Stream Protection Rule; Environmental Impact Statement, 34666-34669 [2010-14727]

Download as PDF 34666 Federal Register / Vol. 75, No. 117 / Friday, June 18, 2010 / Proposed Rules Comments Due Date Applicability 2. The FAA amends § 39.13 by adding the following new AD: (a) We must receive comments by July 13, 2010. The Boeing Company: Docket No. FAA– 2007–27042; Directorate Identifier 2006– NM–225–AD. Affected ADs (c) This AD applies to the applicable The Boeing Company airplanes; certificated in any category; as identified in the service information specified in Table 1 of this AD. § 39.13 [Amended] (b) None. TABLE 1—SERVICE INFORMATION For Model— Boeing service information— 777–200, –300, and –300ER airplanes. 777–200 and –300 airplanes .......... 777–200, –300, and –300ER airplanes. 777–200, –300, and –300ER airplanes. Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009. Alert Service Bulletin 777–57A0051, dated May 15, 2006. Alert Service Bulletin 777–57A0057, Revision 1, dated August 2, 2007. Boeing Alert Service Bulletin 777–57A0059, dated October 30, 2008. Note 1: Although Boeing Alert Service Bulletin 777–57A0050, Revision 2, refers to ‘‘Model 777–200ER’’ airplanes, this is a European designation that does not apply to airplanes of U.S. registry. Therefore, the applicability of this AD will not specify Model 777–200ER airplanes. However, U.S. operators should consider any reference to Model 777–200ER airplanes in Boeing Alert Service Bulletin 777–57A0050, Revision 2, as applicable to Model 777–200 airplanes as designated by the type certificate data sheet. Subject (d) Air Transport Association (ATA) of America Code 57: Wings. Unsafe Condition (e) This AD results from fuel system reviews conducted by the manufacturer. The Federal Aviation Administration is issuing this AD to prevent electrical arcing on the fuel tank boundary structure or inside the main and center fuel tanks, which could result in a fire or explosion. hsrobinson on DSK69SOYB1PROD with PROPOSALS-1 Compliance (f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Corrective Actions (Installing Teflon Sleeving, Cap Sealing, One-Time Inspection) (g) Within 60 months after the effective date of this AD, do the applicable actions specified in paragraph (g)(1), (g)(2), (g)(3), or (g)(4) of this AD. (1) For airplanes identified in Boeing Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009: Install Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure and cap seal certain penetrating fasteners of the fuel tanks, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009. (2) For airplanes identified in Boeing Alert Service Bulletin 777–57A0051, dated May 15, 2006: Cap seal certain penetrating fasteners of the fuel tanks, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–57A0051, dated May 15, 2006. VerDate Mar<15>2010 17:12 Jun 17, 2010 Jkt 220001 (3) For airplanes identified in Boeing Alert Service Bulletin 777–57A0057, Revision 1, dated August 2, 2007: Do a general visual inspection to determine if certain fasteners are cap sealed and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–57A0057, Revision 1, dated August 2, 2007. Do all applicable corrective actions before further flight. (4) For airplanes identified in Boeing Alert Service Bulletin 777–57A0059, dated October 30, 2008: Cap seal the fasteners in the center fuel tanks that were not sealed during production, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–57A0059, dated October 30, 2008. Credit for Actions Done Using Previous Issues of the Service Bulletins (h) Actions done before the effective date of this AD in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–57A0050, dated January 26, 2006; or Revision 1, dated August 2, 2007; are acceptable for compliance with the corresponding actions required by paragraph (g)(1) of this AD, provided that the applicable additional work specified in Boeing Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009, is done within the compliance time specified in paragraph (g) of this AD. The additional work must be done in accordance with Boeing Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009. (i) Actions done before the effective date of this AD in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–57A0057, dated August 7, 2006, are acceptable for compliance with the actions required by paragraph (g)(3) of this AD. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Margaret Langsted, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Seattle ACO, 1601 Lind Avenue, SW., Renton, PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 Washington 98057–3356; telephone (425) 917–6500; fax (425) 917–6590. Or, e-mail information to 9–ANM–Seattle-ACO–AMOC– Requests@faa.gov. (2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector (PMI) or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD. (3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane and the approval must specifically refer to this AD. Issued in Renton, Washington, on June 10, 2010. Jeffrey E. Duven, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. 