions underlying the
stream buffer zone rule and is the
subject of only half of the definition of
‘‘best technology currently available’’ in
30 CFR 701.5.
We are revising sections 780.28 and
784.28 to clarify that maintenance of an
undisturbed 100-foot buffer between the
stream and mining and reclamation
activities conducted on the surface of
lands is the default best technology
currently available to meet the
underlying statutory requirements
whenever the stream segment in
question need not be disturbed and it is
possible to leave an undisturbed 100foot buffer. In other words, the final rule
requires maintenance of an undisturbed
l00-foot buffer unless the permit
applicant can demonstrate to the
satisfaction of the regulatory authority
that maintaining a 100-foot buffer is
either not reasonably possible or not
necessary to meet the fish and wildlife
and hydrologic balance protection
provisions of the regulatory program.
We anticipate that the latter
demonstration will be difficult to make
with respect to fish and wildlife
protection requirements unless the
stream is highly polluted or the land
within the buffer has been and
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75837
continues to be significantly disturbed
or degraded by activities such as
intensive agriculture.
In summary, we have added the
following requirements in response to
comments:
• The regulatory authority’s decision
must be made in the form of written
findings.
• For activities to be conducted in a
perennial or intermittent stream
(including the activities listed in
paragraphs (b)(2) through (b)(4) of
sections 816.57 and 817.57), the permit
application must demonstrate, and the
regulatory authority must find, that
avoiding disturbance of the stream is
not reasonably possible. See Part VI.D.
of this preamble for a more extensive
discussion of our rationale for adopting
the term ‘‘reasonably possible’’ and its
consistency with statutory provisions.
We also added a requirement that the
permit include a condition requiring a
demonstration of compliance with the
Clean Water Act in the manner specified
in paragraph (a)(2) of section 816.57 or
section 817.57 before the permittee may
conduct any activities in a perennial or
intermittent stream that require
authorization or certification under the
Clean Water Act.
• For activities to be conducted
within 100 feet of a perennial or
intermittent stream, but not in the
stream itself, the permit application
must demonstrate, and the regulatory
authority must find, that avoiding
disturbance of the stream is either not
reasonably possible or not necessary to
meet the fish and wildlife and
hydrologic balance protection
provisions of the regulatory program.
This requirement applies only to
activities that will occur on land subject
to the buffer requirement of paragraph
(a)(1) of sections 816.57 and 817.57. It
does not apply to activities conducted
on lands included within the scope of
paragraph (b) of sections 816.57 and
817.57; i.e., to what would have been
the buffer zone for those segments of a
perennial or intermittent stream for
which the regulatory authority approves
one or more of the activities listed in
paragraphs (b)(1) through (b)(4) of
section 816.57 or 817.57. See Part VIII.I.
of this preamble.
For purposes of these sections, the
requirement to demonstrate that
avoidance of disturbance of the stream
or buffer zone is not reasonably possible
should not be construed as elevating
environmental concerns over safety
considerations, as prohibiting the
conduct of surface coal mining
operations that are not otherwise
prohibited under SMCRA or other laws,
as prohibiting maximization of coal
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recovery to the extent provided in
sections 816.59 and 817.59, or as
requiring unreasonably excessive
expenditures to avoid disturbance.
However, by itself, the fact that
designing and conducting the operation
to avoid disturbance of the stream or
buffer zone may be more expensive than
designing and conducting it to include
disturbance of the stream or buffer zone
does not necessarily mean that
avoidance of disturbance is not
reasonably possible. Consistent with the
statutory directive to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible, using the
best technology currently available, the
permit applicant and the regulatory
authority must weigh the environmental
benefits of avoiding disturbance against
the cost of doing so and determine the
appropriate balance based on sitespecific environmental, economic,
operational, and engineering
considerations, not the financial status
of the permit applicant.
The U.S. Fish and Wildlife Service
recommended that we revise these rules
to include language similar to that used
in our rules governing selection of
alternatives under the alternatives
analysis requirements for coal mine
waste and excess spoil in sections
780.25 and 780.35. We are not adopting
this recommendation because an
alternatives analysis is not a part of our
stream buffer zone rules. For those
situations in which an alternatives
analysis is required under section
780.25(d)(1) or 780.35(a)(3), there is no
need to replicate that requirement here.
Those rules and their preamble already
provide guidance for the identification
of reasonably possible alternatives and
require selection of the alternative with
the least overall adverse impact on fish,
wildlife, and related environmental
values.
The U.S. Fish and Wildlife Service
also requested that we work with the
Service to build a process into these
sections of the final rule to protect
unique and high value fish and wildlife
resources and to develop design
standards that would provide greater
specificity as to how the decision
criteria for granting variances from the
stream buffer zone requirements will be
applied. In response, we note that our
fish and wildlife protection rules at 30
CFR 816.97(f) and 817.97(f) already
require that the operator ‘‘avoid
disturbances to, enhance where
practicable, or restore habitats of
unusually high value for fish and
wildlife.’’ In addition, our permitting
rules at 30 CFR 780.16 and 784.21
provide a role for the Service in
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determining fish and wildlife data
collection requirements and reviewing
the fish and wildlife protection and
enhancement plan in the permit
application. Therefore, we believe that
our existing rules provide adequate
opportunity for involvement by the
Service and that addition of the
provisions requested by the Service
would be redundant. However, we are
willing to work with the Service in
developing suggested guidelines for
application of paragraphs (c)(3)(ii) and
(e)(2)(ii) of sections 780.28 and 784.28;
i.e., identifying measures and
techniques that may constitute the best
technology currently available under
various situations to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible, as required
by sections 780.16(b), 784.21(b),
816.97(a), and 817.97(a).
Several commenters requested that we
clarify in the preamble that section
784.28 applies only to lands upon
which surface activities will exist and
lands immediately adjacent to those
lands, not to areas that merely overlie
underground operations associated with
an underground mine. We agree with
the position stated by the commenters
and have inserted the word ‘‘surface’’ in
the heading and other provisions of
section 784.28 to provide added clarity.
One commenter expressed concern that
use of the terms ‘‘adjacent’’ or ‘‘adjacent
area’’ could result in the requirements of
this rule being applied to lands
overlying the underground mine
workings because the definition of
‘‘adjacent area’’ in 30 CFR 701.5
includes areas with ‘‘probable impacts
from underground workings.’’ We find
the commenter’s concern to be
unfounded. The definition of adjacent
area clearly states that the term’s
meaning must be determined in the
context in which the term is used.
Nothing in the context of the final rule
that we are adopting today suggests that
section 784.28 should or could be
applied to the area overlying
underground workings, except in the
narrow situation in which that area
happens to be coincident with or within
100 feet of an area upon which there
will be surface activities associated with
the underground mine.
Final sections 780.28 and 784.28 are
identical with the exception of
appropriate modifications to reflect the
differences between surface mining and
underground mining. Most significantly,
in section 784.28, the term ‘‘surface
mining activities’’ is replaced by
language that clarifies that the
requirements of that section apply only
to surface activities conducted on the
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surface of lands in connection with an
underground coal mining operation.
The following paragraphs discuss each
element of final sections 780.28 and
784.28.
1. Final Paragraph (a)
Paragraph (a)(1) of final sections
780.28 and 784.28 provides that, except
as otherwise specified in paragraph
(a)(2), those sections apply to
applications to conduct activities in
perennial or intermittent streams or on
the surface of lands within 100 feet,
measured horizontally, of perennial or
intermittent streams. This paragraph
reflects the fact that, under sections
816.57(a) and 817.57(a), we prohibit
surface activities that would disturb the
surface of lands within 100 feet of
perennial and intermittent streams
unless the regulatory authority approves
a variance from that prohibition or
unless the exception in paragraph (b) of
sections 816.57 and 817.57 applies. We
have added a clause clarifying that the
l00-foot buffer zone must be measured
horizontally, consistent with generally
accepted practice and convention with
respect to distance requirements. We
originally proposed to include this
clause in the mapping requirements of
paragraph (b), but we moved it to
paragraph (a) as a result of our decision
not to adopt proposed paragraph (b). As
we stated in the preamble to proposed
paragraph (b), the 100 feet must be
measured from the ordinary high water
mark of the stream, consistent with the
Corps of Engineers’ practices for
establishing jurisdictional limits for
waters of the United States.
We are adding paragraph (a)(2)(i) to
specify that sections 780.28 and 784.28
do not apply to applications under
section 785.21 for permits for coal
preparation plants not located within
the permit area of a mine. This
provision reflects the fact that we did
not propose any changes to the rules
concerning those preparation plants in
sections 785.21 and 827.12 of our
regulations and the fact that we do not
intend for this final rule to alter those
rules with respect to the applicability of
the stream buffer zone rules to coal
preparation plants not located in the
permit area of a mine. Section 827.12 of
our rules does not apply the stream
buffer zone rule in sections 816.57 and
817.57 to coal preparation plants not
located within the permit area of a
mine. See 48 FR 20399, May 5, 1983.
We are adding paragraph (a)(2)(i)
because, as part of this final rule, we are
moving the permitting aspects of the
previous version of the stream buffer
zone rule in sections 816.57 and 817.57
to new sections 780.28 and 784.28.
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Existing section 785.21(c) provides that
coal preparation plants not located
within the permit area of a mine are
subject not only to the special
permitting requirements of section
785.21, but also to ‘‘all other applicable
requirements of this subchapter.’’ ‘‘This
subchapter’’ refers to subchapter G of
chapter VII, which contains the
permitting requirements for all surface
coal mining and reclamation operations.
Thus, to ensure that section 785.21(c) is
not now interpreted as including the
newly added permitting requirements
related to the stream buffer zone rule,
we are adding the exception in
paragraph (a)(2)(i) of sections 780.28
and 784.28.
We are also adding paragraph (a)(2)(ii)
to clarify that paragraphs (b) through (e)
of sections 780.28 and 784.28 do not
apply to diversions of perennial or
intermittent streams, which are
governed by sections 780.29, 784.29,
816.43, and 817.43. This change reflects
the 1983 rules, in which the findings
and substantive requirements applicable
to the approval of stream-channel
diversions were specified primarily in
the stream-channel diversion rules
rather than the stream buffer zone rules.
Paragraph (b)(1) of sections 816.43 and
817.43 contains the finding that the
regulatory authority must make before
approving a proposed stream-channel
diversion. See Part VIII.G. of this
preamble for a discussion of the changes
that we are making to the streamchannel diversion rules.
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2. Proposed Paragraph (b)
Proposed paragraph (b) would have
required that maps submitted as part of
the permit application show all waters
of the United States that are located
either within the proposed permit area
or within the adjacent area, as that term
is defined at 30 CFR 701.5. However,
with our decision not to change the
scope of the stream buffer zone rule
from perennial and intermittent streams
to waters of the United States, there is
no longer any need for the proposed
mapping requirement. The existing
requirements in sections 779.25(a)(7)
and 783.25(a)(7), which require that
permit application maps show streams,
lakes, ponds, and springs located within
the proposed permit and adjacent areas,
are adequate in that they require
mapping of all perennial and
intermittent streams located in or within
100 feet of the permit area. Therefore,
comments opposing the adoption of
proposed paragraph (b) are now moot
and will not be discussed further.
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3. Final Paragraph (b)
Paragraph (b) of sections 780.28 and
784.28 establishes application
requirements for persons seeking to
conduct activities in a perennial or
intermittent stream as part of one of the
activities listed in paragraphs (b)(2)
through (b)(4) of section 816.57 or
817.57. Those activities include
construction of bridge abutments and
other stream-crossing structures in
streams, construction of sedimentation
pond embankments in streams, and
construction of excess spoil fills and
coal mine waste disposal facilities in
streams. The application must
demonstrate that avoiding disturbance
of the stream is not reasonably possible
and that the proposed activities will
comply with all applicable requirements
in paragraphs (b) and (c) of section
816.57 or 817.57. These requirements,
which we have adopted in response to
comments urging greater protection for
headwater streams, as discussed in Part
VI.D. of this preamble, are more specific
than paragraph (e) of the proposed rule,
which would have required only a
demonstration that to the extent
possible, the applicant would use the
best technology currently available as
required by the hydrologic balance
protection requirements of 30 CFR
816.41(d) or 817.41(d) and the fish and
wildlife protection requirements of 30
CFR 816.97(a) or 817.97(a).
4. Final Paragraph (c)
Paragraph (c) of sections 780.28 and
784.28 contains application
requirements for persons seeking to
conduct surface activities that would
disturb the surface of land within 100
feet of a perennial or intermittent
stream, but that would not take place in
the stream itself. This paragraph applies
only to activities that will occur on
lands subject to the buffer requirement
of paragraph (a) of sections 816.57 and
817.57. It does not apply to activities
conducted on lands included within the
scope of paragraph (b) of sections 816.57
and 817.57; i.e., to what would have
been the buffer zone for stream
segments for which the regulatory
authority approves one or more of the
activities listed in paragraphs (b)(1)
through (b)(4) of section 816.57 or
817.57.
Under paragraph (c), the application
must demonstrate that avoiding
disturbance of land within 100 feet of
the stream either is not reasonably
possible or is not necessary to meet the
fish and wildlife and hydrologic balance
protection provisions of the regulatory
program. In addition, the application
must identify any lesser buffer that is
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75839
proposed instead of maintaining a 100foot buffer between surface activities
and the perennial or intermittent
stream. Finally; the application must
explain how the lesser buffer, together
with any other proposed protective
measures, constitute the best technology
currently available to (1) prevent the
contribution of additional suspended
solids to streamflow or runoff outside
the permit area to the extent possible, as
required by section 780.21(h) or
784.14(g) and section 816.41(d)(1) or
817.41(d)(1), and (2) minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible, as required
by section 780.16(b) or 784.21(b) and
section 816.97(a) or 817.97(a). Final
paragraph (c) is similar to paragraph (c)
of the proposed rule except for the first
of these requirements [the one codified
in paragraph (c)(1)], which we added in
response to comments urging greater
protection for headwater streams, as
discussed in Part VI.D. of this preamble.
Paragraph (c)(3) of sections 780.28
and 784.28 refers to certain other OSM
rules. Among those rules, sections
816.41(d) and 817.41(d) require, in
relevant part, that mining operations
prevent, to the extent possible using the
best technology currently available,
additional contribution of suspended
solids to streamflow outside the permit
area. They implement, in part, the
sedimentation prevention requirements
of sections 515(b)(10)(B)(i) and
516(b)(9)(B) of SMCRA, respectively.
Sections 816.97(a) and 817.97(a)
require, in relevant part, that, to the
extent possible using the best
technology currently available, the
operator minimize disturbances and
adverse impacts on fish, wildlife, and
related environmental values. They
implement, in part, the fish and wildlife
protection requirements of sections
515(b)(24) and 516(b)(11) of SMCRA,
respectively. Sections 780.21(h) and
784.14(g) require that each permit
application include a hydrologic
reclamation plan designed to
implement, among other things, the
requirements of sections 816.41(d) and
817.41(d), respectively. Sections
780.16(b) and 784.21(b) require that
each permit application include a fish
and wildlife protection and
enhancement plan designed to
implement the requirements of sections
816.97(a) and 817.97(a), respectively.
5. Final Paragraph (d)
Paragraph (d)(1) of sections 780.28
and 784.28 provides that before
approving any surface activities in a
perennial or intermittent stream, the
regulatory authority must find in
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writing that avoiding disturbance of the
stream is not reasonably possible and
the plans submitted with the
application meet all applicable
requirements in paragraphs (b) and (c)
of section 816.57 or 817.57. The
findings are the same as the
demonstration that the applicant must
make in the application under
paragraph (b) of these sections. These
findings, which we have adopted in
response to comments urging greater
protection for headwater streams, as
discussed in Part VI.D. of this preamble,
are more specific than the
corresponding provisions of paragraph
(e) of the proposed rule, which would
have required only that the regulatory
authority find that, to the extent
possible, the applicant will use the best
technology currently available as
required by the hydrologic balance
protection requirements of 30 CFR
816.41(d) or 817.41(d) and the fish and
wildlife protection requirements of 30
CFR 816.97(a) or 817.97(a).
We are also adopting a new paragraph
(d)(2) of sections 780.28 and 784.28 in
response to comments that we received
on proposed paragraph (f) of those
sections. Paragraph (d)(2) provides that
before approving a permit application in
which the applicant proposes to
conduct surface activities in a perennial
or intermittent stream, the regulatory
authority must include a permit
condition requiring a demonstration of
compliance with the Clean Water Act in
the manner specified in paragraph (a)(2)
of sections 816.57 and 817.57 before the
permittee may conduct those activities.
This requirement applies to the extent
that the activities require authorization
or certification under the Clean Water
Act. Please refer to the preamble
discussion of paragraph (f) for an
explanation of the rationale for this
provision.
6. Final Paragraph (e)
Paragraph (e) of sections 780.28 and
784.28 specifies that before approving
any surface activities that would disturb
the surface of land subject to the buffer
requirement of section 816.57(a)(1) or
817.57(a)(1), the regulatory authority
must find in writing that the applicant
has made the demonstrations required
under paragraph (c) of sections 780.28
and 784.28. The final rule is similar to
paragraph (d) of the proposed rule
except that we decided not to adopt the
provision in paragraph (d)(1) of the
proposed rule that would have
established a determination by the
regulatory authority that the measures
proposed by the applicant would be no
less effective in meeting the
requirements of the regulatory program
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than maintenance of an undisturbed
buffer under paragraph (a) of section
816.57 or 817.57 as a prerequisite for
approval.
Some commenters objected to this
proposed requirement, noting that the
proposed rule did not include a
corresponding requirement for a similar
demonstration in the permit
application. They also stated that the
focus of any finding should be on
whether the buffer and related measures
were effective in meeting other
regulatory program requirements, and
that it would be very difficult to
quantify the theoretical effectiveness of
a 100-foot buffer compared to a lesser
buffer on a site-specific basis, as the
proposed rule would have required. We
agree. Therefore, we are not including a
requirement for the proposed finding in
the final rule. The replacement finding
in paragraph (e)(1) of sections 780.28
and 784.28 in the final rule has a
counterpart in the permit application
requirements of paragraph (c) and
focuses on whether and how the
statutory and regulatory requirements to
use the best technology currently
available to prevent additional
contributions of suspended solids to
streamflow or runoff outside the permit
area to the extent possible and to
minimize disturbances and adverse
impacts on fish, wildlife, and related
environmental values to the extent
possible will be met.
The findings required by paragraph
(e) of sections 780.28 and 784.28 replace
the finding that the regulatory authority
had to make under paragraph (a)(1) of
the 1983 version of sections 816.57 and
817.57 before authorizing activities that
would disturb the surface of lands
within 100 feet of a perennial or
intermittent stream. The provision that
we are deleting from sections 816.57
and 817.57 stated that, before
authorizing an activity closer than 100
feet to a perennial or intermittent
stream, the regulatory authority must
find that the activity will not cause or
contribute to the violation of applicable
State or Federal water quality standards
and will not adversely affect the water
quantity and quality or other
environmental resources of the stream.
That requirement has no direct
counterpart in sections 515(b)(10)(B)(i),
515(b)(24), 516(b)(9)(B), or 516(b)(11) of
SMCRA, which, as previously
discussed, are the provisions of SMCRA
that form the basis for the stream buffer
zone rule.
The introductory language of sections
515(b)(10) and 516(b)(9) of SMCRA does
provide that performance standards for
surface coal mining operations must
include a requirement for the
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minimization of disturbances to the
quality and quantity (or, in the case of
section 516(b)(9), just the quantity) of
water in surface and ground water
systems. However, that language does
not stand alone as an independent
requirement. Instead, when read in its
entirety, section 515(b)(10) provides that
the requirement for minimization of
disturbances to water quality and
quantity must be achieved by
implementation of the measures and
techniques described in subparagraphs
(A) through (F) of section 515(b)(10).
Similarly, section 516(b)(9) provides
that the requirement for minimization of
disturbances to water quantity must be
achieved by implementation of
subparagraphs (A) and (B) of section
516(b)(9).
In addition, sections 515(b)(10)(B)(i)
and 516(b)(9)(B) refer only to the
prevention of additional contributions
of suspended solids. Those paragraphs
provide that contributions of suspended
solids to streamflow must not be in
excess of requirements set by applicable
State or Federal law, but they do not
mention any other water quality
parameter. Therefore, that provision by
itself does not authorize the required
finding previously found in paragraph
(a)(1) of sections 816.57 and 817.57.
Furthermore, the SMCRA regulatory
authority is not necessarily in the best
position to determine whether a
proposed activity will cause or
contribute to a violation of applicable
State or Federal water quality standards
for any parameter. Those standards and
parameters are established and
implemented under the authority of the
Clean Water Act (33 U.S.C. 1251 et seq.),
not SMCRA, and are sometimes
administered by an agency other than
the SMCRA regulatory authority. Under
30 CFR 780.18(b)(9) and 784.13(b)(9),
the SMCRA permit application must
include a description of the steps to be
taken to comply with the requirements
of the Clean Air Act (42 U.S.C. 7401 et
seq.), the Clean Water Act (33 U.S.C.
1251 et seq.), and other applicable air
and water quality laws and regulations,
but there is no requirement that the
SMCRA regulatory authority pass
judgment on the adequacy of that
description or on the adequacy of the
steps that the applicant proposes to
take.
As discussed above, sections
515(b)(10)(B)(i) and 516(b)(9)(B) of
SMCRA provide that ‘‘in no event shall
such contributions [of suspended solids]
be in excess of requirements set by
applicable State or Federal law.’’ This
language originated in H.R. 2, the House
of Representatives’ version of the
legislation that became SMCRA. In
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describing the intent of these
provisions, the House Committee on
Interior and Insular Affairs stated:
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In cases where there will be water
discharge from the mine sites, the number of
such discharges should be minimized by
collectively controlling and channeling the
watercourse into an acceptable receiving
stream or area location. It also should be
understood that prior to any discharge off the
permit area, the discharge should be treated
to remove pollutants that may be present.
Such treatment must, at a minimum, meet
the requirements of this Act and insure
compliance with applicable local, State, or
Federal water quality requirements.
H. Rep. No. 95–218 at 116 (1977).
Nothing in the language of the Act or
the legislative history quoted above
mandates retention of the provision that
we are removing from paragraph (a)(1)
of sections 816.57 and 817.57. The
statutory provisions are clearly intended
to ensure treatment of discharges from
the minesite that leave the permit area.
Those requirements are already
addressed by the performance standards
at 30 CFR 816.42 and 817.42, which
require that discharges of water from
areas disturbed by surface or
underground mining activities ‘‘be made
in compliance with all applicable State
and Federal water quality laws and
regulations and with the effluent
limitations for coal mining promulgated
by the U.S. Environmental Protection
Agency set forth in 40 CFR Part 434.’’
Similarly, other existing rules already
cover the permit application phase in
that the determination of probable
hydrologic consequences of the
proposed operation must include
findings on what impact the proposed
operation will have on sediment yields
from the disturbed area and certain
water quality parameters, including
suspended solids. See 30 CFR
780.21(f)(3)(iv) and 784.14(e)(3)(iii).
Under 30 CFR 780.21(h) and 784.14(g),
the hydrologic reclamation plan
submitted with the permit application
must include a description of how the
relevant requirements of 30 CFR part
816 or 817, including the water quality
requirements of section 816.42 or
817.42, will be met and the measures to
be taken to ‘‘prevent, to the extent
possible using the best technology
currently available, additional
contributions of suspended solids to
streamflow.’’
In addition, the absolute nature of the
‘‘will not adversely affect’’ language
formerly found in paragraph (a)(1) of
sections 816.57 and 817.57 is
inconsistent with paragraphs
(b)(10)(B)(i) and (b)(24) of section 515
and paragraphs (b)(9)(B) and (b)(11) of
section 516 of the Act, all of which
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provide that surface coal mining
operations must be conducted to meet
the requirements of those paragraphs
‘‘to the extent possible’’ using the ‘‘best
technology currently available.’’ The
appropriate standard under sections
515(b)(24) and 516(b)(11) is
minimization of disturbances and
adverse impacts on fish, wildlife, and
related environmental values. While
avoidance is the ultimate form of
minimization, there is no statutory basis
for a rule that requires absolute
avoidance of all adverse effects. Such a
rule would run afoul of the plain
language of sections 515(b)(24) and
516(b)(11) the Act, which requires only
minimization of disturbances and
adverse impacts and then only to the
extent possible using the best
technology currently available.
As discussed more fully in Part III.D.
of this preamble, the preamble to the
1983 version of the stream buffer zone
rules (‘‘the 1983 preamble’’) recognizes
that the protection afforded by those
rules need not be absolute. It
acknowledges that some adverse
impacts on hydrology and fish, wildlife,
and related environmental values are
unavoidable because of the nature of
surface coal mining operations.
Furthermore, the 1983 preamble states
that ‘‘OSM recognizes that some surface
mining activities can be conducted
within 100 feet of a perennial or an
intermittent stream without causing
significant adverse impacts on the
hydrologic balance and related
environmental values,’’ thus implying
that some adverse impacts would occur.
48 FR 30313, col. 1, June 30, 1983,
emphasis added. Similarly, ‘‘final
§ 816.57 is intended to protect
significant biological values in streams.’’
Id., col. 3, emphasis added. And, with
respect to stream diversions, the 1983
preamble specifies that—
Alteration of streams may have adverse
aquatic and ecological impacts on both
diverted stream reaches and other
downstream areas with which they merge.
However, final § 816.57(a) will minimize
these impacts.
Id. at 30315, col. 1, emphasis added.
Our removal of the requirement
formerly found in 30 CFR 816.57(a)(1)
and 817.57(a)(1) for a finding
concerning applicable State or Federal
water quality standards does not
authorize activities that would
constitute or result in a violation of
State or Federal water quality standards.
Section 702(a) of SMCRA provides that
nothing in SMCRA may be construed as
superseding, amending, modifying, or
repealing the Clean Water Act, its
implementing regulations, State laws
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enacted pursuant to the Clean Water
Act, or other Federal laws relating to
preservation of water quality. In
addition, our regulations at 30 CFR
816.42 and 817.42 require that
discharges of water from disturbed areas
‘‘be made in compliance with all
applicable State and Federal water
quality laws and regulations.’’
In the preamble to the proposed rule,
we sought comment on whether we
should amend 30 CFR 816.42 and
817.42, which currently address only
discharges of water, to include a
paragraph specifying, for informational
purposes, that discharges of dredged or
fill materials into waters of the United
States must comply with all applicable
State and Federal requirements.
Commenters were divided on the merits
of this potential rule change. We have
decided against adding this provision,
both because of the possibility that the
language might be erroneously
interpreted as being enforceable under
SMCRA rather than as just an
informational provision and because
adding the language is unlikely to be
helpful to the regulated community,
which is well aware of the need to
comply with both SMCRA and the
various elements of Clean Water Act
regulatory programs.
7. Final Paragraph (f)
Paragraph (f) of sections 780.28 and
784.28 summarizes the relationship
between SMCRA permitting actions and
Clean Water Act requirements.
Paragraph (f)(1) provides that every
permit application must identify the
authorizations that the applicant
anticipates will be needed under
sections 401, 402, and 404 of the Clean
Water Act, 33 U.S.C. 1341, 1342, and
1344, and describe the steps that the
permit applicant has taken or will take
to procure those authorizations. This
provision implements, in part, section
508(a)(9) of SMCRA, which requires that
each permit application include ‘‘the
steps to be taken to comply with
applicable air and water quality laws
and regulations.’’
Paragraph (f)(2) of sections 780.28 and
784.28 specifies that, if the permit
application meets all applicable
requirements of subchapter G (the
permitting regulations), the regulatory
authority will process the permit
application and may issue the permit
before the applicant obtains all
necessary authorizations under the
Clean Water Act, 33 U.S.C. 1251 et seq.
This arrangement may facilitate review
by the Corps of any preconstruction
notification submitted by the permit
applicant under Nationwide Permits 21,
49, and 50. The nationwide permits
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apply only if the SMCRA permit has
already been issued or if the application
is being processed as part of an
integrated permit processing procedure.
See 72 FR 11092, 11184, and 11191,
March 12, 2007.
As proposed, paragraph (f)(2) would
have provided that the permittee may
not initiate any activities for which
Clean Water Act authorization or
certification is required until that
authorization or certification is
obtained. The preamble to the proposed
rule stated that we considered that
provision informational. We requested
comment on whether the provision
should remain informational or whether
we should revise our rules to require its
inclusion as a SMCRA permit condition,
which would mean that the prohibition
on initiation of activities before
obtaining all necessary Clean Water Act
authorizations and certifications would
be independently enforceable under
SMCRA. See 72 FR 48901, August 24,
2007.
Commenters were divided on this
issue. The U.S. Fish and Wildlife
Service and the Geologic and Water
Resources Divisions of the National Park
Service supported adoption of a rule
requiring a permit condition under
SMCRA. The EPA also supported
adoption of a requirement for a permit
condition under SMCRA, stating that
such a requirement would enhance
compliance with Clean Water Act
requirements. One state regulatory
authority opposed adoption of a
requirement for a permit condition; the
commenter instead recommended that
coordination of permitting and
enforcement of Clean Water Act
requirements be left to the states and the
Corps. Comments from the mining
industry strongly opposed adoption of a
rule that would impose a permit
condition under SMCRA, expressing the
fear that it would only result in more
duplication and confusion in regulation
of the coal mining industry. One
commenter stated that, if the permittee
needs to comply with the Clean Water
Act, then the requirements of that
statute should be enforced according to
the statutory scheme specified in the
Clean Water Act.
In response to the comments
supporting adoption of a rule requiring
imposition of a permit condition, we are
adding a new paragraph (d)(2) to
sections 780.28 and 784.28. That
paragraph provides that before
approving a permit application in which
the applicant proposes to conduct
surface activities in a perennial or
intermittent stream, the regulatory
authority must include a permit
condition requiring a demonstration of
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compliance with the Clean Water Act in
the manner specified in paragraph (a)(2)
of sections 816.57 and 817.57 before the
permittee may conduct those activities.
This requirement applies to the extent
that the activities require authorization
or certification under the Clean Water
Act. New paragraph (a)(2) of sections
816.57 and 817.57 provides that surface
activities, including those activities
identified in paragraphs (b)(1) through
(b)(4) of sections 816.57 and 817.57,
may be authorized in perennial or
intermittent streams only where those
activities would not cause or contribute
to the violation of applicable State or
Federal water quality standards
developed pursuant to the Clean Water
Act, as determined through certification
under section 401 of the Clean Water
Act or a permit under section 402 or 404
of the Clean Water Act.
However, in adopting these rules, we
reiterate that nothing in SMCRA
provides the SMCRA regulatory
authority with jurisdiction over the
Clean Water Act or the authority to
determine when a permit or
authorization is required under the
Clean Water Act. Under paragraphs (a)
and (a)(2) of section 702 of SMCRA,
nothing in SMCRA (and, by extension,
regulations adopted under SMCRA) may
be construed as superseding, amending,
modifying, or repealing the Clean Water
Act or any state laws or state or federal
rules adopted under the Clean Water
Act. In addition, nothing in the Clean
Water Act vests SMCRA regulatory
authorities with the authority to enforce
compliance with the permitting and
certification requirements of that law.
We have revised proposed paragraph
(f)(2) to be consistent with these
principles. As revised, final paragraph
(f)(2) provides that issuance of a SMCRA
permit does not authorize the permittee
to initiate any activities for which Clean
Water Act authorization or certification
is required. The final rule further states
that ‘‘[i]nformation submitted and
analyses conducted under subchapter G
of this chapter may inform the agency
responsible for authorizations and
certifications under sections 401, 402,
and 404 of the Clean Water Act, 33
U.S.C. 1341, 1342, and 1344, but they
are not a substitute for the reviews,
authorizations, and certifications
required under those sections of the
Clean Water Act.’’ Paragraph (f)(2) does
not impose any new requirements under
SMCRA, nor does it authorize the
regulatory authority to make any
determinations required under the
Clean Water Act.
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D. Section 780.35 Disposal of Excess
Spoil (Surface Mines)
1. General Discussion of the Rule and
the Rationale for the Rule Changes
The environmental impacts of fills
and other structures associated with the
disposal of excess spoil from surface
coal mining operations, and of coal
mine waste, have been the subject of
controversy, largely because they
involve the filling of substantial
portions of stream valleys, especially in
central Appalachia. This controversy
has highlighted the need to ensure that
excess spoil creation is minimized to
the extent possible, and that excess
spoil and coal mine waste disposal
facilities are located and designed to
minimize disturbances and adverse
impacts on fish, wildlife, and related
environmental values to the extent
possible, using the best technology
currently available, as required by
sections 515(b)(24) and 516(b)(11) of
SMCRA.
Prior to the adoption of this final rule,
our regulations pertaining to the
disposal of excess spoil primarily
focused on ensuring that fills are safe
and stable. This final rule adds several
requirements intended to promote
environmental protection, including
minimization of the adverse
environmental impacts of fill
construction in perennial and
intermittent streams. Several
commenters argued that we have no
authority to adopt these regulations
because section 515(b)(22) of SMCRA,
which establishes standards for the
disposal of excess spoil, does not
include any requirements for protection
of fish, wildlife, and related
environmental values, but instead
focuses on engineering standards
intended to promote stability, prevent
mass movement, and control infiltration
of water. We do not agree with the
commenters. The rule changes that we
are adopting today implement, in part,
the requirement in section 515(b)(24) of
SMCRA that surface coal mining and
reclamation operations be conducted in
a manner that minimizes disturbances
to, and adverse impacts on, fish,
wildlife, and related environmental
values to the extent possible, using the
best technology currently available.
Section 515(b)(24) applies to the
disposal of excess spoil both by its own
terms (disposal of excess spoil is a part
of surface coal mining and reclamation
operations) and through section
515(b)(22)(I), which requires that the
placement of excess spoil meet ‘‘all
other provisions of this Act.’’ SMCRA
contains numerous environmental
protection requirements that apply to all
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surface coal mining and reclamation
operations and all aspects of those
operations, including the disposal of
excess spoil. The fact that section
515(b)(22) does not mention
environmental protection in no way
suggests that excess spoil fills need not
comply with the environmental
protection provisions of SMCRA or that
we lack the authority to adopt
regulations establishing environmental
protection requirements for those
structures.
One commenter stated that we should
limit the applicability of the new
regulations governing excess spoil
placement to operations in steep-slope
areas where the spoil will be placed in
stream channels. The commenter also
stated that the generation and disposal
of excess spoil as part of non-steep slope
operations has never been identified as
a significant issue and that we have not
provided any significant justification in
the rulemaking record to support a need
for applying the excess spoil rule to
non-steep-slope operations. We
disagree. We believe that these changes
to our rules have merit wherever the
potential exists for operations to
generate excess spoil and that they
should apply nationwide. Streams in
non-steep-slope areas are no less
significant in terms of fish, wildlife, and
related environmental values than are
streams in steep-slope areas. Excess
spoil fills outside central Appalachia are
rare but they do occur.
Several commenters requested that
the preamble clarify that the term
‘‘excess spoil’’ does not include initial
box cut spoil from the first cut in an area
mine, even though it will be placed
outside the mined area. Nothing in this
final rule alters the definition of ‘‘excess
spoil’’ or how that term is applied or
interpreted. As defined in section 701.5,
the term ‘‘excess spoil’’ means—
Spoil material disposed of in a location
other than the mined out area; provided that
spoil material used to achieve the
approximate original contour or to blend the
mined-out area with the surrounding terrain
in accordance with §§ 816.102(d) and
817.102(d) of this chapter in non-steep slope
areas shall not be considered excess spoil.
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The preamble to the definition of
‘‘excess spoil’’ states that—
In the final rule, spoil used to merely blend
the mined-out area with the surrounding
terrain need not be treated as excess spoil.
Thus, spoil from box cuts or first cuts in nonsteep slope areas would not be excess spoil
when it is used to achieve approximate
original contour; i.e., to blend the mined-out
area into the surrounding terrain according to
§ 816.102(d) of the backfilling and grading
rules. * * * If, however, the spoil from a box
cut or a first cut is deposited on slopes with
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angles defined as steep slopes, the box cut or
first cut spoil must be handled as excess
spoil in accordance with §§ 816.71 and
817.71.
48 FR 32911 (July 19, 1983).
Paragraph (a)(1) of section 780.35 of
the final rule requires that surface coal
mining operations be designed to
minimize the creation of excess spoil to
the extent possible. Paragraph (a)(2) of
section 780.35 of the final rule specifies
that the maximum cumulative design
volume of all proposed excess spoil fills
within the permit area must be no larger
than the capacity needed to
accommodate the anticipated
cumulative volume of excess spoil that
the operation will generate. These
requirements should reduce the adverse
impacts of the operation on fish,
wildlife, and related environmental
values by minimizing the amount of
land and water disturbed to construct
excess spoil fills.
Paragraph (a)(3) of section 780.35 of
the final rule requires that the permit
application include an analysis of the
impacts on fish, wildlife, and related
environmental values of a reasonable
range of alternatives for disposal of
excess spoil, including variations in the
number, size, location, and
configuration of proposed fills. Only
reasonably possible alternatives that
differ significantly in their impacts on
fish, wildlife, and related environmental
values need be considered. The analysis
must consider impacts on both
terrestrial and aquatic ecosystems. In
addition, when construction of the
excess spoil fill would involve
placement of excess spoil in perennial
or intermittent streams, the rule
specifies certain factors that must be
considered as part of the evaluation of
impacts on fish, wildlife, and related
environmental values to ensure
adequate assessment of impacts on
water quality and aquatic ecosystems,
which are among the ‘‘related
environmental values’’ mentioned in
sections 515(b)(24) and 516(b)(11) of
SMCRA. The applicant must select the
alternative with the least overall adverse
impact on fish, wildlife, and related
environmental values, including
adverse impacts on water quality and
aquatic and terrestrial ecosystems.
We are adopting these rules to
improve the analysis of permit
applications and permitting decisions
under SMCRA. SMCRA itself does not
require an analysis of alternatives.
However, we believe that the
alternatives analysis requirement is a
reasonable means of implementing
sections 515(b)(24) and 516(b)(11) of
SMCRA. Those provisions of the Act
require that surface coal mining and
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reclamation operations be conducted in
a manner that minimizes disturbances
and adverse impacts on fish, wildlife,
and related environmental values to the
extent possible, using the best
technology currently available.
The addition of these requirements to
our rules is consistent with section
102(d) of SMCRA, which provides that
one of the purposes of SMCRA is to
assure that surface coal mining
operations are conducted so as to
protect the environment. In addition,
the rules are consistent with section
102(f) of SMCRA, which provides that
another purpose of SMCRA is to strike
a balance between protection of the
environment and the nation’s need for
coal as an essential energy source. The
rule changes that we are adopting today
discourage the disturbance of perennial
and intermittent streams and their
buffers, but they also recognize that it is
not reasonably possible to do so in all
cases for all types of surface coal mining
operations. For example, if the creation
of excess spoil as part of a surface coal
mining operation is unavoidable, the
final rule would not prevent
construction of the fills needed to
accommodate the excess spoil. Instead,
our new and revised rules are intended
to ensure that surface coal mining and
reclamation operations are planned and
conducted in a manner that minimizes
adverse environmental impacts from the
construction of fills for the disposal of
excess spoil to the extent that it is
possible to do so without restricting coal
production in a manner inconsistent
with SMCRA in general and sections
816.59 and 817.59 of our regulations in
particular. Section 201(c)(2) of SMCRA,
30 U.S.C. 1211(c)(2), which directs the
Secretary of the Interior to publish and
promulgate such rules and regulations
as may be necessary to carry out the
purposes and provisions of SMCRA,
provides additional authority for the
adoption of these rules.
One state regulatory authority stated
that trying to balance the fill
minimization requirements of
paragraphs (a)(1) and (2) with the
alternatives analysis and alternative
selection requirements of paragraph
(a)(3) will be extremely difficult.
According to the commenter, the best
location to place excess spoil to
minimize the footprint of the fill is not
likely to be the best location
environmentally. The commenter
suggested that guidance may be needed
to address this potential conflict.
We do not agree that the requirements
of these paragraphs are in conflict.
Paragraph (a)(1) requires that the
volume of excess spoil created by the
operation be minimized by returning as
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much of the spoil as possible to the
mined-out area, after taking into
consideration applicable regulations
concerning final contours, safety,
stability, environmental protection, and
the postmining land use. Paragraph
(a)(2) requires that the operation be
designed so that the maximum
cumulative volume of all planned
excess spoil fills does not exceed the
capacity needed to accommodate the
anticipate cumulative volume of excess
spoil that the proposed operation will
generate. Nothing in these two
paragraphs in any way contradicts the
provision in paragraph (a)(3) requiring
selection of the alternative with least
overall adverse impact on fish, wildlife,
and related environmental values.
As proposed, this final rule
consolidates most fill design and
permitting requirements in the permit
application regulations in sections
780.35 and 784.19, rather than splitting
them between those regulations and the
performance standards in sections
816.71 and 817.71, as they were before
the adoption of this rule. Also, as
proposed, the final rule revises the rule
language to remove inconsistencies
between the performance standards and
the permitting requirements, to
eliminate redundancies, and to be more
consistent with plain language
principles.
The final rule adds paragraphs (a)(1)
through (a)(4) to section 780.35 to
establish environmentally-oriented
requirements for permit applications for
operations that propose to generate
excess spoil. In the remainder of this
part of the preamble, we discuss those
and other provisions of the final rule
and the comments received on their
counterparts in the proposed rule.
2. Final Paragraphs (a)(1) and (a)(2)
Paragraph (a)(1) of section 780.35
provides that each application for an
operation that would generate excess
spoil must include a demonstration,
prepared to the satisfaction of the
regulatory authority, that the operation
has been designed to minimize the
volume of excess spoil to the extent
possible, thus ensuring that as much
spoil as possible is returned to the
mined-out area. The demonstration
must take into consideration applicable
regulations concerning restoration of the
approximate original contour, safety,
stability, and environmental protection
and the needs of the proposed
postmining land use. Some or all of
those factors may limit the amount of
spoil that can be returned to the minedout area, especially the requirements
related to safety, stability, and
postmining land use. Also, if the
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regulatory authority does not approve
the proposed postmining land use, the
applicant and the regulatory authority
will need to revisit the demonstration to
determine whether it must be revised to
reflect the needs and attributes of the
postmining land use that is finally
approved.
Paragraph (a)(2) of section 780.35
requires that the application include a
demonstration that the designed
maximum cumulative volume of all
proposed excess spoil fills within the
permit area is no larger than the
capacity needed to accommodate the
anticipated cumulative volume of
excess spoil that the operation will
generate.