2010–14792 Filed 6–17–10; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Chapter VII RIN 1029–AC63 Stream Protection Rule; Environmental Impact Statement AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Proposed rule; notice of intent to prepare an environmental impact statement. E:\FR\FM\18JNP1.SGM 18JNP1 Federal Register / Vol. 75, No. 117 / Friday, June 18, 2010 / Proposed Rules SUMMARY: On April 30, 2010,1 we, the Office of Surface Mining Reclamation and Enforcement (OSM), published a Notice of Intent to prepare an environmental impact statement. This new Notice of Intent supersedes the April Notice of Intent, expands the scoping opportunities to include open houses, and outlines possible alternatives to the proposed action. OSM intends to prepare an environmental impact statement (EIS) under section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) to analyze the effects of potential rule revisions under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act) to improve protection of streams from the adverse impacts of surface coal mining operations. We are requesting comments for the purpose of determining the scope of the EIS. DATES: To ensure consideration, we must receive your electronic or written comments by July 30, 2010. ADDRESSES: You may submit comments by any of the following methods, although we request that you use electronic mail if possible: • Electronic mail: Send your comments to sra-eis@osmre.gov. • Mail, hand-delivery, or courier: Send your comments to Office of Surface Mining Reclamation and Enforcement, Administrative Record, Room 252–SIB, 1951 Constitution Avenue, NW., Washington, DC 20240. • Open Houses: Written and oral comments will be accepted at the Open House sessions, which are discussed in Section V of this Notice. FOR FURTHER INFORMATION CONTACT: John Craynon, Chief, Division of Regulatory Support, Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave., NW., MS 202–SIB, Washington, DC 20240; Telephone 202– 208–2866. SUPPLEMENTARY INFORMATION: hsrobinson on DSK69SOYB1PROD with PROPOSALS-1 Table of Contents I. Why are we publishing a new Notice of Intent? II. Why are we planning to revise our rules? III. What is the proposed Federal action? IV. What are the possible alternatives? V. How do I submit comments? VI. How do I request to participate as a cooperating agency? I. Why are we publishing a new Notice of Intent? On April 30, 2010, we published a Notice of Intent to prepare an environmental impact statement for a proposed Stream Protection Rule. We 1 75 FR 22723 (April 30, 2010). VerDate Mar<15>2010 17:12 Jun 17, 2010 Jkt 220001 34667 impacts of Appalachian surface coal mining. Consequently, on November 30, 2009, we published an advance notice of proposed rulemaking (ANPR) soliciting comments on ten potential rulemaking alternatives. See 74 FR 62664–62668. In addition, consistent with the MOU, we invited the public to identify other rules that we should revise. We also II. Why are we planning to revise our announced our intent to prepare a rules? supplement to the EIS developed in On December 12, 2008 (73 FR 75814– connection with the 2008 rule. We received approximately 32,750 75885), we published a final rule comments during the 30-day comment modifying the circumstances under period that closed December 30, 2009. which mining activities may be After evaluating the comments, we conducted in or near perennial or determined that development of a intermittent streams. That rule, which comprehensive stream protection rule this notice refers to as the 2008 rule, (one that is much broader in scope than took effect January 12, 2009. A total of the 2008 rule) would be the most nine organizations challenged the appropriate and effective method of validity of the rule in two complaints filed on December 22, 2008, and January achieving the goals set forth in the MOU and the ANPR. We believe that this 16, 2009 (amended complaint filed February 17, 2009): Coal River Mountain holistic approach will better protect streams and related environmental Watch, et al. v. Salazar, No. 08–2212 values. It would not be fair, appropriate, (D.DC) (‘‘Coal River’’) and National scientifically valid or consistent with Parks Conservation Ass’n v. Salazar, No. 09–115 (D.DC) (‘‘NPCA’’). Under the the principles of SMCRA to apply the new protections only in central terms of a settlement agreement signed Appalachia, as some commenters on the by the parties on March 19, 2010, we ANPR advocated. Streams are agreed to use best efforts to sign a proposed rule by February 28, 2011, and ecologically significant regardless of the region in which they are located. The a final rule by June 29, 2012. We also broader scope of the stream protection agreed to consult with the Fish and rule means that we will need to prepare Wildlife Service pursuant to the Endangered Species Act, as appropriate, a new environmental impact statement rather than the supplement to the 2008 prior to signing the final action. On EIS that we originally intended to April 2, 