The goal of both paragraphs (a)(1) and
(a)(2) is to minimize fill footprints and
thus minimize disturbances of forests,
perennial and intermittent streams, and
riparian vegetation, consistent with the
requirement in sections 515(b)(24) and
516(b)(11) of SMCRA to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible using the
best technology currently available.
Since the mid-1990’s, the extent of
excess spoil fill construction in central
Appalachia has been controversial,
especially when fills bury stream
segments. As part of our oversight
activities, we conducted studies in 1999
in Kentucky, Virginia, and West
Virginia to determine how state
regulatory authorities were
administering SMCRA regulatory
programs regarding restoration of
approximate original contour. From our
review of permit files and reclaimed
mines, we determined that, typically,
some of the spoil placed in excess spoil
fills could have been retained on or
returned to mined-out areas. See ‘‘An
Evaluation of Approximate Original
Contour and Postmining Land Use in
Kentucky’’ (OSM, September 1999); ‘‘An
Evaluation of Approximate Original
Contour Variances and Postmining Land
Uses in Virginia’’ (OSM, September
1999); and ‘‘Final Report: An Evaluation
of Approximate Original Contour and
Postmining Land Use in West Virginia’’
(OSM, May 1999).
In many instances, we found that the
permit application overestimated the
anticipated volume of excess spoil that
the operation would produce. In
addition, fills were designed and
constructed larger than necessary to
accommodate the anticipated excess
spoil, which resulted in the unnecessary
disturbance of additional land.
Kentucky, Virginia, and West Virginia
worked with us to develop enhanced
guidance on material balance
determinations, spoil management, and
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approximate original contour
determinations to correct these
problems to the extent feasible under
the existing regulations. We also
developed guidance for use under the
Tennessee Federal regulatory program.
In most cases, the regulatory authorities
in those states have adopted policies
based on that guidance for use in
reviewing permit applications.
Some industry commenters opposed
the new excess spoil minimization
requirements, citing the preceding
discussion as evidence that the policies
appear to be satisfactorily addressing
any past issues and that there is no
longer any problem that would justify
rulemaking. Other industry commenters
supported these provisions to the extent
that they codify policies that are
working in the central Appalachian
states.
We believe that adoption of proposed
paragraphs (a)(1) and (a)(2) as final rules
is appropriate because policies are
subject to change. The final rules that
we are adopting today reinforce the
basis for the policies in place in
Kentucky, Tennessee, Virginia, and
West Virginia. They also strengthen the
enforceability of decisions based on
those policies and provide national
consistency by ensuring that certain
basic requirements will be applied
nationwide, including in those states
that have not adopted policies. We also
believe that the environment, the
public, and the regulated community
are best served by the adoption of
national regulations to clarify
environmental considerations
concerning the generation and disposal
of excess spoil.
3. Final Paragraph (a)(3)
As proposed, paragraph (a)(3) of
section 780.35 would have required that
each application include a description
of all excess spoil disposal alternatives
considered and an analysis of the
environmental impacts of those
alternatives. In the final rule, we
extensively revised and reorganized
paragraph (a)(3) in response to the many
comments that we received on this
portion of the proposed rule.
Discussion of General Comments
Received on Proposed Paragraph (a)(3)
Industry commenters strongly
opposed the requirement in proposed
paragraph (a)(3) for an analysis of
alternatives for excess spoil fills. The
commenters cited a variety of reasons,
including excessive costs, delays in
permitting, duplication of effort with
the Clean Water Act, the probable lack
of environmental benefits, the potential
for conflict between the SMCRA
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regulatory authority’s application of the
alternatives analysis requirement and
the approach adopted by the Clean
Water Act permitting authority, a lack of
justification under SMCRA, exceeding
the intent of SMCRA, and a fear that this
requirement could result in a neverending cycle of analysis and litigation
concerning whether the correct
alternative was selected by the permit
applicant and approved by the state
regulatory authority. Many commenters
stated that the requirement for an
alternatives analysis has no basis in
SMCRA and instead appears to be a
mixture of provisions borrowed from
the National Environmental Policy Act
and the Clean Water Act.
Nothing in the proposed alternatives
analysis requirement in paragraph (a)(3)
of sections 780.35 and 784.19 of the
final rule is based upon the National
Environmental Policy Act. We
respectfully disagree with those
commenters who argued that the
requirement for an alternatives analysis
is a Clean Water Act requirement that
has no basis or justification under
SMCRA and that exceeds the intent of
SMCRA. We acknowledge that we
derived this element of our proposed
rules from the alternatives analysis
requirements of the 404(b)(1) Guidelines
in 40 CFR part 230, which include the
substantive environmental criteria used
in evaluating activities regulated under
section 404 of the Clean Water Act.
However, we concluded that a modified
version of the alternatives analysis
requirements in the 404(b)(1) Guidelines
is an appropriate means of obtaining the
background data and analyses that both
the applicant and the regulatory
authority need to make informed
decisions concerning compliance with
the requirements of sections 515(b)(24)
and 516(b)(11) of SMCRA, which
provide that surface coal mining and
reclamation operations must be
conducted to minimize disturbances
and adverse impacts on fish, wildlife,
and related environmental values to the
extent possible, using the best
technology currently available.
Therefore, paragraphs (a)(3)(ii) and
(a)(3)(iii) of sections 780.35 and 784.19
of this final rule apply the alternatives
analysis requirement to all applications
that propose to place excess spoil in or
within 100 feet of a perennial or
intermittent stream. In addition,
paragraph (a)(3)(iii)(A) of these sections
of the final rule applies more detailed
analytical requirements to applications
that propose to place excess spoil in
perennial or intermittent streams as
opposed to applications that propose to
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place excess spoil only within 100 feet
of those streams.
One commenter stated that the rule
should not require an alternatives
analysis when the permit applicant
proposes to use excess spoil to reclaim
benches and highwalls on abandoned
mine lands. Alternatively, the
commenter suggested that any
reasonably possible alternative that
consisted solely of placement on
abandoned mine benches should be
deemed the alternative with the least
overall adverse environmental impact.
We interpret these comments as
referring to excess spoil fills constructed
on preexisting benches under 30 CFR
816.74 and 817.74. We encourage the
use of excess spoil to reclaim
abandoned mine lands, but we do not
agree that applications proposing to use
excess spoil for that purpose should be
exempt from compliance with the
alternatives analysis requirements of
paragraph (a)(3). Perennial and
intermittent streams merit special
consideration regardless of whether
those streams flow through undisturbed
land or abandoned mine lands. Also,
abandoned mine lands vary widely in
quality, so we do not agree that an
alternative proposing to place excess
spoil only on abandoned mine lands
should be deemed the alternative with
the least overall adverse impact on fish,
wildlife, and related environmental
values. However, the alternatives
analysis requirement applies only if the
applicant proposes to place excess spoil
in or within 100 feet of a perennial or
intermittent stream. When constructing
fills on preexisting benches, there is a
distinct possibility that the requirement
will not apply at all because there may
be no perennial or intermittent streams
within 100 feet of the benches.
A few commenters criticized the
analysis of alternatives provisions of the
proposed rule because they did not
completely parallel the requirements of
the 404(b)(1) Guidelines in 40 CFR part
230. At least one commenter
recommended that we incorporate the
404(b)(1) Guidelines by reference. We
do not find this recommendation
appropriate because the 404(b)(1)
Guidelines are designed to implement
the Clean Water Act, while our
regulations implement SMCRA and
must be based upon SMCRA
requirements. Under section 702(a) of
SMCRA, nothing in SMCRA may be
construed as amending, modifying,
repealing, or superseding any Clean
Water Act requirement. However, there
is also nothing in SMCRA that would
compel or authorize us to adopt
regulations that parallel or incorporate
Clean Water Act requirements.
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75845
SMCRA and the Clean Water Act
provide for separate regulatory programs
with different purposes and very
different permitting requirements and
procedures. In addition, as other
commenters noted, SMCRA and the
Clean Water Act differ considerably
with respect to jurisdiction. The Clean
Water Act focuses on regulating
discharges of pollutants into waters of
the United States, whereas SMCRA
regulates a broad universe of
environmental and other impacts of
surface coal mining and reclamation
operations, including impacts on water
quantity, water quality, and terrestrial
and aquatic ecosystems. We encourage
coordination and cooperation between
the SMCRA regulatory authority and the
agencies administering the Clean Water
Act. See the memorandum of
understanding entitled ‘‘Memorandum
of Understanding among the U.S. Army
Corps of Engineers, the U.S. Office of
Surface Mining, the U.S. Environmental
Protection Agency, and the U.S. Fish
and Wildlife Service for the Purpose of
Providing Concurrent and Coordinated
Review and Processing of Surface Coal
Mining Applications Proposing
Placement of Dredged and/or Fill
Material in Waters of the United States,’’
which took effect February 8, 2005, and
the provisions of this final rule that
authorize the SMCRA regulatory
authority to accept an analysis of
alternatives completed for Clean Water
Act purposes as meeting the
requirements for an analysis of
alternatives under this final rule, when
and to the extent appropriate. However,
we believe that maintaining the
distinction between the SMCRA
regulatory program and Clean Water Act
programs is both administratively and
legally appropriate. That conclusion is
supported by the comments that we
received from both industry and state
regulatory authorities.
Many industry commenters,
supported by some, but not all, state
regulatory authority commenters, stated
that the proposed alternatives analysis
requirement would introduce a major
new element of uncertainty, and result
in costly and wasteful duplication of
effort on the part of permit applicants
and state regulatory authorities. The
commenters stated that this element of
our proposed rule was inconsistent with
our statement in the preamble to that
rule that a primary reason for the
rulemaking was to provide improved
clarity and reduction of uncertainty
regarding the meaning of the
regulations. One commenter stated that
at best the alternatives analysis
requirement ‘‘adds yet another layer of
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redundant paperwork and analysis as it
duplicates the federally-administered
404 process. At worst, OSM has set the
stage for conflicts between the section
404 program and the largely stateimplemented SMCRA programs.’’ The
commenter further stated that by
imposing an alternatives analysis
requirement on state regulatory
authorities, we are ‘‘flirting
dangerously’’ with creating conflicting
alternatives analyses because ‘‘the goals
and objectives of SMCRA and
corresponding state statutes may be
different than those of the Corps and
EPA under section 404.’’
While we understand the
commenters’ apprehensions, these
comments are speculative in nature.
There may be some initial uncertainty
as regulatory authorities establish
procedures and criteria for
implementing the alternative analysis
requirements and determining least
overall adverse impact on fish, wildlife,
and related environmental values under
this rule, but that uncertainty should
subside once those procedures and
criteria are in place.
The Interstate Mining Compact
Commission, writing on behalf of
member state regulatory authorities,
argued that the alternatives analysis
requirement is duplicative of
requirements under the Clean Water Act
that are already encompassed by the
SMCRA permitting scheme. As
discussed elsewhere in this preamble,
we believe that the alternatives analysis
requirement that we are adopting as part
of this final rule differs from and serves
a somewhat different purpose than the
alternatives analysis requirement under
the regulations and other documents
implementing section 404 of the Clean
Water Act. To the extent that
duplication may exist, we encourage
states to coordinate the processing of
coal mining permit applications with
the U.S. Army Corps of Engineers in
accordance with a memorandum of
understanding entitled ‘‘Memorandum
of Understanding among the U.S. Army
Corps of Engineers, the U.S. Office of
Surface Mining, the U.S. Environmental
Protection Agency, and the U.S. Fish
and Wildlife Service for the Purpose of
Providing Concurrent and Coordinated
Review and Processing of Surface Coal
Mining Applications Proposing
Placement of Dredged and/or Fill
Material in Waters of the United States,’’
which took effect February 8, 2005. In
addition, this final rule authorizes the
SMCRA regulatory authority to accept
an analysis of alternatives completed for
Clean Water Act purposes as meeting
the requirements for an analysis of
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alternatives under this final rule, when
and to the extent appropriate.
The Commission and some, but not
all, commenters representing individual
state regulatory authorities also opposed
the alternatives analysis requirement in
the proposed rule because of state fiscal
constraints and fear of the ‘‘potentially
overwhelming’’ time and effort that
would be required for state permitting
personnel to adequately review and
analyze alternatives.
We anticipate that few, if any, state
regulatory authorities will experience a
significant increase in demands on their
resources as a result of the alternatives
analysis requirement in the final rule.
West Virginia, one of the states most
impacted by the rule, supported the
proposed rule. Kentucky, another state
that would be significantly impacted,
estimated that, on average, the new
requirement would add ten hours to the
time required to process a permit
application. We believe that the
intangible environmental benefits of the
rule (increased scrutiny of efforts to
minimize adverse impacts on fish,
wildlife, and related environmental
values associated with perennial and
intermittent streams) will outweigh
what we anticipate will be a modest
increase in demand on state regulatory
authority resources.
The U.S. Fish and Wildlife Service
requested that we work with the Service
to build a process into the alternative
analysis requirements in the final rule to
protect unique and high value fish and
wildlife resources. In response, we note
that our fish and wildlife protection
rules at 30 CFR 816.97(f) and 817.97(f)
already require that the operator ‘‘avoid
disturbances to, enhance where
practicable, or restore habitats of
unusually high value for fish and
wildlife.’’ In addition, our permitting
rules at 30 CFR 780.16 and 784.21
provide a role for the Service in
determining fish and wildlife data
collection requirements and reviewing
the fish and wildlife protection plan in
the permit application. Therefore,
addition of the provision requested by
the Service is not necessary.
Discussion of Specific Provisions of
Final Paragraph (a)(3)
In the final rule, the first sentence of
paragraph (a)(3) provides that the permit
applicant must design the operation to
avoid placement of excess spoil in or
within 100 feet of perennial and
intermittent streams to the extent
possible. We added this provision in
response to EPA concerns and
numerous comments urging greater
protection for headwater streams
because of their ecological importance
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and contribution to the function of the
stream as a whole. In effect, the new
sentence identifies avoiding placement
of excess spoil in or within 100 feet of
perennial or intermittent streams as the
preferred method of complying with the
SMCRA requirement to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values with respect to those streams.
That is, whenever avoidance of
disturbance is reasonably possible, the
final rule establishes avoidance as the
best technology currently available to
comply with the provisions of sections
515(b)(24) and 516(b)(11) of SMCRA,
which require minimization of
disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible using the
best technology currently available. This
provision of the final rule is consistent
with our stream buffer zone rules at 30
CFR 816.57 and 817.57, which establish
maintenance of an undisturbed buffer
for perennial and intermittent streams
as the best technology currently
available to meet the requirements of
sections 515(b)(24) and 516(b)(11) of
SMCRA, provided maintenance of an
undisturbed buffer is reasonably
possible.
However, the final rule does not and
cannot mandate avoidance in all cases
for all stream segments. The provisions
of SMCRA underlying this rule require
minimization of disturbances and
adverse impacts on fish, wildlife, and
related environmental values only ‘‘to
the extent possible.’’ Avoiding
disturbance of the stream and
maintenance of an undisturbed buffer
zone for that stream is the ultimate
means of minimizing adverse impacts
on fish, wildlife, and related
environmental values and hence is the
default best technology currently
available to comply with the statutory
minimization requirement. However,
there is sometimes no alternative to the
construction of excess spoil fills in
perennial or intermittent streams and
their buffer zones if the proposed
surface coal mining operation is to be
viable. Prohibiting the construction of
excess spoil fills would in effect
preclude coal recovery in those
situations. Under those circumstances,
SMCRA—and hence this final rule—do
not require avoidance of disturbance
because avoidance is not reasonably
possible. Instead, the applicant must
propose other methods of complying
with the minimization requirement that
are consistent with the proposed surface
coal mining operations. We do not
interpret SMCRA as authorizing us to
prohibit surface coal mining operations
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in situations other than those
specifically set forth in the Act.
However, SMCRA does not override
prohibitions that apply under other laws
and regulations, so we will also
recognize those prohibitions in reaching
a decision on a permit application.
As proposed, paragraph (a)(3) would
have required an alternatives analysis
for all operations that propose to
generate excess spoil. In response to
comments citing the probable lack of
environmental benefits of the proposed
alternatives analysis requirement and
the burden that it would impose, we
have reconsidered this requirement and
paragraph (a)(3) of the final rule restricts
the alternatives analysis requirement to
those situations in which the applicant
proposes to place excess spoil in or
within 100 feet of a perennial or
intermittent stream. We believe that this
restriction is appropriate because those
lands are likely to be the most
significant in terms of fish, wildlife, and
related environmental values. In
addition, this limitation may facilitate
coordination with permitting
requirements under section 404 of the
Clean Water Act, which apply whenever
a permit applicant proposes to place fill
material in waters of the United States.
Paragraph (a)(3)(i) of the final rule
requires that the permit applicant
explain, to the satisfaction of the
regulatory authority, why an alternative
that does not involve placement of
excess spoil in or within 100 feet of a
perennial or intermittent stream is not
reasonably possible. We added this
requirement to reinforce the provision
in paragraph (a)(3) of the final rule
establishing avoidance of placement of
excess spoil in or within 100 feet of a
perennial or intermittent stream,
whenever avoidance is reasonably
possible, as the best technology
currently available to comply with the
statutory requirement for minimization
of disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible using the
best technology currently available.
Paragraph (a)(3)(ii) of the final rule
provides that, if the permit applicant is
unable to design the operation to avoid
placement of excess spoil in or within
100 feet of a perennial or intermittent
stream, the application must identify a
reasonable range of alternatives that
vary with respect to the number, size,
location, and configuration of proposed
excess spoil fills. A number of
commenters on the proposed rule
expressed concern that the requirement
to identify a reasonable range of
alternatives was too vague and could be
interpreted as requiring an unlimited
number of alternatives, including those
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that have no possibility of being
implemented. In response to this
concern, we have added language
clarifying that paragraph (a)(3)(ii) does
not require identification of all potential
alternatives and that only those
reasonably possible alternatives that are
likely to differ significantly in terms of
impacts on fish, wildlife, and related
environmental values (either in degree
or in watersheds affected) need be
identified and considered. The latter
provision is consistent with the policies
to which EPA and the Corps adhere in
implementing section 404 of the Clean
Water Act. See the EPA/COE
memorandum entitled ‘‘Appropriate
Level of Analysis Required for
Evaluating Compliance with the Section
404(b)(1) Guidelines Alternatives
Requirements.’’
In response to commenters’ concerns,
we also added language to paragraph
(a)(3)(ii) of the final rule specifying that
an alternative is reasonably possible if it
conforms to the safety, engineering,
design, and construction requirements
of the regulatory program; is capable of
being done after consideration of cost,
logistics, and available technology; and
is consistent with the coal recovery
provisions of sections 816.59 and
817.59. In other words, nothing in the
rule should be construed as elevating
environmental concerns over safety
considerations, as prohibiting the
conduct of surface coal mining
operations that are not otherwise
prohibited under SMCRA or other laws
or regulations, or as requiring
consideration of unreasonably
expensive or technologically infeasible
alternatives.
The portion of this rule that refers to
‘‘consideration of cost, logistics, and
available technology’’ is derived from
the EPA regulations at 40 CFR
230.10(a)(2), which define a practicable
alternative for purposes of section 404
of the Clean Water Act. In interpreting
this provision, the EPA/COE
memorandum entitled ‘‘Appropriate
Level of Analysis Required for
Evaluating Compliance with the Section
404(b)(1) Guidelines Alternatives
Requirements’’ states that ‘‘[t]he
determination of what constitutes an
unreasonable expense should generally
consider whether the projected cost is
substantially greater than the costs
normally associated with this particular
type of project.’’ We have included
similar language in paragraph
(a)(3)(ii)(B) of the final rule because (1)
the concept of a practicable alternative
for purposes of section 404 of the Clean
Water Act is in some ways analogous to
the determination of reasonably possible
alternatives under this rule, and (2) the
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75847
principle is consistent with the phrase
‘‘to the extent possible’’ in sections
515(b)(24) and 516(b)(11) of SMCRA.
See Part VI.D. of this preamble for a
more extensive discussion of the
rationale for our use of the term
‘‘reasonably possible’’ and its
consistency with statutory provisions.
The final rule does not include the
provision in paragraph (a)(3)(iii) of the
proposed rule stating that the least
costly alternative may not be selected at
the expense of environmental protection
solely on the basis of cost. One
commenter objected to the proposed
provision as being too extreme and
subject to misinterpretation, noting that
there may be situations in which cost
could and should be the determining
factor. We agree. Nothing in SMCRA
would compel adoption of this
provision. In lieu of this provision, we
have added language to paragraph
(a)(3)(ii)(B) of the final rule clarifying
that the fact that one alternative may
cost somewhat more than a different
alternative does not necessarily warrant
exclusion of the more costly alternative
from consideration. We believe that the
revised language is more consistent with
sections 515(b)(24) and 516(b)(11) of
SMCRA, which require use of the best
technology currently available, but only
to the extent possible.
Paragraph (a)(3)(iii) of the final rule
provides that any application proposing
to place excess spoil in or within 100
feet of a perennial or intermittent stream
must include an analysis of the impacts
of the alternatives identified in
paragraph (a)(3)(ii) on fish, wildlife, and
related environmental values. The
analysis must consider impacts on both
terrestrial and aquatic ecosystems. For
example, depending on the topography
and geology of the area, the analysis
could compare the impacts of
constructing a few large excess spoil
fills versus a greater number of small
fills, as well as the relative impacts of
concentrating fills in one or a few
watersheds as opposed to placing them
in multiple watersheds. In addition, the
quality of the receiving waters must be
taken into consideration in that it may
be environmentally preferable to
concentrate fills and their impacts in
watersheds with the lowest water
quality, to the extent that it is possible
to do so.
Paragraph (a)(3)(iii)(A) of the final
rule provides that, for every alternative
that proposes placement of excess spoil
in a perennial or intermittent stream,
the analysis must include an evaluation
of impacts on the physical, chemical,
and biological characteristics of the
stream downstream of the proposed fill,
including seasonal variations in
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temperature and volume, changes in
stream turbidity or sedimentation, the
degree to which the excess spoil may
introduce or increase contaminants, and
the effects on aquatic organisms and the
wildlife that is dependent upon the
stream. As discussed below, this
paragraph of the final rule includes a
number of changes from the proposed
rule as a result of the comments that we
received on the proposed rule.
One commenter on a virtually
identical provision in the proposed coal
mine waste disposal rules stated that—
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[T]he components of an alternatives
analysis for a coal mine disposal activity, as
set forth in proposed 30 CFR 784.16(d)(1)(ii),
should be subdivided for clarity and certain
of the components should be reconsidered in
terms of their purpose or value. As written,
30 CFR 784.16(d)(1)(ii) requires ‘‘* * * an
evaluation of short-term and long-term
impacts on the aquatic ecosystem, both
individually and on a cumulative basis’’ and
goes on to specify that the evaluation ‘‘must
consider impacts on the physical, chemical,
and biological characteristics of downstream
flow, including seasonal variations in
temperature and volume, changes in stream
turbidity or sedimentation, the degree to
which the coal mine waste may introduce or
increase contaminants, the effects on aquatic
organisms and the extent to which wildlife
is dependent upon those organisms.’’ As
strung together, these requirements create a
number of ambiguities, which will lead to
problems in interpretation. The list also
includes terms that have no recognized
meaning, such as ‘‘biological characteristics
of downstream flows.’’ In addition to these
ambiguities, this section also requires
assessments that are new to the regulation of
mining activities, including assessments of
the effects of turbidity and of secondary
impacts on wildlife that may be dependent
on aquatic organisms in a potentially affected
water body. In the absence of commonly
recognized guidelines, the results of these
assessments will be virtually impossible to
validate.
We have revised the rule to replace
the potentially confusing phrase
‘‘biological characteristics of
downstream flows’’ with clearer
language requiring information on the
biological characteristics of the stream
downstream of the proposed excess
spoil fill. See paragraph (a)(3)(iii)(A) of
final sections 780.35 and 784.19. We
also replaced the requirement for an
evaluation of the extent to which
wildlife is dependent upon aquatic
organisms with a requirement for an
evaluation of the effects of the proposed
operation on wildlife that is dependent
upon the stream.
In addition, we decided not to adopt
the portion of proposed paragraph
(a)(3)(ii) requiring that the analysis
include an evaluation of the short-term
and long-term impacts of each
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alternative on the aquatic ecosystem,
both individually and on a cumulative
basis. This proposed requirement is
subsumed within the other analytical
requirements of the final rule and would
not likely result in the submission of
any meaningful additional information.
However, we did not make further
changes in response to this comment
because the commenter did not explain
how the requirements should be
subdivided for clarity or why or how
they create ambiguity. With respect to
the commenter’s statement that the
assessments required by this rule will be
impossible to validate in the absence of
commonly recognized guidelines, we
believe that the commenter may have
misunderstood the purpose of the
evaluation required by this rule. The
data and analyses required by this rule
are intended only to facilitate
comparisons of the relative impacts of
various alternatives on fish, wildlife,
and related environmental values, not to
establish reclamation standards. To the
extent that the commenter may have
meant that there are no generally
accepted protocols for evaluating some
of the listed characteristics, we believe
that regulatory authorities have the
technical capability to develop any
needed protocols specific to conditions
within their states.
One state regulatory authority urged
us to revise the rule to include
consideration of impacts such as traffic,
dust and noise on local residents who
may be affected by a proposed
operation. While we encourage permit
applicants to consider these factors in
designing their operations, we do not
consider them to be disturbances or
adverse impacts on fish, wildlife, and
related environmental values within the
context of sections 515(b)(24) and
516(b)(11) of SMCRA. Therefore, we are
not including those factors as required
components of the alternatives analysis
under paragraph (a)(3)(iii) of the final
rule.
Paragraph (a)(3)(iii)(B) of the final rule
allows the applicant to submit an
analysis of alternatives prepared under
40 CFR 230.10 for Clean Water Act
purposes in lieu of the analysis of
impacts on fish, wildlife, and related
environmental values required under
paragraph (a)(3)(iii)(A) of the final rule.
The regulatory authority will determine
the extent to which that analysis
satisfies the requirements of paragraph
(a)(3)(iii)(A) of the final rule. These
provisions of the final rule are similar
to their counterparts in the proposed
rule.
One commenter expressed dismay
that the rule did not require that the
regulatory authority accept the Clean
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Water Act analysis of alternatives as
fully meeting the requirements of this
rule. We do not believe that addition of
this requirement to our rules would be
appropriate because the alternatives
analysis required under the final rule
must address all environmental impacts
(both aquatic and terrestrial) of surface
coal mining and reclamation operations,
whereas the analysis of alternatives
required under Clean Water Act
regulations focuses on impacts to waters
of the United States. However, under
the final rule, the SMCRA regulatory
authority has the discretion to
determine that an analysis of
alternatives conducted for Clean Water
Act purposes satisfies the requirements
for an analysis of alternatives under this
final rule, in whole or in part, as
appropriate.
Paragraph (a)(3)(iv) of the final rule
requires selection of the alternative with
the least overall adverse impact on fish,
wildlife, and related environmental
values, including adverse impacts on
water quality and aquatic and terrestrial
ecosystems, to the extent possible. The
proposed rule included an additional
sentence specifying that if the applicant
proposes to select a different alternative,
the applicant must demonstrate, to the
satisfaction of the regulatory authority,
why implementation of the more
environmentally protective alternative
is not possible. The final rule does not
include this sentence because we have
determined that it is neither needed nor
appropriate in view of the other changes
that we have made to the rule.
Specifically, we have added language to
paragraph (a)(3)(ii) of the final rule
limiting the alternatives that the
applicant must identify to only those
alternatives that are reasonably possible.
In addition, we have added paragraph
(a)(3)(i), which requires that the permit
applicant explain, to the satisfaction of
the regulatory authority, why an
alternative that does not involve
placement of excess spoil in or within
100 feet of a perennial or intermittent
stream is not reasonably possible. The
combination of these two changes
means that the sentence in the proposed
rule is no longer logical or appropriate
because the only alternatives considered
under the final rule are those that are
reasonably possible, which means that,
within the universe of reasonably
possible alternatives identified, the
applicant must select the alternative
with the least overall adverse impact on
fish, wildlife, and related environmental
values. In other words, the sentence in
the proposed rule no longer has any
relevance or meaning because, under
the final rule, the applicant does not
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have the option of proposing
alternatives that are not reasonably
possible. Given that change, the final
rule provides that the applicant must
select the alternative with the least
overall adverse impact on fish, wildlife,
and related environmental values.
Some commenters requested that we
define or explain the term ‘‘least overall
adverse environmental impact.’’ We do
not believe that a meaningful definition
is possible, given the somewhat
subjective nature of the term and the
site-specific nature of determinations
under this rule. We expect that persons
preparing permit applications and
regulatory authority personnel
reviewing those applications will use
their best professional judgment in
applying the requirements of this
paragraph of the rule. Consistent with
the commonly accepted meaning of the
words ‘‘overall’’ and ‘‘environmental,’’
we have modified the rule to clarify that
the scope of the term includes impacts
to terrestrial ecosystems, not just
impacts to water quality and aquatic
ecosystems. The relative importance of
these three components, as well as the
constituents of each of those
components, will vary from site to site.
Therefore, they are not readily defined
in a national rule. However, we have
replaced the term ‘‘least overall adverse
environmental impact’’ in the proposed
rule with the term ‘‘least overall impact
on fish, wildlife, and related
environmental values’’ to be consistent
with the terminology that appears in the
underlying statutory provisions at
sections 515(b)(24) and 516(b)(11) of
SMCRA and to provide greater clarity.
EPA encouraged both permit
applicants and SMCRA regulatory
authorities to use a watershed approach
in determining which alternative would
have the least overall adverse impact on
fish, wildlife, and related environmental
values:
A watershed approach expands the
informational and analytic basis of site
selection decisions to ensure impacts are
considered on a watershed scale rather than
only project by project. The idea being
locational factors (e.g., hydrology,
surrounding land use) are important to
evaluating the indirect and cumulative
impacts of the project. Watershed planning
efforts can identify and prioritize where
preservation of existing aquatic resources are
important for maintaining or improving the
quality (and functioning) of downstream
resources. The objective of this evaluation is
to maintain and improve the quantity and
quality of the watershed’s aquatic resources
and to ensure water quality standards
(numeric and narrative criteria, antidegradation, and designated uses) are met in
downstream waters.
Permit applicants should work with federal
and state regulatory authorities to identify
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appropriate and available information, such
as existing watershed plans, or in the absence
of such plans, existing information on
current watershed conditions and needs, past
and current mining (and other development)
trends, cumulative impacts of past, present,
and reasonable foreseeable future mining
activities, and chronic environmental
problems (e.g., poor water quality, CWA
303(d)—listed streams, etc.) in the watershed.
The regulatory authorities can also provide
information on the appropriate watershed
scale to consider. The level of data and
analysis for implementing a watershed
approach should be commensurate with the
scale of the project, to the extent appropriate
and reasonable.
We agree that the analysis of potential
alternatives required under paragraph
(d)(1)(ii) should appropriately consider
the overall condition of the aquatic
resources in the watershed, including
any impacts from previous mining
activities.
4. Proposed Paragraph (a)(4)
Proposed paragraph (a)(4) of section
780.35 provided that each application
for an operation that will generate and
dispose of excess spoil must describe
the steps to be taken to avoid the
adverse environmental impacts that may
result from the construction of excess
spoil fills or, if avoidance is not
possible, to minimize those impacts.
The preamble to the proposed rule
explained that this requirement applied
to construction, maintenance, and
reclamation of the alternative selected
under proposed paragraph (a)(3)(iii).
EPA recommended that we revise the
rule to incorporate the concepts of
avoidance and minimization of adverse
environmental impacts into the
alternatives analysis required by
proposed paragraphs (a)(3)(i) and (ii)
rather than placing them in a separate
paragraph. EPA stated that the intended
purpose of the alternatives analysis is to
determine the means by which excess
spoil could be disposed of with the least
adverse environmental impact. EPA
further recommended removal of the
preamble language in the proposed rule
that specified that the avoidance and
minimization requirements in proposed
paragraph (a)(4) only applied to the
alternative selected under proposed
paragraph (a)(3)(iii). According to EPA,
these changes would reduce potential
uncertainty regarding the appropriate
factors to consider in the alternatives
analysis and would reinforce the
requirement to evaluate different project
locations and design elements when
assessing the viability and
environmental impacts of each location.
After considering these comments and
the changes that we made to paragraph
(a)(3) in the final rule, we have decided
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75849
not to adopt proposed paragraph (a)(4)
because provisions of that paragraph are
now redundant and unnecessary. Under
30 CFR 816.97(a) and 817.97(a), the
operator must, to the extent possible,
using the best technology currently
available, minimize disturbances and
adverse impacts on fish and wildlife
and related environmental values and
must achieve enhancement of those
resources where practicable. Paragraph
(f) of 30 CFR 816.97 and 817.97
provides that the operator must avoid
disturbances to, enhance where
practicable, restore, or replace wetlands
and riparian vegetation along rivers and
streams and bordering ponds and lakes.
That paragraph also requires that the
operator avoid disturbances to, enhance
where practicable, or restore habitats of
unusually high value for fish and
wildlife. Paragraph (b)(1) of 30 CFR
780.16 and 784.21 requires that the fish
and wildlife protection and
enhancement plan in the permit
application be consistent with the
requirements of 30 CFR 816.97 and
817.97, respectively. Therefore,
proposed paragraph (a)(4) would not
add any requirements that are not
already found in 30 CFR 816.97 and
817.97.
In addition, as revised in the final
rule, paragraph (a)(3) of section 780.35
provides that permit applicants should
design their operations to avoid
placement of excess spoil in or within
100 feet of a perennial or intermittent
stream to the extent possible. This new
provision establishes avoidance of
disturbance of perennial and
intermittent streams and their buffer
zones as the best technology currently
available to comply with the
requirement under sections 515(b)(24)
and 516(b)(11) of SMCRA to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values. However, the statutory
minimization requirement applies only
‘‘to the extent possible,’’ and, given the
realities of geology (which dictates
where coal is located), topography, and
mining mechanics and economics, it is
not always possible to implement the
ultimate form of minimization, which is
avoidance of disturbances, and still
conduct surface coal mining operations.
Consequently, paragraph (a)(3) of the
final rule requires that the applicant
avoid disturbance only to the extent
possible. Paragraph (a)(3)(i) of the
revised final rule provides that, when a
permit applicant proposes to place
excess spoil in or within 100 feet of a
perennial or intermittent stream, the
applicant must explain, to the
satisfaction of the regulatory authority,
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why an alternative that does not involve
placement of excess spoil in or within
100 feet of a perennial or intermittent
stream is not reasonably possible.
Therefore, adoption of proposed
paragraph (a)(4) is no longer appropriate
because, as revised, paragraph (a)(3) of
the final rule requires consideration of
avoidance as part of the alternatives
analysis and selection process.
In the preamble to the proposed rule,
we stated that we anticipated that the
steps mentioned in proposed paragraph
(a)(4) would include provisions in the
operation plan to require that, when
consistent with prudent engineering
practice and applicable regulatory
requirements, excess spoil placement
begin at the highest elevation of the
planned fill and proceed down the
valley to the toe of the fill, thus
minimizing both impacts to waters of
the United States and the area affected
in the event that the full design capacity
of the fill is not needed because of
changes in mining plans or other
reasons. We requested comment on
whether this approach should be
incorporated into the rule language.
We received very few comments and
those that we did receive were split on
this question. In this final rule, we have
decided against endorsing or adopting a
‘‘top-down’’ construction requirement
because the technique raises serious
stability issues. In addition, it would be
inconsistent with provisions in the West
Virginia Code of State Regulations (CSR)
adopted to address fill stability
problems that the state encountered.
West Virginia requires that all durable
rock fills either be constructed from the
toe up as provided by CSR 38–2–
14.14.g.3 or that an erosion protection
zone be established below the toe of the
single-lift fill in accordance with CSR
38–2–14.14.g.2. That zone is a flat area
of durable rock equal in length to half
the height of the fill. The height of the
erosion protection zone must be
sufficient to accommodate designed
flow from the underdrain of the fill.
Because section 515(b)(22) of the Act
focuses on stability considerations in
the disposal of excess spoil, we do not
believe that it would be appropriate to
adopt a regulation that could be in
conflict with existing state program
requirements intended to ensure fill
stability and protect downstream
residents and structures. Furthermore,
top-down construction is feasible only
for durable rock fills under 30 CFR
816.73 and 817.73 and not all excess
spoil qualifies for placement under
those sections of our rules. Other
regulations that we are adopting today
as part of sections 780.35(a)(1) and (a)(2)
and 784.19(a)(1) and (a)(2) require that
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operations be designed both to
minimize the creation of excess spoil
and in a manner that ensures that the
cumulative volume of all proposed
excess spoil fills does not exceed the
capacity needed to accommodate the
anticipated amount of excess spoil that
the operation will produce. We believe
that those provisions should be
adequate to minimize the areas affected
by excess spoil disposal.
5. Final Paragraph (a)(4)
Final paragraph (a)(4), which
appeared as paragraph (a)(5) in the
proposed rule, requires that each
application for an operation that
proposes to generate excess spoil
include maps and cross-section
drawings showing the location of all
proposed disposal sites and structures.
It also requires that fills be located on
the most moderately sloping and
naturally stable areas available, unless
the regulatory authority approves a
different location based upon the
alternatives analysis under paragraph
(a)(3) or on other requirements of the
Act and regulations. Whenever possible,
fills must be placed upon or above a
natural terrace, bench, or berm if that
location would provide additional
stability and prevent mass movement.
The final rule differs slightly from the
proposed rule in that we have revised
the wording to clarify that if the
regulatory authority approves a different
location, that decision must be based
upon the alternatives analysis under
paragraph (a)(3) or on other
requirements of the Act and regulations
The wording of the proposed rule was
subject to misinterpretation because it
allowed approval of a different location
based upon the alternatives analysis ‘‘or
other factors, taking into account other
requirements of the Act and
regulations.’’
The requirement for maps and crosssection drawings formerly appeared as
part of the first sentence of paragraph (a)
of section 780.35, while the fill location
requirements formerly appeared in 30
CFR 816.71(c). Those location
requirements are more logically
included as part of the planning and
design requirements in the permitting
regulations rather than as part of the
performance standards. As formerly
codified in 30 CFR 816.71(c), the rule
required that fills be located on the most
moderately sloping and naturally stable
areas available. However, as proposed,
the final rule allows the regulatory
authority to approve different locations,
based upon the analysis of alternatives
required under proposed paragraph
(a)(3) of section 780.35 or on other
requirements of the Act and regulations.
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This change is needed to ensure that the
analysis of alternatives and
consideration of impacts on fish,
wildlife, and related environmental
values are a meaningful part of the site
selection process. The change is
consistent with section 515(b)(22)(E) of
SMCRA, which requires that excess
spoil be placed ‘‘upon the most
moderate slope among those upon
which, in the judgment of the regulatory
authority, the spoil could be placed in
compliance with all the requirements of
the Act.’’ One of the requirements of the
Act is the provision in section
515(b)(24) specifying that surface coal
mining and reclamation operations must
be conducted so as to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible, using the
best technology currently available.
Implementation of that requirement may
entail placement of spoil on slopes other
than the most moderate ones available.
6. Final Paragraph (a)(5)
Final paragraph (a)(5), which
appeared as paragraph (a)(6) in the
proposed rule, requires that an
application for an operation that would
generate excess spoil include detailed
design plans for each excess spoil
disposal structure, prepared in
accordance with the requirements of
sections 780.35 and 816.71 through
816.74. These requirements correspond
to a portion of the first sentence of the
former version of section 780.35(a). As
proposed, we have added language
requiring compliance with the
requirements of section 780.35 in
recognition of the other revisions to that
section. Paragraph (a)(5) also includes a
requirement to design the fill and
appurtenant structures using current
prudent engineering practices and any
additional design criteria established by
the regulatory authority. This
requirement is not new. It formerly
appeared in the first sentence of 30 CFR
816.71(b)(1). As proposed, we are
moving it to 30 CFR 780.35(a)(5)
because it is a design requirement, not
a performance standard.
7. Final Paragraph (a)(6)
Final paragraph (a)(6), which
appeared as paragraph (a)(7) in the
proposed rule, requires that the
application include the results of a
geotechnical investigation of each
proposed excess spoil disposal site,
with the exception of those sites at
which spoil will be placed only on a
preexisting bench under 30 CFR 816.74.
This requirement formerly appeared in
section 780.35(b). As proposed, final
paragraph (a)(6) also includes the
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requirement to conduct sufficient
foundation investigations that formerly
appeared in 30 CFR 816.71(d)(1). This
shift is consistent with our effort to
consolidate design requirements in the
permitting rules rather than splitting
them between the permitting rules and
the performance standards. The
foundation investigation is an element
of the geotechnical investigation that is
required for approval of a proposed
excess spoil fill in a permit application.
8. Final Paragraph (a)(7)
Final paragraph (a)(7), which
appeared as paragraph (a)(8) in the
proposed rule, requires that each
application include plans for the
construction, operation, maintenance,
and reclamation of all excess spoil
disposal structures (fills) in accordance
with the requirements of 30 CFR 816.71
through 816.74. This requirement
corresponds to a similar provision
formerly located in section 780.35(a).
However, that provision included a
requirement for plans for the ‘‘removal,
if appropriate, of the site and
structures.’’ Because excess spoil fills
are permanent, it is not appropriate to
include plans for their removal in the
application. Consequently, as proposed,
we have replaced the requirement for
plans for removal of the fills with a
requirement for plans for their
reclamation, which would consist of
final site preparation and revegetation
consistent with the approved
postmining land use.
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9. Final Paragraph (a)(8)
Final paragraph (a)(8), which
appeared as paragraph (a)(9) in the
proposed rule, combines overlapping
requirements formerly found in 30 CFR
780.35(c) and 816.71(d)(2) concerning
application and design requirements for
keyway cuts or rock-toe buttresses. We
made no substantive changes in those
requirements.
10. Final Paragraph (b)
As proposed, final paragraph (b)
requires that the application include a
certification by a qualified registered
professional engineer experienced in the
design of earth and rock fills that the
design of all fills and appurtenant
structures meets the requirements of
section 780.35. This requirement
formerly appeared in the second
sentence of 30 CFR 816.71(b)(1). We
have moved it to section 780.35
consistent with our effort to consolidate
design requirements in the permitting
rules rather than splitting them between
the permitting rules and the
performance standards. We made no
substantive changes to this provision.
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E. Section 784.19: Disposal of Excess
Spoil (Underground Mines)
As proposed, we are revising section
784.19 to be consistent with the
definition of coal mine waste in 30 CFR
701.5, which we adopted on September
26, 1983 (48 FR 44006). Among other
things, that definition reclassified
underground development waste as coal
mine waste, which means that fills
constructed of underground
development waste must adhere to the
requirements for refuse piles instead of
the requirements applicable to excess
spoil fills. At the same time that we
adopted the definition of coal mine
waste in 1983, we revised our
performance standards at 30 CFR 817.71
through 817.74 to eliminate the
language that combined underground
development waste with excess spoil for
purposes of performance standards for
underground mines. Because the
definition of coal mine waste includes
underground development waste, the
disposal of underground development
waste is subject to the performance
standards for refuse piles at 30 CFR
817.83 rather than the performance
standards for the disposal of excess
spoil that applied under the pre-1983
rules.
Prior to the adoption of today’s final
rule, the design requirements for fills in
section 784.19 applied to both
underground development waste and
excess spoil, which means that the
permitting requirements were
inconsistent with the 1983 changes to
the corresponding performance
standards. We have revised section
784.19 to apply only to the disposal of
excess spoil, consistent with the 1983
changes to our definitions and
performance standards regarding coal
mine waste. For the same reason, we
removed all references to underground
development waste and revised the
section heading to read ‘‘Disposal of
excess spoil’’ instead of ‘‘Underground
development waste.’’ Under the final
rule that we are adopting today, the
disposal of underground development
waste is now governed by the permitting
requirements for refuse piles in 30 CFR
784.16.
As proposed, final section 784.19
parallels the language of section 780.35,
which contains the permit application
requirements for the disposal of excess
spoil generated by surface mining
activities. The previous rule
incorporated those requirements by
reference. Adding specific language in
place of the cross-reference to section
780.35 makes this rule consistent with
the pattern established in most of our
other rules for surface and underground
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mines, in which the provisions for
surface and underground mines are in
separate parts, but are nearly identical
except for cross-references and the type
of operation to which they apply. In
addition, adding specific language in
place of the cross-reference to section
780.35 allows the incorporation of
cross-references to the appropriate
underground mining performance
standards in part 817 rather than having
to use the cross-references in section
780.35 to the surface mining
performance standards in part 816.
A few commenters stated that,
because of the limited amount of excess
spoil generated by underground mines,
we should use our authority under
section 516(d) of SMCRA to develop
less stringent permitting requirements
for the disposal of that spoil. We decline
to accept that recommendation. We find
nothing unique about the type of excess
spoil fills constructed as part of
underground mining operations. The
number of fills constructed as part of
underground mining operations may be
fewer than the number constructed as
part of surface mines and the size of
those fills may be smaller than those
associated with surface mines, but that
is not always true. In addition, we find
no reason that fills associated with
underground mines should be subject to
lesser safety, stability, or environmental
protection requirements than fills
associated with surface mines.
Some industry commenters on the
proposed rule also opposed the
September 26, 1983, rule changes that
classified underground development
waste as coal mine waste and required
that coal mine waste (including
underground development waste)
disposed of outside the mine workings
and excavations be placed in
accordance with 30 CFR 817.83, which
contains the performance standards for
refuse piles. The commenters argued
that underground development waste
should be treated as excess spoil, not
coal mine waste. The commenters’
objections are untimely. The definition
of coal mine waste in 30 CFR 701.5 is
now a matter of settled law, as is the
removal of the applicability of the
excess spoil performance standards at
30 CFR 817.71 through 817.73 to
underground development waste. The
performance standard at 30 CFR
817.81(a), which requires that coal mine
waste disposed of outside the mine
workings and excavations be placed in
designated coal mine waste disposal
areas within the permit area, also is
settled law. The existing regulations at
30 CFR 817.71(i) allow coal mine waste
to be placed in excess spoil fills with
the approval of the regulatory authority,
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but only if the waste is nontoxic and
non-acid-forming and only if the waste
is placed in accordance with 30 CFR
817.83 (the requirements for refuse
piles).
Several commenters expressed
concern that the 1983 rule’s
classification of underground
development waste as coal mine waste
could prohibit the use of underground
development material for construction
of face-up areas, support facilities, and
other beneficial uses. Underground
development waste is unlikely to be
used for the construction of face-up
areas because the face-up of the mine
must be completed and construction of
mine adits must begin before
underground development waste would
be produced. Perhaps the commenters
are interpreting the 1983 rules as
classifying material removed as part of
the face-up of the underground mine as
underground development waste. If so,
the commenters are misreading those
rules. Nothing in the definitions of coal
mine waste or underground
development waste classifies face-up
materials as either coal mine waste or
underground development waste. In
addition, nothing in our existing rules
or the rules that we are adopting today
would prohibit the use of underground
development waste for construction of
support facilities or other miningrelated uses, provided the use of the
waste for those purposes complies with
all regulatory program requirements
applicable to those uses. The final rules
that we are adopting today apply only
to the permanent disposal of coal mine
waste (including underground
development waste), not to the
temporary use of those materials for
mining-related purposes. In other
words, our excess spoil rules do not
apply to the temporary storage of
material removed during face-up of an
underground mine if that material must
be returned or regraded upon the
completion of mining to restore the
approximate original contour. The
excess spoil rules apply only to
permanent placement.
The rationale for the specific
provisions concerning excess spoil that
we are adopting as part of section
784.19 today is the same as the rationale
for the changes to section 780.35 that we
are also adopting as part of this final
rule. See Part VIII.D. of this preamble for
a discussion of those rules and the
rationale for them, substituting section
516(b)(11) for references to section
515(b)(24) and replacing references to
the surface mining performance
standards in part 816 with references to
the corresponding underground mining
performance standards in part 817.
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F. Sections 816.11 and 817.11: Signs
and Markers
Prior to adoption of this final rule, the
requirement that the operator mark
buffer zones for perennial and
intermittent streams appeared in both
the stream buffer zone rules in sections
816.57(b) and 817.57(b) and the rules
concerning signs and markers in
sections 816.11(e) and 817.11(e). As
proposed, we are consolidating our
buffer zone marking requirements in
sections 816.11(e) and 817.11(e). As
revised, section 816.11(e), which
applies to surface mines, provides that
the boundaries of any buffer to be
maintained between surface mining
activities and perennial or intermittent
streams in accordance with sections
780.28 and 816.57(a) must be clearly
marked to avoid disturbance by surface
mining activities. Similarly, section
817.11(e), which applies to
underground mines, provides that the
boundaries of any buffer to be
maintained between surface activities
and perennial or intermittent streams in
accordance with sections 784.28 and
817.57(a) must be clearly marked to
avoid disturbance by surface operations
and facilities resulting from or in
connection with an underground mine.
We received no comments on these
changes.
G. Sections 816.43 and 817.43:
Diversions
Before adoption of this final rule,
sections 816.43(b)(1) and 817.43(b)(1)
provided that the regulatory authority
may approve diversion of perennial and
intermittent streams within the permit
area after making the finding relating to
stream buffer zones that the diversion
will not adversely affect the water
quantity and quality and related
environmental resources of the stream.
The referenced finding was the second
part of the finding formerly located in
sections 816.57(a)(1) and 817.57(a)(1).
As proposed, in this final rule we are
replacing that finding with a provision
that is more consistent with the
underlying provisions of SMCRA.
Sections 515(b)(10), 515(b)(24),
516(b)(9), and 516(b)(11) of SMCRA do
not establish or authorize a ‘‘will not
adversely affect’’ standard like the one
formerly found in our stream buffer
zone rules at 30 CFR 816.57(a)(1) and
817.57(a)(1). Section 515(b)(10) requires
that surface coal mining and
reclamation operations be conducted to
‘‘minimize the disturbances to the
prevailing hydrologic balance at the
mine site and in associated offsite areas
and to the quality and quantity of water
in surface and ground water systems
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both during and after surface coal
mining operations and during
reclamation.’’
Section 516(b)(9), which pertains to
underground coal mining operations,
contains similar language with the
exception that it does not mention water
quality. Sections 515(b)(24) and
516(b)(11) require that surface coal
mining and reclamation operations be
conducted to ‘‘minimize disturbances
and adverse impacts of the operation on
fish, wildlife, and related environmental
values’’ ‘‘to the extent possible using the
best technology currently available.’’ As
demonstrated by these quotes, SMCRA
establishes a minimization standard
rather than an absolute ‘‘will not
adversely affect’’ standard with respect
to disturbance of the hydrologic balance
and disturbances and adverse impacts
on fish, wildlife, and related
environmental values.
Consequently, we proposed to revise
paragraph (b) of sections 816.43(b)(1)
and 817.43(b)(1) to provide that the
regulatory authority may approve the
diversion of perennial and intermittent
streams within the permit area if the
diversion is located, designed,
constructed, and maintained using the
best technology currently available to
minimize adverse impacts to fish,
wildlife, and related environmental
values to the extent possible. This
provision is consistent with sections
515(b)(24) and 516(b)(11) of SMCRA.
Nothing in this rule should be construed
as superseding the performance
standards for the protection of fish,
wildlife, and related environmental
values in 30 CFR 816.97 and 817.97 or
the related permitting requirements at
30 CFR 780.16 and 784.21.
No counterpart to sections 515(b)(10)
or 516(b)(9) is necessary because
paragraph (a)(1) of sections 816.43 and
817.43, which applies to diversions of
all types, including stream-channel
diversions, already provides that ‘‘[a]ll
diversions shall be designed to
minimize adverse impacts to the
hydrologic balance within the permit
and adjacent areas.’’ Furthermore,
paragraph (a)(2)(iii) of sections 816.43
and 817.43 requires that all diversions
be designed, located, constructed,
maintained, and used to prevent, to the
extent possible, using the best
technology currently available,
additional contributions of suspended
solids to streamflow outside the permit
area.’’ The language of that paragraph
closely resembles the language of
sections 515(b)(10)(B)(i) and
516(b)(9)(B) of the Act, which are two of
the statutory provisions underlying the
existing stream buffer zone rules.
Furthermore, our permitting regulations
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at 30 CFR 780.29 and 784.29 require
that each permit application include a
description of how stream-channel
diversions and other diversions are to be
constructed in compliance with 30 CFR
816.43 and 817.43, respectively.
In this final rule, we are adopting the
proposed revisions to sections
816.43(b)(1) and 817.43(b)(1) with one
editorial change. Instead of stating that
the regulatory authority may approve
the diversion of perennial and
intermittent streams within the permit
area if the diversion is located,
designed, constructed, and maintained
using the best technology currently
available to minimize adverse impacts
to fish, wildlife, and related
environmental values to the extent
possible, the final rule applies that
provision only to the location and
design of the diversion. This limitation
is appropriate because those are the
elements that would be included in the
permit application. Construction and
maintenance are more appropriately
included in a separate performance
standard, which we have accomplished
by adding a sentence to the end of
paragraph (b)(1) stating that the
permittee must construct and maintain
the diversion in accordance with the
approved design.
The U.S. Fish and Wildlife Service
stated that we were adopting a less
protective standard by revising the
standard from one that required a
finding that ‘‘the diversion will not
adversely affect the water quantity and
quality and related environmental
resources of the stream’’ to a
requirement that the diversion use the
best technology currently available to
minimize adverse impacts to fish,
wildlife, and related environmental
values to the extent possible. We do not
dispute this characterization. However,
the new standard is one that reflects the
provisions of SMCRA whereas the
previous standard has no direct
connection to SMCRA and is neither
appropriate nor practicable. The Service
recommended that we work with them
to develop state or regional design
standards that are practicable and
effective. We accept this
recommendation. We also intend to
invite EPA to participate because that
agency also expressed an interest in this
process.
The last sentence of paragraph (a)(3)
of sections 816.43 and 817.43 as
published on September 26, 1983 (48 FR
43993), provides that ‘‘[a] permanent
diversion or a stream channel reclaimed
after the removal of a temporary
diversion shall be designed and
constructed so as to restore or
approximate the premining
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characteristics of the original stream
channel including the natural riparian
vegetation to promote the recovery and
enhancement of the aquatic habitat.’’ In
the preamble to the proposed rule, we
stated that the sentence pertained only
to stream-channel diversions. Therefore,
we proposed to move that sentence to
paragraph (b) of sections 816.43 and
817.43 because those sections contain
all other performance standards that
pertain only to stream-channel
diversions. As proposed, the final rule
that we are adopting today inserts that
sentence in revised form as paragraph
(b)(4) of sections 816.43 and 817.43 and
redesignates former paragraph (b)(4) as
paragraph (b)(5).
However, EPA noted that the effect of
the proposed changes would be to limit
the requirements of that sentence to
diversions of perennial and intermittent
streams, thus excluding diversions of
ephemeral streams. EPA stated that
nothing in the existing rules limited the
scope of the last sentence of paragraph
(a)(3) to perennial and intermittent
streams. While supporting new
paragraph (b)(4), EPA urged us to also
retain the last sentence of paragraph
(a)(3) in paragraph (a) to ensure that its
requirements continue to apply to
permanent diversions of miscellaneous
flows (including ephemeral streams)
under paragraph (c).
After considering this comment, we
have decided not to implement our
proposal to remove the last sentence of
paragraph (a)(3). We recognize that there
will be situations in which permanent
diversions of ephemeral streams are
constructed and that some ephemeral
streams may have riparian vegetation or
aquatic habitats that must be replaced or
restored to the extent required under
paragraphs (a) and (f) of 30 CFR 816.97
and 817.97. However, because all other
elements of paragraph (a)(3) pertain
only to temporary diversions, we are
redesignating that sentence as new
paragraph (a)(4) and are redesignating
existing paragraph (a)(4) as paragraph
(a)(5). In addition, for clarity and
consistency with new paragraph (b)(4),
we have slightly revised new paragraph
(a)(4) by replacing the phrase ‘‘stream
channel reclaimed after the removal of
a temporary diversion’’ with ‘‘stream
channel restored after the completion of
mining’’ to avoid creating the
impression that the temporary diversion
must be removed before constructing a
restored stream channel. We also
inserted the modifier ‘‘any’’ in front of
‘‘riparian vegetation’’ because not all
ephemeral streams have riparian
vegetation.
We have decided not to adopt our
proposed editorial revisions to
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paragraph (a)(3) of sections 816.43 and
817.43 because we have determined that
they would not improve the clarity of
that paragraph.
Revised paragraph (b)(4) provides that
a permanent stream-channel diversion
or a stream channel restored after the
completion of mining must be designed
and constructed using natural channel
design techniques so as to restore or
approximate the premining
characteristics of the original stream
channel, including the natural riparian
vegetation and the natural hydrological
characteristics of the original stream, to
promote the recovery and enhancement
of the aquatic habitat and to minimize
adverse alteration of stream channels on
and off the site, including channel
deepening or enlargement, to the extent
possible. The final rule is similar to the
proposed rule, although, to improve
clarity, we replaced the phrase ‘‘stream
channel reclaimed after the removal of
a temporary diversion’’ in the proposed
rule with the more accurate phrase
‘‘stream channel restored after the
completion of mining.’’ The revised
language reflects the facts that, in the
context of this rule, a stream channel is
restored, not reclaimed (in 30 CFR
701.5, we define reclamation in terms of
the postmining land use), and that the
restored stream channel must be in
place before the temporary streamchannel diversion is removed.
As proposed, paragraph (b)(4)
includes new language concerning
natural channel design and adverse
alteration of stream channels. This
language reinforces and clarifies the
meaning of the requirement to restore or
approximate the premining
characteristics of the original stream.
The goals of natural channel design
include creating a stream channel that
will maintain the equilibrium of a
natural stream, neither downcutting
(degrading) nor filling in (aggrading). A
natural channel is not stable in the
sense that a concrete, trapezoidal
channel is stable. Depending on the
stream type, a natural channel may
meander, eroding and depositing
sediment at natural rates as part of its
dynamic equilibrium. The channel must
pass the water and sediment that it
receives downstream, and the channel
must maintain a connection to the
stream’s floodplain. The new provisions
are consistent with sections 515(b)(24)
and 516(b)(11) of SMCRA, which
require use of the best technology
currently available to minimize
disturbances and adverse impacts to
fish, wildlife, and related environmental
values to the extent possible.
In a final rule on compensatory
mitigation for losses of aquatic
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resources, published on April 10, 2008
(73 FR 19594), EPA and the Corps
promulgated standards for
compensatory mitigation for adverse
impacts on streams under section 404 of
the Clean Water Act. The provisions of
the EPA/Corps mitigation rule related to
mitigation work plans for streams are
contained in 33 CFR 332(c)(7) and
include concepts of natural stream
channel design. In certain situations,
mine operators may find it
advantageous to design, construct, and
maintain stream-channel diversions in a
manner that satisfies both the
requirements of sections 816.43 and
817.43 of this rule and the requirements
of the EPA/Corps compensatory
mitigation rule.
In the preamble to the proposed rule,
we sought comment on whether the
revisions to sections 816.43(b) and
817.43(b) were sufficient to meet the
requirements of SMCRA, or whether we
should also revise our permitting rules
to include a requirement for submission
of alternatives and an analysis of the
environmental impacts of each
alternative whenever the applicant
proposes to mine through waters of the
United States or divert perennial or
intermittent streams. The requirements
would be similar to the corresponding
requirements for excess spoil fills and
coal mine waste disposal facilities in
sections 780.25(d)(1) and 780.35(a)(3)
for surface mines or sections
784.16(d)(1) and 784.19(a)(3) for
underground mines. Potential
alternatives could involve the number
and length of stream segments diverted,
diversion design, construction
technique, location of the diversion, and
whether the diversion is temporary or
permanent.
EPA supported requiring an
alternatives analysis for both streamchannel diversions and mining through
streams, stating that the potential for
significant stream degradation as a
result of these activities would be
minimized by doing so. The agency
stated that stream diversions and
mining through streams often have
adverse impacts including direct losses
of stream function and resulting
alteration of downstream hydrology,
water chemistry, and biotic
communities. The agency noted the
preamble listed no examples of
alternatives to mining through streams
and suggested that those alternatives
could consist of variations in the
number and length of stream segments
impacted, construction techniques,
reclamation design, and location.
One state regulatory authority
opposed requiring an alternatives
analysis for mining through streams and
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stream-channel diversions. The
commenter stated that doing so would
exceed the requirements of both SMCRA
and the Clean Water Act and that the
Corps does not require an analysis of
alternatives in these situations. The
commenter supported the naturalchannel design requirement.
After evaluating these comments, we
have decided not to require an
alternatives analysis either for stream
diversions or mining through streams.
First, when coal reserves exist beneath
a stream and those reserves could be
extracted by surface mining methods,
they are either mined or they are not.
Under SMCRA, an operator’s decision
on whether to mine through a stream
will be determined by geology,
topography, and economics. We have no
authority under SMCRA to prevent
diversion of a stream or mining through
a stream unless SMCRA prohibits
surface coal mining operations on the
land where the stream is located.
(However, SMCRA does not override
prohibitions that apply under other laws
and regulations. Any such prohibitions
will continue to apply according to the
terms of those laws and regulations.)
Therefore, an alternatives analysis for
mining through a stream is not
appropriate under SMCRA. With respect
to stream diversions, this final rule
strengthens the requirement that
diversions approximate natural stream
characteristics by adding a requirement
for the use of natural-channel design
techniques. Construction of streamchannel diversions in accordance with
these rules should minimize damage to
undisturbed areas of the stream and
should result in only temporary adverse
impacts to the diverted segment.
Because the rule already requires the
use of natural-channel design
techniques, an alternatives analysis for
stream diversions would add no value
to the decision-making process.
Finally, as proposed, we are
redesignating former paragraph (b)(4) of
sections 816.43 and 817.43 as paragraph
(b)(5). In accordance with the proposed
rule, we are revising that paragraph to
require that a qualified registered
professional engineer certify both the
design and construction of all streamchannel restorations. The former rule
applied that requirement only to
diversions of perennial and intermittent
streams. We are adding the additional
requirement because stream-channel
restorations are even more significant in
terms of stability and environmental
concerns than temporary diversions that
exist only for the duration of mining;
i.e., reconstructed stream channels
should be safe and stable and should
approximate premining conditions
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regardless of whether the channel is a
temporary or permanent diversion or a
restoration of the original channel. In
addition, we are making editorial
revisions to this paragraph to clarify that
separate certifications are required for
the design and construction of streamchannel diversions and stream
restorations and to specify which
requirements apply to the design
certification and which apply to the
construction certification.
H. Sections 816.46 and 817.46: Siltation
Structures
Paragraph (b)(2) of 30 CFR 816.46 and
817.46 (1983) required that all surface
drainage from the disturbed area be
passed through a siltation structure
before leaving the permit area. In
essence, that paragraph prescribed
siltation structures (sedimentation
ponds and other treatment facilities
with point-source discharges) as the best
technology currently available for
sediment control. However, paragraph
(b)(2) was struck down upon judicial
review because the court found that the
preamble to the rulemaking in which it
was adopted did not articulate a
sufficient basis for the rule under the
Administrative Procedure Act. The
court stated that the preamble did not
adequately discuss the benefits and
drawbacks of siltation structures and
alternative sediment control methods
and did not enable the court ‘‘to discern
the path taken by [the Secretary] in
responding to commenters’’ concerns’’
that siltation structures in the West are
not the best technology currently
available. See In re: Permanent Surface
Mining Regulation Litigation II, Round
III, 620 F. Supp. 1519, 1566–1568
(D.D.C. July 15, 1985).
On November 20, 1986 (51 FR 41961),
we suspended the rules struck down by
the court. To avoid any confusion that
may result from the continuing
publication of those rules in the Code of
Federal Regulations, we proposed to
remove paragraph (b)(2) of sections
816.46 and 817.46 and redesignate the
remaining paragraphs of those sections
accordingly. The continued presence of
the suspended paragraphs in the
published version of the rules has been
a source of ongoing confusion.
We received no comments opposing
this proposal. Therefore, we are
removing paragraph (b)(2) of sections
816.46 and 817.46 as proposed. This
action supersedes the 1986 suspension
of the paragraph being removed.
Sections 816.45 and 817.45, which
remain unchanged by this rule, set forth
various measures and techniques that
may constitute the best technology
currently available for sediment control,
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although applicants and regulatory
authorities are not limited to those
measures and techniques.
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I. Sections 816.57 and 817.57: Activities
in or Adjacent to Perennial or
Intermittent Streams
1. Background
Perennial and intermittent streams
overlie coal deposits in all regions of the
nation. To the extent economically
feasible and allowed by law, surface
mining operations often relocate those
streams as part of the process of
recovering the underlying coal. Streams
also may be relocated to facilitate the
construction of mine-related facilities
such as coal preparation plants. In other
cases, steep slopes, narrow valleys and
other topographical limitations may
result in the construction of excess spoil
fills, refuse piles, sedimentation ponds,
and coal mine waste impoundments in
streams because the stream valley is the
only logical and technologically and
economically feasible location for those
structures. All types of surface coal
mining and reclamation operations may
experience the need to construct bridge
abutments, culverts, or other structures
in or near perennial or intermittent
streams to facilitate crossing of those
streams by roads, railroads, conveyors,
pipelines, utilities, or similar facilities.
Neither SMCRA nor the Clean Water
Act precludes any of these activities,
provided the activities comply with all
applicable requirements of those laws
and their implementing regulations.
Parts II and III.A. of this preamble
explain the extent to which either
SMCRA or its legislative history
contemplates the activities listed above.
For example, section 515(b)(22)(D)
mentions the construction of excess
spoil fills in areas containing natural
watercourses, springs, and wet-weather
seeps. In addition, the legislative history
of SMCRA indicates that Congress
anticipated the continued construction
of coal mine waste impoundments in
streams.
As discussed in Part III.A. of this
preamble, Congress, in developing the
legislation that ultimately became
SMCRA, specifically considered and
rejected inclusion of an absolute
prohibition on disturbance of land
within 100 feet of certain streams. While
we subsequently adopted stream buffer
zone rules as part of our initial and
permanent program regulations
implementing SMCRA, we and the state
regulatory authorities have historically
interpreted those rules as allowing
placement of fill material, including
coal mine waste, in waters of the United
States, subject to approval of that
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placement under the Clean Water Act.
As discussed at length in Part III.E. of
this preamble, our historical
interpretation and application of the
stream buffer zone rule is in harmony
with statements in the decision of the
U.S. Court of Appeals for the Fourth
Circuit in Kentuckians for the
Commonwealth, Inc. v. Rivenburgh, 317
F.3d 425, 442 (4th Cir. 2003). The rules
that we are adopting today are intended
to clarify any lingering ambiguity
regarding the appropriate interpretation
of the stream buffer zone rules.
The stream buffer zone rule
effectively prescribes maintenance of a
100-foot undisturbed zone between
perennial or intermittent streams and
surface mining activities (or, for
underground mines, surface activities
on the surface of lands) as the best
technology currently available to fulfill
the sediment control and fish and
wildlife protection requirements of
sections 515(b)(10)(B)(i), 515(b)(24),
516(b)(9)(B), and 516(b)(11) of SMCRA.
However, the concept of maintenance of
an undisturbed buffer zone as the best
technology currently available for
purposes of those sections of the Act
applies only to activities that do not
involve disturbance of the streambed
and do not inherently occur within the
buffer zone. When the regulatory
authority and other pertinent
government agencies approve the
conduct of activities within the stream
and/or its buffer zone, an undisturbed
buffer between those activities and the
stream inherently cannot be maintained.
Construction of fills and impoundments
in streams inherently involves
disturbance of all or part of what would
have been the buffer zone for the
affected stream segment, as does
construction of most stream-crossing
structures. In addition, when a stream is
diverted, the original streambed and
what would have been its buffer zone
typically are mined through or used for
construction of mining-related facilities.
Nothing in this discussion should be
construed as meaning that all
sedimentation ponds, excess spoil fills,
refuse piles, coal mine waste slurry
impoundments, and stream crossing
structures are automatically exempt
from the requirement to maintain an
undisturbed buffer zone. Only those
structures and activities (or portions
thereof) for which there is no reasonable
alternative location qualify for this
exception.
Section 827.12 of our rules does not
apply the stream buffer zone rule in
sections 816.57 and 817.57 to coal
preparation plants not located within
the permit area of a mine. See 48 FR
20399, May 5, 1983. We proposed no
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changes to section 827.12 and nothing
in the final rule that we are adopting
today alters that situation. As part of
this final rule, we are moving the
permitting aspects of the previous
version of the stream buffer zone rule in
sections 816.57 and 817.57 to new
sections 780.28 and 784.28. Existing
section 785.21(c) provides that coal
preparation plants not located within
the permit area of a mine are subject not
only to the special permitting
requirements of section 785.21, but also
to ‘‘all other applicable requirements of
this subchapter.’’ ‘‘This subchapter’’
refers to subchapter G of chapter VII,
which contains the permitting
requirements for all surface coal mining
and reclamation operations. Thus, to
ensure that section 785.21(c) is not now
interpreted as including the newly
added permitting requirements related
to the stream buffer zone rule, we are
adding paragraph (a)(2)(i) of sections
780.28 and 784.28 to specify that the
requirements of those sections do not
apply to applications under section
785.21 for coal preparation plants not
located within the permit area for a
mine. See Part VIII.C. of this preamble.
However, the other permitting rules that
we are adopting today, including the
new informational and analytical
requirements for proposed excess spoil
fills and coal mine waste disposal
facilities, typically will apply to those
applications, either through operation of
section 785.21(c) or through crossreferences in the performance standards
listed in section 827.12. In addition,
section 827.12(b) specifically requires
that any stream-channel diversion
comply with section 816.43.
2. General Description of Changes
The revised version of sections 816.57
and 817.57 that we are adopting today
attempts to minimize disputes and
misunderstandings associated with
application of the 1983 version of the
stream buffer zone rules in sections
816.57 and 817.57. The language of the
rules that we are adopting today better
conforms to the underlying provisions
of SMCRA. The revised rules
distinguish between those situations in
which maintenance of an undisturbed
buffer between surface activities and
perennial and intermittent streams
constitutes the best technology currently
available to implement the underlying
statutory provisions (sections
515(b)(10)(B)(i) and (b)(24) and
516(b)(9)(B) and (b)(11) of SMCRA) and
those situations in which maintenance
of a buffer is neither feasible nor
appropriate because the stream segment
will be diverted, altered by a culvert or
other stream-crossing structure,
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impounded, or filled. In the case of
stream crossings involving bridges,
pipelines, utilities, or conveyors, the
stream itself may sometimes remain
undisturbed, but the crossing will then
most likely require installation of
abutments within the buffer zone.
Construction of fills and impoundments
in streams inherently involves
disturbance of all or part of what would
have been the buffer zone for the
affected stream segment, as does
construction of most stream-crossing
structures. In addition, when a stream is
diverted, the original streambed and
what would have been its buffer zone
typically are mined through or used for
construction of mining-related facilities.
As proposed, we are reorganizing our
rules to separate permitting
requirements from performance
standards. The previous version of
paragraph (a) of sections 816.57 and
817.57 contained both permitting
requirements and performance
standards. The rules that we are
adopting today separate the two for
clarity and consistency. Revised
sections 816.57 and 817.57 include only
performance standards. As proposed,
we are moving the permitting aspects of
the stream buffer zone rules, which
were formerly codified in paragraph
(a)(1) of sections 816.57 and 817.57 as
part of the performance standards in
subchapter K, to new sections 780.28
and 784.28, which are part of the
permitting requirements of subchapter
G.
As proposed, we are deleting former
paragraph (a)(2) of sections 816.57 and
817.57, which required the regulatory
authority to make a finding that any
proposed temporary or permanent
stream-channel diversion will comply
with section 816.43 or 817.43. This
provision is unnecessary because the
obligation to comply with the streamchannel diversion requirements of
sections 816.43 and 817.43 is
independent of any cross-reference in
section 816.57 or 817.57. We are
consolidating the permitting
requirements for stream-channel
diversions in sections 816.43 and
817.43, which we are revising as
proposed. See Part VIII.G. of this
preamble.
We also are deleting former paragraph
(b) of sections 816.57 and 817.57, which
provided that the area not to be
disturbed must be designated as a buffer
zone and marked as specified in section
816.11 or 817.11. This deletion is not a
substantive change because the
requirement to mark the area to be left
undisturbed as a buffer zone also
appears in sections 816.11(e) and
817.11(e), which we have revised for
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clarity and consistency as discussed in
Part VIII.F. of this preamble. We
received no response to our request in
the preamble to the proposed rule for
comment on whether a formal
regulatory definition of ‘‘buffer’’ or
‘‘buffer zone’’ would be useful. We did
not include a definition in the proposed
rule and we are not adopting a
definition as part of this final rule
because we find the meaning of those
terms to be clear without a regulatory
definition.
Commenters representing industry
and state regulatory authorities
generally supported the proposed
revisions to sections 816.57 and 817.57
as much-needed and appropriate
clarifications of those rules. However,
one commenter stated that the proposed
rule did not go far enough:
We agree with how the clarification more
explicitly reflects the historic interpretation
by distinguishing between activities that are
not planned to occur in streams where a
buffer zone does apply and those activities
that inherently involve placement of fill or
the disturbance of the stream channel.
However, the text of the rule uses new
terminology such as ‘‘prohibition’’ and
‘‘exceptions’’ which incorrectly implies that
the rule (and therefore the statute) prohibits
disturbances in stream channels. As the
agency correctly notes in the preamble, coal
mining involves activities that inherently
involve disturbances or placement of fill in
the stream so a buffer zone is neither feasible
nor appropriate. Accordingly, for those
activities, there is no buffer zone at all. As
OSM explains, ‘‘those activities are governed
by other regulations.’’ The conduct of those
types of activities is approved in the permit
in accordance with the ‘‘other regulations’’
which specifically govern those activities.
The rule as presently structured by setting
forth the buffer zone requirement and then
listing exceptions will inevitably prove to be
inflexible or quickly obsolete since there are
many types of activities where a buffer zone
is infeasible or inappropriate. Of course this
can be remedied by simply adding a catchall provision to the exceptions that
recognizes any other activity planned and
approved to occur in the stream. However,
we believe it far better to restructure the rule
so that it more straightforwardly reflects the
underlying functional and operational
distinction that has guided the rule’s
application historically: (1) activities that
occur in the streams and, (2) activities that
are not designed to occur in the streams.
The commenter provided a suggested
rewrite of sections 816.57 and 817.57,
which we are not adopting, for the most
part. We appreciate the commenter’s
support of the basic principle
underlying our revisions to the stream
buffer zone rule, but we disagree with
the commenter’s arguments against use
of the terms ‘‘prohibitions’’ and
‘‘exceptions.’’ We find that those terms
accurately describe the pertinent
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portions of the stream buffer zone rule.
We have revised the rule to eliminate
the term ‘‘prohibitions’’ from the rule
text, but we continue to characterize
paragraph (a) of sections 816.57 and
817.57 as a prohibition in the preamble.
We also continue to use the term
‘‘exception’’ as the heading for
paragraph (b) of sections 816.57 and
817.57, but, in response to this comment
and a desire to improve the clarity of the
proposed rule, we have revised the
introductory text of that paragraph to
clarify that the term ‘‘exception’’ means
that the buffer requirement of paragraph
(a) of sections 816.57 and 817.57 does
not apply to those segments of a
perennial or intermittent stream for
which the regulatory authority, in
accordance with sections 780.28(d),
784.28(d), 816.43(b)(1), or 817.43(b)(1),
approves one or more of the activities
listed in paragraphs (b)(1) through (b)(4)
of sections 816.57 and 817.57. Thus, as
used in the final rule and this preamble,
the term ‘‘exception’’ does not apply to
the activity itself.
The term ‘‘exception’’ in the proposed
rule and its preamble sometimes refers
to the activities listed in paragraphs
(b)(1) through (b)(4) of sections 816.57
and 817.57 (most of which refer only to
activities in the stream itself, not to
activities in the buffer zone). At other
times, it refers to land within 100 feet
of the stream segment directly impacted
by those activities. However, in this
final rule, the term exception refers only
to what would otherwise be the buffer
zone for stream segments for which the
regulatory authority approves one or
more of the activities listed in
paragraphs (b)(1) through (b)(4). This
usage is consistent with the preamble to
the proposed rule, which describes
paragraph (b) of sections 816.57 and
817.57 as ‘‘providing an exception from
the prohibition on conducting activities
that would disturb the surface of lands
within 100 feet of waters of the United
States.’’ 72 FR 48908–48909, August 24,
2007. In addition, it is consistent with
the intent of the proposed rule, which
as stated in the introductory clause of
proposed paragraph (b), was to specify
the circumstances in which the
requirement to avoid disturbance of
land within 100 feet of waters of the
United States did not apply.
Under the final rule, with the
exception of stream-channel diversions,
for which all requirements appear in
sections 816.43(b) and 817.43(b),
application requirements for activities
that take place in perennial or
intermittent streams appear in sections
780.28(b) and 784.28(b), regulatory
authority approval standards for those
activities appear in sections 780.28(d)
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and 784.28(d), and performance
standards for those activities appear in
paragraphs (b)(1) through (b)(4) and (c)
of sections 816.57 and 817.57. With
respect to activities that will take place
within 100 feet of a perennial or
intermittent stream segment, but will
not disturb the stream segment itself,
the final rule establishes application
requirements in sections 780.28(c) and
784.28(c), regulatory authority approval
standards in sections 780.28(e) and
784.28(e), and performance standards in
paragraph (c) of sections 816.57 and
817.57.
We are not adopting the commenter’s
recommendation that we revise
paragraph (b) of sections 816.57 and
817.57 to exclude buffer zones for
stream segments affected by any activity
planned and approved to occur in the
stream. We find this exception to be too
broad. We believe that the activities that
we list in paragraphs (b)(1) through
(b)(4) include all situations in which it
may be inherently necessary to conduct
activities in a stream segment to
facilitate surface coal mining and
reclamation operations. We also have
reviewed our rules to ensure that, for
those activities, the obligation to
minimize disturbances and adverse
impacts to fish, wildlife, and related
environmental values to the extent
possible using the best technology
currently available has been applied
through other requirements. To the
extent that a SMCRA permit applicant
may receive authorization under the
Clean Water Act to place fill material in
the stream as part of an activity other
than those listed in paragraphs (b)(1)
through (b)(4), we will take that
approval into consideration during the
SMCRA permitting process. However,
any activities conducted in the buffer
zone for the stream segment affected by
the Clean Water Act authorization will
remain subject to the pertinent
provisions of sections 780.28 and 816.57
or sections 784.28 and 817.57.
Many commenters strongly opposed
our proposed revisions to sections
816.57 and 817.57, characterizing
paragraph (b) in particular as creating
new and unwarranted exceptions. We
disagree with this characterization. The
1983 version of the stream buffer zone
rule has historically been applied—and
continues to be applied—to allow each
of the activities listed in paragraphs
(b)(1) through (b)(4) to occur. As other
commenters emphasize, the requirement
to maintain an undisturbed buffer
between the stream and surface
activities related to surface coal mining
and reclamation operations has not been
applied and does not apply to activities
planned and approved to occur in
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intermittent or perennial streams—and
in those situations the rationale for
maintaining an undisturbed buffer
ceases to exist. As discussed at length in
Part III.E. of this preamble, our
historical approach to application of the
stream buffer zone rule is in harmony
with statements of the U.S. Court of
Appeals for the Fourth Circuit in its
decision in Kentuckians for the
Commonwealth, Inc. v. Rivenburgh, 317
F.3d 425, 442–443 (4th Cir. 2003) (‘‘it is
beyond dispute that SMCRA recognized
the possibility of placing excess spoil
material in waters of the United
States’’).
The final rule that we are adopting
today clarifies, but in this regard does
not alter, the basic historical and current
application of the 1983 stream buffer
zone rule. Consistent with the
application of the 1983 stream buffer
zone rule, paragraph (b) of final sections
816.57 and 817.57 recognizes that the
conduct of surface coal mining and
reclamation operations sometimes
requires the diversion of perennial and
intermittent streams, the construction of
fills in streams, and other disturbances
of stream segments for sediment control
and construction of stream crossings.
Therefore, the final rule provides that
the requirement to maintain an
undisturbed buffer zone for perennial
and intermittent streams does not apply
to those stream segments for which the
regulatory authority approves one or
more of the activities listed in
paragraphs (b)(1) through (b))(4) of
sections 816.57 and 817.57.
3. Paragraph (a)
Final paragraph (a)(1) of sections
816.57 and 817.57 specifies that, except
as provided in paragraph (b) and
consistent with paragraph (a)(2), the
permittee or operator may not conduct
surface activities that would disturb the
surface of land within 100 feet,
measured horizontally, of a perennial or
intermittent stream unless the
regulatory authority authorizes the
disturbance under paragraph (e) of
section 780.28 or 784.28. With the
exception of the addition of a new
paragraph (a)(2), paragraph (a) of final
sections 816.57 and 817.57 is
substantively identical to the proposed
rule, although we have made minor
editorial revisions for clarity and
brevity.
The final rule adds a new paragraph
(a)(2) to sections 816.57 and 817.57 to
address Clean Water Act requirements.
We are also adding a citation to the new
paragraph in paragraph (a)(1). New
paragraph (a)(2) provides that surface
mining activities in perennial or
intermittent streams may be authorized
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75857
only where those activities would not
cause or contribute to the violation of
applicable State or Federal water quality
standards developed pursuant to the
Clean Water Act, as determined through
certification under section 401 of the
Clean Water Act (33 U.S.C. 1341) or a
permit under section 402 or 404 of the
Clean Water Act (33 U.S.C. 1342 and
1344, respectively). This language does
not establish a general prohibition
against mining activities in intermittent
or perennial streams, including the
placement of excess spoil or other fill
materials in those streams. Instead, it
reiterates that mining-related discharges
are subject to the permitting
requirements of sections 402 and 404 of
the Clean Water Act and the water
quality certification requirement under
section 401 of the Clean Water Act.
These requirements are independently
applicable under the Clean Water Act.
Paragraph (a)(2) does not require the
SMCRA regulatory authority to make a
determination that a particular mining
activity is consistent with applicable
water quality standards. The
determination that a particular mining
activity is consistent with applicable
water quality standards will be made
only by the appropriate Federal or State
entity responsible for the issuance of
permits under sections 402 and 404 of
the Clean Water Act and certification
under section 401 of that law. The rule
anticipates that a SMCRA permit will
typically be issued prior to issuance of
any permits or certifications required
under the Clean Water Act. However, in
those circumstances, new paragraph
(d)(2) of sections 780.28 and 784.28
provides that a SMCRA permit
authorizing mining activities in
perennial or intermittent streams must
include a condition requiring that the
permittee obtain all required approvals
under the Clean Water Act before
initiating those activities. As the rule
itself makes clear, this provision of the
stream buffer zone rule is not applicable
to any water not subject to jurisdiction
under the Clean Water Act. Further, any
discharges to waters not covered by the
stream buffer zone rule that are
jurisdictional ‘‘waters of the United
States’’ under the Clean Water Act must
still comply with all applicable
permitting requirements under that law.
As discussed in more detail in Part IV
of this preamble, none of the revisions
to the stream buffer zone rule or other
elements of this final rule affect a mine
operator’s responsibility to comply with
water quality standards, effluent
limitations, or other requirements of the
Clean Water Act.
A few commenters argued that a 100foot buffer zone [see paragraph (a)(1) of
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the final rule] was insufficient to ensure
protection of fish, wildlife, and related
environmental values associated with
the streams. Those comments are not
germane to this rulemaking because we
did not propose any changes to the 100foot distance, which has long been a
matter of settled law, nor did we seek
comments on the adequacy of that
distance. To the extent that commenters
provided scientific data to support their
suggestions, they did so primarily in the
context of the value of buffers for
terrestrial species. However, the width
of the buffer that we established in our
rules is based upon sediment control
and protection of aquatic ecosystems.
In developing the stream buffer zone
rule for the initial regulatory program,
we selected the 100-foot width based
primarily on sediment control
considerations. See the preamble to 30
CFR 715.17(d)(3) at 42 FR 62652,
December 13, 1977, which states that
‘‘[t]he 100-foot limit is based on typical
distances that should be maintained to
protect stream channels from abnormal
erosion.’’ Preambles to subsequent
versions of the stream buffer zone rule
mention the benefits that buffer zones
provide to wildlife, but those benefits
are ancillary to the primary purpose of
the buffer zone, which is to protect the
integrity of the stream. In the preamble
to the 1983 version of the stream buffer
zone rule at 30 CFR 816.57 and 817.57,
we rejected comments suggesting buffer
widths other than 100 feet, stating
that—
rwilkins on PROD1PC63 with RULES_2
The 100-foot width is used to protect
streams from sedimentation and help
preserve riparian vegetation and aquatic
habitats. Since the 100-foot zone provides a
simple and valuable standard for
enforcement purposes, OSM has chosen not
to change the general rule.