2010, the court granted the prepare. parties’ motion to hold the judicial proceedings in abeyance. III. What is the proposed Federal However, we had already decided to action? change the rule following the change of The proposed Federal action consists Administrations on January 20, 2009. of revisions to various provisions of our On June 11, 2009, the Secretary of the rules to improve protection of streams Department of the Interior, the from the impacts of surface coal mining Administrator of the U.S. operations nationwide. Principal Environmental Protection Agency elements of the proposed action (EPA), and the Acting Assistant include— Secretary of the Army (Civil Works) • Collection of Baseline Data. Adding entered into a memorandum of more extensive and more specific 2 (MOU) implementing understanding permit application requirements an interagency action plan designed to concerning baseline data on hydrology, significantly reduce the harmful geology, and aquatic biology; the environmental consequences of surface determination of the probable coal mining operations in six Appalachian states, while ensuring that hydrologic consequences of mining; and the hydrologic reclamation plan; as well future mining remains consistent with Federal law. Among other things, under as more specific requirements for the cumulative hydrologic impact the MOU we committed to consider assessment. revisions to key provisions of our rules, • Definition of Material Damage to including the 2008 rule and Hydrologic Balance. Defining the term approximate original contour ‘‘material damage to the hydrologic requirements, to better protect the balance outside the permit area.’’ This environment and public health from the term is critically important because, under section 510(b)(3) of SMCRA, the 2 The MOU can be viewed online at http:// regulatory authority may not approve a www.osmre.gov/resources/ref/mou/ ASCM061109.pdf. permit application unless the proposed have decided to expand the scoping opportunities to include several open houses in various coal producing areas of the U.S. We have also included possible alternatives under consideration for each element of the proposed action. Finally, we have extended the scoping period to July 30, 2010. PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\18JNP1.SGM 18JNP1 34668 Federal Register / Vol. 75, No. 117 / Friday, June 18, 2010 / Proposed Rules operation has been designed to prevent material damage to the hydrologic balance outside the permit area. This term includes streams downstream of the mining operation and above underground mines. • Mining Activities In or Near Streams. Revising the regulations governing mining activities in or near streams, including mining through streams. • Additional Monitoring Requirements. Adding more extensive and more specific monitoring requirements for surface water, groundwater, and aquatic biota during mining and reclamation. • Corrective Action Thresholds. Establishing corrective action thresholds. • Land Forming and Fill Optimization. Revising the backfilling and grading rules, excess spoil rules, and approximate original contour restoration requirements to incorporate landform restoration principles and reduce discharges of total dissolved solids. • Approximate Original Contour Exceptions. Limiting variances and exceptions from approximate original contour restoration requirements. • Reforestation. Requiring reforestation of previously wooded areas. • Permit Coordination. Requiring that the regulatory authority coordinate the SMCRA permitting process with Clean Water Act permitting activities to the extent practicable. • Financial Assurances for LongTerm Discharges of Pollutants. Codifying the financial assurance provisions of OSM’s March 31, 1997, policy statement 3 on correcting, preventing, and controlling acid/toxic mine drainage and clarifying that those provisions apply to all long-term discharges of pollutants, not just pollutants for which effluent limitations exist. • Stream Definitions. Updating the definitions of perennial, intermittent, and ephemeral streams. hsrobinson on DSK69SOYB1PROD with PROPOSALS-1 IV. What are the possible alternatives? We are in the process of developing alternatives for the proposed Federal action. Comments received in response to this notice will assist us in that process. We will prepare a draft EIS after we complete the initial stages of scoping and identify which rulemaking alternatives will be analyzed in detail. 