48 FR 30314, June 30, 1983.
Expanding the stream buffer zone
based on the needs of terrestrial species
has no sound scientific basis for the
purpose of the stream buffer zone rule,
which focuses on protection of water
quality and aquatic habitats.
Furthermore, establishing a buffer zone
width based on the needs of terrestrial
species is not practical because the
optimal width of the buffer zone for
each species varies considerably. In
addition, as discussed in section
III.I.1.a) of the final environmental
impact statement (FEIS) for this
rulemaking, a 100-foot buffer zone has
considerable value as a connecting
corridor for terrestrial species. Also, as
discussed in section III.I.1 of the FEIS,
scientific studies generally support the
current 100-foot width for purposes of
sediment control and protection of
aquatic ecosystems. Other existing rules,
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including those at 30 CFR 780.16,
784.21, 816.97, and 817.97, provide
sufficient protection for terrestrial
wildlife.
One commenter stated that section
817.57(a) should apply to subsidence
resulting from underground mining
activities beneath the stream. We
disagree. In response to litigation
concerning the 1983 version of 30 CFR
817.57, we stipulated that the stream
buffer zone requirement for
underground mines ‘‘is directed only to
disturbance of surface lands by surface
activities associated with underground
mining.’’ In re: Permanent Surface
Mining Regulation Litigation II-Round
II, 21 ERC 1725, 1741, footnote 21
(D.D.C. 1984). In addition, only one
provision of SMCRA prohibits the
conduct of underground mining
operations that could result in the
subsidence of streams. That provision
[section 516(c)] requires the regulatory
authority to suspend underground coal
mining adjacent to ‘‘permanent streams’’
if the mining activities present an
‘‘imminent danger to inhabitants of the
urbanized areas, cities, towns, and
communities.’’ Our regulations at 30
CFR 817.121(f) clarify that the term
‘‘permanent streams’’ means perennial
streams. Neither section 516(c) of the
Act nor 30 CFR 817.121(f) mention
environmental impacts as a threshold
for the prohibition of mining.
Subsidence impacts are regulated
under section 516(b)(1) of SMCRA,
which provides, in relevant part, that
the permit must require the operator
to—
Adopt measures consistent with known
technology in order to prevent subsidence
causing material damage to the extent
technologically and economically feasible,
maximize mine stability, and maintain the
value and reasonably foreseeable use of such
surface lands, except in those instances
where the mining technology used requires
planned subsidence in a predictable and
controlled manner: Provided, That nothing in
this subsection shall be construed to prohibit
the standard method of room and pillar
mining.
Our definition of ‘‘material damage’’
in this context in 30 CFR 701.5 includes
a functional impairment of surface lands
or features. Perennial and intermittent
streams are considered surface features.
As stated in the preamble to that
definition, ‘‘[t]he definition of ‘material
damage’ covers damage to the surface
and to surface features, such as
wetlands, streams, and bodies of water,
and to structures or facilities.’’ 60 FR
16724, March 31, 1995. Therefore, the
subsidence control plan for the
underground mine prepared under
section 784.20(b) and implemented
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under section 817.121(a) and (b) must
address impacts on perennial and
intermittent streams and the extent to
which the operation can be and has
been designed to prevent subsidence
causing material damage to the extent
technologically and economically
feasible (or, for planned subsidence
operations, the extent to which the
operation has been designed to
minimize material damage to the extent
technologically and economically
feasible).
4. Paragraph (b)
Paragraph (b) of the proposed rule
provided that the prohibition in
paragraph (a) on disturbance of the
buffer zone did not apply to certain
activities in waters of the United States.
Those activities were listed in
paragraphs (b)(1) through (b)(4). We
have extensively revised paragraph (b)
in response to comments. First, as
discussed in Part VII of this preamble,
we did not adopt the proposed change
in scope from perennial and
intermittent streams to waters of the
United States. Second, as discussed
above in Part VIII.I.2. of this preamble,
we have revised the introductory
language of paragraph (b) to clarify that
the buffer requirement of paragraph (a)
does not apply to those segments of a
perennial or intermittent stream for
which the regulatory authority, in
accordance with sections 780.28(d),
784.28(d), 816.43(b)(1), or 817.43(b)(1),
approves one or more of the activities
listed in paragraphs (b)(1) through (b)(4)
of sections 816.57 and 817.57. There is
no need or reason to apply the buffer
requirements of paragraph (a)(1) to a
stream segment that will cease to exist
because of construction of a streamchannel diversion, excess spoil fill,
refuse pile, slurry impoundment, or
sedimentation pond.2 In those
situations, there is no longer any stream
segment to protect. Furthermore,
construction of those diversions, fills,
and impoundments inherently requires
disturbance of the buffer for the stream
segment as well as the stream segment
itself. With respect to stream crossings
2 In Ohio Valley Environmental Council v. U.S.
Army Corps of Engineers, Civ. Action No. 3:05–
0784 (S.D. W. Va., June 13, 2007), the district court
held that discharges of sediment-laden water from
the toe of a fill into stream segments leading to a
sedimentation pond embankment require a permit
under section 402 of the Clean Water Act. That
decision is on appeal to the U.S. Court of Appeals
for the Fourth Circuit as of the date of writing of
this preamble. However, we believe this rule, as
finalized here, is sufficient to accommodate the
ultimate outcome of this litigation because the
issuance of a SMCRA permit does not relieve the
permittee of the obligation to comply with all
requirements of the Clean Water Act. See section
702(a) of SMCRA.
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rwilkins on PROD1PC63 with RULES_2
under paragraph (b)(2), culverts, lowwater crossings, and excavations for
buried pipelines and utilities
necessarily disturb the streambed. The
road, pipeline, conveyor, or other utility
will necessarily disturb portions of the
buffer zone adjacent to the crossing,
even when a bridge is constructed to
avoid directly disturbing the stream
itself. Third, in addition to removing
references to waters of the United
States, we have modified paragraphs
(b)(1) through (b)(4) as explained in the
following discussion of those
paragraphs.
As proposed, for informational
purposes, paragraphs (b)(1) through
(b)(4) specify that persons conducting
the activities listed in those paragraphs
must comply with all other applicable
requirements of the regulatory program.
Each of those paragraphs also crossreferences some of the most directly
relevant regulatory program
requirements.
Paragraph (b)(1)
Proposed paragraph (b)(1) applied to
mining through waters of the United
States. It specified that such activities
must comply with the requirements of
section 816.43(b) or 817.43(b) if the
mining involves the temporary or
permanent diversion of a perennial or
intermittent stream. One commenter
suggested that, to avoid creating the
misapprehension that the stream buffer
zone rule could operate to prohibit
underground mining beneath streams,
paragraph (b)(1) of section 817.57
should either be eliminated or be
revised to refer only to the diversion of
perennial or intermittent streams rather
than to mining through streams. In
response to this comment, we have
revised paragraph (b)(1) of both sections
816.57 and 817.57 by deleting the
reference to mining through waters of
the United States and replacing it with
a reference to diverting perennial or
intermittent streams.
We find the commenter’s suggestion
compelling with respect to underground
mining operations, which may require
diversion of some perennial or
intermittent stream segments to
facilitate the construction of miningrelated facilities, but which are unlikely
to involve mining through those
streams. We also find the change in
terminology appropriate for surface
mining operations because, in view of
our decision not to revise the scope of
this rule to include waters of the United
States, there is no longer any need to
refer to mining through waters other
than perennial or intermittent streams.
Sections 816.43(b) and 817.43(b)
effectively require that the permittee
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divert perennial or intermittent streams
before mining through them.
Therefore, we have revised paragraph
(b)(1) of sections 816.57 and 817.57 to
refer to diversions of perennial or
intermittent streams rather than to
mining through waters of the United
States. As in the proposed rule, the final
rule contains a reminder that all streamchannel diversions must comply with
sections 816.43(b) and 817.43(b), which
contain approval, design, and
construction requirements specific to
stream-channel diversions and streamchannel restorations.
Paragraph (b)(2)
Proposed paragraph (b)(2) applied to
the placement of bridge abutments,
culverts, or other structures in or near
waters of the United States to facilitate
crossing those waters. One commenter
requested that the rule also apply to
stream crossings for utilities, pipelines,
and conveyors. We intended for this
rule to apply to all stream crossings, not
just those for roads. Therefore, we have
revised paragraph (b)(2) to apply to the
placement of bridge abutments, culverts,
or other structures in or within 100 feet
of a perennial or intermittent stream to
facilitate the crossing of the stream by
roads, railroads, conveyors, pipelines,
utilities, or similar facilities. As
applicable, activities under this
paragraph must comply with the road
design, construction, and maintenance
requirements of sections 816.150 and
816.151 or, for railroad spurs, pipelines,
utilities, and conveyors, with the
support facility requirements of section
816.181. For underground mining
operations, the appropriate crossreferences are sections 817.150, 817.151,
and 817.181, respectively.
Sections 816.151(d)(6) and
817.151(d)(6) contain standards
governing the types of structures that
primary mine roads may use to cross
perennial and intermittent streams. Any
low-water crossings must be designed,
constructed, and maintained to prevent
erosion of the structure or the streambed
and additional contributions of
suspended solids to streamflow.
Sections 816.151(c)(2) and 817.151(c)(2)
prohibit the use of stream fords for
primary roads unless they are approved
by the regulatory authority as temporary
routes during road construction. All
mine access and haul roads, whether
primary or not, must comply with
section 816.150(b) or 817.150(b). Those
regulations include language similar to
the sedimentation control and fish and
wildlife protection requirements of
sections 515(b)(10)(B)(i), 515(b)(24),
516(b)(9)(B), and 516(b)(11) of SMCRA.
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75859
Also, under our existing regulations,
support facilities, which may include
railroads, pipelines, utilities, and
conveyor systems, must comply with
sections 816.181 and 817.181. Paragraph
(b) of sections 816.181 and 817.181
includes language similar to the
sedimentation control and fish and
wildlife protection requirements of
sections 515(b)(10)(B)(i), 516(b)(9)(B),
515(b)(24), and 516(b)(11) of SMCRA.
Paragraph (b)(3)
Proposed paragraph (b)(3) applied to
the construction of sedimentation pond
embankments in waters of the United
States. One commenter requested that
this provision be expanded to include
the pool or storage area for the
sedimentation pond. We believe that the
proposed rule implied the inclusion of
those areas because they are an
unavoidable result of the construction of
sedimentation pond embankments in
perennial or intermittent streams.
However, in response to this comment,
we have revised paragraph (b)(3) to
clarify that it applies to the construction
of sedimentation pond embankments in
a perennial or intermittent stream and,
by extension, to the pool or storage area
created by the embankment. As
proposed, final paragraph (b)(3)
provides that activities under this
paragraph must comply with the
sediment control requirements of
section 816.45(a) or 817.45(a). In
response to a different comment, we
have added a reminder that, under
sections 816.56 and 817.56, all
sedimentation pond embankments must
be removed and reclaimed before
abandoning the permit area or seeking
final bond release unless the regulatory
authority approves retention of the pond
as a permanent impoundment under
section 816.49(b) or 817.49(b) and
provisions have been made for sound
future maintenance by the permittee or
the landowner in accordance with 30
CFR 800.40(c)(2).
Both the 1979 and 1983 versions of
our permanent regulatory program
regulations prohibit the placement of
sedimentation ponds in perennial
streams unless approved by the
regulatory authority. See 30 CFR
816.46(a)(2) (1979) and 816.46(c)(1)(ii)
(1983). However, the preamble to the
1979 rules explains that construction of
sedimentation ponds in streams
typically is a necessity in steep-slope
mining conditions:
Sedimentation ponds must be constructed
prior to any disturbance of the area to be
drained into the pond and as near as possible
to the area to be disturbed. [Citation omitted.]
Generally, such structures should be located
out of perennial streams to facilitate the
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clearing, removal and abandonment of the
pond. Further, locating ponds out of
perennial streams avoids the potential that
flooding will wash away the pond. However,
under design conditions, ponds may be
constructed in perennial streams without
harm to public safety or the environment.
Therefore, the final regulations authorize the
regulatory authority to approve construction
of ponds in perennial streams on a sitespecific basis to take into account
topographic factors. [Citation omitted.]
*
*
*
*
*
Commenters suggested allowing
construction of sedimentation ponds in
intermittent and perennial streams. Because
of the physical, topographic, or geographical
constraints in steep slope mining areas, the
valley floor is often the only possible location
for a sediment pond. Since the valleys are
steep and quite narrow, dams must be high
and must be continuous across the entire
valley in order to secure the necessary
storage.
*
*
*
*
*
The Office recognizes that mining and
other forms of construction are presently
undertaken in very small perennial streams.
Many Soil Conservation Service (SCS) [now
the Natural Resources Conservation Service]
structures are also located in perennial
streams. Accordingly, OSM believes these
cases require thorough examination.
Therefore, the regulations have been
modified to permit construction of
sedimentation ponds in perennial streams
only with approval by the regulatory
authority.
rwilkins on PROD1PC63 with RULES_2
44 FR 15159–60, March 13, 1979.
In short, sedimentation ponds must be
constructed where there is sufficient
storage capacity, which, in narrow
valleys lacking natural terraces,
typically means in the stream.
In the preamble to the proposed rule,
we stated our belief that our existing
rules at 30 CFR 816.46(c)(1)(ii) and
817.46(c)(1)(ii) can be applied in a
manner consistent with a March 1,
2006, letter from Benjamin Grumbles,
Assistant Administrator of the
Environmental Protection Agency, to
John Paul Woodley, Assistant Secretary
of the Army (Civil Works).3 Among
other things, that letter states that the
sedimentation pond must be
constructed as close to the toe of the fill
as practicable to minimize temporary
3 In Ohio Valley Environmental Council v. U.S.
Army Corps of Engineers, Civ. Action No. 3:05–
0784 (S.D. W. Va., June 13, 2007), the district court
held that discharges of sediment-laden water from
the toe of a fill into a stream segments leading to
a sedimentation pond embankment requires a
permit under section 402 of the Clean Water Act.
That decision is on appeal to the U.S. Court of
Appeals for the Fourth Circuit as of the date of
writing of this preamble. However, we believe this
rule, as finalized here, is sufficient to accommodate
the ultimate outcome of this litigation because the
issuance of a SMCRA permit does not relieve the
permittee of the obligation to comply with all
requirements of the Clean Water Act. See section
702(a) of SMCRA.
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adverse environmental impacts
associated with construction and
operation of the waste treatment system.
In particular, 30 CFR 816.46(c)(1)(ii) and
817.46(c)(1)(ii) require that all
sedimentation ponds be placed as near
as possible to the disturbed area that
they serve. We interpret this provision
as meaning that sedimentation ponds
collecting runoff from excess spoil fills
must be constructed as close to the toe
of the fill as possible. We also stated our
belief that application of the existing
rules in this manner will properly
implement the intent of Congress in
enacting SMCRA, as expressed in
section 102(f) of the Act, which
provides that one of the purposes of the
Act is to strike a balance between energy
production and environmental
protection. However, we sought
comment on whether it would be
appropriate or helpful to revise those
rules by replacing the term ‘‘perennial
streams’’ with ‘‘waters of the United
States’’ or whether we should more
clearly specify the conditions under
which the regulatory authority may
approve placement of sedimentation
ponds in perennial streams or other
waters of the United States.
We received one comment
recommending that we take both
actions. The comment advocating
replacement of ‘‘perennial streams’’
with ‘‘waters of the United States’’ is
moot in light of our decision, as
explained in Part VII of this preamble,
not to adopt the term ‘‘waters of the
United States’’ as a replacement for
perennial and intermittent streams.
With respect to the second part of the
comment, the commenter provided no
suggestions on what specifications we
should adopt. Therefore, we are not
making any changes in response to this
comment.
Paragraph (b)(4)
Proposed paragraph (b)(4) applied to
the construction of excess spoil fills and
coal mine waste disposal facilities in
waters of the United States. The final
rule is identical to the proposed rule
with the exception that we have
replaced ‘‘waters of the United States’’
with ‘‘a perennial or intermittent
stream’’ for reasons discussed in Part VII
of this preamble. As proposed and
adopted, paragraph (b)(4) also provides
a reminder that excess spoil fills must
comply with the requirements of
paragraphs (a) and (f) of section
816.71or 817.71. It also provides a
reminder that coal mine waste disposal
facilities must comply with the
pertinent requirements of sections
816.81(a), 816.83(a), and 816.84, or, for
underground mining operations,
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sections 817.81(a), 817.83(a), and
817.84, respectively.
As discussed in Parts VIII.B., VIII.D.,
and VIII.E. of this preamble, we are
extensively revising our rules governing
the disposal of excess spoil and coal
mine waste. In both cases, we are
adding provisions designed to ensure
use of the best technology currently
available, to the extent possible, to
minimize the adverse impacts on fish,
wildlife, and related environmental
values that may result from construction
of excess spoil and coal mine waste
disposal facilities. See sections
780.25(d)(1), 780.35(a)(3), 784.16(d)(1),
and 784.19(a)(3). In addition, we are
adding paragraphs (a)(1) and (a)(2) of
sections 780.35 and 784.19 to require
that operations be designed to minimize
the creation of excess spoil and to
ensure that fills are no larger than
necessary to accommodate the
anticipated volume of excess spoil.
Other Comments Received on Proposed
Paragraph (b)
The preamble to the proposed rule
stated that we intended that the list of
activities in paragraph (b) would
include the universe of activities that
inherently involve placement of fill
material into waters of the United States
as part of surface coal mining and
reclamation operations. We invited
comment on whether the list met that
goal and, if not, how any other activities
that involve placement of fill material
into waters of the United States as part
of surface coal mining and reclamation
operations should be regulated under
SMCRA with respect to this rule.
The few commenters who responded
to this request expressed concern that
the list was not all-inclusive. They
recommended that it be revised to
universally include all activities that are
planned and approved to occur in the
stream. We have not adopted this
recommendation. We believe that the
activities that we list in paragraphs
(b)(1) through (b)(4) include all
situations in which it may be inherently
necessary to conduct activities in a
stream segment to facilitate surface coal
mining and reclamation operations. To
the extent that a SMCRA permittee or
permit applicant may receive
authorization under the Clean Water Act
to place fill material in a stream as part
of an activity other than those listed in
paragraphs (b)(1) through (b)(4), we will
consider that approval and its
implications when reviewing a SMCRA
permit application. However, surface
activities conducted in the buffer zone
of a stream segment are subject to the
stream buffer zone rule regardless of
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whether that segment is also subject to
a Clean Water Act authorization.
One commenter recommended that
we add a list of other activities to
paragraph (b). Our responses to the
suggested additions are set forth below:
• Pool or storage area for
sedimentation ponds and
impoundments
As discussed above, we have added a
sentence to paragraph (b)(3) to clarify
that the provisions of that paragraph
extend to the pool or storage area
created by the construction of a
sedimentation pond embankment in a
perennial or intermittent stream.
• Stream reaches between the toe of
an excess spoil fill, refuse pile, or slurry
impoundment and the sediment or
drainage control structure for that fill,
refuse pile, or impoundment
Historically, we and the state
regulatory authorities have considered
stream reaches of this nature to be part
of the mining operation and included
them within the permit area because
they no longer function as a stream, but
as a channel directing runoff from the
face of the fill, refuse pile, or slurry
pond embankment to the sediment pond
for that structure. Our approach is
consistent with the historical practice of
Clean Water Act permitting authorities,
which have issued NPDES permits for
discharges from sediment ponds located
in a perennial or intermittent stream.
Inherent in that practice is the
assumption that flows in the stream
segment between the toe of the fill and
the sediment pond embankment are not
considered to be waters of the United
States. EPA and the Corps have adopted
policies classifying the stream segment
between the toe of the fill or
impounding structure and the sediment
pond to be to be a channel conveying
industrial waste water from the mining
operation to a treatment facility before
discharge into waters of the United
States.4 These waste treatment systems
4 See, e.g., a letter dated March 1, 2006, from
Benjamin Grumbles, Assistant Administrator of the
Environmental Protection Agency, to John Paul
Woodley, Assistant Secretary of the Army (Civil
Works), which states that, for surface coal mining
operations in the Appalachian Mountain states, the
stream segment between the toe of the fill and the
sedimentation pond will be considered part of the
waste treatment system, not waters of the United
States, for purposes of the Clean Water Act. The
sedimentation pond must be constructed as close to
the toe of the fill as practicable to minimize
temporary adverse environmental impacts
associated with construction and operation of the
waste treatment system. The letter notes that, as a
condition of approval, the Corps also requires that
the stream segment be restored as soon as the
mining operation is completed and the pond is no
longer needed for treatment purposes. At that time,
the stream segment will once again be classified as
waters of the United States. Therefore, based on this
provision of the letter, it may be prudent for the
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are designed to assure that the water
flowing from the sediment pond into
waters of the United States will meet
effluent limitations.
However, in 2007, the U.S. District
Court for the Southern District of West
Virginia held that these stream segments
are in fact waters of the United States,
that sediment washing off the face of the
fill does not qualify as fill material, and
that the discharge of pollutants such as
sediment into the stream segments
between the toe of the fill and the
sedimentation pond embankment is
impermissible unless the discharge is
authorized in a permit issued under
section 402 of the Clean Water Act. See
Ohio Valley Environmental Council v.
U.S. Army Corps of Engineers, Civ.
Action No. 3:05–0784 (S.D. W. Va., June
13, 2007). That decision is on appeal to
the U.S. Court of Appeals for the Fourth
Circuit as of the date of writing of this
preamble. Regardless of the outcome of
that litigation, we see no need to revise
our rules in response to the
commenter’s concern. We recognize that
the litigation has the potential to affect
the implementation of sediment control
for excess spoil fills, the extent to which
sediment ponds continue to be
constructed in intermittent or perennial
streams below fills and impounding
structures, and the classification of
stream segments between the toe of the
fill and the sediment pond
embankment. However, we believe this
rule, as finalized here, is sufficiently
flexible to accommodate any shift in
implementation of the Clean Water Act.
As stated in paragraph (f)(2) of sections
780.28 and 784.28 and paragraph (d) of
sections 816.57 and 817.57, issuance of
a SMCRA permit does not relieve the
permittee of the obligation to comply
with all requirements of the Clean Water
Act.
• Erosion protection zones
These features, which are primarily
the result of recent changes in West
Virginia regulations (see West Virginia
Code of State Regulations 38–2–
14.14.g.2.) and are intended to promote
fill stability, are considered part of the
fill. No rule change is needed.
• Diversions
With the exception of stream-channel
diversions, which are already included
in paragraph (b)(1), the construction of
diversions generally does not involve
placement of fill material in a perennial
or intermittent stream or other direct
disturbance of the stream. Therefore; we
see no reason to add them to the list of
activities in paragraph (b).
permittee to maintain an undisturbed buffer for the
affected stream segment to the extent possible.
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• Stream crossings involving roads,
conveyors, pipelines, or power lines
We have revised paragraph (b)(2) to
clarify that it applies to the placement
of bridge abutments, culverts, or other
structures in or within 100 feet of a
perennial or intermittent stream to
facilitate the crossing of the stream by
roads, railroads, conveyors, pipelines,
utilities, or similar facilities.
• Ephemeral streams and isolated
waters of the United States
These features are not subject to the
stream buffer zone rule, which applies
only to perennial and intermittent
streams. However, their exclusion from
the stream buffer zone rule does not
mean that they need not be considered
during the SMCRA permitting process.
In some cases, the provisions of sections
816.97(f) and 817.97(f) concerning
wetlands and habitats of unusually high
value for fish and wildlife may apply.
• Activities listed in 33 CFR 323.4 for
which no permit is required under
section 404 of the Clean Water Act
The fact that certain activities do not
require a permit for purposes of section
404 of the Clean Water Act is not
sufficient justification for excluding
those activities from the requirement to
maintain an undisturbed buffer between
surface activities and perennial and
intermittent streams for purposes of
regulation under SMCRA.
5. Paragraph (c)
As proposed, paragraph (c) of sections
816.57 and 817.57 would have provided
that activities exempt from the
prohibition on disturbance of the
surface of lands within 100 feet of
waters of the United States must comply
with paragraphs (b)(10)(B)(i) and (b)(24)
of section 515 of the Act (or, for
underground mining operations,
paragraphs (b)(9)(B) and (b)(11) of
section 516 of the Act) and the
regulations implementing those
provisions of the Act. However, the
referenced statutory provisions and
regulations apply to all surface coal
mining and reclamation operations, not
just to those described in the proposed
rule. Therefore, as adopted in the final
rule, paragraph (c) applies to all
activities conducted either in perennial
or intermittent streams or within 100
feet of those streams.
Paragraphs (c)(1) through (c)(4) of the
final rule reference and describe the
OSM regulations, other than the stream
buffer zone rules, that most directly
relate to implementation of sections
515(b)(10)(B)(i) and (b)(24) and
516(b)(9)(B) and (b)(11) of SMCRA.
Those regulations include the
requirement in 30 CFR 816.41(d)(1) and
817.41(d)(1) that activities be conducted
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according to the plan approved under
30 CFR 780.21(h) or 784.14(g) and that
earth materials, groundwater discharges,
and runoff be handled in a manner that
prevents, to the extent possible using
the best technology currently available,
additional contributions of suspended
solids to streamflow outside the permit
area; and otherwise prevents water
pollution. They also include the
requirement in 30 CFR 816.45(a) and
817.45(a) that appropriate sediment
control measures be designed,
constructed, and maintained using the
best technology currently available to
prevent, to the extent possible,
additional contributions of sediment to
streamflow or to runoff outside the
permit area. And they include the
requirement in 30 CFR 816.97(a) and
817.97(a) that the operator must, to the
extent possible using the best
technology currently available,
minimize disturbances and adverse
impacts on fish and wildlife and related
environmental values and achieve
enhancement of those resources where
practicable. In the final rule, we are
adding paragraph (c)(4) to incorporate a
reference to 30 CFR 816.97(f) and
817.97(f). Those rules require that the
operator avoid disturbances to, enhance
where practicable, restore, or replace
wetlands, habitats of unusually high
value for fish and wildlife, and riparian
vegetation bordering rivers, streams,
lakes, and ponds.
Paragraph (c) does not impose any
new requirements. Instead, it reiterates
that the referenced rules apply to all
surface coal mining and reclamation
operations, including those activities
that occur in or within 100 feet of a
perennial or intermittent stream under
paragraph (b) of sections 816.57 and
817.57.
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6. Proposed Paragraph (d)
Proposed paragraph (d) of sections
816.57 and 817.57 provided that the
permittee may not initiate any activities
under paragraph (b) until the permittee
obtains all necessary certifications and
authorizations under sections 401, 402,
and 404 of the Clean Water Act, 33
U.S.C. 1341, 1342, and 1344. The
preamble to the proposed rule stated
that we considered that provision
informational. We requested comment
on whether the provision should remain
informational or whether we should
revise our rules to require its inclusion
as a SMCRA permit condition, which
would mean that the prohibition on
initiation of activities before obtaining
all necessary Clean Water Act
authorizations and certifications would
be independently enforceable under
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SMCRA. See 72 FR 48910, August 24,
2007.
Commenters were divided on this
issue. The U.S. Fish and Wildlife
Service and the Geologic and Water
Resources Divisions of the National Park
Service supported adoption of a rule
requiring a permit condition under
SMCRA. The EPA also supported
adoption of a requirement for a permit
condition under SMCRA, stating that
such a requirement would enhance
compliance with Clean Water Act
requirements. One state regulatory
authority opposed adoption of a
requirement for a permit condition; the
commenter instead recommended that
coordination of permitting and
enforcement of Clean Water Act
requirements be left to the states and the
Corps. Comments from the mining
industry strongly opposed adoption of a
rule that would impose a permit
condition under SMCRA, expressing the
fear that it would only result in more
duplication and confusion in regulation
of the coal mining industry. One
commenter stated that, if the permittee
needs to comply with the Clean Water
Act, then the requirements of that
statute should be enforced according to
the statutory scheme specified in the
Clean Water Act.
After reviewing the comments, we
have decided not to adopt proposed
paragraph (d). Instead, we are adopting
new paragraph (a)(2), which provides
that surface activities, including those
activities identified in paragraphs (b)(1)
through (b)(4) of sections 816.57 and
817.57, may be authorized in perennial
or intermittent streams only where those
activities would not cause or contribute
to the violation of applicable State or
Federal water quality standards
developed pursuant to the Clean Water
Act, as determined through certification
under section 401 of the Clean Water
Act or a permit under section 402 or 404
of the Clean Water Act. We are also
adopting a new paragraph (d)(2) of
sections 780.28 and 784.28. That
paragraph provides that before
approving a permit application in which
the applicant proposes to conduct
surface activities in a perennial or
intermittent stream, the regulatory
authority must include a permit
condition requiring a demonstration of
compliance with the Clean Water Act in
the manner specified in paragraph (a)(2)
of sections 816.57 and 817.57 before the
permittee may conduct those activities.
This requirement applies to the extent
that the activities require authorization
or certification under the Clean Water
Act.
However, in adopting these rules, we
reiterate that nothing in SMCRA
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provides the SMCRA regulatory
authority with jurisdiction over the
Clean Water Act or the authority to
determine when a permit or
authorization is required under the
Clean Water Act. Under paragraphs (a)
and (a)(2) of section 702 of SMCRA,
nothing in SMCRA (and, by extension,
regulations adopted under SMCRA) may
be construed as superseding, amending,
modifying, or repealing the Clean Water
Act or any state laws or state or federal
rules adopted under the Clean Water
Act. In addition, nothing in the Clean
Water Act vests SMCRA regulatory
authorities with the authority to enforce
compliance with the permitting and
certification requirements of that law.
J. Sections 816.71 and 817.71 General
Requirements for Disposal of Excess
Spoil
As proposed, we have added a new
paragraph (a)(4) to sections 816.71 and
817.71 to implement, in part, the
requirements of sections 515(b)(24) and
516(b)(11) of the Act. Sections
515(b)(24) and 516(b)(11) require that
surface coal mining and reclamation
operations be conducted to ‘‘minimize
disturbances and adverse impacts of the
operation on fish, wildlife, and related
environmental values’’ ‘‘to the extent
possible using the best technology
currently available.’’
The new paragraph requires that
excess spoil be placed in designated
disposal areas within the permit area in
a controlled manner to minimize
disturbances to and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible using the
best technology currently available.
As previously discussed in Parts
VIII.D. and VIII.E. of this preamble, we
have moved paragraphs (b)(1) (design
certification), (c) (location), and (d)(1)
(foundation investigations) of the former
version of sections 816.71 and 817.71 to
sections 780.35 and 784.19 as part of
our effort to place provisions that are
solely design considerations and
requirements in our permitting
regulations rather than in the
performance standards.
As proposed, in this final rule we are
deleting the last sentence of paragraph
(d)(2) of the former version of sections
816.71 and 817.71. That sentence
required a stability analysis for rock toe
buttresses and keyway cuts. We have
deleted it because it duplicates
requirements included in sections
780.35 and 784.19. Final paragraph (d)
of sections 816.71 and 817.71 retains the
requirement that keyway cuts or rocktoe buttresses be constructed to ensure
fill stability when the slope in the
disposal area exceeds either 2.8h:1v (36
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percent) or any lesser slope designated
by the regulatory authority based on
local conditions.
As proposed, this final rule
redesignates former paragraph (b)(2) of
sections 816.71 and 817.71 as paragraph
(b) of those sections. It revises that
paragraph to require that the fill not
only be designed to attain a minimum
static safety factor of 1.5 as required by
the former version of these rules, but
that the fill actually be constructed to
attain that safety factor. This change is
consistent with section 515(b)(22)(A) of
the Act, which requires that all excess
spoil be placed in a way that ensures
mass stability and prevents mass
movement.
Consistent with the proposed rule, we
are adding a new paragraph (c) to
sections 816.71 and 817.71 to require
that the permittee construct the fill in
accordance with the design and plans
submitted under section 780.35 or
784.19 and approved as part of the
permit. This provision emphasizes that
fills must be built on the sites selected
under section 780.35 or 784.19 in a
manner consistent with the designs
submitted under those sections and
approved as part of the permit. It is a
companion to the new provisions
concerning environmental protection
and excess spoil minimization that we
have added to sections 780.35 and
784.19.
Finally, as proposed, we are removing
former section 817.71(k), which
provided that spoil resulting from faceup operations for underground coal
mine development may be placed at
drift entries as part of a cut-and-fill
structure if that structure is less than
400 feet in length and is designed in
accordance with section 817.71. We
removed this paragraph because spoil
excavated as part of face-up operations
and used to construct a mine bench is
not excess spoil. As defined in 30 CFR
701.5, excess spoil consists of spoil
material disposed of in a location
outside the mined-out area, but it does
not include spoil needed to achieve
restoration of the approximate original
contour. In most cases, spoil used to
construct the bench for an underground
mine will later be used to reclaim the
face-up area when the underground
mine is finished. That is, the bench will
be regraded to cover the mine entry and
eliminate any highwall once mining is
completed and the bench is no longer
needed for mine offices, parking lots,
equipment storage, conveyor belts, and
other mining-related purposes.
Consequently, this paragraph of the
regulations does not belong in a section
devoted to disposal of excess spoil.
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We are not moving the requirements
of section 817.71(k) to another part of
our rules because we do not find it
necessary to impose the design
requirements for excess spoil fills
(which are permanent structures) on
temporary spoil storage structures and
support facilities, such as the benches to
which section 817.71(k) applies. Nor do
we find it necessary or appropriate to
limit those benches to 400 feet in length.
Bench length and configuration are
more appropriately determined by
operational, topographic, geologic, and
other site-specific considerations.
However, the regulatory authority has
the right to impose design and
construction requirements on a case-bycase basis when it determines that those
requirements are a necessary
prerequisite to making the permit
application approval findings specified
in 30 CFR 773.15.
In the preamble to the proposed rule,
we sought comment on (1) whether this
approach is adequate to accomplish the
purposes and requirements of SMCRA,
(2) whether we should codify the
sentence concerning the right of the
regulatory authority to impose
requirements, or (3) whether more
specific rules are needed or appropriate.
We received no comments in response
to this request.
We also received no comments on any
of the proposed changes to sections
816.71 and 817.71.
K. What does the phrase ‘‘to the extent
possible’’ mean in these rules?
Sections 515(b)(10)(B)(i), 515(b)(24),
516(b)(9)(B), and 516(b)(11) of SMCRA
include the proviso that the
requirements of those sections apply ‘‘to
the extent possible.’’ Some of the rules
that we are adopting today include
similar language because they are based
upon those provisions of the Act. Given
the wide array of circumstances to
which these requirements apply and the
paucity of legislative history, we did not
propose and are not adopting a
definition of the phrase ‘‘to the extent
possible’’ as part of this rulemaking.
Instead, we and the State regulatory
authorities will continue to determine
the meaning of that phrase on a case-bycase basis in a manner consistent with
section 102(f) of SMCRA. That section
of the Act provides that one of the
purposes of SMCRA is to ‘‘assure that
the coal supply essential to the Nation’s
energy requirements and to its economic
and social well-being is provided and
strike a balance between protection of
the environment and agricultural
productivity and the Nation’s need for
coal as an essential source of energy.’’
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One comment from a State regulatory
authority supported this approach.
In addition, section 515(b)(1) of
SMCRA requires that surface coal
mining operations be conducted ‘‘so as
to maximize the utilization and
conservation of the solid fuel resource
being recovered so that reaffecting the
land in the future through surface coal
mining can be minimized.’’ We believe
that the ‘‘to the extent possible’’ clause
in paragraphs (b)(10)(B)(i) and (b)(24) of
section 515 of SMCRA is properly
interpreted in part by applying the
environmental protection requirements
of those paragraphs so as to give full
force and effect to the coal recovery
performance standard in section
515(b)(1), as reflected in the regulations
at 30 CFR 816.59 and 817.59.
As adopted in this final rule, sections
780.25(d)(1), 780.35(a)(3), 780.16(d)(1),
and 784.19(a)(3) require that permit
applicants conduct an analysis of
alternatives for excess spoil fills and
coal mine waste disposal structures if
those fills and structures involve the
placement of excess spoil or coal mine
waste in or within 100 feet of a
perennial or intermittent stream. Those
rules provide that, when evaluating all
reasonably possible alternatives, permit
applicants must select the alternative
that would have the least overall
adverse environmental impact. The final
rules specify that an alternative is
reasonably possible if it conforms to the
safety, engineering, design, and
construction requirements of the
regulatory program; is capable of being
done after consideration of cost,
logistics, and available technology; and
is consistent with the coal recovery
provisions of section 816.59 or 817.59.
In other words, nothing in the rule
should be construed as elevating
environmental concerns over safety
considerations, as prohibiting the
conduct of surface coal mining
operations that are not otherwise
prohibited under SMCRA or other laws
or regulations, or as requiring
consideration of unreasonably
expensive or technologically infeasible
alternatives.
The portion of our rules that refers to
‘‘consideration of cost, logistics, and
available technology’’ is derived from
the EPA regulations at 40 CFR
230.10(a)(2), which define a practicable
alternative for purposes of section 404
of the Clean Water Act. In interpreting
this provision, the EPA/COE
memorandum entitled ‘‘Appropriate
Level of Analysis Required for
Evaluating Compliance with the Section
404(b)(1) Guidelines Alternatives
Requirements’’ states that ‘‘[t]he
determination of what constitutes an
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unreasonable expense should generally
consider whether the projected cost is
substantially greater than the costs
normally associated with this particular
type of project.’’ We have included
similar language in paragraph
(d)(1)(ii)(B) of sections 780.25 and
784.16 and paragraph (a)(3)(ii)(B) of
sections 780.35 and 784.19 because (1)
the concept of a practicable alternative
for purposes of section 404 of the Clean
Water Act is in some ways analogous to
the determination of reasonably possible
alternatives under this rule, and (2) the
principle is consistent with the phrase
‘‘to the extent possible’’ in sections
515(b)(24) and 516(b)(11) of SMCRA. On
the other hand, the fact that one
alternative may cost somewhat more
than a different alternative does not
necessarily warrant exclusion of the
more costly alternative from
consideration. See Part VI.D. of this
preamble for a more extensive
discussion of the rationale for our use of
the term ‘‘reasonably possible’’ and its
consistency with statutory provisions.
On January 7, 2004 (69 FR 1036,
1047), we proposed to adopt the phrase
‘‘to the maximum extent possible’’ as
part of 30 CFR 780.18(b)(3). Several
commenters suggested that we replace
‘‘possible’’ with ‘‘practicable’’ or
‘‘technologically and economically
feasible.’’ Other commenters stated that
the proposed language was too vague,
but they did not provide suggested
replacement language.
In developing the proposed rule that
we published on August 24, 2007, we
decided not to propose any of the
suggestions that commenters submitted
on the 2004 proposed rule. The
replacement language suggested by
several commenters is no less vague or
more specific than the statutory phrase
‘‘to the extent possible.’’ Nevertheless,
we again solicited suggestions on how
we could define the phrase ‘‘to the
extent possible.’’ We received no
suggestions.
We also sought comment on whether
we should incorporate 40 CFR 230.70
through 230.75 (part of the 404(b)(1)
Guidelines) as part of our rules to
provide guidance in interpreting ‘‘to the
extent possible.’’ We received one
comment supporting incorporation and
several comments opposing that action.
One commenter pointed out the
practical and legal problems and
difficulties in having the SMCRA
regulatory authority interpret and
enforce Clean Water Act requirements.
In view of those problems, and the fact
that our review indicates that 40 CFR
230.70 through 230.75 would have
relatively little relevance to surface coal
mining and reclamation operations, we
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have decided not to incorporate those
provisions as part of our regulations.
L. What does the phrase ‘‘best
technology currently available’’ mean in
these rules?
Our definition of ‘‘best technology
currently available’’ at 30 CFR 701.5
embraces a wide range of activities,
including those that may not be in
routine use, if the regulatory authority
determines they are currently available
and will work. As such, it is sufficiently
flexible to include new techniques
developed over time that were not
contemplated or in use at the time the
definition was promulgated. Similarly,
it is sufficiently flexible to include
techniques that are not contemplated or
in use today. Consequently, we cannot
state with specificity what measures
would constitute the best technology
currently available in all situations.
Our regulations at 30 CFR 816.45 and
817.45 address sediment control
measures and requirements for all
surface coal mining and reclamation
operations. Paragraph (a)(1) of those
sections reiterates the requirements of
sections 515(b)(10)(B)(i) and
516(b)(9)(B) of SMCRA concerning
prevention of additional contributions
of suspended solids to streamflow or
runoff outside the permit area.
Paragraph (b) of those rules lists various
measures that may be employed to
accomplish the sediment control
requirements of paragraph (a).
At one time, paragraph (b)(2) of 30
CFR 816.46 and 817.46 prescribed
siltation structures (sedimentation
ponds and other treatment facilities
with point-source discharges) as the best
technology currently available for
sediment control. However, that
paragraph was struck down upon
judicial review because the court found
that we did not articulate a sufficient
basis for the rule under the
Administrative Procedure Act. In
particular, the court held that the
preamble to the rulemaking did not
adequately discuss the benefits and
drawbacks of siltation structures and
alternative sediment control methods
and did not enable the court ‘‘to discern
the path taken by [the Secretary] in
responding to commenters’ concerns’’
that siltation structures in the West are
not the best technology currently
available. See In re: Permanent Surface
Mining Regulation Litigation II, Round
III, 620 F. Supp. 1519, 1566–1568
(D.D.C. July 15, 1985). On November 20,
1986 (51 FR 41961), we suspended the
regulations that the court struck down.
Therefore, those regulations are no
longer dispositive in determining the
best technology currently available. To
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avoid confusion on the part of readers
of the Code of Federal regulations, we
are removing paragraph (b)(2) of
sections 816.46 and 817.46 as part of
this rulemaking.
On November 13, 1990 (55 FR 47430–
47435), we proposed to revise 30 CFR
816.45, 817.45, 816.46(b)(2), and
817.46(b)(2) to reestablish siltation
structures as the best technology
currently available for sediment control
on surface coal mining and reclamation
operations in areas receiving more than
26 inches of average annual
precipitation. Regulatory authorities in
areas with less than that amount of
precipitation would have been able to
specify alternative sediment control
measures as the best technology
currently available through the program
amendment process. Most commenters
opposed that approach and we never
adopted the proposed rule, in part
because it could have inhibited the
development and implementation of
new and innovative practices to control
sediment. We decided that the
regulatory authority should retain the
discretion to determine what sediment
control practices constitute the best
technology currently available.
In addition to the sediment control
regulations at 30 CFR 816.45 and 817.45
and the definition of ‘‘best technology
currently available’’ in 30 CFR 701.5
discussed above, the legislative history
of section 515(b)(15)(B)(i) of SMCRA
provides some guidance as to what
measures Congress considered to be the
best technology currently available at
that time to control sedimentation from
minesites:
Similarly, technology exists to prevent
increased sediment loads resulting from
mining from reaching streams outside the
permit area. Sediment or siltation control
systems are generally designed on a mine-bymine basis which could involve several
drainage areas or on a small-drainage-area
basis which may serve several mines. There
are a number of different measures that when
applied singly or in combination can remove
virtually all sediment or silt resulting from
the mining operation. A range of individual
siltation control measures includes: erosion
and sediment control structures, chemical
soil stabilizers, mulches, mulch blankets, and
special control practices such as adjusting
the timing and sequencing of earth
movement, pumping drainage, and
establishing vegetative filter strips.
H.R. Rep. No. 95–218 at 114 (April 22,
1977).
Furthermore, in Directive TSR–3,
‘‘Sediment Control Using the Best
Technology Currently Available,’’ dated
November 2, 1987, we state that we
anticipate ‘‘that in most cases
sedimentation ponds or some other
siltation structure will be BTCA [the
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best technology currently available]’’ for
sedimentation control. Finally, the
preamble to the 1990 proposed rule lists
numerous literature resources
concerning the best technology
currently available for sedimentation
control. See the footnotes at 55 FR
47431–47433, November 13, 1990. The
preamble notes that ‘‘[t]he effectiveness
of specific practices may be restricted to
specific areas and be dependent upon
variables such as geomorphology,
hydrology, climate and engineering
design.’’ Id. at 47342, col. 1.
In addition, the outcome of Ohio
Valley Environmental Council v. U.S.
Army Corps of Engineers, Civ. Action
No. 3:05–0784 (S.D. W. Va., June 13,
2007), may affect what we consider to
be the best technology currently
available for sediment control below
fills and impounding structures. The
district court held that the stream
segment between the toe of the fill or
impounding structure and the sediment
pond embankment must be considered
waters of the United States rather than
part of a waste treatment system
designed to remove sediment prior to
discharge into waters of the United
States below the sediment pond. That
decision is on appeal to the U.S. Court
of Appeals for the Fourth Circuit as of
the date of writing of this preamble.
As previously noted, SMCRA does not
limit use of the term ‘‘best technology
currently available’’ to the sediment
control requirements of sections
515(b)(10)(B)(i) and 516(b)(9)(B).
Sections 515(b)(24) and 516(b)(11) of
SMCRA also require use of the best
technology currently available to
minimize disturbances and adverse
impacts on fish, wildlife, and related
environmental values to the extent
possible. Sections 515(b)(24) and
516(b)(11) are primarily implemented
by the fish and wildlife protection
performance standards at 30 CFR 816.97
and 817.97. Like the other regulations
discussed in this part of the preamble,
those performance standards and the
related permitting requirements at 30
CFR 780.16 and 784.21 apply to all
aspects of surface coal mining and
reclamation operations, including those
activities that are conducted in
perennial and intermittent streams and
activities that occur on the surface of
lands within 100 feet of perennial or
intermittent streams.
The preamble to 30 CFR 816.97(a) and
817.97(a) states that those rules ‘‘allow
an operator to consult any technical
authorities on conservation methods to
assure their compliance with the
statutory requirement for use of the best
technology currently available.’’ 48 FR
30317, June 30, 1983. We anticipate that
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state and federal fish and wildlife, land
management, and conservation agencies
will be a useful resource in assisting the
permittee and the regulatory authority
in determining the best technology
currently available under 30 CFR
780.16, 784.21, 816.97(a), and 817.97(a).
For example, the Bureau of Land
Management within the U.S.
Department of the Interior has
developed best management practices
relating to stream crossings (see https://
www.blm.gov/wo/st/en/prog/energy/
oil_and_gas/
best_management_practices/
technical_information.html) and the
Utah Division of Oil, Gas and Mining
has published ‘‘The Practical Guide to
Reclamation in Utah’’ (see https://
fs.ogm.utah.gov/PUB/MINES/
Coal_Related/RecMan/
Reclamation_Manual.pdf). Chapter 2 of
the latter document discusses stream
restoration and streambank
bioengineering.
In some cases, the best technology
currently available may consist
primarily of minimizing the amount of
land and waters affected. We anticipate
that the analysis of alternatives and site
selection requirements that we are
adopting as part of the permitting
requirements for disposal of coal mine
waste and excess spoil in sections
780.25(d)(1), 784.16(d)(1), 780.35(a)(3),
and 784.19(a)(3) would be the primary
means of demonstrating use of the best
technology currently available for those
activities. The excess spoil
minimization and fill design and
construction requirements of paragraphs
(a)(1) and (a)(2) of sections 780.35 and
784.19 are also significant. In addition,
construction methodology and mining
and reclamation techniques may play a
role.
IX. Procedural Matters and Required
Determinations
A. Executive Order 12866—Regulatory
Planning and Review
This rule is considered a ‘‘significant
regulatory action’’ under Executive
Order 12866 and is subject to review by
the Office of Management and Budget
(OMB) because it may raise novel legal
or policy issues, as discussed in the
preamble.
With respect to other determinations
required under Executive Order 12866—
a. This rule will not have an annual
effect of $100 million or more on the
economy. As discussed in the final
environmental impact statement and, to
a lesser extent, this preamble, it will not
adversely affect in a material way the
economy, productivity, competition,
jobs, the environment, public health or
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safety, or state, local, or tribal
governments or communities.
b. This rule will not create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency.
c. This rule will not alter the
budgetary effects of entitlements, grants,
user fees, or loan programs or the rights
or obligations of their recipients.
With respect to the assessment
required by section 6(a)(3)(B)(ii) of the
executive order, the preamble discusses
how the regulatory action is consistent
with the statutory mandate in sections
515(b) and 516(b) of SMCRA to prevent,
to the extent possible using the best
technology currently available,
additional contributions of suspended
solids to streamflow or runoff outside
the permit area and to minimize, to the
extent possible using the best
technology currently available,
disturbances and adverse impacts on
fish, wildlife, and related environmental
values. To the extent permitted by law,
the regulatory action also promotes the
President’s priorities, including energy
production, and avoids undue
interference with state, local, and tribal
governments in the exercise of their
governmental functions. See Parts IX.B.
and IX.G. of this preamble.
We anticipate that the principal
benefits of this rule will be (1)
minimization of the adverse
environmental impacts stemming from
the construction of excess spoil fills and
coal mine waste impoundments and
fills and (2) clarification of the
circumstances in which the prohibition
in the stream buffer zone rule applies.
As discussed in the final environmental
impact statement, we cannot quantify
these benefits.
The revisions are not expected to have
an adverse economic impact on states
and Indian tribes or the regulated
industry, although some of the
regulatory changes will result in an
increase in the costs and burdens placed
on coal operators and state regulatory
authorities. Based on surveys conducted
to prepare the supporting statements for
this rule under the Paperwork
Reduction Act, we estimate that the
total annual cost increase for operators
will be approximately $240,500, while
the total annual cost increase for state
regulatory authorities will be
approximately $24,200. These increases
are a result of the requirement to
prepare and document the plans,
analyses and findings required by the
revised rules. The cost increases will
principally affect those coal operators
and states (Kentucky, Virginia, and West
Virginia) located in the steep-slope
terrain of the central Appalachian
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coalfields, where the bulk of excess
spoil is generated. Because all
regulatory authorities in the
Appalachian coalfields have
implemented policies to minimize the
volume of excess spoil disposed of
outside the mined-out area, and because
many operators already conduct
alternative analyses to satisfy
requirements under section 404 of the
Clean Water Act, we expect no
significant additional costs of
implementing these regulatory changes.
There may be other minor increases in
costs associated with the new
permitting requirements, in particular
the alternatives analysis required for the
disposal of excess spoil and coal mine
waste in or near perennial and
intermittent streams.
B. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not considered a
significant energy action under
Executive Order 13211. The revisions
contained in this rule will not have a
significant effect on the supply,
distribution, or use of energy.
C. Regulatory Flexibility Act
The Department of the Interior
certifies that this rule will not have a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). The revisions are
expected to have only minimal adverse
economic impact on the regulated
industry, including small entities.
Further, the rule will produce no
adverse effects on competition,
employment, investment, productivity,
innovation, or the ability of United
States enterprises to compete with
foreign-based enterprises in domestic or
export markets. This determination is
based upon the following analysis:
Baseline of Small Coal Mining Entities
The Small Business Administration
(SBA) uses the North American Industry
Classification System Codes (NAICS) to
establish size standards for small
businesses in the coal mining industry.
The NAICS classification for the coal
mining industry is code 2121. Subsets of
this sector include Bituminous Coal and
Lignite Surface Mining (code 212111),
Bituminous Coal Underground Mining
(code 212112), and Anthracite Mining
(code 212113).
The size standard established for each
of these categories is 500 or fewer
employees for each business concern
and associated affiliates. SBA considers
business concerns to be affiliates when
one concern ‘‘controls or has the power
to control the other, or a third party or
parties controls or has the power to
control both.’’
The U.S. Census Bureau maintains
statistics related to business
employment, payroll and employment
size categories for each NAICS
description. Census Bureau data for
2005 show a total of 735 coal-mining
firms employing a total of 74,260
persons. Of those firms, 672 had fewer
than 500 employees. Those firms
employed a total of 22,809 persons.
Data available from MSHA and the
Energy Information Administration
indicate that in 2006, there were 806
coal-mining firms employing a total of
81,891 persons and producing a total of
1,162,750,000 tons of coal. Within that
total, there were 775 coal-mining firms
with fewer than 500 employees. Those
firms employed a total of 28,749 persons
and produced a total of 247,400,000
tons of coal.
Thus, MSHA data indicate that in
2006 small coal-mining firms comprised
96 percent of the total number of coalmining firms in the United States. Those
firms employed 35 percent of the total
number of persons engaged in coal
mining nationwide and produced 21
percent of the nation’s coal.
mine site. Kentucky, Virginia, West
Virginia, and Tennessee account for
98.6 percent of the total number of
excess spoil fills approved nationwide
in permits issued between October 2001
and June 2005. Thus, the baseline of
potentially impacted entities has been
limited to the coal-producing region of
central Appalachia, which includes
eastern Kentucky, Virginia, southern
West Virginia, and Tennessee.
According to MSHA data, there were
389 coal-mining firms with fewer than
500 employees operating in central
Appalachia in 2006. That number is
approximately 23 percent of the total
number of small coal-mining firms in
the United States. The following data
summarize coal production and
employment in central Appalachia:
Total coal production: 236,127,000
tons.
Gross revenue from coal production:
$11,275,064,250 (average price: $47.75
per ton).
Coal-mining firms with fewer than
500 employees: 389.
Coal produced by those firms:
87,447,368 tons.
Gross revenue from those firms:
$4,175,611,822 (average price: $47.75
per ton).
Section 507(c) of SMCRA provides
that an operator does not qualify for the
small operator assistance program if the
total annual production at all locations
attributed to that operator exceeds
300,000 tons. We determined that 325 of
the 389 firms within central Appalachia
that MSHA identified as small entities
produced less than 300,000 tons of coal
per year.
Baseline of Potentially Affected Entities
The principal change that could
impact small coal mining firms is the
requirement to minimize the volume of
excess spoil generated at a particular
According to MSHA data, in 2006 the
389 small coal-mining entities in central
Appalachia operated a total of 765
mines, as shown in this table:
Number of small
coal-mining entities
Number of mines
operated by
small entities
Percent of total
number of mines
operated by
small entities in
central Appalachia
Kentucky ..........................................................................................................................
Tennessee .......................................................................................................................
Virginia .............................................................................................................................
West Virginia ....................................................................................................................
224
10
52
103
397
35
107
226
51
5
14
30
Total ..........................................................................................................................
389
765
100
State
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Number of Potentially Affected Entities
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We conducted an evaluation of
permits issued in West Virginia between
October 2001 and June 2005 to
determine the number of stream miles
impacted by excess spoil and coal mine
waste fills permitted during that time.
We used a sample of 110 of the 270
permits issued in West Virginia during
that period. The sample included 28
permits for underground mining
operations and 82 permits for surface
mines and other types of mining-related
operations regulated under SMCRA. A
review of that data indicated that 4
percent (4) of all permits had refuse
disposal facilities, 29 percent (24) of the
permits for surface mines had excess
spoil fills, and 4 percent (1) of the
permits for underground mines had an
excess spoil fill.
To collect information on excess
spoil, we conducted an evaluation of 92
new permits issued in Kentucky during
2006. The data indicate that 64 percent
of small surface mining operations have
permits authorizing construction of
excess spoil fills. Those fills will
generate 32 percent of the total
projected volume of fill material to be
produced by surface mines in Kentucky.
In addition, 67 percent of the small
underground operations have permits
authorizing construction of excess spoil
fills. Those fills will generate 91 percent
of the total projected volume of fill
material to be produced by underground
mines in Kentucky.
Extrapolating the data from the
reviews of permits in Kentucky and
West Virginia to all mines operated by
small entities in central Appalachia, we
estimate that the rule will impact 191 of
the 389 small coal-mining entities in
central Appalachia, based on the
assumption that 64% (143) of the small
entities in Kentucky will construct
excess spoil fills and that 29% (48) of
the small entities in West Virginia,
Virginia, and Tennessee will do so.
Economic Impact on Potentially
Affected Entities
We do not believe there will be any
significant economic impact upon small
entities. Only two new types of
compliance costs would affect operators
of coal mines: costs of an alternatives
analysis for disposal of coal mine waste
and/or excess spoil; and costs of
minimizing the volume of excess spoil
to the extent possible. It is not possible
to quantify compliance costs for all
potentially affected small entities
because each mine site is unique and
the operational costs of complying with
the rule will vary.
Under the final rule, an operator must
design and construct a mine to
minimize both the volume of excess
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spoil created and the adverse impacts of
excess spoil fills and coal mine waste
disposal facilities on fish, wildlife, and
related environmental values. Whenever
a permit application proposes to place
excess spoil or coal mine waste in or
within 100 feet of a perennial or
intermittent stream, the final rule
requires the permit applicant to identify
a range of reasonably possible
alternatives and select the alternative
with the least overall adverse impact on
fish, wildlife, and related environmental
values. In determining whether an
alternative is reasonable, the applicant
must consider cost, logistics, and the
availability of technology.
Based on discussions with mining
consultants, developing the alternatives
analysis for the permit application will
cost between $10,000 and $15,000 per
permit. However, most operators will
incur little to no additional cost to
provide the alternatives analysis
because the Corps of Engineers usually
requires a similar analysis to satisfy
Clean Water Act requirements.
With respect to operational costs,
Section IV of a draft environmental
impact statement 5 issued in 2003 by the
U.S. Environmental Protection Agency,
the U.S. Army Corps of Engineers, the
U.S. Fish and Wildlife Service, OSM,
and the West Virginia Department of
Environmental Protection contains the
following discussion of fill
minimization costs:
Fill minimization may increase operational
costs to the mining operator because spoil
that must be returned to the mine site has
higher handling costs than the current
practice of end-dump valley fill construction.
* * * While not a direct comparison, and
somewhat dated, the regulatory analysis that
we used for the permanent program
regulations indicated that placing spoil in
lifts versus end-dumping to build valley fills
added 17 cents/ton to the cost of mining coal
in central Appalachia.
The same document estimates the cost
of compliance with a West Virginia
Department of Environmental Protection
policy intended to minimize the volume
of excess spoil at 50 cents to one dollar
for each cubic yard of spoil that, as a
result of the policy, is retained on the
mined-out area rather than placed in an
excess spoil fill. We will use the West
Virginia estimate as the cost of
compliance with the fill minimization
provisions of this final rule. However,
some of those costs are offset by reduced
mitigation expenses under other state
and federal laws because compliance
with the policy typically results in
5 ‘‘Mountaintop Mining/Valley Fills in
Appalachia Draft Programmatic Environmental
Impact Statement’’ (EPA 9–03–R–00013, EPA
Region 3, June 2003).
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substantially reducing the length of
stream segments impacted.
We have analyzed the impact on
eastern Kentucky small coal mine
operators in more detail because more
data is available from that state. We
estimate that coal mines operated by the
143 small coal-mining entities in
Kentucky with excess spoil fills will
generate 32 percent (114,514,880 cubic
yards) of the 357,829,000 cubic yards of
excess spoil approved in all surface
mine permits issued in 2006 in
Kentucky. If we assume that the
requirement to minimize the placement
of spoil outside the mined-out area
would require small entities to reduce
the volume of excess spoil fills by 25
percent, then those entities will have to
retain approximately 28,628,720
additional cubic yards within the mined
out area for the permits that they
received in 2006. Further assuming that
the unit cost for placing this amount of
excess spoil within the mined-out area
would be the same as in West Virginia
(50 cents to one dollar per cubic yard),
the total cost of this placement to small
coal-mining entities in Kentucky will
range from $14 million to $28 million,
or an average of $98,000 to $196,000 per
small entity with excess spoil.
We do not have sufficient data to
perform a similar calculation for small
coal-mining entities in the other three
states. However, we can use the average
cost per small entity with excess spoil
in Kentucky to project a reasonable
range of costs for small coal-mining
entities in the remaining central
Appalachian states. Specifically, the 48
potentially impacted small entities in
Tennessee, Virginia, and West Virginia
could incur an additional cost of $4.7
million to $9.4 million.
Combining the projections for the 143
small entities in Kentucky and the 48
small entities in other states results in
an estimated total cost ranging between
$18.7 million and $37.4 million for all
191 small entities projected to be
impacted.
In the aggregate, the 224 small coalmining entities in eastern Kentucky
produced 41,587,096 tons of coal in
2006. At an average price of $47.75 per
ton, the gross revenue from that
production equals $1,985,783,800, with
$1,270,901,653 of that amount
attributable to the 64% (143) of the
small entities that we project will be
impacted by this rule. Thus, the
estimated cost of compliance with the
requirement to minimize the placement
of spoil outside the mined-out area is
projected to range from 1.1 percent to
2.2 percent of the gross revenue for the
143 potentially impacted eastern
Kentucky small coal-mining entities.
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At the same average price of $47.75
per ton, gross revenue in 2006 for the
other 165 small coal-mining entities in
central Appalachia equals
$2,985,783,834, of which $635,050,116
is attributable to the 29% (48) of those
entities that we project will be impacted
by this rule. Therefore, at an average
price of $47.75 per ton, gross revenue in
2006 totals $1,905,951,769 for the 191
central Appalachian small entities that
we project will be impacted by this rule.
Extrapolating this data to the central
Appalachian region as a whole, we
estimate the cost of compliance will
range between $18.7 million and $37.4
million, which translates to a range of
0.98 percent to 1.9 percent of the total
gross revenue ($1,905,951,769)
generated by potentially impacted small
coal-mining entities in central
Appalachia. This estimate is based on
the assumption that only 48 (29%) of
the 165 small coal-mining entities in
Tennessee, Virginia, and West Virginia
produce excess spoil, while 64% (143)
of the 224 Kentucky small coal-mining
entities do so.
All regulatory authorities in central
Appalachia have already implemented
policies to minimize the volume of
excess spoil placed outside the minedout area, which means that, based on
surveys conducted under the Paperwork
Reduction Act, we expect that operators
will incur no significant additional costs
to implement these regulatory changes.
We received no comments on the
proposed rule from small municipalities
(those with 50,000 or fewer residents) or
local public entities such as water
authorities. We anticipate that the final
rule will not have any significant impact
on those entities because, as discussed
in the final environmental impact
statement (EIS) for this rulemaking, we
do not expect that the rule will either
increase or decrease mining activities,
either nationwide or in central
Appalachia. Pages IV–165 and IV–166 of
the final EIS discuss the lack of impact
of this rule on the economy of the coal
mining regions.
D. Small Business Regulatory
Enforcement Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
Based on the analysis in paragraphs A
and C above, we have determined that
the rule will not—
a. Have an annual effect on the
economy of $100 million or more.
b. Cause a major increase in costs or
prices for consumers, individual
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industries, Federal, state, or local
government agencies, or geographic
regions.
c. Have significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises.
E. Unfunded Mandates
This rule will not impose an
unfunded mandate on state, local, or
tribal governments or the private sector
of more than $100 million per year. The
rule will not have a significant or
unique effect on state, tribal, or local
governments or the private sector. A
statement containing the information
required by the Unfunded Mandates
Reform Act (2 U.S.C. 1534) is not
required.
F. Executive Order 12630—Takings
This rule does not affect property
rights. It governs how coal may be
mined rather than whether it may be
mined. For this reason and based on the
discussion in the preamble and the
analysis in the final environmental
impact statement, we have determined
that the rule will not have significant
takings implications.
G. Executive Order 13132—Federalism
This rule does not alter or affect the
relationship between states and the
Federal Government. Therefore, the rule
will not have significant Federalism
implications. Consequently, there is no
need to prepare a Federalism
assessment.
H. Executive Order 12988—Civil Justice
Reform
The Office of the Solicitor for the
Department of the Interior has
determined that this rule will not
unduly burden the judicial system and
that it meets the requirements of
sections 3(a) and 3(b)(2) of the Executive
Order.
I. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
We have evaluated the potential
effects of this rule on federally
recognized Indian tribes and have
determined that no consultation or
coordination is required because the
rule will not have substantial direct
effects on the relationship between the
Federal Government and Indian tribes
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
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J. Paperwork Reduction Act
In accordance with 44 U.S.C. 3501 et
seq., we sought comments on the
collections of information contained in
the proposed rule for modifications to
30 CFR parts 780, 784, 816, and 817. We
received no comments from the public
regarding these collections of
information. The Office of Management
and Budget has approved the
information collection activities for
these parts and assigned control
numbers 1029–0128 for sections 780.25,
780.28, and 780.35 (to be consolidated
into 1029–0036 upon approval); 1029–
0039 for part 784; and 1029–0047 for
parts 816 and 817. The expiration date
for these collections of information is
December 31, 2011. These collections
estimate the burden as follows:
30 CFR Part 780, Sections 780.25,
780.28, and 780.35
Title: Surface Mining Permit
Applications-Minimum Requirements
for Reclamation and Operation Plan.
OMB Control Number: 1029–0128 (To
be consolidated into 1029–0036).
Summary: Section 506(a) of SMCRA,
30 U.S.C. 1256(a), requires that persons
obtain a permit before conducting
surface coal mining operations. Sections
507 and 508, 30 U.S.C. 1257 and 1258,
respectively, establish application
requirements, including a reclamation
plan. The regulations in 30 CFR 780.25,
780.28, and 780.35 implement these
statutory provisions with respect to coal
mine waste, excess spoil,
impoundments, siltation structures, and
mining in or near perennial or
intermittent streams. The regulatory
authority uses the information
submitted in the permit application to
determine whether the reclamation plan
will achieve the reclamation and
environmental protection requirements
of the Act and regulatory program.
Without this information, OSM and
state regulatory authorities could not
make the findings that section 510 of
SMCRA, 30 U.S.C. 1260, requires before
a permit application for surface coal
mining operations may be approved.
Bureau Form Number: None.
Frequency of Collection: Once.
Description of Respondents:
Applicants for surface coal mining
permits and state regulatory authorities.
Total Annual Respondents: 270
applicants and 24 state regulatory
authorities.
Total Annual Burden Hours: 47,380.
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SUMMARY OF ANNUAL BURDEN TO RESPONDENTS FOR 30 CFR 780.15, 780.25, 780.28, AND 780.35
Number of
applications
Section
780.15
780.25
780.28
780.35
Number of
state reviews
Hours per
application
Hours per state
review
Hours currently approved
Total hours
requested
Difference
......................
......................
......................
......................
0
225
270
170
0
221
264
168
0
123
10
27
0
25.2
10
25
0
33,250
5,340
8,790
8
14,155
0
12,660
(8)
19,095
5,340
(3,870)
Totals ................
........................
........................
160
60.2
47,380
26,823
20,557
Non-Labor Cost Burden: $202,000.
30 CFR Part 784
Title: Underground Mining Permit
Applications-Minimum Requirements
for Reclamation and Operation Plan.
OMB Control Number: 1029–0039.
Summary: Among other things,
section 516(d) of SMCRA, 30 U.S.C.
1266(d), in effect requires applicants for
permits for underground coal mines to
prepare and submit an operation and
reclamation plan for coal mining
activities as part of the application. The
regulatory authority uses this
information to determine whether the
plan will achieve the reclamation and
environmental protection requirements
of the Act and regulatory program.
Without this information, OSM and
state regulatory authorities could not
approve permit applications for
underground coal mines and related
facilities.
Bureau Form Number: None.
Frequency of Collection: Once.
Description of Respondents:
Applicants for underground coal mine
permits and state regulatory authorities.
Total Annual Respondents: 62
applicants and 24 state regulatory
authorities.
Total Annual Burden Hours: 21,761.
INFORMATION COLLECTION SUMMARY FOR 30 CFR PART 784
Industry
responses
Section
784.11
.12
.13
.14
.15
.16
.17
.18
.19
.20
.21
.22
.23
.24
.25
.28
.29
.30
Industry
hours per
response
State responses
State
hours per
response
Total hours
requested
Currently
approved
burden
hours
Program
changes
Adjustment
Change to
burden
hours
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
62
25
62
62
62
62
1
28
47
62
62
62
62
62
34
49
62
62
4
6
53
40
6
16
6
8
9
12
4
24
40
20
6
10
16
8
61
24
61
61
61
61
1
27
46
61
61
61
61
61
33
48
61
61
3
2.25
4.5
8.75
1
10
5
2
12
4
8
6
7.5
4.5
4
10
5
2
431
204
3,561
3,014
433
1,602
11
278
975
988
736
1,854
2,938
1,515
336
970
1,297
618
347
198
3,101
3,063
398
814
99
278
583
1,004
245
1,404
2,954
1,392
346
0
331
628
0
0
0
0
0
801
¥95
0
369
0
0
0
0
0
0
970
0
0
84
6
460
¥49
35
¥13
7
0
23
¥16
491
450
¥16
123
¥10
0
966
¥10
84
6
460
¥49
35
788
¥88
0
392
¥16
491
450
¥16
123
¥10
970
966
¥10
Totals ..................
..................
..................
..................
..................
21,761
17,185
2,045
2,531
4,576
Non-Labor Cost Burden: $612,106.
30 CFR Parts 816 and 817
rwilkins on PROD1PC63 with RULES_2
Title: Permanent Program
Performance Standards—Surface and
Underground Mining Activities.
OMB Control Number: 1029–0047.
Summary: Sections 515 and 516 of
SMCRA provide that permittees
conducting coal mining and reclamation
operations must meet all applicable
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performance standards of the regulatory
program approved under the Act. The
information collected is used by the
regulatory authority in monitoring and
inspecting surface coal mining and
reclamation operations to ensure that
they are conducted in compliance with
the requirements of the Act.
Bureau Form Number: None.
Frequency of Collection: Once, on
occasion, quarterly and annually.
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Description of Respondents: Coal
mine operators, permittees, permit
applicants, and state regulatory
authorities.
Total Annual Respondents: 4764
permittees and 24 state regulatory
authorities
Total Annual Burden Hours:
1,092,430.
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INFORMATION COLLECTION SUMMARY FOR 30 CFR PARTS 816 AND 817
Industry
responses
Section
.41 ........................
.43 ........................
.49 ........................
.57 ........................
.62 ........................
.64 ........................
.67 ........................
.68 ........................
.71 ........................
.81 ........................
.83 & .87 ....................
.116 ......................
817.121 ......................
817.122 ......................
.131 ......................
.151 ......................
Totals ..................
68,900
616
17,592
0
38,480
962
150,072
962
9,072
0
7,764
880
80
1,638
335
481
297,834
Industry hours
per response
State
responses
6.5
16
6
0
4
4
1.2
12
8
0
3
80
4
.5
16
11
........................
State hours
per response
0
270
0
0
0
0
0
0
0
0
0
2
0
0
331
0
603
0
5
0
0
0
0
0
0
0
0
0
100
0
0
.5
0
........................
Total hours
requested
Currently ,LI≤
approved
burden hours
447,850
11,206
105,552
0
153,920
3,848
180,086
11,544
72,576
0
23,292
70,600
320
819
5,526
5,291
1,092,430
447,850
4,480
126,144
30,800
101,010
3,848
180,086
11,544
475,136
15,528
23,292
70,600
320
816
5,360
5,291
1,502,105
Changes to
burden hours
0
6,726
(20,592)
(30,800)
52,910
0
0
0
(402,560)
(15,528)
0
0
0
3
166
0
(409,675)
Note: Under 30 CFR 816/817.41, the water monitoring reports required under the National Pollutant Discharge Elimination System (NPDES)
are not counted as an OSM burden.
rwilkins on PROD1PC63 with RULES_2
Non-Labor Cost Burden: $371,064.
These burden estimates include time
for reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the
collections of information. We may not
conduct or sponsor and you are not
required to respond to a collection of
information unless we display a
currently valid OMB control number.
These control numbers are identified in
sections 780.10, 784.10, 816.10, and
817.10 of 30 CFR parts 780, 784, 816,
and 817, respectively.
You should direct any comments on
the accuracy of our burden estimates;
ways to enhance the quality, utility, and
clarity of the information to be
collected; and ways to minimize the
burden of collection on respondents, to
the Information Collection Clearance
Officer, Office of Surface Mining
Reclamation and Enforcement, 1951
Constitution Ave, NW., Room 202 SIB,
Washington, DC 20240.
K. National Environmental Policy Act
This rule constitutes a major Federal
action significantly affecting the quality
of the human environment under the
National Environmental Policy Act of
1969 (NEPA). Therefore, we have
prepared a final environmental impact
statement (FEIS) pursuant to section
102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C).
The FEIS, which is entitled ‘‘OSM–EIS–
34: Proposed Revisions to the
Permanent Program Regulations
Implementing the Surface Mining
Control and Reclamation Act of 1977
Concerning the Creation and Disposal of
Excess Spoil and Coal Mine Waste and
Stream Buffer Zones,’’ is available on
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Jkt 217001
the Internet at www.regulations.gov. The
Docket ID number is OSM–2007–0008.
A copy of the FEIS is also available for
inspection as part of the administrative
record for this rulemaking in the South
Interior Building, Room 101, 1951
Constitution Avenue, NW., Washington,
DC 20240.
Both we and EPA published notices of
availability of the FEIS on October 24,
2008 (73 FR 63510 and 63470,
respectively). The wait period for the
FEIS under 40 CFR 1506.10(b)(2)
expired November 24, 2008. During that
period, we received approximately 930
comments. However, the vast majority
of commenters did not address the FEIS.
Instead, the commenters variously
expressed opposition to mountaintop
removal operations, the placement of fill
material in streams, mining activities
adjacent to streams, or all or part of the
proposed rule that we published on
August 24, 2007, for which the
comment period closed almost one year
earlier (November 23, 2007). Some
commenters opposed EPA concurrence
with the final rule. A few commenters
urged adoption of a wider buffer zone
for streams to provide greater
environmental protection. To the
limited extent that commenters referred
to the FEIS, they generally either
expressed a preference for one of the
alternatives (usually the no action
alternative) or criticized the FEIS for not
analyzing in detail the alternative
prohibiting all mining activities within
the stream buffer zone. There were no
comments that raised substantive issues
or identified significant errors or
admissions that would necessitate
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reconsideration of the adequacy of the
FEIS.
The preamble to this final rule serves
as the ‘‘Record of Decision’’ under
NEPA. Because of the length of the
preamble, we have prepared the
following concise summary of the FEIS
and the decisions made in the final rule
relative to the alternatives considered in
the FEIS.
Because of the comments we received
on the proposed rule and draft EIS, the
final rule differs somewhat from the
proposed rule, which means that the
preferred alternative in the final EIS
differs somewhat from the preferred
alternative in the draft EIS. In making
these changes and in developing the
final rule, we used the EIS to
understand the potential environmental
impacts.
Alternatives Considered
The draft and final environmental
impact statements contain an analysis of
five rulemaking alternatives, which are
summarized below. Alternative 1 is both
the preferred alternative and the
environmentally preferable alternative;
it forms the basis for the final rule that
we are adopting today.
No Action Alternative
Under this alternative, we would not
adopt any new or revised rules. The
current regulations applicable to excess
spoil generation, coal mine waste
disposal, fill construction, and stream
buffer zones would remain unchanged.
One state regulatory authority
supported this alternative because it
would require no changes in state
regulatory programs.
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Alternative 1: Preferred Alternative
Under this alternative, as set forth in
the draft EIS, we would revise our rules
to—
• Require the permit applicant to
demonstrate that the operation has been
designed to minimize the volume of
excess spoil to the extent possible.
• Require that excess spoil fills be
designed and constructed to be no larger
than needed to accommodate the
anticipated volume of excess spoil that
the proposed operation will generate.
• Require that permit applicants for
operations that would generate excess
spoil develop various alternative excess
spoil disposal plans in which the size,
numbers, configuration, and locations of
the fills vary; submit an analysis of the
environmental impacts of those
alternatives; and select the alternative
with the least overall adverse
environmental impact or demonstrate to
the satisfaction of the regulatory
authority why implementation of that
alternative is not possible.
• Require that excess spoil fills be
constructed in accordance with the
plans approved in the permit and in a
manner that minimizes disturbances to
and adverse impacts on fish, wildlife,
and related environmental values to the
extent possible, using the best
technology currently available.
• Require that permit applicants for
operations that would include coal mine
waste disposal structures identify
alternative disposal methods and
alternative locations for any disposal
structures; analyze the viability and
environmental impacts of each
alternative; and select the alternative
with the least overall adverse
environmental impact or demonstrate to
the satisfaction of the regulatory
authority why implementation of that
alternative is not possible.
• Revise the stream buffer zone rules
to apply to all waters of the United
States and modify the permit
application requirements accordingly;
identify those activities that are not
subject to the prohibition on conducting
mining and reclamation activities on the
surface of lands within 100 feet of
waters of the United States; consolidate
and revise requirements for streamchannel diversions in 30 CFR 816.43
and 817.43, and replace the existing
findings regarding stream water quantity
and quality and State and Federal water
quality standards with language that
better correlates with the underlying
provisions of SMCRA (paragraphs
(b)(10)(B)(i) and (b)(24) of section 515
and paragraphs (b)(9)(B) and (b)(11) of
section 516).
However, after evaluating the
comments that we received on the draft
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EIS and the proposed rule, we
substantially revised the preferred
alternative. A description of the
modified preferred alternative appears
below, organized by subject (excess
spoil, coal mine waste, stream buffer
zones):
Excess Spoil
This alternative would revise 30 CFR
780.35 and 784.19 to require that a
permit application in which the
applicant proposes to generate excess
spoil include a demonstration, to the
satisfaction of the regulatory authority,
that the operation is designed to
minimize, to the extent possible, the
volume of excess spoil that the
operation will generate, thus ensuring
that spoil is returned to the mined-out
area to the extent possible, taking into
consideration applicable regulations
concerning restoration of the
approximate original contour, safety,
stability, and environmental protection
and the needs of the proposed
postmining land use. The revised
regulations would also require a
demonstration, prepared to the
satisfaction of the regulatory authority,
that the designed maximum cumulative
volume of all proposed excess spoil fills
within the permit area is no larger than
the capacity needed to accommodate the
anticipated cumulative volume of
excess spoil that the operation will
generate, as approved by the regulatory
authority.
The revised regulations also would
provide that the applicant must design
the operation to avoid placement of
excess spoil in or within 100 feet of a
perennial or intermittent stream to the
extent possible. The purpose of this
provision is to minimize adverse
impacts on fish, wildlife, and related
environmental values. If avoidance is
not possible, the applicant would have
to explain, to the satisfaction of the
regulatory authority, why an alternative
that does not involve placement of
excess spoil in or within 100 feet of a
perennial or intermittent stream is not
reasonably possible. In addition, the
applicant would have to identify a
reasonable range of alternatives that
vary with respect to the number, size,
location, and configuration of proposed
fills. The applicant would have to
identify only those alternatives that are
reasonably possible and that are likely
to differ in terms of impacts on fish,
wildlife, and related environmental
values.
An alternative would be reasonably
possible if it conformed to the safety,
engineering, design, and construction
requirements of the regulatory program
and is capable of being done after
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75871
consideration of cost, logistics, and
available technology. The fact that one
alternative may cost somewhat more
than a different alternative would not
necessarily warrant exclusion of the
more costly alternative from
consideration. However, an alternative
generally could be considered
unreasonable if its cost was
substantially greater than the costs
normally associated with this type of
project. In addition, to be considered
reasonable, a potential alternative
would have to be consistent with the
coal recovery provisions of 30 CFR
816.59 and 817.59, which provide that
mining activities must be conducted so
as to maximize the utilization and
conservation of the coal, while utilizing
the best appropriate technology
currently available to maintain
environmental integrity, so that
reaffecting the land in the future
through surface coal mining operations
is minimized.
The applicant would have to analyze
the impacts of each of the identified
alternatives on fish, wildlife, and related
environmental values, taking into
consideration both terrestrial and
aquatic ecosystems. For every
alternative that would involve
placement of excess spoil in a perennial
or intermittent stream, the analysis must
include an evaluation of impacts on the
physical, chemical, and biological
characteristics of the stream
downstream of the proposed fill,
including seasonal variations in
temperature and volume, changes in
stream turbidity or sedimentation, the
degree to which the excess spoil may
introduce or increase contaminants, and
the effects on aquatic organisms and the
wildlife that is dependent upon the
stream. If the applicant prepared an
analysis of alternatives for the proposed
fill under 40 CFR 230.10 to meet Clean
Water Act requirements, the applicant
could initially submit a copy of that
analysis with the application in lieu of
complying with the analytical
requirements detailed in the preceding
sentence. The regulatory authority
would determine whether and to what
extent the analysis prepared for Clean
Water Act purposes satisfies the
analytical requirements under this
alternative.
The applicant would be required to
select the alternative with the least
overall adverse impact on fish, wildlife,
and related environmental values,
including adverse impacts on water
quality and terrestrial and aquatic
ecosystems.
Finally, under the preferred
alternative, we would revise the
performance standards concerning
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excess spoil at 30 CFR 816.71 and
817.71 by adding a requirement that the
permittee construct the fill in
accordance with the design and plans
approved in the permit. We also would
add a provision requiring the permittee
to place excess spoil in a location and
manner that would minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible, using the
best technology currently available.
Coal Mine Waste
This alternative would revise our coal
mine waste disposal regulations in a
fashion similar to what we proposed for
excess spoil disposal. The permitting
regulations at 30 CFR 780.25 and 784.16
would be revised to provide that the
applicant must design the operation to
avoid placement of coal mine waste in
or within 100 feet of perennial or
intermittent stream to the extent
possible. If avoidance is not reasonably
possible, the applicant would have to
identify a reasonable range of alternative
locations or configurations for any
proposed refuse piles or coal mine
waste impoundments. The applicant
would have to identify only alternatives
that are reasonably possible and that are
likely to differ in terms of impacts on
fish, wildlife, and related environmental
values. The fact that one alternative may
cost somewhat more than a different
alternative would not necessarily
warrant exclusion of the more costly
alternative from consideration.
However, an alternative generally could
be considered unreasonable if its cost is
substantially greater than the costs
normally associated with this type of
project. In addition, to be considered
reasonable, a potential alternative
would have to be consistent with the
coal recovery provisions of 30 CFR
816.59 and 817.59, which provide that
mining activities must be conducted so
as to maximize the utilization and
conservation of the coal, while utilizing
the best appropriate technology
currently available to maintain
environmental integrity, so that
reaffecting the land in the future
through surface coal mining operations
is minimized.
The applicant would have to analyze
the impacts of each of the identified
alternatives on fish, wildlife, and related
environmental values, taking into
consideration both terrestrial and
aquatic ecosystems. For every
alternative that would involve
placement of coal mine waste in a
perennial or intermittent stream, the
analysis would have to include an
evaluation of the impacts on the
physical, chemical, and biological
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18:25 Dec 11, 2008
Jkt 217001
characteristics of the stream
downstream of the proposed refuse pile
or slurry impoundment, including
seasonal variations in temperature and
volume, changes in stream turbidity or
sedimentation, the degree to which the
coal mine waste may introduce or
increase contaminants, and the effects
on aquatic organisms and the wildlife
that is dependent upon the stream. If the
applicant prepared an analysis of
alternatives for the proposed refuse pile
or slurry impoundment under 40 CFR
230.10 to meet Clean Water Act
requirements, the applicant could
initially submit a copy of that analysis
with the application in lieu of
complying with the analytical
requirements detailed in the preceding
sentence. The regulatory authority
would then determine whether and to
what extent the analysis prepared for
Clean Water Act purposes satisfies the
analytical requirements under this
alternative.
The applicant would be required to
select the alternative with the least
overall adverse impact on fish, wildlife,
and related environmental values,
including adverse impacts on water
quality and aquatic and terrestrial
ecosystems.
Stream Buffer Zones
This alternative would add new
regulations at 30 CFR 780.28 and 784.28
to establish permit application
requirements and regulatory authority
review responsibilities if mining or
related regulated activities are proposed
in or within 100 feet of a perennial or
intermittent stream. The new
requirements, which would reflect the
SMCRA provisions upon which the
stream buffer zone rule is based, would
replace the findings that the regulatory
authority must make under existing 30
CFR 816.57(a)1) and 817.57(a)(1) before
authorizing activities within 100 feet of
a perennial or intermittent stream. The
findings in the existing rule include
several Clean Water Act-related
provisions that would be removed
under this alternative.
When an applicant proposes to
conduct activities in the stream itself,
the preferred alternative would require
that the applicant demonstrate that
avoiding disturbance of the stream is
not reasonably possible. The applicant
also would have to demonstrate that the
activities would comply with all
applicable regulations concerning use of
the best technology currently available
to prevent contributions of additional
suspended solids to streamflow or
runoff outside the permit area to the
extent possible and to minimize
disturbances and adverse impacts on
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Fmt 4701
Sfmt 4700
fish, wildlife, and related environmental
values to the extent possible. Before
approving the proposed activities in the
stream, the regulatory authority would
have to prepare written findings
concurring with those demonstrations.
When an applicant proposes to
conduct activities within the buffer zone
but not within the stream itself, the
preferred alternative would require that
the applicant demonstrate that avoiding
disturbance of the stream buffer zone
either is not reasonably possible or is
not necessary to meet the hydrologic
balance and fish and wildlife protection
requirements of the regulatory program.