3 See the document entitled ‘‘Acid Mine Drainage Policy’’ at http://www.osmre.gov/guidance/ significant_guidance.shtm. VerDate Mar<15>2010 17:12 Jun 17, 2010 Jkt 220001 Following release of the draft EIS, we anticipate publishing a notice of proposed rulemaking. Listed below are some of the possible alternatives, in addition to the No Action Alternative, that we are considering for each element of the proposed action: • Additional Requirements for Collection of Baseline Data. Add requirements that permit applicants provide more specific and comprehensive baseline data addressing factors such as: (1) Duration of sampling needed to demonstrate seasonal variations in hydrology, e.g., 12 months, 24 months, or other duration; (2) Frequency of sampling for various types of baseline data, e.g., monthly, quarterly, annually; (3) Location of sampling, e.g., downstream, upstream, off-permit; (4) Aquatic biological communities subject to sampling; and (5) Chemical, physical, and hydrologic parameters to be sampled. • Definition of Material Damage to Hydrologic Balance. Alternatives for defining the term ‘‘material damage’’ include: (1) Any impairment of a physical, chemical, or biological function of the hydrologic balance; (2) Any quantifiable adverse impact on the quality or quantity of surface or groundwater or the biological condition of a stream that would preclude or diminish use of the water or stream; (3) Any ongoing violation of water quality standards; and (4) Differentiating between short term vs. long term impairment. • Mining Activities In or Near Streams. Alternatives for regulating mining activities in, through, or near streams include: (1) Prohibiting disturbance of streams with a biological community unless the permit applicant demonstrates the ability to restore stream form and function; (2) Prohibiting activities and disturbances in all streams with a biological community, irrespective of the ability of the permit applicant to restore form and function; (3) Prohibiting activities in or near streams; (4) Reinstating the 1983 stream buffer zone rule; and (5) Addressing whether fills should be included or excluded in these restrictions. • Additional Monitoring Requirements. Permittees would be required to provide additional monitoring data based on the following considerations: (1) Duration of monitoring, e.g., through final bond release; (2) Frequency of sampling, e.g., continuous, weekly, monthly, quarterly, annually; (3) Location of sampling, e.g., downstream, upstream, off-permit; (4) Biological components subject to PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 sampling; (5) Sampling parameters, e.g., chemical, physical, hydrologic; and (6) Regular review of monitoring data by regulatory authority, e.g., annually, at mid-term review, at permit renewal. • Corrective Action Thresholds. Alternatives for determining the circumstances under which the permittee must take corrective action to prevent material damage to the hydrologic balance include: (1) Developing numerical water quality thresholds based on biological criteria; (2) Developing action thresholds based on water quality trend analysis; and (3) Defining key parameters for which thresholds will be established. • Landforming and Fill Optimization. Alternatives for evaluating land configuration and handling of excess spoils include: (1) Restoring landforms including slope, aspect, and elevation on both backfilled areas and excess spoil fills; (2) Allowing postmining elevations to exceed premining elevations when necessary to restore premining topographic features; (3) Revising requirements to minimize creation of excess spoil by maximizing the amount of spoil returned to the mined-out area; (4) Revising requirements to minimize excess spoil footprints; and (5) Banning excess fill placement in streams. • Approximate Original Contour Exceptions. Alternatives under consideration include: (1) Modifying requirements to ensure that exceptions from approximate original contour restoration requirements do not result in additional damage to streams with a biological community; (2) Prohibiting ‘‘mountain top’’ mining (would require a statutory change); and (3) Adding requirements to ensure approved postmining land uses are achievable and feasible. • Reforestation. Alternatives under consideration include: (1) Requiring reforestation of mined lands to premining diversity and stocking or some percentage of premining diversity and stocking; (2) Requiring reforestation of all mined lands capable of supporting forested land uses; (3) Requiring reforestation of mined lands to the extent compatible with postmining land use; (4) Requiring reforestation and revegetation of mined lands with native species; and (5) Minimizing forest fragmentation. • Permit Coordination. A provision under consideration includes: (1) Enhancing coordination of SMCRA and Clean Water Act regulatory programs consistent with the 2009 Memorandum of Understanding among DOI, Army Corps of Engineers, and EPA; and (2) Standardizing data collection and E:\FR\FM\18JNP1.SGM 18JNP1 Federal Register / Vol. 75, No. 117 / Friday, June 18, 2010 / Proposed Rules hsrobinson on DSK69SOYB1PROD with PROPOSALS-1 management to enhance sharing among regulatory agencies and the public. • Long-Term Discharges of Pollutants. A provision under consideration includes: (1) Incorporating our March 31, 1997 policy statement (see footnote 3 above) into SMCRA regulations and clarifying that those provisions apply to all long-term discharges of pollutants. • Stream Definitions. Alternatives under consideration include: (1) Updating the current definitions