The applicant also would have to
identify any lesser buffer zone that he or
she proposes to maintain and explain
how the lesser buffer zone, together
with any other protective measures
proposed, constitute the best technology
currently available to prevent
contributions of additional suspended
solids to streamflow or runoff outside
the permit area to the extent possible
and to minimize disturbances and
adverse impacts on fish, wildlife, and
related environmental values to the
extent possible. Before approving the
applicant’s proposed activities in the
stream buffer zone, the regulatory
authority would have to prepare written
findings concurring with the
demonstration and explanation in the
application.
In all cases, the new rules would
require that the applicant identify the
authorizations and certifications that
would be needed under the Clean Water
Act and its implementing regulations.
The preferred alternative would clarify
that, while the SMCRA permit may be
issued in advance of any necessary
Clean Water Act authorization, issuance
of a SMCRA permit does not allow the
permittee to initiate any activities for
which Clean Water Act authorization or
certification is needed.
Under the preferred alternative, we
also would revise the stream buffer zone
performance standards at 30 CFR 816.57
and 817.57 to provide that the
requirement to maintain an undisturbed
buffer around a perennial or
intermittent stream does not apply to
those stream segments for which the
regulatory authority approves one or
more of the following activities:
• Diversion of a perennial or
intermittent stream.
• Placement of bridge abutments,
culverts, or other structures in or within
100 feet of a perennial or intermittent
stream to facilitate crossing of the
stream by roads, railroads, conveyors,
pipelines, utilities, or similar facilities.
• Construction of sedimentation pond
embankments in a perennial or
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intermittent stream, including the pool
or storage area created by the
embankment.
• Construction of excess spoil fills
and coal mine waste disposal facilities
in a perennial or intermittent stream.
Each of these activities would remain
subject to all other existing performance
standards, including standards that
regulate the environmental impacts of
the activities. Thus, for example, all
surface activities conducted in or within
100 feet of a perennial or intermittent
stream must comply with SMCRA
sections 515(b)(10)(B)(i) and 515(b)(24)
and various regulations implementing
those statutory provisions. Also,
paragraph (b) of 30 CFR 816.57 and
817.57 (1983), which requires that
buffer zones be marked, would be
deleted and merged with our other signs
and markers requirements at 30 CFR
816.11(e) and 817.11(e).
In the draft EIS, we also sought
comment on a variant of this alternative,
which would revise the buffer zone rule
to apply to all waters of the United
States and would eliminate paragraph
(a)(2) of 30 CFR 816.57 and 817.57
(1983), which contained a redundant
requirement for a finding that streamchannel diversions will comply with 30
CFR 816.43 or 817.43. However, the
variant otherwise would retain much of
the 1983 stream buffer zone rule
language at 30 CFR 816.57(a) and
817.57(a), with several modifications.
The first modification would revise
paragraph (a)(1), which required that the
regulatory authority find that the
‘‘mining activities will not cause or
contribute to the violation of applicable
State or Federal water quality standards,
and will not adversely affect the water
quantity and quality or other
environmental resources of the stream,’’
by inserting the clause ‘‘as indicated by
issuance of a certification under section
401 of the Clean Water Act or a permit
under section 402 or 404 of the Clean
Water Act’’ after ‘‘State or Federal water
quality standards,’’ by replacing the
phrase ‘‘adversely affect’’ with
‘‘significantly degrade,’’ and by
replacing the phrase ‘‘of the stream’’
with ‘‘of the waters outside the permit
area.’’ In addition, this variant would
add a new finding that would require
minimization of disturbances and
adverse impacts on fish, wildlife, and
other related environmental values of
the waters to the extent possible using
the best technology currently available.
Apart from its expansion to include
all waters of the United States, this
variant would largely preserve the status
quo in terms of application of the 1983
stream buffer zone rule. The revised rule
language would be more consistent than
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the existing rule language with the
historical application of the 1983 stream
buffer zone rule, which we discussed
earlier in Parts III.D. and III.E. of this
preamble. The change from ‘‘adversely
affect’’ to ‘‘significantly degrade’’ would
replace language of uncertain
provenance with language similar to
that found in the 404(b)(1) Guidelines at
40 CFR 230.10(c), which pertains to
placement of dredged or fill materials in
waters of the United States under
section 404 of the Clean Water Act. The
proposed new finding in paragraph
(a)(3) would reiterate the requirements
of section 515(b)(24) of SMCRA.
We sought comment on the benefits
and drawbacks of this variant as
contrasted with the buffer zone rule
changes that we proposed. In particular,
we invited comment on the extent to
which our rules can or should
incorporate broad references to Clean
Water Act requirements and use Clean
Water Act terminology in place of
SMCRA terminology. We also invited
comment on whether and how our
preferred alternative and this variant
differ in terms of impact on the ability
of proposed surface coal mining and
reclamation operations to qualify for a
nationwide permit under section 404 of
the Clean Water Act.
We received very few comments in
response to this request. Those that we
did receive generally opposed adoption
of the variant because of the change
from ‘‘adversely affect’’ to ‘‘significantly
degrade’’ and, in one case, replacing the
phrase ‘‘of the stream’’ with ‘‘of the
waters outside the permit area.’’
Alternative 2: January 7, 2004, Proposed
Rule
Under this alternative, we would
revise our regulations in a manner
similar to that set forth in our January
7, 2004, proposed rule (69 FR 1036). In
essence, the changes to our excess spoil
regulations would be generally
analogous to the changes described in
Alternative 1, but we would not make
similar changes to our coal mine waste
disposal rules. With respect to the
stream buffer zone rules, we would
retain the prohibition on disturbance of
land within 100 feet of a perennial or
intermittent stream, but alter the
findings that the regulatory authority
must make before granting a variance to
this requirement. The revised rule
would replace the findings in the 1983
stream buffer zone rule with a
requirement that the regulatory
authority find in writing that the
activities would, to the extent possible,
use the best technology currently
available to—
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(1) Prevent additional contributions of
suspended solids to the section of
stream within 100 feet downstream of
the mining activities, and outside the
area affected by mining activities; and
(2) Minimize disturbances and
adverse impacts on fish, wildlife, and
other related environmental values of
the stream.
Under this alternative, persons
seeking to conduct surface mining
activities (or, for underground mines,
surface activities) on the surface of
lands within the buffer zone of a
perennial or intermittent stream would
have to seek and obtain a variance from
the regulatory authority in all cases,
even if the stream segment is to be
diverted or filled. There would be no
categorical exceptions for certain
activities as there are under Alternative
1.
Essentially, Alternative 2 differs from
Alternative 1 in the following respects:
Under Alternative 2, the changes to the
excess spoil regulations would be
generally analogous to the changes
described in Alternative 1, with the
exception that an alternatives analysis
would be required in every case in
which an operation generated excess
spoil, not just those for those operations
that propose to place excess spoil in or
within 100 feet of a perennial or
intermittent stream. In addition,
Alternative 2 would not amend the coal
mine waste disposal rules. With respect
to the stream buffer zone rule,
Alternative 2, unlike Alternative 1,
would not establish separate permitting
requirements for proposed activities in
or within 100 feet of a perennial or
intermittent stream. Unlike Alternative
1, Alternative 2 provides no exception
from the requirement to either avoid the
buffer zone or obtain a variance from the
regulatory authority. The findings
required for a variance also differ. Most
significantly, under Alternative 2,
applicants would not need to
demonstrate—and the regulatory
authority would not need to find—that
it is not reasonably possible to avoid
disturbing the stream or its buffer zone.
Several industry commenters
supported adoption of this alternative,
primarily because it would reduce
ambiguity associated with the 1983
stream buffer zone rule and included
more modest excess spoil minimization
and alternatives analysis requirements
than Alternative 1. In addition, they
noted favorably that, unlike the
preferred alternative, Alternative 2
would not use the term ‘‘waters of the
United States’’ in lieu of perennial or
intermittent streams in defining the
scope of the stream buffer zone rule, and
did not include requirements for an
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alternatives analysis of proposals to
place coal mine waste in or near waters
of the United States.
Alternative 3: Change Only the Excess
Spoil Regulations
Under this alternative, we would
revise our excess spoil regulations as
described in Alternative 1. We would
not revise our coal mine waste disposal
rules or the stream buffer zone
regulations.
This alternative received little support
from commenters. One industry
commenter opposed it because it
included requirements for an
alternatives analysis of proposals to
place coal mine waste and excess spoil
in or near waters of the United States.
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Alternative 4: Change Only the Stream
Buffer Zone Regulations
Under this alternative, we would
revise our stream buffer zone
regulations as described in Alternative
1. We would not revise our excess spoil
or coal mine waste disposal regulations.
This alternative received some
support from those commenters who
saw no benefit and many difficulties
with our proposed excess spoil and coal
mine waste disposal requirements, as
described in the preferred alternative,
but who wanted to see the controversy
surrounding the stream buffer zone rule
resolved.
Decision
We are adopting the preferred
alternative as described in the final EIS.
The final rule and the preferred
alternative in the final EIS differ from
the proposed rule and the preferred
alternative in the draft EIS in several
respects. The most significant
differences are summarized below:
1. In the final rule, we retained the
scope of the 1983 stream buffer zone
rule, which included only perennial and
intermittent streams, rather than
adopting those provisions of our
proposed rules that would have applied
the buffer zone restrictions to waters of
the United States. As discussed in Part
VII of this preamble, almost all
commenters who opined on this issue
opposed the proposed change to waters
of the United States. In general,
commenters preferred the relatively
well-understood concept of perennial
and intermittent streams as opposed to
the uncertain meaning of the term
waters of the United States.
2. In response to concerns that the
proposed rule did not adequately
protect headwater streams, we added a
requirement that the operation be
designed to avoid placement of excess
spoil or coal mine waste in or within
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100 feet of perennial or intermittent
streams to the extent possible.
3. We extensively revised the rule to
clearly differentiate between permit
application requirements and findings
required for approval of activities that
would take place in perennial or
intermittent streams and the
requirements and findings for those
activities that would disturb only the
buffer zone for those streams.
Specifically, in the final rule, new
sections 780.28 and 784.28 provide that,
as a prerequisite for approval of
activities in a perennial or intermittent
stream, the permit applicant must
demonstrate, and the regulatory
authority must find, that it is not
reasonably possible to avoid disturbance
of the stream or its buffer zone. In
addition, the SMCRA permit must
include a condition requiring a
demonstration of compliance with all
applicable Clean Water Act
authorization or certification
requirements before the permittee may
conduct any activities in the stream for
which authorization or certification is
required under the Clean Water Act. For
activities that would occur within the
buffer zone, but not in the stream itself,
the final rule provides that the permit
applicant must demonstrate, and the
regulatory authority must find, that
avoiding disturbance of the buffer zone
either is not reasonably possible or is
not necessary to meet the fish and
wildlife and hydrologic balance
protection requirements of the
regulatory program.
4. We revised the rules governing the
disposal of coal mine waste and
placement of excess spoil to require
identification and analysis of
alternatives only when the applicant
proposes to place coal mine waste or
excess spoil in or within 100 feet of a
perennial or intermittent stream. In
addition, as revised, the final rule
provides that the permit applicant need
identify only those reasonably possible
alternatives that are likely to differ
significantly in terms of impacts on fish,
wildlife, and related environmental
values. The proposed rule would have
required identification of a reasonable
range of alternatives, which could have
included alternatives that are possible
from a technological perspective, but are
impracticable because of cost or other
considerations. The final rule specifies
that an alternative is reasonably possible
if it—
(A) Conforms to the safety,
engineering, design, and construction
requirements of the regulatory program.
(B) Is capable of being done after
consideration of cost, logistics, and
available technology. The fact that one
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alternative may cost somewhat more
than a different alternative does not
necessarily warrant exclusion of the
more costly alternative from
consideration. However, an alternative
generally may be considered
unreasonable if its cost is substantially
greater than the costs normally
associated with that type of project.
(C) Is consistent with the provisions
of 30 CFR 816.59/817.59, which require
maximization of coal recovery to
minimize the likelihood that the land
will be reaffected by mining operations
in the future.
5. The final rule requires a permit
applicant proposing to place excess
spoil or coal mine waste in or within
100 feet of a perennial or intermittent
stream to select the alternative with the
least overall adverse impact on fish,
wildlife, and related environmental
values. The proposed rule would have
allowed an applicant to select a less
protective alternative based upon a
demonstration that the most protective
alternative was not possible. However,
under the revised final rule, an
applicant need only identify and
consider reasonably possible
alternatives, which means that this
provision of the proposed rule is no
longer appropriate or relevant.
6. The final rule clarifies that the
stream buffer zone requirement does not
apply to any stream segment for which
a stream-channel diversion is approved
and constructed. The proposed rule
would have applied the exception only
to mining through streams, which has
limited utility in the context of
underground mines. Furthermore, it
would be illogical to apply the buffer
zone requirement to any stream segment
that has been diverted, regardless of the
reason for the diversion, because there
is no longer a need or purpose for a
buffer zone for a former stream channel
from which all flows have been
diverted.
Environmental Effects of the
Alternatives
The information obtained in the
course of preparing this EIS indicates
that the proposed Federal action may
have the most significant effects in the
central Appalachian coal fields,
particularly eastern Kentucky,
southwestern Virginia, and southern
West Virginia. The steep-slope terrain,
ample rainfall, and abundant surfaceminable reserves of high quality
bituminous coal in these areas help
explain why 98% of all excess spoil fills
nationally and approximately 61
percent of the stream miles directly
impacted by mining are located in these
areas.
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Alternatives 1, 2, and 3 would revise
the excess spoil regulations to enhance
consideration of the environmental
effects of fill construction by requiring
that applicants minimize the volume of
spoil placed outside the mined-out area,
design and construct excess spoil fills to
reduce the amount of land and water
directly affected outside the mined-out
area, and configure fills to minimize
adverse impacts on fish, wildlife, and
related environmental values. States in
the central Appalachian coalfields
(Kentucky, Virginia, Tennessee, and
West Virginia) have taken various steps
in accordance with their approved
SMCRA regulatory programs to
implement similar actions, so the
impacts of the excess spoil elements of
alternatives likely would be limited by
the changes already made by those
states.
We do not anticipate that the
revisions that Alternatives 1, 2, and 4
would make to the stream buffer zone
rule would have any major on-theground consequences because we do not
expect that those revisions would alter
the rate at which surface coal mining
and reclamation operations are
impacting perennial and intermittent
streams. Between 1992 and 2002, we
estimate that coal mining operations
directly impacted 1,208 miles of stream
in the central Appalachian coal fields,
which constitutes 2.05 percent of the
total stream miles in the central
Appalachian coal fields. At this rate,
4.1% of the total stream miles in central
Appalachia would be directly impacted
within the subsequent 10 years. The
miles of stream directly impacted by
excess spoil fills for permits issued
between 1985 and 2001 is 724 miles,
which is approximately 1.2 percent of
the streams in central Appalachia. If fill
construction continued at this rate, an
additional 724 miles of headwater
streams would be buried in the next 17
years (by 2018). This trend likely would
decline as surface-minable coal reserves
in central Appalachia are depleted in
the next few decades.
Alternative 1 is uniquely different
from the other alternatives in that it
incorporates changes to reduce the
adverse impacts of coal mine waste
disposal facilities (refuse piles and
slurry impoundments) on fish, wildlife,
and related environmental values. We
anticipate that these changes would
positively impact the environment.
We estimate that the combination of
the excess spoil and coal mine waste
provisions in Alternative 1 would result
in slight positive effects on the human
environment with respect to direct
hydrologic impacts, water quality, and
aquatic fauna when compared to the
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‘‘no action’’ alternative. In the final rule,
we are adopting this alternative, which
is both the most environmentally
protective alternative and the preferred
alternative.
Mitigation, Monitoring and Enforcement
We have adopted all practicable
means to avoid or minimize
environmental harm from the
alternative selected. SMCRA’s
permitting requirements and
performance standards generally require
avoidance or minimization of adverse
impacts to important environmental
resources, and our regulations do
likewise. In particular, this final rule
requires that surface coal mining
operations be designed to minimize the
amount of spoil placed outside the
mined-out area, thus minimizing the
amount of land disturbed. The final rule
also requires that, to the extent possible,
surface coal mining and reclamation
operations be designed to avoid
disturbance of perennial or intermittent
streams and the surface of lands within
100 feet of those streams. If avoidance
is not reasonably possible, the rule
requires that the permit applicant
develop and analyze a reasonable range
of reasonably possible alternatives and
select the alternative that would have
the least overall adverse impact on fish,
wildlife, and related environmental
values.
Each SMCRA regulatory program
includes five major elements: Permitting
requirements and procedures,
performance bonds to guarantee
reclamation in the event that the
permittee defaults on any reclamation
obligations, performance standards to
which the operator must adhere,
inspection and enforcement to maintain
compliance with performance standards
and the terms and conditions of the
permit, and a process for the
designation of lands as unsuitable for
surface coal mining operations. Under
30 CFR 730.5, 732.15, and 732.17, each
state regulatory program must be no less
effective than our regulations in
achieving the requirements of the Act.
We conduct oversight of each state’s
implementation of its approved
regulatory program.
List of Subjects
30 CFR Part 780
Incorporation by reference, Reporting
and recordkeeping requirements,
Surface mining.
30 CFR Part 784
Incorporation by reference, Reporting
and recordkeeping requirements,
Underground mining.
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75875
30 CFR Part 816
Environmental protection, Reporting
and recordkeeping requirements,
Surface mining.
30 CFR Part 817
Environmental protection, Reporting
and recordkeeping requirements,
Underground mining.
Dated: December 1, 2008,
C. Stephen Allred,
Assistant Secretary, Land and Minerals
Management.
For the reasons set forth in the
preamble, the Department revises 30
CFR parts 780, 784, 816, and 817 as set
forth below.
■
PART 780—SURFACE MINING PERMIT
APPLICATIONS—MINIMUM
REQUIREMENTS FOR RECLAMATION
AND OPERATION PLAN
1. The authority citation for part 780
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq. and 16
U.S.C. 470 et seq.
2. The part heading is revised to read
as set forth above.
■ 3. Section 780.10 is revised to read as
follows:
■
§ 780.10
Information collection.
In accordance with 44 U.S.C. 3501 et
seq., the Office of Management and
Budget (OMB) has approved the
information collection requirements of
this part and assigned clearance number
1029–0036. Sections 507 and 508 of
SMCRA contain permit application
requirements for surface coal mining
activities, including a requirement that
the application include an operation
and reclamation plan. The regulatory
authority uses this information to
determine whether the proposed surface
coal mining operation will achieve the
environmental protection requirements
of the Act and regulatory program.
Without this information OSM and state
regulatory authorities could not approve
permit applications for surface coal
mines and related facilities. Persons
intending to conduct such operations
must respond to obtain a benefit. A
Federal agency may not conduct or
sponsor, and you are not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number.
■ 4. Amend § 780.14 by revising
paragraphs (b)(11) and (c) to read as
follows:
§ 780.14
*
Operation plan: Maps and plans.
*
*
(b) * * *
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*
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(11) Locations of each siltation
structure, permanent water
impoundment, refuse pile, and coal
mine waste impoundment for which
plans are required by § 780.25 of this
part, and the location of each fill for the
disposal of excess spoil for which plans
are required under § 780.35 of this part.
(c) Except as provided in
§§ 780.25(a)(2), 780.25(a)(3), 780.35,
816.73(c), 816.74(c), and 816.81(c) of
this chapter, cross-sections, maps, and
plans required under paragraphs (b)(4),
(5), (6), (10), and (11) of this section
must be prepared by, or under the
direction of, and certified by a qualified
registered professional engineer, a
professional geologist, or, in any state
that authorizes land surveyors to
prepare and certify cross-sections, maps,
and plans, a qualified, registered,
professional land surveyor, with
assistance from experts in related fields
such as landscape architecture.
■ 5. Amend § 780.25 as follows:
■ A. Revise the section heading,
paragraph (a) introductory text,
paragraph (a)(1) introductory text, and
paragraph (a)(2);
■ B. Revise paragraph (c)(2) and add
paragraph (c)(4);
■ C. Revise paragraph (d); and
■ D. Remove paragraphs (e) and (f).
The revisions and addition read as
follows:
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§ 780.25 Reclamation plan: Siltation
structures, impoundments, and refuse
piles.
(a) General. Each application must
include a general plan and a detailed
design plan for each proposed siltation
structure, impoundment, and refuse pile
within the proposed permit area.
(1) Each general plan must—
*
*
*
*
*
(2)(i) Impoundments meeting the
criteria for Significant Hazard Class or
High Hazard Class (formerly Class B or
C) dams in ‘‘Earth Dams and
Reservoirs,’’ Technical Release No. 60
(210–VI–TR60, July 2005), published by
the U.S. Department of Agriculture,
Natural Resources Conservation Service,
must comply with the requirements of
this section for structures that meet the
criteria in § 77.216(a) of this title.
Technical Release No. 60 (TR–60) is
hereby incorporated by reference. The
Director of the Federal Register
approves this incorporation by reference
in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. You may review and
download the incorporated document
from the Natural Resources
Conservation Service’s Web site at
https://www.info.usda.gov/scripts/
lpsiis.dll/TR/TR_210_60.htm. You may
inspect and obtain a copy of this
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document which is on file at the
Administrative Record Room, Office of
Surface Mining Reclamation and
Enforcement, 1951 Constitution
Avenue, NW., Washington, DC 20240.
For information on the availability of
this document at OSM, call 202–208–
2823. You also may inspect a copy of
this document at the National Archives
and Records Administration (NARA).
For information on the availability of
this material at NARA, call 202–741–
6030 or go to https://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html.
(ii) Each detailed design plan for a
structure that meets the criteria in
§ 77.216(a) of this title must—
(A) Be prepared by, or under the
direction of, and certified by a qualified
registered professional engineer with
assistance from experts in related fields
such as geology, land surveying, and
landscape architecture;
(B) Include any geotechnical
investigation, design, and construction
requirements for the structure;
(C) Describe the operation and
maintenance requirements for each
structure; and
(D) Describe the timetable and plans
to remove each structure, if appropriate.
*
*
*
*
*
(c) * * *
(2) Each plan for an impoundment
meeting the criteria in § 77.216(a) of this
title must comply with the requirements
of § 77.216–2 of this title. The plan
required to be submitted to the District
Manager of MSHA under § 77.216 of
this title must be submitted to the
regulatory authority as part of the
permit application.
*
*
*
*
*
(4) If the structure meets the
Significant Hazard Class or High Hazard
Class criteria for dams in TR–60 or
meets the criteria of § 77.216(a) of this
chapter, each plan must include a
stability analysis of the structure. The
stability analysis must include, but not
be limited to, strength parameters, pore
pressures, and long-term seepage
conditions. The plan also must contain
a description of each engineering design
assumption and calculation with a
discussion of each alternative
considered in selecting the specific
design parameters and construction
methods.
(d) Coal mine waste impoundments
and refuse piles. If you, the permit
applicant, propose to place coal mine
waste in a refuse pile or impoundment,
or if you plan to use coal mine waste to
construct an impounding structure, you
must comply with the applicable
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requirements in paragraphs (d)(1)
through (d)(3) of this section.
(1) Addressing impacts to perennial
and intermittent streams and related
environmental values. You must design
the operation to avoid placement of coal
mine waste in or within 100 feet of a
perennial or intermittent stream to the
extent possible. If avoidance is not
possible, you must—
(i) Explain, to the satisfaction of the
regulatory authority, why an alternative
coal mine waste disposal method or an
alternative location or configuration that
does not involve placement of coal mine
waste in or within 100 feet of a
perennial or intermittent stream is not
reasonably possible.
(ii) Identify a reasonable range of
alternative locations or configurations
for any proposed refuse piles or coal
mine waste impoundments. This
provision does not require identification
of all potential alternatives. You need
identify only those reasonably possible
alternatives that are likely to differ
significantly in terms of impacts on fish,
wildlife, and related environmental
values. An alternative is reasonably
possible if it meets all the following
criteria:
(A) The alternative conforms to the
safety, engineering, design, and
construction requirements of the
regulatory program.
(B) The alternative is capable of being
done after consideration of cost,
logistics, and available technology. The
fact that one alternative may cost
somewhat more than a different
alternative does not necessarily warrant
exclusion of the more costly alternative
from consideration. However, an
alternative generally may be considered
unreasonable if its cost is substantially
greater than the costs normally
associated with this type of project.
(C) The alternative is consistent with
the coal recovery provisions of § 816.59
of this chapter.
(iii) Analyze the impacts of the
alternatives identified in paragraph
(d)(1)(ii) of this section on fish, wildlife,
and related environmental values. The
analysis must consider impacts on both
aquatic and terrestrial ecosystems.
(A) For every alternative that proposes
placement of coal mine waste in a
perennial or intermittent stream, the
analysis required under paragraph
(d)(1)(iii) of this section must include an
evaluation of impacts on the physical,
chemical, and biological characteristics
of the stream downstream of the
proposed refuse pile or coal mine waste
impoundment, including seasonal
variations in temperature and volume,
changes in stream turbidity or
sedimentation, the degree to which the
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coal mine waste may introduce or
increase contaminants, and the effects
on aquatic organisms and the wildlife
that is dependent upon the stream.
(B) If you have prepared an analysis
of alternatives for the proposed
impoundment or refuse pile under 40
CFR 230.10 to meet Clean Water Act
requirements, you may initially submit
a copy of that analysis in lieu of the
analysis required under paragraph
(d)(1)(iii)(A) of this section. The
regulatory authority will determine the
extent to which that analysis satisfies
the requirements of paragraph
(d)(1)(iii)(A) of this section.
(iv) Select the alternative with the
least overall adverse impact on fish,
wildlife, and related environmental
values, including adverse impacts on
water quality and aquatic and terrestrial
ecosystems.
(2) Design requirements for refuse
piles. Refuse piles must be designed to
comply with the requirements of
§§ 816.81 and 816.83 of this chapter.
(3) Design requirements for
impoundments and impounding
structures. Impounding structures
constructed of or intended to impound
coal mine waste must be designed to
comply with the requirements of
§§ 816.81 and 816.84 of this chapter,
which incorporate the requirements of
paragraphs (a) and (c) of § 816.49 of this
chapter. In addition,—
(i) The plan for each structure that
meets the criteria of § 77.216(a) of this
title must comply with the requirements
of § 77.216–2 of this title; and
(ii) Each plan for a coal mine waste
impoundment must contain the results
of a geotechnical investigation to
determine the structural competence of
the foundation that will support the
proposed impounding structure and the
impounded material. An engineer or
engineering geologist must plan and
supervise the geotechnical investigation.
In planning the investigation, the
engineer or geologist must—
(A) Determine the number, location,
and depth of borings and test pits using
current prudent engineering practice for
the size of the impoundment and the
impounding structure, the quantity of
material to be impounded, and
subsurface conditions.
(B) Consider the character of the
overburden and bedrock, the proposed
abutment sites for the impounding
structure, and any adverse geotechnical
conditions that may affect the particular
impoundment.
(C) Identify all springs, seepage, and
groundwater flow observed or
anticipated during wet periods in the
area of the proposed impoundment.
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(D) Consider the possibility of
mudflows, rock-debris falls, or other
landslides into the impoundment or
impounded material.
■ 6. Add § 780.28 to read as follows:
§ 780.28 Activities in or adjacent to
perennial or intermittent streams.
(a) Applicability. (1) In general.
Except as otherwise provided in
paragraph (a)(2) of this section, this
section applies to applications to
conduct surface mining activities in
perennial or intermittent streams or on
the surface of lands within 100 feet,
measured horizontally, of perennial or
intermittent streams.
(2) Exceptions. (i) Coal preparation
plants not located within the permit
area of a mine. This section does not
apply to applications under § 785.21 of
this chapter for coal preparation plants
that are not located within the permit
area of a mine.
(ii) Stream-channel diversions.
Paragraphs (b) through (e) of this section
do not apply to diversions of perennial
or intermittent streams, which are
governed by § 780.29 of this part and
§ 816.43 of this chapter.
(b) Application requirements for
surface mining activities in a perennial
or intermittent stream. If you propose to
conduct one or more of the activities
listed in paragraphs (b)(2) through (b)(4)
of § 816.57 of this chapter in a perennial
or intermittent stream, your application
must demonstrate that—
(1) Avoiding disturbance of the stream
is not reasonably possible; and
(2) The proposed activities will
comply with all applicable requirements
in paragraphs (b) and (c) of § 816.57 of
this chapter.
(c) Application requirements for
surface mining activities within 100 feet
of a perennial or intermittent stream. If
you propose to conduct surface mining
activities within 100 feet of a perennial
or intermittent stream, but not in the
stream itself, and those activities would
occur on land subject to the buffer
requirement of § 816.57(a)(1) of this
chapter, your application must—
(1) Demonstrate that avoiding
disturbance of land within 100 feet of
the stream either is not reasonably
possible or is not necessary to meet the
fish and wildlife and hydrologic balance
protection requirements of the
regulatory program;
(2) Identify any lesser buffer that you
propose to implement instead of
maintaining a 100-foot undisturbed
buffer between surface mining activities
and the perennial or intermittent
stream; and
(3) Explain how the lesser buffer,
together with any other protective
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measures that you propose to
implement, constitute the best
technology currently available to—
(i) Prevent the contribution of
additional suspended solids to
streamflow or runoff outside the permit
area to the extent possible, as required
by §§ 780.21(h) and 816.41(d)(1) of this
chapter; and
(ii) Minimize disturbances and
adverse impacts on fish, wildlife, and
related environmental values to the
extent possible, as required by
§§ 780.16(b) and 816.97(a) of this
chapter.
(d) Approval requirements for
activities in a perennial or intermittent
stream. Before approving any surface
mining activities in a perennial or
intermittent stream, the regulatory
authority must—
(1) Find in writing that—
(i) Avoiding disturbance of the stream
is not reasonably possible; and
(ii) The plans submitted with the
application meet all applicable
requirements in paragraphs (b) and (c)
of § 816.57 of this chapter.
(2) Include a permit condition
requiring a demonstration of
compliance with the Clean Water Act in
the manner specified in § 816.57(a)(2) of
this chapter before the permittee may
conduct any activities in a perennial or
intermittent stream that require
authorization or certification under the
Clean Water Act.
(e) Approval requirements for
activities within 100 feet of a perennial
or intermittent stream. Before approving
any surface mining activities that would
disturb the surface of land subject to the
buffer requirement of § 816.57(a)(1) of
this chapter, the regulatory authority
must find in writing that—
(1) Avoiding disturbance of the
surface of land within 100 feet of the
stream either is not reasonably possible
or is not necessary to meet the fish and
wildlife and hydrologic balance
protection requirements of the
regulatory program; and
(2) The measures proposed under
paragraphs (c)(2) and (c)(3) of this
section constitute the best technology
currently available to—
(i) Prevent the contribution of
additional suspended solids to
streamflow or runoff outside the permit
area to the extent possible, as required
by §§ 780.21(h) and 816.41(d)(1) of this
chapter; and
(ii) Minimize disturbances and
adverse impacts on fish, wildlife, and
related environmental values to the
extent possible, as required by
§§ 780.16(b) and 816.97(a) of this
chapter.
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(f) Relationship to the Clean Water
Act. (1) In all cases, your application
must identify the authorizations and
certifications that you anticipate will be
needed under sections 401, 402, and
404 of the Clean Water Act, 33 U.S.C.
1341, 1342, and 1344, and describe the
steps that you have taken or will take to
procure those authorizations and
certifications.
(2) The regulatory authority will
process your application and may issue
the permit before you obtain all
necessary authorizations and
certifications under the Clean Water
Act, 33 U.S.C. 1251 et seq., provided
your application meets all applicable
requirements of subchapter G of this
chapter. However, issuance of a permit
does not authorize you to initiate any
activities for which Clean Water Act
authorization or certification is
required. Information submitted and
analyses conducted under subchapter G
of this chapter may inform the agency
responsible for authorizations and
certifications under sections 401, 402,
and 404 of the Clean Water Act, 33
U.S.C. 1341, 1342, and 1344, but they
are not a substitute for the reviews,
authorizations, and certifications
required under those sections of the
Clean Water Act.
■ 7. Revise § 780.35 to read as follows:
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§ 780.35
Disposal of excess spoil.
(a) If you, the permit applicant,
propose to generate excess spoil as part
of your operation, you must include the
following items in your application—
(1) Demonstration of minimization of
excess spoil. A demonstration, prepared
to the satisfaction of the regulatory
authority, that the operation has been
designed to minimize, to the extent
possible, the volume of excess spoil that
the operation will generate, thus
ensuring that spoil is returned to the
mined-out area to the extent possible,
taking into consideration applicable
regulations concerning restoration of the
approximate original contour, safety,
stability, and environmental protection
and the needs of the proposed
postmining land use.
(2) Capacity demonstration. A
demonstration, prepared to the
satisfaction of the regulatory authority,
that the designed maximum cumulative
volume of all proposed excess spoil fills
within the permit area is no larger than
the capacity needed to accommodate the
anticipated cumulative volume of
excess spoil that the operation will
generate, as approved by the regulatory
authority under paragraph (a)(1) of this
section.
(3) Discussion of how you will address
impacts to perennial and intermittent
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streams and related environmental
values. You must design the operation
to avoid placement of excess spoil in or
within 100 feet of a perennial or
intermittent stream to the extent
possible. If avoidance is not possible,
you must—
(i) Explain, to the satisfaction of the
regulatory authority, why an alternative
that does not involve placement of
excess spoil in or within 100 feet of a
perennial or intermittent stream is not
reasonably possible.
(ii) Identify a reasonable range of
alternatives that vary with respect to the
number, size, location, and
configuration of proposed fills. This
provision does not require identification
of all potential alternatives. You need
identify only those reasonably possible
alternatives that are likely to differ
significantly in terms of impacts on fish,
wildlife, and related environmental
values. An alternative is reasonably
possible if it meets all the following
criteria:
(A) The alternative conforms to the
safety, engineering, design, and
construction requirements of the
regulatory program;
(B) The alternative is capable of being
done after consideration of cost,
logistics, and available technology. The
fact that one alternative may cost
somewhat more than a different
alternative does not necessarily warrant
exclusion of the more costly alternative
from consideration. However, an
alternative generally may be considered
unreasonable if its cost is substantially
greater than the costs normally
associated with this type of project.
(C) The alternative is consistent with
the coal recovery provisions of § 816.59
of this chapter.
(iii) Analyze the impacts of the
alternatives identified in paragraph
(a)(3)(ii) of this section on fish, wildlife,
and related environmental values. The
analysis must consider impacts on both
terrestrial and aquatic ecosystems.
(A) For every alternative that proposes
placement of excess spoil in a perennial
or intermittent stream, the analysis must
include an evaluation of impacts on the
physical, chemical, and biological
characteristics of the stream
downstream of the proposed fill,
including seasonal variations in
temperature and volume, changes in
stream turbidity or sedimentation, the
degree to which the excess spoil may
introduce or increase contaminants, and
the effects on aquatic organisms and the
wildlife that is dependent upon the
stream.
(B) If you have prepared an analysis
of alternatives for the proposed fill
under 40 CFR 230.10 to meet Clean
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Water Act requirements, you may
initially submit a copy of that analysis
with your application in lieu of the
analysis required by paragraph
(a)(3)(iii)(A) of this section. The
regulatory authority will determine the
extent to which that analysis satisfies
the analytical requirements of paragraph
(a)(3)(iii)(A) of this section.
(iv) Select the alternative with the
least overall adverse impact on fish,
wildlife, and related environmental
values, including adverse impacts on
water quality and aquatic and terrestrial
ecosystems.
(4) Location. Maps and cross-section
drawings showing the location of all
proposed disposal sites and structures.
You must locate fills on the most
moderately sloping and naturally stable
areas available, unless the regulatory
authority approves a different location
based upon the alternatives analysis
under paragraph (a)(3) of this section or
on other requirements of the Act and
this chapter. Whenever possible, you
must place fills upon or above a natural
terrace, bench, or berm if that location
would provide additional stability and
prevent mass movement.
(5) Design plans. Detailed design
plans for each structure, prepared in
accordance with the requirements of
this section and §§ 816.71 through
816.74 of this chapter. You must design
the fill and appurtenant structures using
current prudent engineering practices
and any additional design criteria
established by the regulatory authority.
(6) Geotechnical investigation. The
results of a geotechnical investigation of
each proposed disposal site, with the
exception of those sites at which spoil
will be placed only on a pre-existing
bench under § 816.74 of this chapter.
You must conduct sufficient foundation
investigations, as well as any necessary
laboratory testing of foundation
material, to determine the design
requirements for foundation stability for
each site. The analyses of foundation
conditions must take into consideration
the effect of underground mine
workings, if any, upon the stability of
the fill and appurtenant structures. The
information submitted must include—
(i) The character of the bedrock and
any adverse geologic conditions in the
proposed disposal area.
(ii) A survey identifying all springs,
seepage, and groundwater flow observed
or anticipated during wet periods in the
area of the proposed disposal site.
(iii) A survey of the potential effects
of subsidence of subsurface strata as a
result of past and future mining
operations.
(iv) A technical description of the
rock materials to be utilized in the
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construction of disposal structures
containing rock chimney cores or
underlain by a rock drainage blanket.
(v) A stability analysis including, but
not limited to, strength parameters, pore
pressures, and long-term seepage
conditions. This analysis must be
accompanied by a description of all
engineering design assumptions and
calculations and the alternatives
considered in selecting the design
specifications and methods.
(7) Operation and reclamation plans.
Plans for the construction, operation,
maintenance, and reclamation of all
excess spoil disposal structures in
accordance with the requirements of
§§ 816.71 through 816.74 of this
chapter.
(8) Additional requirements for
keyway cuts or rock-toe buttresses. If
keyway cuts or rock-toe buttresses are
required under § 816.71(d) of this
chapter, the number, location, and
depth of borings or test pits, which must
be determined according to the size of
the spoil disposal structure and
subsurface conditions. You also must
provide the engineering specifications
used to design the keyway cuts or rocktoe buttresses. Those specifications
must be based upon the stability
analysis required under paragraph
(a)(7)(v) of this section.
(b) Design certification. A qualified
registered professional engineer
experienced in the design of earth and
rock fills must certify that the design of
all fills and appurtenant structures
meets the requirements of this section.
PART 784—UNDERGROUND MINING
PERMIT APPLICATIONS—MINIMUM
REQUIREMENTS FOR RECLAMATION
AND OPERATION PLAN
8. The authority citation for part 784
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq. and 16
U.S.C. 470 et seq.
9. Section 784.10 is revised to read as
follows:
■
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§ 784.10
Information collection.
In accordance with 44 U.S.C. 3501 et
seq., the Office of Management and
Budget (OMB) has approved the
information collection requirements of
this part and assigned clearance number
1029–0039. Collection of this
information is required under section
516(d) of SMCRA, which in effect
requires applicants for permits for
underground coal mines to prepare and
submit an operation and reclamation
plan for coal mining activities as part of
the application. The regulatory
authority uses this information to
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determine whether the plan will achieve
the reclamation and environmental
protection requirements of the Act and
regulatory program. Without this
information, OSM and state regulatory
authorities could not approve permit
applications for underground coal
mines and related facilities. Persons
intending to conduct such operations
must respond to obtain a benefit. A
Federal agency may not conduct or
sponsor, and you are not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number.
■ 10. Amend § 784.16 as follows:
■ A. Revise the section heading,
paragraph (a) introductory text,
paragraph (a)(1) introductory text, and
paragraph (a)(2);
■ B. Revise paragraph (c)(2) and add
paragraph (c)(4);
■ C. Revise paragraph (d); and
■ D. Remove paragraphs (e) and (f).
The revisions and addition read as
follows:
§ 784.16 Reclamation plan: Siltation
structures, impoundments, and refuse
piles.
(a) General. Each application must
include a general plan and a detailed
design plan for each proposed siltation
structure, impoundment, and refuse pile
within the proposed permit area.
(1) Each general plan must—
*
*
*
*
*
(2)(i) Impoundments meeting the
criteria for Significant Hazard Class or
High Hazard Class (formerly Class B or
C) dams in ‘‘Earth Dams and
Reservoirs,’’ Technical Release No. 60
(210–VI–TR60, July 2005), published by
the U.S. Department of Agriculture,
Natural Resources Conservation Service,
must comply with the requirements of
this section for structures that meet the
criteria in § 77.216(a) of this title.
Technical Release No.60 (TR–60) is
hereby incorporated by reference. The
Director of the Federal Register
approves this incorporation by reference
in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. You may review and
download the incorporated document
from the Natural Resources
Conservation Service’s Web site at
https://www.info.usda.gov/scripts/
lpsiis.dll/TR/TR_210_60.htm. You may
inspect and obtain a copy of this
document which is on file at the
Administrative Record Room, Office of
Surface Mining Reclamation and
Enforcement, 1951 Constitution
Avenue, NW., Washington, DC 20240.
For information on the availability of
this document at OSM, call 202–208–
2823. You also may inspect a copy of
this document at the National Archives
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75879
and Records Administration (NARA).
For information on the availability of
this material at NARA, call 202–741–
6030 or go to https://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html.
(ii) Each detailed design plan for a
structure that meets the criteria in
§ 77.216(a) of this title must—
(A) Be prepared by, or under the
direction of, and certified by a qualified
registered professional engineer with
assistance from experts in related fields
such as geology, land surveying, and
landscape architecture;
(B) Include any geotechnical
investigation, design, and construction
requirements for the structure;
(C) Describe the operation and
maintenance requirements for each
structure; and
(D) Describe the timetable and plans
to remove each structure, if appropriate.
*
*
*
*
*
(c) * * *
(2) Each plan for an impoundment
meeting the criteria in § 77.216(a) of this
title must comply with the requirements
of § 77.216–2 of this title. The plan
required to be submitted to the District
Manager of MSHA under § 77.216 of
this title must be submitted to the
regulatory authority as part of the
permit application.
*
*
*
*
*
(4) If the structure meets the
Significant Hazard Class or High Hazard
Class criteria for dams in TR–60 or
meets the criteria of § 77.216(a) of this
chapter, each plan must include a
stability analysis of the structure. The
stability analysis must include, but not
be limited to, strength parameters, pore
pressures, and long-term seepage
conditions. The plan also must contain
a description of each engineering design
assumption and calculation with a
discussion of each alternative
considered in selecting the specific
design parameters and construction
methods.
(d) Coal mine waste impoundments
and refuse piles. If you, the permit
applicant, propose to place coal mine
waste in a refuse pile or impoundment,
or if you plan to use coal mine waste to
construct an impounding structure, you
must comply with the applicable
requirements in paragraphs (d)(1)
through (d)(3) of this section.