of perennial, intermittent, and ephemeral streams to include biological criteria; (2) Retaining the current definitions with the 1-square mile criterion for intermittent streams removed; (3) Adopting the stream definitions used by the Corps of Engineers—‘‘waters of the United States’’— in place of stream definitions; and (4) Using a flow-based (hydraulic) definition with no reference to biological condition. V. How do I submit comments? Consistent with 43 CFR 46.235, we invite all interested persons, organizations, and agencies to provide comments, suggestions, and any other information relevant to the scope of the EIS, the scope of the proposed Federal action, potential alternatives for the proposed Federal action, and studies and impacts that the EIS should address. See ADDRESSES for the methods by which we will accept comments. We also anticipate conducting several open houses in various locations in coal producing regions of the U.S. in July 2010. The following locations are under consideration: Morgantown, WV; Beckley, WV; Hazard, KY; Birmingham, AL; Evansville, IN; Carbondale, IL; Fairfield, TX; Farmington, NM; and Gillette, WY. The open houses will provide an opportunity for the public to review information and provide oral and written comments regarding the scope of the issues to be addressed and identification of the significant issues related to the proposed action and possible alternatives. Information regarding the specific dates and locations will be posted on OSM’s Web site, http://www.osmre.gov, and in local news media. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Comments that we receive after the close of the comment period (see VerDate Mar<15>2010 17:12 Jun 17, 2010 Jkt 220001 34669 DATES) or sent to an address other than those listed in ADDRESSES may not be considered. If you previously submitted comments in response to the ANPR or the April 30, 2010 Notice of Intent, you do not need to resubmit them. We will consider all ANPR and April 30th comments as part of this EIS scoping process. ENVIRONMENTAL PROTECTION AGENCY VI. How do I request to participate as a cooperating agency? AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. Consistent with 43 CFR 46.225, we, the lead agency, invite eligible Federal, state, tribal, and local governmental entities to indicate whether they have an interest in being a cooperating agency in the preparation of the EIS. Qualified entities are those with jurisdiction by law, as defined in 40 CFR 1508.15, or special expertise, as defined in 40 CFR 1508.26. Potential cooperating agencies should consider their authority and capacity to assume the responsibilities of a cooperating agency and make the necessary resources available in a timely manner, as discussed in the document entitled ‘‘Factors for Determining Cooperating Agency Status,’’4 which is Attachment 1 to the Council on Environmental Quality’s January 30, 2002, Memorandum for the Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act. We will not be able to provide financial assistance to cooperating agencies. If you previously indicated that you were interested in being a cooperating agency, no further action is required. If you have an interest in participating as a cooperating agency, please contact the person listed in FOR FURTHER INFORMATION CONTACT and identify those aspects of the EIS process in which you are interested in participating. The regulations at 43 CFR 46.230 and Items 4 through 6 in the document discussed in the preceding paragraph list the activities in which cooperating agencies may wish to participate. Dated: June 10, 2010. Sterling Rideout, Assistant Director, Program Support. [FR Doc. 2010–14727 Filed 6–17–10; 8:45 am] BILLING CODE 4310–05–P 4 See http://ceq.hss.doe.gov/nepa/regs/ cooperating/cooperatingagencymemofactors.html. PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 40 CFR Part 52 [EPA–R03–OAR–2008–0871; FRL–9164–6] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Transportation Conformity Regulations SUMMARY: EPA proposes to approve the State Implementation Plan (SIP) revision submitted by Maryland for Transportation Conformity Regulations. In the Final Rules section of this Federal Register, EPA is approving the State’s SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. DATES: Comments must be received in writing by July 19, 2010. ADDRESSES: Submit your comments, identified by Docket ID Number EPA– R03–OAR–2008–0871 by one of the following methods: A. http://www.regulations.gov. Follow the on-line instructions for submitting comments. B. E-mail: fernandez.cristina@epa.gov. C. Mail: EPA–R03–OAR–2008–0871, Cristina Fernandez, Associate Director, Office of Air Planning Programs, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. Hand Delivery: At the previously listed EPA Region III address. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA–R03–OAR–2008– 0871. EPA’s policy is that all comments received will be included in the public docket without change, and may be made available online at E:\FR\FM\18JNP1.SGM 18JNP1