(1) Addressing impacts to perennial
and intermittent streams and related
environmental values. You must design
the operation to avoid placement of coal
mine waste in or within 100 feet of a
perennial or intermittent stream to the
extent possible. If avoidance is not
possible, you must—
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(i) Explain, to the satisfaction of the
regulatory authority, why an alternative
coal mine waste disposal method or an
alternative location or configuration that
does not involve placement of coal mine
waste in or within 100 feet of a
perennial or intermittent stream is not
reasonably possible.
(ii) Identify a reasonable range of
alternative locations or configurations
for any proposed refuse piles or coal
mine waste impoundments. This
provision does not require identification
of all potential alternatives. You need
identify only those reasonably possible
alternatives that are likely to differ
significantly in terms of impacts on fish,
wildlife, and related environmental
values. An alternative is reasonably
possible if it meets all the following
criteria:
(A) The alternative conforms to the
safety, engineering, design, and
construction requirements of the
regulatory program.
(B) The alternative is capable of being
done after consideration of cost,
logistics, and available technology. The
fact that one alternative may cost
somewhat more than a different
alternative does not necessarily warrant
exclusion of the more costly alternative
from consideration. However, an
alternative generally may be considered
unreasonable if its cost is substantially
greater than the costs normally
associated with this type of project.
(C) The alternative is consistent with
the coal recovery provisions of § 817.59
of this chapter.
(iii) Analyze the impacts of the
alternatives identified in paragraph
(d)(1)(ii) of this section on fish, wildlife,
and related environmental values. The
analysis must consider impacts on both
aquatic and terrestrial ecosystems.
(A) For every alternative that proposes
placement of coal mine waste in a
perennial or intermittent stream, the
analysis must include an evaluation of
impacts on the physical, chemical, and
biological characteristics of the stream
downstream of the proposed refuse pile
or coal mine waste impoundment,
including seasonal variations in
temperature and volume, changes in
stream turbidity or sedimentation, the
degree to which the coal mine waste
may introduce or increase
contaminants, and the effects on aquatic
organisms and the wildlife that is
dependent upon the stream.
(B) If you have prepared an analysis
of alternatives for the proposed
impoundment or refuse pile under 40
CFR 230.10 to meet Clean Water Act
requirements, you may initially submit
a copy of that analysis in lieu of the
analysis required under paragraph
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(d)(1)(iii)(A) of this section. The
regulatory authority will determine the
extent to which that analysis satisfies
the requirements of paragraph
(d)(1)(iii)(A) of this section.
(iv) Select the alternative with the
least overall adverse impact on fish,
wildlife, and related environmental
values, including adverse impacts on
water quality and aquatic and terrestrial
ecosystems.
(2) Design requirements for refuse
piles. Refuse piles must be designed to
comply with the requirements of
§§ 817.81 and 817.83 of this chapter.
(3) Design requirements for
impoundments and impounding
structures. Impounding structures
constructed of or intended to impound
coal mine waste must be designed to
comply with the requirements of
§§ 817.81 and 817.84 of this chapter,
which incorporate the requirements of
paragraphs (a) and (c) of § 817.49 of this
chapter. In addition,—
(i) The plan for each structure that
meets the criteria of § 77.216(a) of this
title must comply with the requirements
of § 77.216–2 of this title; and
(ii) Each plan for a coal mine waste
impoundment must contain the results
of a geotechnical investigation to
determine the structural competence of
the foundation that will support the
proposed impounding structure and the
impounded material. An engineer or
engineering geologist must plan and
supervise the geotechnical investigation.
In planning the investigation, the
engineer or geologist must—
(A) Determine the number, location,
and depth of borings and test pits using
current prudent engineering practice for
the size of the impoundment and the
impounding structure, the quantity of
material to be impounded, and
subsurface conditions.
(B) Consider the character of the
overburden and bedrock, the proposed
abutment sites for the impounding
structure, and any adverse geotechnical
conditions that may affect the particular
impoundment.
(C) Identify all springs, seepage, and
groundwater flow observed or
anticipated during wet periods in the
area of the proposed impoundment.
(D) Consider the possibility of
mudflows, rock-debris falls, or other
landslides into the impoundment or
impounded material.
■ 11. Revise § 784.19 to read as follows:
§ 784.19
Disposal of excess spoil.
(a) If you, the permit applicant,
propose to generate excess spoil as part
of your operation, you must include the
following items in your application—
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(1) Demonstration of minimization of
excess spoil. A demonstration, prepared
to the satisfaction of the regulatory
authority, that the operation has been
designed to minimize, to the extent
possible, the volume of excess spoil that
the operation will generate, thus
ensuring that spoil is returned to the
mined-out area to the extent possible,
taking into consideration applicable
regulations concerning restoration of the
approximate original contour, safety,
stability, and environmental protection
and the needs of the proposed
postmining land use.
(2) Capacity demonstration. A
demonstration, prepared to the
satisfaction of the regulatory authority,
that the designed maximum cumulative
volume of all proposed excess spoil fills
within the permit area is no larger than
the capacity needed to accommodate the
anticipated cumulative volume of
excess spoil that the operation will
generate, as approved by the regulatory
authority under paragraph (a)(1) of this
section.
(3) Discussion of how you will address
impacts to perennial and intermittent
streams and related environmental
values. You must design the operation
to avoid placement of excess spoil in or
within 100 feet of a perennial or
intermittent stream to the extent
possible. If avoidance is not possible,
you must—
(i) Explain, to the satisfaction of the
regulatory authority, why an alternative
that does not involve placement of
excess spoil in or within 100 feet of a
perennial or intermittent stream is not
reasonably possible.
(ii) Identify a reasonable range of
alternatives that vary with respect to the
number, size, location, and
configuration of proposed fills. This
provision does not require identification
of all potential alternatives. You need
identify only those reasonably possible
alternatives that are likely to differ
significantly in terms of impacts on fish,
wildlife, and related environmental
values. An alternative is reasonably
possible if it meets all the following
criteria:
(A) The alternative conforms to the
safety, engineering, design, and
construction requirements of the
regulatory program;
(B) The alternative is capable of being
done after consideration of cost,
logistics, and available technology. The
fact that one alternative may cost
somewhat more than a different
alternative does not necessarily warrant
exclusion of the more costly alternative
from consideration. However, an
alternative generally may be considered
unreasonable if its cost is substantially
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greater than the costs normally
associated with this type of project.
(C) The alternative is consistent with
the coal recovery provisions of § 817.59
of this chapter.
(iii) Analyze the impacts of the
alternatives identified in paragraph
(a)(3)(ii) of this section on fish, wildlife,
and related environmental values. The
analysis must consider impacts on both
terrestrial and aquatic ecosystems.
(A) For every alternative that proposes
placement of excess spoil in a perennial
or intermittent stream, the analysis must
include an evaluation of impacts on the
physical, chemical, and biological
characteristics of the stream
downstream of the proposed fill,
including seasonal variations in
temperature and volume, changes in
stream turbidity or sedimentation, the
degree to which the excess spoil may
introduce or increase contaminants, and
the effects on aquatic organisms and the
wildlife that is dependent upon the
stream.
(B) If you have prepared an analysis
of alternatives for the proposed fill
under 40 CFR 230.10 to meet Clean
Water Act requirements, you may
initially submit a copy of that analysis
with your application in lieu of the
analysis required by paragraph
(a)(3)(iii)(A) of this section. The
regulatory authority will determine the
extent to which that analysis satisfies
the analytical requirements of paragraph
(a)(3)(iii)(A) of this section.
(iv) Select the alternative with the
least overall adverse impact on fish,
wildlife, and related environmental
values, including adverse impacts on
water quality and aquatic and terrestrial
ecosystems.
(4) Location. Maps and cross-section
drawings showing the location of all
proposed disposal sites and structures.
You must locate fills on the most
moderately sloping and naturally stable
areas available, unless the regulatory
authority approves a different location
based upon the alternatives analysis
under paragraph (a)(3) of this section or
on other requirements of the Act and
this chapter. Whenever possible, you
must place fills upon or above a natural
terrace, bench, or berm if that location
would provide additional stability and
prevent mass movement.
(5) Design plans. Detailed design
plans for each structure, prepared in
accordance with the requirements of
this section and §§ 817.71 through
817.74 of this chapter. You must design
the fill and appurtenant structures using
current prudent engineering practices
and any additional design criteria
established by the regulatory authority.
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(6) Geotechnical investigation. The
results of a geotechnical investigation of
each proposed disposal site, with the
exception of those sites at which spoil
will be placed only on a pre-existing
bench under § 817.74 of this chapter.
You must conduct sufficient foundation
investigations, as well as any necessary
laboratory testing of foundation
material, to determine the design
requirements for foundation stability for
each site. The analyses of foundation
conditions must take into consideration
the effect of underground mine
workings, if any, upon the stability of
the fill and appurtenant structures. The
information submitted must include—
(i) The character of the bedrock and
any adverse geologic conditions in the
proposed disposal area.
(ii) A survey identifying all springs,
seepage, and groundwater flow observed
or anticipated during wet periods in the
area of the proposed disposal site.
(iii) A survey of the potential effects
of subsidence of subsurface strata as a
result of past and future mining
operations.
(iv) A technical description of the
rock materials to be utilized in the
construction of disposal structures
containing rock chimney cores or
underlain by a rock drainage blanket.
(v) A stability analysis including, but
not limited to, strength parameters, pore
pressures, and long-term seepage
conditions. This analysis must be
accompanied by a description of all
engineering design assumptions and
calculations and the alternatives
considered in selecting the design
specifications and methods.
(7) Operation and reclamation plans.
Plans for the construction, operation,
maintenance, and reclamation of all
excess spoil disposal structures in
accordance with the requirements of
§§ 817.71 through 817.74 of this
chapter.
(8) Additional requirements for
keyway cuts or rock-toe buttresses. If
keyway cuts or rock-toe buttresses are
required under § 817.71(d) of this
chapter, the number, location, and
depth of borings or test pits, which must
be determined according to the size of
the spoil disposal structure and
subsurface conditions. You also must
provide the engineering specifications
used to design the keyway cuts or rocktoe buttresses. Those specifications
must be based upon the stability
analysis required under paragraph
(a)(7)(v) of this section.
(b) Design certification. A qualified
registered professional engineer
experienced in the design of earth and
rock fills must certify that the design of
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all fills and appurtenant structures
meets the requirements of this section.
12. Amend § 784.23 by removing
‘‘817.71(b),’’ in paragraph (c) and
revising paragraph (b)(10) to read as
follows:
■
§ 784.23
Operation plan: Maps and plans.
*
*
*
*
*
(b) * * *
(10) Locations of each siltation
structure, permanent water
impoundment, refuse pile, and coal
mine waste impoundment for which
plans are required by § 784.16 of this
part, and the location of each fill for the
disposal of excess spoil for which plans
are required under § 784.19 of this part.
*
*
*
*
*
■ 13. Add § 784.28 to read as follows:
§ 784.28 Surface activities in or adjacent to
perennial or intermittent streams.
(a) Applicability. (1) In general.
Except as otherwise provided in
paragraph (a)(2) of this section, this
section applies to underground mining
permit applications that propose to
conduct surface activities in perennial
or intermittent streams or on the surface
of lands within 100 feet, measured
horizontally, of perennial or
intermittent streams.
(2) Exceptions. (i) Coal preparation
plants not located within the permit
area of a mine. This section does not
apply to applications under § 785.21 of
this chapter for coal preparation plants
that are not located within the permit
area of a mine.
(ii) Stream-channel diversions.
Paragraphs (b) through (e) of this section
do not apply to diversions of perennial
or intermittent streams, which are
governed by § 784.29 of this part and
§ 817.43 of this chapter.
(b) Application requirements for
activities in a perennial or intermittent
stream. If you propose to conduct one
or more of the activities listed in
paragraphs (b)(2) through (b)(4) of
§ 817.57 of this chapter in a perennial or
intermittent stream, your application
must demonstrate that—
(1) Avoiding disturbance of the stream
is not reasonably possible; and
(2) The proposed activities will
comply with all applicable requirements
in paragraphs (b) and (c) of § 817.57 of
this chapter.
(c) Application requirements for
surface activities within 100 feet of a
perennial or intermittent stream. If you
propose to conduct surface activities
within 100 feet of a perennial or
intermittent stream, but not in the
stream itself, and those activities would
occur on the surface of land subject to
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the buffer requirement of § 817.57(a)(1)
of this chapter, your application must—
(1) Demonstrate that avoiding
disturbance of land within 100 feet of
the stream either is not reasonably
possible or is not necessary to meet the
fish and wildlife and hydrologic balance
protection requirements of the
regulatory program;
(2) Identify any lesser buffer that you
propose to implement instead of
maintaining a 100-foot undisturbed
buffer between surface activities and the
perennial or intermittent stream; and
(3) Explain how the lesser buffer,
together with any other protective
measures that you propose to
implement, constitute the best
technology currently available to—
(i) Prevent the contribution of
additional suspended solids to
streamflow or runoff outside the permit
area to the extent possible, as required
by §§ 784.14(g) and 817.41(d)(1) of this
chapter; and
(ii) Minimize disturbances and
adverse impacts on fish, wildlife, and
related environmental values to the
extent possible, as required by
§§ 784.21(b) and 817.97(a) of this
chapter.
(d) Approval requirements for
activities in a perennial or intermittent
stream. Before approving any surface
activities in a perennial or intermittent
stream, the regulatory authority must—
(1) Find in writing that—
(i) Avoiding disturbance of the stream
is not reasonably possible; and
(ii) The plans submitted with the
application meet all applicable
requirements in paragraphs (b) and (c)
of § 817.57 of this chapter.
(2) Include a permit condition
requiring a demonstration of
compliance with the Clean Water Act in
the manner specified in § 817.57(a)(2) of
this chapter before the permittee may
conduct any activities in a perennial or
intermittent stream that require
authorization or certification under the
Clean Water Act.
(e) Approval requirements for surface
activities within 100 feet of a perennial
or intermittent stream. Before approving
any surface activities that would disturb
the surface of land subject to the buffer
requirement of § 817.57(a)(1) of this
chapter, the regulatory authority must
find in writing that—
(1) Avoiding disturbance of the
surface of land within 100 feet of the
stream either is not reasonably possible
or is not necessary to meet the fish and
wildlife and hydrologic balance
protection requirements of the
regulatory program; and
(2) The measures proposed under
paragraphs (c)(2) and (c)(3) of this
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section constitute the best technology
currently available to—
(i) Prevent the contribution of
additional suspended solids to
streamflow or runoff outside the permit
area to the extent possible, as required
by §§ 784.14(g) and 817.41(d)(1) of this
chapter; and
(ii) Minimize disturbances and
adverse impacts on fish, wildlife, and
related environmental values to the
extent possible, as required by
§§ 784.21(b) and 817.97(a) of this
chapter.
(f) Relationship to the Clean Water
Act. (1) In all cases, your application
must identify the authorizations and
certifications that you anticipate will be
needed under sections 401, 402, and
404 of the Clean Water Act, 33 U.S.C.
1341, 1342, and 1344, and describe the
steps that you have taken or will take to
procure those authorizations and
certifications.
(2) The regulatory authority will
process your application and may issue
the permit before you obtain all
necessary authorizations and
certifications under the Clean Water
Act, 33 U.S.C. 1251 et seq., provided
your application meets all applicable
requirements of subchapter G of this
chapter. However, issuance of a permit
does not authorize you to initiate any
activities for which Clean Water Act
authorization or certification is
required. Information submitted and
analyses conducted under subchapter G
of this chapter may inform the agency
responsible for authorizations and
certifications under sections 401, 402,
and 404 of the Clean Water Act, 33
U.S.C. 1341, 1342, and 1344, but they
are not a substitute for the reviews,
authorizations, and certifications
required under those sections of the
Clean Water Act.
PART 816—PERMANENT PROGRAM
PERFORMANCE STANDARDS—
SURFACE MINING ACTIVITIES
14. The authority citation for part 816
is revised to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
15. Section 816.10 is revised to read
as follows:
■
§ 816.10
Information collection.
In accordance with 44 U.S.C. 3501 et
seq., the Office of Management and
Budget (OMB) has approved the
information collection requirements of
this part and assigned clearance number
1029–0047. Collection of this
information is required under section
515 of SMCRA, which provides that
permittees conducting surface coal
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mining and reclamation operations must
meet all applicable performance
standards of the regulatory program
approved under the Act. The regulatory
authority uses the information collected
to ensure that surface mining activities
are conducted in compliance with the
requirements of the applicable
regulatory program. Persons intending
to conduct such operations must
respond to obtain a benefit. A Federal
agency may not conduct or sponsor, and
you are not required to respond to, a
collection of information unless it
displays a currently valid OMB control
number.
16. In § 816.11, revise paragraph (e) to
read as follows:
■
§ 816.11
Signs and markers.
*
*
*
*
*
(e) Buffer markers. The boundaries of
any buffer to be maintained between
surface mining activities and a
perennial or intermittent stream in
accordance with §§ 780.28 and 816.57 of
this chapter must be clearly marked to
avoid disturbance by surface mining
activities.
*
*
*
*
*
■ 17. Amend § 816.43 as follows:
■ A. Remove the last sentence of
paragraph (a)(3);
■ B. Redesignate paragraph (a)(4) as
paragraph (a)(5) and add a new
paragraph (a)(4);
■ C. Revise paragraphs (b)(1) and (b)(4);
and
■ D. Add paragraph (b)(5).
The revisions and additions will read
as follows:
§ 816.43
Diversions.
(a) * * *
(4) A permanent diversion or a stream
channel restored after the completion of
mining must be designed and
constructed so as to restore or
approximate the premining
characteristics of the original stream
channel, including any natural riparian
vegetation, to promote the recovery and
enhancement of the aquatic habitat.
*
*
*
*
*
(b) * * *
(1) The regulatory authority may
approve the diversion of perennial or
intermittent streams within the permit
area if the diversion is located and
designed to minimize adverse impacts
on fish, wildlife, and related
environmental values to the extent
possible, using the best technology
currently available. The permittee must
construct and maintain the diversion in
accordance with the approved design.
*
*
*
*
*
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(4) A permanent stream-channel
diversion or a stream channel restored
after the completion of mining must be
designed and constructed using natural
channel design techniques so as to
restore or approximate the premining
characteristics of the original stream
channel, including the natural riparian
vegetation and the natural hydrological
characteristics of the original stream, to
promote the recovery and enhancement
of the aquatic habitat and to minimize
adverse alteration of stream channels on
and off the site, including channel
deepening or enlargement, to the extent
possible.
(5) A qualified registered professional
engineer must separately certify both
the design and construction of all
diversions of perennial and intermittent
streams and all stream restorations. The
design certification must certify that the
design meets the design requirements of
this section and any design criteria set
by the regulatory authority. The
construction certification must certify
that the stream-channel diversion or
stream restoration meets all
construction requirements of this
section and is in accordance with the
approved design.
*
*
*
*
*
§ 816.46
[Amended]
18. In § 816.46, remove paragraph
(b)(2) and redesignate paragraphs (b)(3)
through (b)(6) as (b)(2) through (b)(5),
respectively.
■ 19. Revise § 816.57 to read as follows:
■
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§ 816.57 Hydrologic balance: Activities in
or adjacent to perennial or intermittent
streams.
(a)(1) Buffer requirement. Except as
provided in paragraph (b) of this section
and consistent with paragraph (a)(2) of
this section, you, the permittee or
operator, may not conduct surface
mining activities that would disturb the
surface of land within 100 feet,
measured horizontally, of a perennial or
intermittent stream, unless the
regulatory authority authorizes you to
do so under § 780.28(e) of this chapter.
(2) Clean Water Act requirements.
Surface mining activities, including
those activities in paragraphs (b)(1)
through (b)(4) of this section, may be
authorized in perennial or intermittent
streams only where those activities
would not cause or contribute to the
violation of applicable State or Federal
water quality standards developed
pursuant to the Clean Water Act, as
determined through certification under
section 401 of the Clean Water Act or a
permit under section 402 or 404 of the
Clean Water Act.
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(b) Exception. The buffer requirement
of paragraph (a) of this section does not
apply to those segments of a perennial
or intermittent stream for which the
regulatory authority, in accordance with
§ 780.28(d) of this chapter or
§ 816.43(b)(1) of this part, approves one
or more of the activities listed in
paragraphs (b)(1) through (b)(4) of this
section.
(1) Diversion of a perennial or
intermittent stream. You must comply
with all other applicable requirements
of the regulatory program, including the
requirements of § 816.43(b) of this part
for the permanent or temporary
diversion of a perennial or intermittent
stream.
(2) Placement of bridge abutments,
culverts, or other structures in or within
100 feet of a perennial or intermittent
stream to facilitate crossing of the
stream by roads, railroads, conveyors,
pipelines, utilities, or similar facilities.
You must comply with all other
applicable requirements of the
regulatory program, including the
requirements of §§ 816.150, 816.151,
and 816.181 of this part, as appropriate.
(3) Construction of sedimentation
pond embankments in a perennial or
intermittent stream. This provision
extends to the pool or storage area
created by the embankment. You must
comply with all other applicable
requirements of the regulatory program,
including the requirements of
§ 816.45(a) of this part. Under § 816.56
of this part, you must remove and
reclaim all sedimentation pond
embankments before abandoning the
permit area or seeking final bond release
unless the regulatory authority approves
retention of the pond as a permanent
impoundment under § 816.49(b) of this
part and provisions have been made for
sound future maintenance by the
permittee or the landowner in
accordance with § 800.40(c)(2) of this
chapter.
(4) Construction of excess spoil fills
and coal mine waste disposal facilities
in a perennial or intermittent stream.
You must comply with all other
applicable requirements of the
regulatory program, including the
requirements of paragraphs (a) and (f) of
§ 816.71 of this part for excess spoil fills
and the requirements of §§ 816.81(a),
816.83(a), and 816.84 of this part for
coal mine waste disposal facilities.
(c) Additional clarifications. All
surface mining activities conducted in
or within 100 feet of a perennial or
intermittent stream must comply with
paragraphs (b)(10)(B)(i) and (b)(24) of
section 515 of the Act and the
regulations implementing those
provisions of the Act, including—
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75883
(1) The requirement in § 816.41(d)(1)
of this part that surface mining activities
be conducted according to the plan
approved under § 780.21(h) of this
chapter and that earth materials,
ground-water discharges, and runoff be
handled in a manner that prevents, to
the extent possible using the best
technology currently available,
additional contribution of suspended
solids to streamflow outside the permit
area; and otherwise prevents water
pollution.
(2) The requirement in § 816.45(a) that
appropriate sediment control measures
be designed, constructed, and
maintained using the best technology
currently available to prevent, to the
extent possible, additional contributions
of sediment to streamflow or to runoff
outside the permit area.
(3) The requirement in § 816.97(a) of
this part that the operator must, to the
extent possible using the best
technology currently available,
minimize disturbances and adverse
impacts on fish and wildlife and related
environmental values and achieve
enhancement of those resources where
practicable.
(4) The requirement in § 816.97(f) of
this part that the operator avoid
disturbances to, enhance where
practicable, restore, or replace wetlands,
habitats of unusually high value for fish
and wildlife, and riparian vegetation
along rivers and streams and bordering
ponds and lakes.
■ 20. In § 816.71, revise paragraphs (a)
through (d) to read as follows:
§ 816.71 Disposal of excess spoil: General
requirements.
(a) General. You, the permittee or
operator, must place excess spoil in
designated disposal areas within the
permit area in a controlled manner to—
(1) Minimize the adverse effects of
leachate and surface water runoff from
the fill on surface and ground waters;
(2) Ensure mass stability and prevent
mass movement during and after
construction;
(3) Ensure that the final fill is suitable
for reclamation and revegetation
compatible with the natural
surroundings and the approved
postmining land use; and
(4) Minimize disturbances to and
adverse impacts on fish, wildlife, and
related environmental values to the
extent possible, using the best
technology currently available.
(b) Static safety factor. The fill must
be designed and constructed to attain a
minimum long-term static safety factor
of 1.5. The foundation and abutments of
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the fill must be stable under all
conditions of construction.
(c) Compliance with permit. You, the
permittee or operator, must construct
the fill in accordance with the design
and plans submitted under § 780.35 of
this chapter and approved as part of the
permit.
(d) Special requirement for steepslope conditions. When the slope in the
disposal area exceeds 2.8h:1v (36
percent), or any lesser slope designated
by the regulatory authority based on
local conditions, you, the permittee or
operator, must construct keyway cuts
(excavations to stable bedrock) or rocktoe buttresses to ensure fill stability.
*
*
*
*
*
PART 817—PERMANENT PROGRAM
PERFORMANCE STANDARDS—
UNDERGROUND MINING ACTIVITIES
21. The authority citation for part 817
is revised to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
22. Section 817.10 is revised to read
as follows:
■
§ 817.10
Information collection.
In accordance with 44 U.S.C. 3501 et
seq., the Office of Management and
Budget (OMB) has approved the
information collection requirements of
this part and assigned clearance number
1029–0047. Collection of this
information is required under section
516 of SMCRA, which provides that
permittees conducting underground
coal mining operations must meet all
applicable performance standards of the
regulatory program approved under the
Act. The regulatory authority uses the
information collected to ensure that
surface mining activities are conducted
in compliance with the requirements of
the applicable regulatory program.
Persons intending to conduct such
operations must respond to obtain a
benefit. A Federal agency may not
conduct or sponsor, and you are not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
■ 23. In § 817.11, revise paragraph (e) to
read as follows:
§ 817.11
Signs and markers.
rwilkins on PROD1PC63 with RULES_2
*
*
*
*
*
(e) Buffer markers. The boundaries of
any buffer to be maintained between
surface activities and a perennial or
intermittent stream in accordance with
§§ 784.28 and 817.57 of this chapter
must be clearly marked to avoid
disturbance by surface operations and
facilities.
*
*
*
*
*
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24. Amend § 817.43 as follows:
A. Remove the last sentence of
paragraph (a)(3);
■ B. Redesignate paragraph (a)(4) as
paragraph (a)(5) and add a new
paragraph (a)(4);
■ C. Revise paragraphs (b)(1) and (b)(4);
and
■ D. Add paragraph (b)(5).
The revisions and additions will read
as follows:
■
■
§ 817.43
Diversions.
(a) * * *
(4) A permanent diversion or a stream
channel restored after the completion of
mining must be designed and
constructed so as to restore or
approximate the premining
characteristics of the original stream
channel, including any natural riparian
vegetation, to promote the recovery and
enhancement of the aquatic habitat.
*
*
*
*
*
(b) * * *
(1) The regulatory authority may
approve the diversion of perennial or
intermittent streams within the permit
area if the diversion is located and
designed to minimize adverse impacts
on fish, wildlife, and related
environmental values to the extent
possible, using the best technology
currently available. The permittee must
construct and maintain the diversion in
accordance with the approved design.
*
*
*
*
*
(4) A permanent stream-channel
diversion or a stream channel restored
after the completion of mining must be
designed and constructed using natural
channel design techniques so as to
restore or approximate the premining
characteristics of the original stream
channel, including the natural riparian
vegetation and the natural hydrological
characteristics of the original stream, to
promote the recovery and enhancement
of the aquatic habitat and to minimize
adverse alteration of stream channels on
and off the site, including channel
deepening or enlargement, to the extent
possible.
(5) A qualified registered professional
engineer must separately certify both
the design and construction of all
diversions of perennial and intermittent
streams and all stream restorations. The
design certification must certify that the
design meets the design requirements of
this section and any design criteria set
by the regulatory authority. The
construction certification must certify
that the stream-channel diversion or
stream restoration meets all
construction requirements of this
section and is in accordance with the
approved design.
*
*
*
*
*
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§ 817.46
[Amended]
25. In § 817.46, remove paragraph
(b)(2) and redesignate paragraphs (b)(3)
through (b)(6) as (b)(2) through (b)(5),
respectively.
■ 26. Revise § 817.57 to read as follows:
■
§ 817.57 Hydrologic balance: Surface
activities in or adjacent to perennial or
intermittent streams.
(a)(1) Buffer requirement. Except as
provided in paragraph (b) of this section
and consistent with paragraph (a)(2) of
this section, you, the permittee or
operator, may not conduct surface
activities that would disturb the surface
of land within 100 feet, measured
horizontally, of a perennial or
intermittent stream, unless the
regulatory authority authorizes you to
do so under § 784.28(e) of this chapter.
(2) Clean Water Act requirements.
Surface activities, including those
activities in paragraphs (b)(1) through
(b)(4) of this section, may be authorized
in perennial or intermittent streams
only where those activities would not
cause or contribute to the violation of
applicable State or Federal water quality
standards developed pursuant to the
Clean Water Act, as determined through
certification under section 401 of the
Clean Water Act or a permit under
section 402 or 404 of the Clean Water
Act.
(b) Exception. The buffer requirement
of paragraph (a) of this section does not
apply to those segments of a perennial
or intermittent stream for which the
regulatory authority, in accordance with
§ 784.28(d) of this chapter or
§ 817.43(b)(1) of this part, approves one
or more of the activities listed in
paragraphs (b)(1) through (b)(4) of this
section.
(1) Diversion of a perennial or
intermittent stream. You must comply
with all other applicable requirements
of the regulatory program, including the
requirements of § 817.43(b) of this part
for the permanent or temporary
diversion of a perennial or intermittent
stream.
(2) Placement of bridge abutments,
culverts, or other structures in or within
100 feet of a perennial or intermittent
stream to facilitate crossing of the
stream by roads, railroads, conveyors,
pipelines, utilities, or similar facilities.
You must comply with all other
applicable requirements of the
regulatory program, including the
requirements of §§ 817.150, 817.151,
and 817.181 of this part, as appropriate.
(3) Construction of sedimentation
pond embankments in a perennial or
intermittent stream. This provision
extends to the pool or storage area
created by the embankment. You must
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comply with all other applicable
requirements of the regulatory program,
including the requirements of
§ 817.45(a) of this part. Under § 817.56
of this part, you must remove and
reclaim all sedimentation pond
embankments before abandoning the
permit area or seeking final bond release
unless the regulatory authority approves
retention of the pond as a permanent
impoundment under § 817.49(b) of this
part and provisions have been made for
sound future maintenance by the
permittee or the landowner in
accordance with § 800.40(c)(2) of this
chapter.
(4) Construction of excess spoil fills
and coal mine waste disposal facilities
in a perennial or intermittent stream.
You must comply with all other
applicable requirements of the
regulatory program, including the
requirements of paragraphs (a) and (f) of
§ 817.71 of this part for excess spoil fills
and the requirements of §§ 817.81(a),
817.83(a), and 817.84 of this part for
coal mine waste disposal facilities.
(c) Additional clarifications. All
surface activities conducted in or within
100 feet of a perennial or intermittent
stream must comply with paragraphs
(b)(9)(B) and (b)(11) of section 516 of the
Act and the regulations implementing
those provisions of the Act, including—
(1) The requirement in § 817.41(d)(1)
of this part that surface activities be
conducted according to the plan
approved under § 784.14(g) of this
chapter and that earth materials,
ground-water discharges, and runoff be
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Jkt 217001
handled in a manner that prevents, to
the extent possible using the best
technology currently available,
additional contribution of suspended
solids to streamflow outside the permit
area; and otherwise prevents water
pollution.
(2) The requirement in § 817.45(a) that
appropriate sediment control measures
be designed, constructed, and
maintained using the best technology
currently available to prevent, to the
extent possible, additional contributions
of sediment to streamflow or to runoff
outside the permit area.
(3) The requirement in § 817.97(a) of
this part that the operator must, to the
extent possible using the best
technology currently available,
minimize disturbances and adverse
impacts on fish and wildlife and related
environmental values and achieve
enhancement of those resources where
practicable.
(4) The requirement in § 817.97(f) of
this part that the operator avoid
disturbances to; enhance where
practicable; restore; or replace wetlands,
habitats of unusually high value for fish
and wildlife, and riparian vegetation
along rivers and streams and bordering
ponds and lakes.
■ 27. In § 817.71, remove paragraph (k)
and revise paragraphs (a) through (d) to
read as follows:
§ 817.71 Disposal of excess spoil: General
requirements.
(a) General. You, the permittee or
operator, must place excess spoil in
designated disposal areas within the
permit area in a controlled manner to—
PO 00000
Frm 00073
Fmt 4701
Sfmt 4700
75885
(1) Minimize the adverse effects of
leachate and surface water runoff from
the fill on surface and ground waters;
(2) Ensure mass stability and prevent
mass movement during and after
construction;
(3) Ensure that the final fill is suitable
for reclamation and revegetation
compatible with the natural
surroundings and the approved
postmining land use; and
(4) Minimize disturbances to and
adverse impacts on fish, wildlife, and
related environmental values to the
extent possible, using the best
technology currently available.
(b) Static safety factor. The fill must
be designed and constructed to attain a
minimum long-term static safety factor
of 1.5. The foundation and abutments of
the fill must be stable under all
conditions of construction.
(c) Compliance with permit. You, the
permittee or operator, must construct
the fill in accordance with the design
and plans submitted under § 784.19 of
this chapter and approved as part of the
permit.
(d) Special requirement for steepslope conditions. When the slope in the
disposal area exceeds 2.8h:1v (36
percent), or any lesser slope designated
by the regulatory authority based on
local conditions, you, the permittee or
operator, must construct keyway cuts
(excavations to stable bedrock) or rocktoe buttresses to ensure fill stability.
*
*
*
*
*
[FR Doc. E8–29150 Filed 12–11–08; 8:45 am]
BILLING CODE 4310–05–P
E:\FR\FM\12DER2.SGM
12DER2
Agencies
[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Rules and Regulations]
[Pages 75814-75885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29150]
[[Page 75813]]
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Part II
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 780, 784, et al.
Excess Spoil, Coal Mine Waste, and Buffers for Perennial and
Intermittent Streams; Final Rule
Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 /
Rules and Regulations
[[Page 75814]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 780, 784, 816, and 817
[Docket ID No.: OSM-2007-0007]
RIN 1029-AC04
Excess Spoil, Coal Mine Waste, and Buffers for Perennial and
Intermittent Streams
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are amending our regulations concerning stream buffer zones,
stream-channel diversions, siltation structures, impoundments, excess
spoil, and coal mine waste. Among other things, this rule requires that
surface coal mining operations be designed to minimize the creation of
excess spoil and the adverse environmental impacts of fills constructed
to dispose of excess spoil and coal mine waste. We have revised the
stream buffer zone rule to more closely reflect the underlying
provisions of the Surface Mining Control and Reclamation Act of 1977
(SMCRA), to adopt related permit application requirements, to require
that disturbance of perennial and intermittent streams and their buffer
zones generally be avoided unless it is not reasonably possible to do
so, to identify exceptions to the requirement to maintain an
undisturbed buffer zone for perennial and intermittent streams, and to
clarify the relationship between SMCRA and the Clean Water Act.
DATES: This rule is effective January 12, 2009. The incorporation by
reference of the publication listed in the rule is approved by the
Director of the Federal Register as of January 12, 2009.
FOR FURTHER INFORMATION CONTACT: Dennis G. Rice, Office of Surface
Mining Reclamation and Enforcement, U.S. Department of the Interior,
1951 Constitution Avenue, NW., Washington, DC 20240. Telephone: 202-
208-2829.
You can find additional information concerning OSM, this rule, and
related documents on OSM's home page on the Internet at https://
www.osmre.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What does SMCRA say about surface coal mining operations in or
near streams?
II. What provisions of SMCRA form the basis for our stream buffer
zone rules?
III. What is the history of our stream buffer zone rules?
A. Legislative History of SMCRA
B. Initial Regulatory Program
C. Permanent Regulatory Program (1979 Rules)
D. Permanent Regulatory Program Revisions (1983 Rules)
E. How has the 1983 stream buffer zone rule been applied and
interpreted?
F. What rulemaking actions have we proposed to clarify the 1983
rule?
IV. What is the relationship between SMCRA and the Clean Water Act
with respect to this rule?
V. How did we obtain public input?
VI. What general comments did we receive on the proposed rule?
A. We Should Discourage the Mining and Use of Coal as a Power
Source Because of the Role That the Combustion of Coal Plays in
Climate Change
B. We Should Withdraw the Proposed Rule and Enforce the 1983
Stream Buffer Zone, the Meaning of Which Is Clear as Written
C. We Should Not Adopt Any Rule That Facilitates Mountaintop
Mining Operations or the Filling of Streams
D. We Should Ensure the Protection of Headwater Streams by
Requiring Maintenance of an Undisturbed Buffer Between Mining
Activities and Streams
E. We Have Not Accorded Sufficient Importance to the
Environmental Protection Purposes of SMCRA
F. EPA Cannot Legally Concur With the Revised Stream Buffer Zone
Rules Because They Violate the Clean Water Act
G. The Applicability of the Final Rules Should Be Limited to
Steep-Slope Areas and Mountaintop Removal Operations
H. The Stream Buffer Zone Rule Is Unnecessary and Should Be
Removed in Its Entirety
VII. Why did we decide against applying the stream buffer zone rule
to all waters of the United States (WOTUS)?
VIII. Section-by-section analysis: How are we revising our rules?
A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans
B. Sections 780.25 and 784.16: Reclamation Plan: Siltation
Structures, Impoundments, Refuse Piles, and Coal Mine Waste
Impounding Structures
C. Sections 780.28 and 784.28: Activities in or Adjacent to
Perennial or Intermittent Streams
D. Section 780.35: Disposal of Excess Spoil (Surface Mines)
E. Section 784.19: Disposal of Excess Spoil (Underground Mines)
F. Sections 816.11 and 817.11: Signs and Markers
G. Sections 816.43 and 817.43: Diversions
H. Sections 816.46 and 817.46: Siltation Structures
I. Sections 816.57 and 817.57: Activities in or Adjacent to
Perennial or Intermittent Streams
J. Sections 816.71 and 817.71: General Requirements for Disposal
of Excess Spoil
K. What Does the Phrase ``to the extent possible'' mean in these
rules?
L. What does the phrase ``best technology currently available''
mean in these rules?
IX. Procedural Matters and Required Determinations
I. What does SMCRA say about surface coal mining operations in or near
streams?
SMCRA contains three references to streams, two references to
watercourses, and several provisions that indirectly refer to
activities in or near streams.
Section 507(b)(10) \1\ requires that permit applications include
``the name of the watershed and location of the surface stream or
tributary into which surface and pit drainage will be discharged.''
However, this provision has no relevance to mining-related activities
in or near streams or to the existing or proposed buffer zone rules.
---------------------------------------------------------------------------
\1\ 30 U.S.C. 1257(b)(10). SMCRA, Pub. L. 95-87, is codified at
30 U.S.C. 1201-1328. Thus, for example, SMCRA section 102 is
codified at 30 U.S.C. 1202, SMCRA section 515 is codified at 30
U.S.C. 1265, and SMCRA section 516 is codified at 30 U.S.C. 1266.
---------------------------------------------------------------------------
Section 515(b)(18) requires that surface coal mining and
reclamation operations ``refrain from the construction of roads or
other access ways up a stream bed or drainage channel or in such
proximity to such channel so as to seriously alter the normal flow of
water.''
Section 516(c) requires the regulatory authority to suspend
underground coal mining under permanent streams if an imminent danger
to inhabitants exists. However, this provision is not relevant to a
discussion of the stream buffer zone rules because, in response to
litigation concerning the 1983 version of 30 CFR 817.57, we stipulated
that ``this regulation is directed only to disturbance of surface lands
by surface activities associated with underground mining.'' In re:
Permanent Surface Mining Regulation Litigation II-Round II, 21 ERC
1725, 1741, footnote 21 (D.D.C. 1984).
Section 515(b)(22)(D) provides that sites selected for the disposal
of excess spoil must ``not contain springs, natural water courses or
wet weather seeps unless lateral drains are constructed from the wet
areas to the main underdrains in such a manner that filtration of the
water into the spoil pile will be prevented.'' In adopting this
provision, Congress could have chosen to exclude perennial and
intermittent streams (or other waters) from the scope of ``natural
water courses,'' but it did not do so. In addition, the fact that this
provision of the Act authorizes disposal of excess spoil in areas
containing natural watercourses, springs, and seeps further suggests
that Congress did not intend to prohibit placement of excess spoil in
perennial or intermittent
[[Page 75815]]
streams. The term ``natural watercourses'' includes all types of
streams--perennial, intermittent, and ephemeral. Springs and seeps are
groundwater discharges. To the extent that those discharges provide
intermittent or continuous flow in a channel, they are included within
the scope of our definitions in 30 CFR 701.5 of ``intermittent stream''
and ``perennial stream,'' respectively. The definition of
``intermittent stream,'' which is based upon technical literature,
includes any ``stream or reach of a stream that is below the local
water table for at least some part of the year, and obtains its flow
from both surface runoff and ground water discharge.'' Furthermore, in
litigation under the Clean Water Act, the U.S. Court of Appeals for the
Fourth Circuit cited section 515(b)(22) of SMCRA as supporting the
statement in its decision that ``it is beyond dispute that SMCRA
recognized the possibility of placing excess spoil material in waters
of the United States even though those materials do not have a
beneficial purpose.'' See Kentuckians for the Commonwealth, Inc. v.
Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003).
Section 515(c)(4)(D) provides that, in approving a permit
application for a mountaintop removal operation, the regulatory
authority must require that ``no damage will be done to natural
watercourses.'' The regulations implementing this provision clarify
that the prohibition applies only to natural watercourses ``below the
lowest coal seam mined.'' See 30 CFR 824.11(a)(9). Furthermore, section
515(c)(4)(E) of the Act specifies that ``all excess spoil material not
retained on the mountaintop shall be placed in accordance with the
provisions of subsection (b)(22) of this section.'' By including this
proviso, Congress recognized that not all excess spoil generated by
mountaintop removal operations could be retained on benches or placed
within the mined-out area. And by cross-referencing section 515(b)(22),
Congress authorized placement of excess spoil from mountaintop removal
operations in natural watercourses, provided all requirements of
section 515(b)(22) are met. In the steep-slope terrain of central
Appalachia, excess spoil typically can most feasibly be placed in
valley fills.
In addition, the legislative history of section 515(f) of SMCRA
indicates that Congress anticipated that coal mine waste impoundments
would be constructed in perennial and intermittent streams:
In order to assure that mine waste impoundments used for the
disposal of liquid or solid waste material from coal mines are
constructed or have been constructed so as to safeguard the health
and welfare of downstream populations, H.R. 2 gives the Army Corps
of Engineers a role in determining the standards for construction,
modification and abandonment of these impoundments.
* * * * *
Thus, the corps' experience and expertise in the area of design,
construction, maintenance, et cetera, which were utilized for
carrying out the congressionally authorized surveys of mine waste
embankments in West Virginia following the disastrous failure of the
mine waste impoundments on Buffalo Creek, is to be applied in order
to prevent similar accidents in the future.
H. Rep. No. 95-218; at 125 (April 22, 1977) (emphasis added).
Section 515(f) provides that--
The Secretary, with the written concurrence of the Chief of
Engineers, shall establish within one hundred and thirty-five days
from the date of enactment, standards and criteria regulating the
design, location, construction, operation, maintenance, enlargement,
modification, removal, and abandonment of new and existing coal mine
waste piles referred to in section 515(b)(13) and section 516(b)(5).
Sections 515(b)(13) and 516(b)(5) concern ``all existing and new coal
mine waste piles consisting of mine wastes, tailings, coal processing
wastes, or other liquid and solid wastes and used either temporarily or
permanently as dams or embankments.'' (Emphasis added.) Sections
515(f), 515(b)(13), and 516(b)(5) do not specifically mention streams
or watercourses.
However, the reference to dams and embankments, the requirement for
the concurrence of the U.S. Army Corps of Engineers (for its expertise
in dam construction and flood control), and the legislative history
documenting that the 1972 Buffalo Creek flood was the driving force
behind adoption of those SMCRA provisions demonstrate that Congress was
aware that coal mine waste impoundments had been constructed in
perennial and intermittent streams in the past and would be constructed
there in the future. Furthermore, the fact that all three paragraphs
specifically apply to both new and existing structures (rather than to
just existing structures) implies that new structures would and could
be built in streams under SMCRA. As mentioned in the legislative
history, Congress' intent was to prevent a recurrence of the Buffalo
Creek impoundment failure and to ensure that all coal mine waste
impoundments either are or have been constructed in a manner that
protects the safety of downstream residents. There is no indication
that Congress intended to prohibit construction of those structures in
perennial or intermittent streams.
Finally, sections 515(b)(11) and 516(b)(4) of the Act govern the
construction of coal refuse piles that are not used as dams or
embankments. While those paragraphs do not mention constructing refuse
piles in watercourses, neither do they prohibit such construction.
Because of the similarity of those piles to excess spoil fills, the
regulations implementing sections 515(b)(11) and 516(b)(4) incorporate
language similar to that of section 515(b)(22)(D) for the construction
of excess spoil disposal facilities. Specifically, the regulations at
30 CFR 816.83(a)(1) and 817.83(a)(1) allow the construction of non-
impounding coal refuse piles on areas containing springs, natural or
man-made watercourses, or wet-weather seeps if the design includes
diversions and underdrains. Not all areas containing springs,
watercourses, or wet-weather seeps are perennial or intermittent
streams, but some are, which means that refuse piles may be constructed
in streams.
II. What provisions of SMCRA form the basis for our stream buffer zone
rules?
Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA served as
the basis for all three previous versions (1977, 1979, and 1983) of the
stream buffer zone rule with respect to surface mining activities.
Those sections also serve as the basis for the revised rule at 30 CFR
816.57 that we are adopting today. Section 515(b)(10)(B)(i) requires
that surface coal mining operations be conducted so as to prevent the
contribution of additional suspended solids to streamflow or runoff
outside the permit area to the extent possible using the best
technology currently available. Section 515(b)(24) requires that
surface coal mining and reclamation operations be conducted to minimize
disturbances to and adverse impacts on fish, wildlife, and related
environmental values ``to the extent possible using the best technology
currently available.''
In context, section 515(b)(10)(B)(i) provides that the performance
standards adopted under SMCRA must require that surface coal mining and
reclamation operations--
(10) minimize the disturbances to the prevailing hydrologic
balance at the mine-site and in associated offsite areas and to the
quality and quantity of water in surface and ground water systems
both during and after surface coal mining operations and during
reclamation by--
(A) * * *
[[Page 75816]]
(B)(i) conducting surface coal mining operations so as to
prevent, to the extent possible using the best technology currently
available, additional contributions of suspended solids to
streamflow, or runoff outside the permit area, but in no event shall
contributions be in excess of requirements set by applicable State
or Federal law.
* * * * *
Section 515(b)(24) requires that surface coal mining and
reclamation operations be conducted in a manner that--
To the extent possible using the best technology currently
available, minimize[s] disturbances and adverse impacts of the
operation on fish, wildlife, and related environmental values, and
achieve[s] enhancement of such resources where practicable.
The common thread in both provisions is the requirement for use of
the best technology currently available to achieve the requirements of
those provisions to the extent possible.
Paragraphs (b)(9)(B) and (11) of section 516 of SMCRA form the
basis for the stream buffer zone rule at 30 CFR 817.57, which applies
to surface activities associated with underground mines. Those
provisions of section 516 are substantively equivalent to paragraphs
(b)(10)(B)(i) and (24) of section 515 of SMCRA, respectively, except
that section 516(b)(9)(B) also includes the provisions found in section
515(b)(10)(E) regarding the avoidance of channel deepening or
enlargement. In the remainder of this preamble, we often refer only to
the section 515 paragraphs, with the understanding that, unless
otherwise stated or implied by context, references to those paragraphs
should be read as including their section 516 counterparts.
III. What is the history of our stream buffer zone rules?
A. Legislative History of SMCRA
SMCRA does not establish or require a buffer zone for streams or
other waters. In 1972, the U.S. House of Representatives passed a bill
(H.R. 6482) that included a flat prohibition on mining within 100 feet
of any ``body of water, stream, pond, or lake to which the public
enjoys use and access, or other private property.'' This prohibition
appeared in the counterpart to what is now section 522(e) of the Act.
However, the bill never became law and the provision did not appear in
subsequent versions of SMCRA legislation.
B. Initial Regulatory Program
As part of the regulations implementing the initial regulatory
program under SMCRA, we adopted the concept of a 100-foot buffer zone
around intermittent and perennial streams as a means ``to protect
stream channels from abnormal erosion'' from nearby upslope mining
activities. See 30 CFR 715.17(d)(3) and 42 FR 62652 (December 13,
1977). The regulation reads as follows:
No land within 100 feet of an intermittent or perennial stream
shall be disturbed by surface coal mining and reclamation operations
unless the regulatory authority specifically authorizes surface coal
mining and reclamation operations through such a stream. The area
not to be disturbed shall be designated a buffer zone and marked as
specified in Sec. 715.12.
The rule does not specify the conditions under which the regulatory
authority may authorize operations within the buffer zone.
C. Permanent Regulatory Program (1979 Rules)
The original version of our permanent program regulations, as
published on March 13, 1979, included more extensive stream buffer zone
rules at 30 CFR 816.57 (for surface mining operations) and 817.57 (for
underground mining operations). Specifically, the 1979 version of
section 816.57 provided that no land within 100 feet of a perennial
stream or a stream with a biological community shall be disturbed by
surface mining activities, except in accordance with Sec. Sec. 816.43-
816.44 [the stream diversion regulations], unless the regulatory
authority specifically authorizes surface mining activities closer to
or through such a stream upon finding that the original stream channel
will be restored; and during and after the mining, the water quantity
and quality from the stream section within 100 feet of the surface
mining activities shall not be adversely affected. Paragraph (c) of the
1979 rule provided that a biological community existed if the stream at
any time contained an assemblage of two or more species of arthropods
or molluscan animals that were adapted to flowing water for all or part
of their life cycle, dependent upon a flowing water habitat,
reproducing or could reasonably be expected to reproduce in the water
body where they are found, and longer than 2 millimeters at some stage
of the part of their life cycle spent in the flowing water habitat.
The counterpart regulation for underground mining at 30 CFR 817.57
was identical except that it substituted the term ``surface operations
and facilities'' for ``surface mining activities'' and clearly
indicated that the restrictions were limited to ``surface areas.''
The preamble to the 1979 rules explains that the purpose of the
revised rules was to implement paragraphs (b)(10) and (b)(24) of
section 515 of the Act. 44 FR 15176, March 13, 1979. It states that
``[b]uffer zones are required to protect streams from the adverse
effects of sedimentation and from gross disturbance of stream
channels,'' but that ``if operations can be conducted within 100 feet
of a stream in an environmentally acceptable manner, they may be
approved.'' Id. In addition, it states that ``[t]he 100-foot limit is
based on typical distances that should be maintained to protect stream
channels from sedimentation,'' but that, while the 100-foot standard
provides a simple rule for enforcement purposes, ``site-specific
variation should be made available when the regulatory authority has an
objective basis for either increasing or decreasing the width of the
buffer zone.'' Id.
D. Permanent Regulatory Program Revisions (1983 Rules)
In 1983, we revised the stream buffer zone rules to delete the
requirement that the original stream channel be restored, to replace
the biological community criterion for determining which non-perennial
streams must be protected under the rule with a requirement for
protection of all intermittent streams, and to add a requirement for a
finding that the proposed mining activities will not cause or
contribute to a violation of applicable state or federal water quality
standards and will not adversely affect the environmental resources of
the stream. See 48 FR 30312, June 30, 1983.
In 1983, we also adopted revised performance standards for coal
preparation plants not located within the permit area of a mine. We
decided not to apply the stream buffer zone rule to those preparation
plants. See 30 CFR 827.12 and the preamble to those rules at 48 FR
20399, May 5, 1983.
The preamble to the 1983 stream buffer zone rules reiterates the
general rationale for adoption of a stream buffer zone rule that we
specified in the preamble to the 1979 rules. It identifies the reason
for replacing the biological community threshold with the intermittent
stream threshold as a matter of improving the ease of administration
and eliminating the possibility of applying the rule to ephemeral
streams and other relatively insignificant water bodies:
The biological-community standard was confusing to apply since
there are areas with ephemeral surface waters of little biological
or hydrologic significance which, at some time of the year, contain
a biological community as defined by previous
[[Page 75817]]
Sec. 816.57(c). Thus, much confusion arose when operators attempted
to apply the previous rule's standards to springs, seeps, ponding
areas, and ephemeral streams. While some small biological
communities which contribute to the overall production of downstream
ecosystems will be excluded from special buffer-zone protection
under final Sec. 816.57(a), the purposes of Section 515(b)(24) of
the Act will best be achieved by providing a buffer zone for those
streams with more significant environmental-resource values.
48 FR 30313, June 30 1983. The preamble further states that ``[i]t
is impossible to conduct surface mining without disturbing a number of
minor natural streams, including some which contain biota'' and that
``surface coal mining operations will be permissible as long as
environmental protection will be afforded to those streams with more
significant environmental-resource value.'' Id. It further provides
that the revised rules ``also recognize that intermittent and perennial
streams generally have environmental-resource values worthy of
protection under Section 515(b)(24) of the Act.'' Id. at 30312. In
addition, the preamble notes that ``[a]lthough final Sec. 816.57 is
intended to protect significant biological values in streams, the
primary objective of the rule is to provide protection for the
hydrologic balance and related environmental values of perennial and
intermittent streams.'' Id. at 30313. It further states that ``[t]he
100-foot limit is used to protect streams from sedimentation and help
preserve riparian vegetation and aquatic habitats.'' Id. at 30314.
We also stated that we removed the requirement to restore the
original stream channel in deference to the stream-channel diversion
requirements of 30 CFR 816.43 and 817.43 and to clarify that there does
not have to be a stream diversion for mining to occur inside the buffer
zone. Id.
Finally, the preamble states that we added the finding concerning
``other environmental resources of the stream'' to clarify ``that
regulatory authorities will be allowed to consider factors other than
water quantity and quality in making buffer-zone determinations'' and
``to provide a more accurate reflection of the objectives of Sections
515(b)(10) and 515(b)(24) of the Act.'' Id. at 30316.
Revised 30 CFR 816.57(a) (1983) provided that ``[n]o land within
100 feet of a perennial stream or an intermittent stream shall be
disturbed by surface mining activities, unless the regulatory authority
specifically authorizes surface mining activities closer to, or
through, such a stream.'' The rule further provided that the regulatory
authority may authorize such activities only upon finding that surface
mining activities will not cause or contribute to the violation of
applicable State or Federal water quality standards, and will not
adversely affect the water quantity and quality or other environmental
resources of the stream; and if there will be a temporary or permanent
stream-channel diversion, it will comply with Sec. 816.43.
The 1983 version of the stream buffer zone rule for underground
mining at 30 CFR 817.57 is identical except for substitution of the
term ``underground mining activities'' for ``surface mining
activities.''
The National Wildlife Federation challenged this regulation as
being inconsistent with sections 515(b)(10) and (24) of the Act,
primarily because it deleted the biological community threshold for
stream protection. However, the court rejected that challenge, finding
without elaboration that the ``regulation is not in conflict with
either section 515(b)(10) or 515(b)(24).'' In re: Permanent Surface
Mining Regulation Litigation II--Round II, 21 ERC 1725, 1741-1742
(D.D.C. 1984).
The court also noted that the Secretary had properly justified the
rule change on the grounds that the previous rule was confusing and
difficult to apply without protecting areas of little biological
significance. Unfortunately, the new criterion (intermittent streams)
has proven as difficult to apply as the biological community standard
that it replaced. The definition of ``intermittent stream'' in 30 CFR
701.5 has two parts, separated by an ``or.'' The first part defines all
streams with a drainage area of one square mile as intermittent. This
part of the definition is the aspect that was litigated and upheld for
its clarity of application. However, the second part of the definition
includes all streams and stream segments that are below the local water
table for part of the year and that derive at least part of their flow
from groundwater discharge. This part of the definition has been more
difficult to apply in practice. In fact, some States use biological
criteria for making that determination.
Industry also challenged 30 CFR 817.57(a) to the extent that it
included all underground mining activities. However, industry withdrew
its challenge when the Secretary stipulated that the rule would apply
only to surface lands and surface activities associated with
underground mining. See footnote 21, id. at 1741.
E. How has the 1983 stream buffer zone rule been applied and
interpreted?
Historically, we and the State regulatory authorities have applied
the 1983 stream buffer zone rule in a manner that allowed the placement
of excess spoil fills, refuse piles, slurry impoundments, and
sedimentation ponds in intermittent and perennial streams. However, as
discussed at length in the preamble to the January 7, 2004 proposed
rule (69 FR 1038-1042), which we never finalized, there has been
considerable controversy over the proper interpretation of both the
Clean Water Act and our 1983 rules as they apply to the placement of
fill material in or near perennial and intermittent streams. As
evidenced by past litigation and the comments that we received on the
proposed rule that we published on August 24, 2007, some
interpretations of our 1983 rule are at odds with the underlying
provisions of SMCRA.
We first placed our interpretation of the 1983 stream buffer zone
rules in writing in a document entitled ``Summary Report--West Virginia
Permit Review--Vandalia Resources, Inc. Permit No. S-2007-98.''
According to our annual oversight reports for West Virginia for 1999
and 2000, that document stated that the stream buffer zone rule does
not apply to the footprint of a fill placed in a perennial or
intermittent stream as part of a surface coal mining operation. On June
4, 1999, in West Virginia Highlands Conservancy v. Babbitt, Civ. No.
1:99CV01423 (D.D.C.), the plaintiffs challenged the validity of that
document, alleging that it constituted rulemaking in violation of the
Administrative Procedure Act. In an order filed September 23, 1999, the
court approved an unopposed motion to dismiss the case as moot.
In a lawsuit filed in the U.S. District Court for the Southern
District of West Virginia in July 1998, plaintiffs asserted that the
stream buffer zone rule allows mining activities through or within the
buffer zone for a perennial or intermittent stream only if the
activities are minor incursions. They argued that the rule did not
allow substantial segments of the stream to be buried underneath excess
spoil fills or other mining-related structures. On October 20, 1999,
the district court ruled in favor of the plaintiffs on this point,
holding that the stream buffer zone rule applies to all segments of a
stream, including those segments within the footprint of an excess
spoil fill, not just to the stream as a whole. The court also stated
that the construction of fills in perennial or intermittent streams is
inconsistent with the language of 30 CFR
[[Page 75818]]
816.57(a)(1), which provides that the regulatory authority may
authorize surface mining activities within a stream buffer zone only
after finding that the proposed activities ``will not adversely affect
the water quantity and quality or other environmental resources of the
stream.'' See Bragg v. Robertson, 72 F. Supp. 2d 642, 660-663 (S.D. W.
Va., 1999).
The U.S. Court of Appeals for the Fourth Circuit ultimately
reversed the district court on other grounds (lack of jurisdiction
under the Eleventh Amendment to the U.S. Constitution) without reaching
the merits of the district court's holding on the applicability of the
stream buffer zone rule. Bragg v. West Virginia Coal Association, 248
F.3d 275, 296 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).
In a different case, the same district court stated that SMCRA and
the stream buffer zone rule do not authorize disposal of overburden in
streams: ``SMCRA contains no provision authorizing disposal of
overburden waste in streams, a conclusion further supported by the
buffer zone rule.'' Kentuckians for the Commonwealth, Inc. v.
Rivenburgh, 204 F. Supp. 2d 927, 942 (S.D. W. Va. 2002).
The U.S. Court of Appeals for the Fourth Circuit subsequently
rejected the district court's interpretation, stating that ``SMCRA does
not prohibit the discharge of surface coal mining excess spoil in
waters of the United States.'' Kentuckians for the Commonwealth, Inc.
v. Rivenburgh, 317 F.3d 425, 442 (4th Cir. 2003). The court further
stated that ``it is beyond dispute that SMCRA recognizes the
possibility of placing excess spoil material in waters of the United
States even though those materials do not have a beneficial purpose.''
Id. at 443.
The court explained the basis for its statements as follows:
Section 515(b)(22)(D) of SMCRA authorizes mine operators to
place excess spoil material in ``springs, natural water courses or
wet weather seeps'' so long as ``lateral drains are constructed from
the wet areas to the main underdrains in such a manner that
filtration of the water into the spoil pile will be prevented.'' 30
U.S.C. Sec. 1265(b)(22)(D). In addition, Sec. 515(b)(24) requires
surface mine operators to ``minimize disturbances and adverse
impacts of the operation on fish, wildlife, and related
environmental values, and achieve enhancement of such resources
where practicable,'' implying the placement of fill in the waters of
the United States. 30 U.S.C. Sec. 1265(b)(24). It is apparent that
SMCRA anticipates the possibility that excess spoil material could
and would be placed in waters of the United States, and this fact
cannot be juxtaposed with Sec. 404 of the Clean Water Act to
provide a clear intent to limit the term ``fill material'' to
material deposited for a beneficial primary purpose.
Id. at 443.
The preamble to the proposed rule that we published on January 7,
2004, but which we never adopted in final form, contains additional
discussion of litigation and related matters arising from the 1983
stream buffer zone rules. See especially Part I.B.1. at 69 FR 1038-
1040.
F. What rulemaking actions have we proposed to clarify the 1983 rule?
On January 7, 2004 (69 FR 1036), we proposed to revise our stream
buffer zone rules to retain the prohibition on disturbance of land
within 100 feet of a perennial or intermittent stream, but alter the
findings that the regulatory authority must make before granting a
variance to this requirement. The revised rule would have replaced the
Clean Water Act-oriented findings in the 1983 rule with a SMCRA-based
requirement that the regulatory authority find in writing that the
activities will, to the extent possible, use the best technology
currently available to prevent additional contributions of suspended
solids to the section of stream within 100 feet downstream of the
mining activities and outside the area affected by mining activities;
and minimize disturbances and adverse impacts on fish, wildlife, and
other related environmental values of the stream. The proposed rule
also would have required that operations be designed to minimize the
creation of excess spoil.
Numerous commenters asked us to consider other alternatives to the
proposed rule. Some commenters also asked that we prepare an
environmental impact statement (EIS) on the proposed action. On June
16, 2005 (70 FR 35112), we announced our intent to prepare an EIS on
the proposed rule changes. We also stated that we intended to consider
additional alternatives and to publish a new proposed rule to coincide
with the release of a draft EIS.
On August 24, 2007 (72 FR 48890), we published a new, extensively
revised proposed rule and a notice of availability of the draft EIS.
That proposed rule replaced the one we published on January 7, 2004.
The August 24, 2007, proposed rule forms the basis for the final rule
that we are adopting today. This final rule is intended to clarify the
scope and meaning of the stream buffer zone rule, consistent with
underlying statutory authority, and to ensure that regulatory
authorities, mine operators, other governmental entities, landowners,
and citizens all can have a common understanding of what the stream
buffer zone rule does and does not require. The final rule also
includes additional permitting requirements intended to ensure that
operations are designed to minimize the creation of excess spoil and to
require consideration of alternatives to the disposal of excess spoil
and coal mine waste in perennial or intermittent streams or their
buffer zones to minimize the adverse impacts on fish, wildlife, and
related environmental values to the extent possible using the best
technology currently available.
The revised stream buffer zone rule that we are adopting today
attempts to minimize disputes and misunderstandings associated with
application of the 1983 rule. The revised rule distinguishes between
those situations in which maintenance of an undisturbed buffer between
mining and reclamation activities and a perennial or intermittent
stream constitutes the best technology currently available to implement
the underlying statutory provisions (sections 515(b)(10)(B)(i) and (24)
and 516(b)(9)(B) and (11) of SMCRA) and those situations in which
maintenance of a buffer is neither feasible nor appropriate.
IV. What is the relationship between SMCRA and the Clean Water Act with
respect to this rule?
In this final rule, we are adding paragraph (f) of sections 780.28
and 784.28 and paragraph (d) of sections 816.57 and 817.57 to clarify
the relationship between SMCRA and the Clean Water Act with respect to
activities conducted in or near perennial and intermittent streams. We
are adopting these paragraphs to address concerns arising from the fact
that this final rule removes language that previously appeared in
sections 816.57(a) and 817.57(a) that specifically prohibited the
conduct of mining activities within 100 feet of a perennial or
intermittent stream unless the regulatory authority found that those
activities would not cause or contribute to the violation of applicable
State or Federal water quality standards and would not adversely affect
the water quantity and quality or other environmental resources of the
stream. We are removing that requirement because its language more
closely resembles the Clean Water Act than the underlying provisions of
SMCRA. See Parts II, VIII.C., and VIII.I. of this preamble for further
discussion of sections 780.28, 784.28, 816.57, and 817.57 and the
provisions of SMCRA
[[Page 75819]]
that provide the basis for the stream buffer zone rule.
None of the revisions to the stream buffer zone rule or other
elements of this final rule affect a mine operator's responsibility to
comply with effluent limitations or other requirements of the Clean
Water Act. The requirements of the Clean Water Act have independent
force and effect regardless of the terms of the SMCRA permit. The
independent effect of the Clean Water Act is recognized in section
702(a) of SMCRA, which provides that--
Nothing in this Act shall be construed as superseding, amending,
modifying, or repealing the * * * [t]he Federal Water Pollution
Control Act [Clean Water Act] [citations omitted], the State laws
enacted pursuant thereto, or other Federal laws relating to the
preservation of water quality.
30 U.S.C. 1292(a).
In interpreting this statutory provision with respect to effluent
limitations adopted as part of our initial regulatory program, the U.S.
Court of Appeals for the D.C. Circuit held that ``where the Secretary's
regulation of surface coal mining's hydrologic impact overlaps EPA's,
the Act expressly directs that the Federal Water Pollution Control Act
and its regulatory framework are to control so as to afford consistent
effluent standards nationwide.'' In re Surface Mining Regulation
Litigation, 627 F.2d 1346, 1367 (D.C. Cir. 1980).
In today's final rule, we are adding paragraph (f)(2) of sections
780.28 and 784.28 and paragraph (d) of sections 816.57 and 817.57(d) to
reiterate and further clarify this relationship between SMCRA and the
Clean Water Act. The new rules emphasize that issuance of a SMCRA
permit is not a substitute for the reviews, authorizations, and
certifications required under the Clean Water Act and does not
authorize initiation of surface coal mining operations for which the
applicant has not obtained all necessary authorizations,
certifications, and permits under the Clean Water Act.
Consistent with the approach described above, our existing
regulations at 30 CFR 816.42 and 817.42 provide that discharges of
water from areas disturbed by surface or underground mining activities
shall be made in compliance with all applicable State and Federal water
quality laws and regulations and with the effluent limitations for coal
mining promulgated by the U.S. Environmental Protection Agency set
forth in 40 CFR part 434. Nothing in the final rule that we are
adopting today would alter or affect the requirements of 30 CFR 816.42
or 817.42.
SMCRA and the Clean Water Act provide for separate regulatory
programs with different purposes and very different permitting
requirements and procedures. In addition, SMCRA and the Clean Water Act
differ considerably with respect to jurisdiction. For example, unlike
SMCRA, the Clean Water Act does not directly regulate groundwater. The
Clean Water Act focuses primarily on regulating discharges of
pollutants into waters of the United States, whereas SMCRA regulates a
broad universe of environmental and other impacts of surface coal
mining and reclamation operations. As stated in the legislative history
of SMCRA:
Statutory authority to regulate the adverse environmental
effects of surface and underground coal mining under the Federal
Water Pollution Control Act [Clean Water Act], as amended, is
limited to the treatment or removal of any pollutants into the
waters of the United States. * * * The Federal Water Pollution
Control Act, as amended, can deal only with a part of the problem.
The FWPCA does not contain the statutory authority for the
establishment of standards and regulations requiring comprehensive
preplanning and designing for appropriate mine operating and
reclamation procedures to ensure protection of public health and
safety and to prevent the variety of other damages to the land, the
soil, the wildlife, and the aesthetic and recreational values that
can result from coal mining. The statute also lacks the regulatory
authority to deal with the discharge of pollutants from abandoned
surface and underground coal mines.
H. Rep. No. 94-1445 at 90-91 (1976), emphasis in original.
Section 508(a)(9) of SMCRA requires that each permit application
include ``the steps to be taken to comply with applicable air and water
quality laws and regulations and any applicable health and safety
standards.'' Our regulations at 30 CFR 780.18(b)(9) and 784.13(b)(9)
similarly require that each permit application include:
A description of steps to be taken to comply with the
requirements of the Clean Air Act (42 U.S.C. 7401 et seq.), and the
Clean Water Act (33 U.S.C. 1251 et seq.), and other applicable air
and water quality laws and regulations and health and safety
standards.
In keeping with section 508(a)(9) of SMCRA, today's rule also
includes new provisions in paragraph (f)(1) of sections 780.28 and
784.28 reiterating that every permit application must identify the
authorizations that the applicant anticipates will be needed under
sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341,
1342, and 1344, and describe the steps that the permit applicant has
taken or will take to procure those authorizations.
The Clean Water Act establishes a comprehensive program designed to
``restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.'' 33 U.S.C. 1251(a). To achieve this goal, it
prohibits the discharge of pollutants into navigable waters except as
in compliance with specified provisions of the Clean Water Act,
including a provision that allows for discharges authorized by a
National Pollutant Discharge Elimination System (NPDES) permit. 33
U.S.C. 1311(a) and 1342(a). At 33 U.S.C. 1362(7), the Clean Water Act
defines ``navigable waters'' as ``waters of the United States,'' a term
which the Corps and EPA define at 33 CFR 328.3 and 40 CFR 232.2,
respectively. The proper scope of that definition has been extensively
litigated and EPA and the Corps have issued supplemental guidance to
reflect the outcome of that litigation.
The Clean Water Act authorizes the discharge of pollutants into
waters of the United States under two different permit programs.
Section 404 authorizes discharges of dredged or fill material, while
section 402 applies to all other pollutants. 33 U.S.C. 1344, 1342.
Section 404 is primarily administered by the Corps, with the exception
of those States and Indian tribes that have assumed the program
pursuant to section 404(g). In both cases, EPA provides input and has
oversight authority and responsibilities. Section 402 (NPDES) permits
are issued by EPA or states and Indian tribes that EPA has authorized
to administer the NPDES program under section 402(b).
Section 401 of the Clean Water Act requires that each applicant for
a federal license or permit submit a certification from the state in
which the discharge originates. The certification must state that the
discharge will comply with federal and state water quality
requirements. 33 U.S.C. 1341(a)(1). ``No license or permit shall be
granted until the certification required by this section has been
obtained or has been waived'' and ``[n]o license or permit shall be
granted if certification has been denied by the State.'' Id. Section
401(d) further provides that the state certifications ``shall become a
condition on any Federal license or permit subject to the provisions of
this section.'' Id. at 1341(d).
Section 402 of the Clean Water Act governs discharges of pollutants
other than dredged or fill material. 33 U.S.C. 1342. Permits issued
under this section are known as NPDES permits. They typically contain
technology-based numerical standards called effluent limitations that
restrict the amount of specified pollutants that may be
[[Page 75820]]
discharged. 33 U.S.C. 1311, 1362(11). EPA has developed industry-wide
technology-based wastewater effluent limitations for surface coal
mining and reclamation operations. Those effluent limitations are
codified in 40 CFR part 434. NPDES permits also must include any more
stringent limitations necessary to meet state water quality standards.
33 U.S.C. 1311(b)(1)(C), 1342(a). EPA may authorize states to issue
NPDES permits, but EPA retains authority to enforce the requirements of
the Clean Water Act.
Section 404 of the Clean Water Act authorizes the Secretary of the
Army, through the Corps, to regulate discharges of dredged and fill
material through a permitting process. 33 U.S.C. 1344. On May 9, 2002
(67 FR 31129-31143), the Corps and EPA adopted a revised definition of
``fill material'' in 33 CFR 323.2(e) and 40 CFR 232.2, respectively,
that includes ``overburden from mining or other excavation
activities.'' In the same rulemaking, the Corps and EPA also adopted a
revised definition of ``discharge of fill material'' in 33 CFR 323.2(f)
and 40 CFR 232.2, respectively. The revised definition provides that
``[t]he term generally includes, without limitation, the * * *
placement of overburden, slurry, or tailings or similar mining-related
materials.'' Therefore, any mining overburden or coal mine waste used
to replace any waters of the United States, or portion thereof, with
dry land or to change the bottom elevation of any waters of the United
States, or portion thereof, is classified as fill material for purposes
of the Clean Water Act.
To implement section 404, the Corps may issue either individual
permits under 33 CFR parts 320 through 328 or general permits under 33
CFR part 330. See 33 U.S.C. 1344(a) and (e). Both individual and
general permits must comply with guidelines issued by EPA under section
404(b)(1), 33 U.S.C. 1344(b)(1). Those guidelines, which are codified
at 40 CFR part 230, are referred to as the ``404(b)(1) Guidelines.''
The 404(b)(1) Guidelines generally prohibit the permitting of projects
where there ``is a practicable alternative to the proposed discharge
which would have less adverse impact on the aquatic ecosystem, so long
as the alternative does not have other significant adverse
environmental consequences.'' 40 CFR 230.10(a). Under 40 CFR
230.10(a)(2), ``[a]n alternative is practicable if it is available and
capable of being done after taking into consideration cost, existing
technology, and logistics in light of overall project purposes.''
The guidelines specify that the Corps must ensure that the proposed
fill will not cause significantly adverse effects on human health or
welfare, aquatic life, and aquatic ecosystems. 40 CFR 230.10(c)(1)
through (c)(3). To comply with this requirement, the Corps must make a
written determination of the effects of a proposed activity ``on the
physical, chemical, and biological components of the aquatic
environment.'' 40 CFR 230.11. See also 33 CFR 320.4(b)(4) and
325.2(a)(6) for requirements for individual permits.
The 404(b)(1) Guidelines also provide that ``no discharge of
dredged or fill material shall be permitted unless appropriate and
practicable steps have been taken which will minimize potential adverse
impacts of the discharge on the aquatic ecosystem.'' 40 CFR 230.10(d).
One way the Corps can reduce the potential adverse impacts associated
with filling activity is to require compensatory mitigation. See 33 CFR
325.4(a)(3) and 320.4(r) for individual permits and General Condition
20 (72 FR 11193, March 12, 2007) for nationwide permits under 33 CFR
part 330. This differs substantially from SMCRA, which provides no
authority to require compensatory mitigation.
Section 404(e) of the Clean Water Act authorizes the Corps to
``issue general permits on a State, regional, or nationwide basis for
any category of activities involving discharges of dredged or fill
material if the Secretary [of the Army] determines that the activities
in such category are similar in nature, will cause only minimal adverse
environmental effects when performed separately, and will have only
minimal cumulative adverse effects on the environment,'' provided the
general permit is based upon the guidelines developed under section
404(b)(1) of the Clean Water Act.
The Corps has exercised its authority under section 404(e) to issue
general nationwide permits (NWPs) for surface coal mining operations
under SMCRA (NWP 21), coal remining activities under SMCRA (NWP 49),
and underground coal mining activities under SMCRA (NWP 50). Those
permits apply only if the activities are authorized under a SMCRA
permit or an application for the activities is being processed as part
of an integrated permit processing procedure. See 72 FR 11092, 11184,
and 11191, March 12, 2007. In issuing NWPs 21, 49, and 50, the Corps
has determined that the activities covered by those permits are in
compliance with the 404(b)(1) Guidelines. That is, the Corps has
determined that these activities will cause only minimal adverse
environmental effects when performed separately and will have only
minimal cumulative adverse effects on the environment.
As the Corps states in the preamble to the most recent version of
its general permits--
When we issue the NWPs, we fully comply with the requirements of
the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance
of general permits under section 404. For the section 404 NWPs, each
decision document contains a 404(b)(1) Guidelines analysis. Section
230.7(b) of the 404(b)(1) Guidelines requires only a ``written
evaluation of the potential individual and cumulative impacts of the
categories of activities to be regulated under the general permit.''
Since the required evaluation must be completed before the NWP is
issued, the analysis is predictive in nature. The estimates of
potential individual and cumulative impacts, as well as the
projected compensatory mitigation that will be required, are based
on the best available data from the Corps district offices, based on
past use of NWPs.
72 FR 11094, March 12, 2007.
In the preamble to NWP 21, the Corps states that ``the analyses and
environmental protection performance standards required by SMCRA, in
conjunction with the pre-construction notification requirement, are
generally sufficient to ensure that NWP 21 activities result in minimal
individual and cumulative adverse impacts on the aquatic environment.''
72 FR 11114. The most critical element in the Corps' determination that
NWP 21 meets the Clean Water Act requirements for general permits is
the fact that NWP 21 requires a preconstruction notification from the
applicant, followed by a review of the project by the Corps, and then a
written determination from the Corps before the activities covered by
NWP 21 may be initiated. As the Corps states in the preamble--
We believe our process for NWP 21 ensures that activities
authorized by the NWP result in no more than minimal adverse impacts
to the aquatic environment because each project is reviewed on a
case-by-case basis and the district engineer either makes a minimal
impacts determination on the project or asserts discretionary
authority and requires an individual permit. Also, because of the
case-by-case review and the requirement for written verification, we
do not agree that it is necessary to prohibit discharges of dredged
or fill material into perennial streams.
* * * * *
The pre-construction notification requirements of all NWPs
allows for a case-by-case review of activities that have the
potential to result in more than minimal adverse effects to the
aquatic environment. If the adverse effects on the aquatic
environment are more than minimal, then the district engineer can
either add special conditions to the NWP authorization to ensure
that the activity results in no more than minimal adverse
environmental effects
[[Page 75821]]
or exercise discretionary authority to require an individual permit.
72 FR 11114.
Furthermore, at 72 FR 11117, the Corps states that--
The Corps does not assume that other state or Federal agencies
conduct a review that is comparable to the section 404(b)(1)
Guidelines. Although analysis of offsite alternatives is not
required in conjunction with general permits, each proposed project
is evaluated for onsite avoidance and minimization, in accordance
with general condition 20, and is not authorized under the NWP if
the adverse impacts to waters of the United States are more than
minimal.
At 72 FR 11094, the Corps explains that--
NWPs 21, 49, and 50 are a special case, in that they authorize
activities for which review of environmental impacts, including
impacts to aquatic resources, is separately required under other
Federal authorities (e.g., Surface Mining Control and Reclamation
Act (SMCRA) permits for coal mining activities). The Corps believes
it would be unnecessarily duplicative to separately require the same
substantive analyses through an individual permit application as are
already required under SMCRA. However, through the pre-construction
notification review process, the district engineer will consider the
analyses prepared for the SMCRA permit and exercise discretionary
authority to require an individual permit in cases where the
district engineer determines, after considering avoidance and
reclamation activities undertaken pursuant to SMCRA, that the
residual adverse effects are not minimal. The project sponsor is
required to obtain written verification prior to commencing work.
Thus, the Corps uses SMCRA permit application data and analyses as
a starting point to determine whether a proposed operation qualifies
for authorization under NWP 21, but it does not rely upon that
information exclusively. Nor does the Corps presume that issuance of a
SMCRA permit is evidence of compliance with Clean Water Act
requirements. See 72 FR 11115, which states that--
The Corps understands coal mining is covered by many
environmental regulations; however the Corps has determined that
SMCRA, in its current form, does not remove the need, either legally
or substantively, for independent authorization under Section 404 of
the Clean Water Act. Consequently, this NWP does not duplicate the
SMCRA permit process.
The principles in the preceding discussion concerning NWP 21 also
apply to NWPs 49 and 50. See 72 FR 11148-49 and 11151-52.
The preamble to General Condition 27, which applies to NWPs 21, 49,
and 50, describes the Corps' decisionmaking process as follows:
In reviewing the PCN [preconstruction notification] for the
proposed activity, the district engineer will determine whether the
activity authorized by the NWP will result in more than minimal
individual or cumulative adverse environmental effects or may be
contrary to the public interest. * * * If the district engineer
determines that the activity complies with the terms and conditions
of the NWP and that the adverse effects on the aquatic environment
are minimal, after considering mitigation, the district engineer
will notify the permittee and include any conditions the district
engineer deems necessary. The district engineer must approve any
compensatory mitigation proposal before the permittee commences
work. * * *
If the district engineer determines that the adverse effects of
the proposed work are more than minimal, then the district engineer
will notify the applicant either: (1) That the project does not
qualify for authorization under the NWP and instruct the applicant
on the procedures to seek authorization under an individual permit;
(2) that the project is authorized under the NWP subject to the
applicant's submission of a mitigation plan that would reduce the
adverse effects on the aquatic environment to the minimal level; or
(3) that the project is authorized under the NWP with specific
modifications or conditions. Where the district engineer determines
that mitigation is required to ensure no more than minimal adverse
effects occur to the aquatic environment, the activity will be
authorized within the 45-day PCN period. The authorization will
include the necessary conceptual or specific mitigation or a
requirement that the applicant submit a mitigation plan that would
reduce the adverse effects on the aquatic environment to the minimal
level. When mitigation is required, no work in waters of the United
States may occur until the district engineer has approved a specific
mitigation plan.
72 FR 11195-1196, March 12, 2007.
The preamble also notes that, before beginning any activities
covered by the preconstruction notification, the person submitting the
notification must obtain a state water quality certification under
section 401 of the Clean Water Act in those states that do not issue an
unconditional certification for the nationwide permits.
As the preceding discussion demonstrates, we believe that
maintaining the distinction between the SMCRA and Clean Water Act
regulatory programs is both administratively and legally appropriate.
We do not believe the requirements of this final rule are duplicative
of requirements under the Clean Water Act. However, consistent with
section 713(a) of SMCRA, we encourage SMCRA regulatory authorities and
the agencies administering the Clean Water Act to share permit
application data and environmental analyses to streamline the
permitting processes under SMCRA and the Clean Water Act.
V. How did we obtain public input?
We published the proposed rule on which this final rule is based on
August 24, 2007, (72 FR 48890-48926). In response to requests from the
public, we held public hearings on the proposed rule in Charleston,
West Virginia; Hazard, Kentucky; Knoxville, Tennessee; and Washington,
Pennsylvania on October 24, 2007. We also held public meetings in Big
Stone Gap, Virginia on October 24, 2007, and in Alton, Illinois on
November 1, 2007. In addition, we extended the comment period, which
was originally scheduled to close October 23, 2007, until November 23,
2007. See 72 FR 57504, October 10, 2007.
Approximately 750 persons attended the public hearings and
meetings. Of the attendees, 212 provided testimony, with 21 supporting
the proposed rule and the remainder opposed. In addition to the
testimony offered at the hearings and meetings, we received more than
43,000 written or electronic comments on the proposed rule. In general,
most commenters opposed the proposed rule, primarily because they
viewed the rule as facilitating mountaintop mining and construction of
excess spoil fills in streams. Commenters representing the coal
industry generally supported the proposed rule, except for the proposed
revisions to (1) apply the buffer zone requirement to waters of the
United States rather than to perennial and intermittent streams and (2)
require an analysis of alternatives for disposal of excess spoil and
coal mine waste. Comments from state regulatory authorities and other
governmental entities were mixed in terms of support for or opposition
to the rule.
In developing the final rule, we considered all comments that were
germane to the proposed rule. In the remainder of this preamble, we
summarize the comments received and discuss our disposition of those
comments.
VI. What general comments did we receive on the proposed rule?
A. We Should Discourage the Mining and Use of Coal as a Power Source
Because of the Role That the Combustion of Coal Plays in Climate Change
Many commenters expressed opposition to the use of coal as a fuel
for the generation of electricity, expressing concern about its role in
climate change. We acknowledge the commenters' concerns. However,
regulations adopted under SMCRA are not the appropriate venue to
address climate change issues. Coal-fired power
[[Page 75822]]
plants produce more than half of the electricity used in the United
States and the use of coal as a fuel for power generation is likely to
increase. Nothing in SMCRA authorizes us to regulate electric power
generation facilities or to adopt regulations or take other actions for
the purpose of reducing the use of coal for the generation of
electricity or to require carbon sequestration. Indeed, in SCMRA,
Congress repeatedly mentions the importance of coal to the Nation,
including the continued production of coal as an energy source. Section
101(b) of SMCRA states that ``coal mining operations presently
contribute significantly to the Nation's energy requirements.'' Section
101(d) refers to ``the expansion of coal mining to meet the Nation's
energy needs'' and section 101(j) notes that ``surface and underground
coal mining operations * * * contribute to the economic well-being,
security, and general welfare of the Nation.'' Section 102(f) specifies
that one of the purposes of SMCRA is to ``assure that the coal supply
essential to the Nation's energy requirements and to its economic and
social well-being is provided.'' That paragraph also provides that one
of the purposes of SMCRA is to ``strike a balance between protection of
the environment and agricultural productivity and the Nation's need for
coal as an essential source of energy.'' Taken together, these passages
and the other purposes of SMCRA listed in section 102 indicate that the
regulatory provisions of SMCRA were enacted not to discourage the
production or use of coal but rather to ensure that coal is mined in a
manner that respects property rights and minimizes adverse impacts on
land and water resources and communities. As stated in section 102(a)
of SMCRA, in enacting SMCRA, Congress intended to ``establish a
nationwide program to protect society and the environment from the
adverse effects of surface coal mining operations.'' (Emphasis added.)
There is no indication that Congress intended that the Act operate as a
means of regulating the burning and use of coal as opposed to the
manner and locations in which coal is mined.
The lack of regulatory authority does not mean t