Agencies

[Federal Register Volume 75, Number 117 (Friday, June 18, 2010)]
[Proposed Rules]
[Pages 34666-34669]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-14727]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Chapter VII

RIN 1029-AC63


Stream Protection Rule; Environmental Impact Statement

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

ACTION: Proposed rule; notice of intent to prepare an environmental 
impact statement.

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[[Page 34667]]

SUMMARY: On April 30, 2010,\1\ we, the Office of Surface Mining 
Reclamation and Enforcement (OSM), published a Notice of Intent to 
prepare an environmental impact statement. This new Notice of Intent 
supersedes the April Notice of Intent, expands the scoping 
opportunities to include open houses, and outlines possible 
alternatives to the proposed action. OSM intends to prepare an 
environmental impact statement (EIS) under section 102(2)(C) of the 
National Environmental Policy Act of 1969 (NEPA) to analyze the effects 
of potential rule revisions under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act) to improve protection of 
streams from the adverse impacts of surface coal mining operations. We 
are requesting comments for the purpose of determining the scope of the 
EIS.
---------------------------------------------------------------------------

    \1\ 75 FR 22723 (April 30, 2010).

DATES: To ensure consideration, we must receive your electronic or 
---------------------------------------------------------------------------
written comments by July 30, 2010.

ADDRESSES: You may submit comments by any of the following methods, 
although we request that you use electronic mail if possible:
     Electronic mail: Send your comments to sra-eis@osmre.gov.
     Mail, hand-delivery, or courier: Send your comments to 
Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, Room 252-SIB, 1951 Constitution Avenue, NW., Washington, DC 
20240.
     Open Houses: Written and oral comments will be accepted at 
the Open House sessions, which are discussed in Section V of this 
Notice.

FOR FURTHER INFORMATION CONTACT: John Craynon, Chief, Division of 
Regulatory Support, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Ave., NW., MS 202-SIB, Washington, DC 
20240; Telephone 202-208-2866.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Why are we publishing a new Notice of Intent?
II. Why are we planning to revise our rules?
III. What is the proposed Federal action?
IV. What are the possible alternatives?
V. How do I submit comments?
VI. How do I request to participate as a cooperating agency?

I. Why are we publishing a new Notice of Intent?

    On April 30, 2010, we published a Notice of Intent to prepare an 
environmental impact statement for a proposed Stream Protection Rule. 
We have decided to expand the scoping opportunities to include several 
open houses in various coal producing areas of the U.S. We have also 
included possible alternatives under consideration for each element of 
the proposed action. Finally, we have extended the scoping period to 
July 30, 2010.

II. Why are we planning to revise our rules?

    On December 12, 2008 (73 FR 75814-75885), we published a final rule 
modifying the circumstances under which mining activities may be 
conducted in or near perennial or intermittent streams. That rule, 
which this notice refers to as the 2008 rule, took effect January 12, 
2009. A total of nine organizations challenged the validity of the rule 
in two complaints filed on December 22, 2008, and January 16, 2009 
(amended complaint filed February 17, 2009): Coal River Mountain Watch, 
et al. v. Salazar, No. 08-2212 (D.DC) (``Coal River'') and National 
Parks Conservation Ass'n v. Salazar, No. 09-115 (D.DC) (``NPCA''). 
Under the terms of a settlement agreement signed by the parties on 
March 19, 2010, we agreed to use best efforts to sign a proposed rule 
by February 28, 2011, and a final rule by June 29, 2012. We also agreed 
to consult with the Fish and Wildlife Service pursuant to the 
Endangered Species Act, as appropriate, prior to signing the final 
action. On April 2, 2010, the court granted the parties' motion to hold 
the judicial proceedings in abeyance.
    However, we had already decided to change the rule following the 
change of Administrations on January 20, 2009. On June 11, 2009, the 
Secretary of the Department of the Interior, the Administrator of the 
U.S. Environmental Protection Agency (EPA), and the Acting Assistant 
Secretary of the Army (Civil Works) entered into a memorandum of 
understanding \2\ (MOU) implementing an interagency action plan 
designed to significantly reduce the harmful environmental consequences 
of surface coal mining operations in six Appalachian states, while 
ensuring that future mining remains consistent with Federal law. Among 
other things, under the MOU we committed to consider revisions to key 
provisions of our rules, including the 2008 rule and approximate 
original contour requirements, to better protect the environment and 
public health from the impacts of Appalachian surface coal mining.
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    \2\ The MOU can be viewed online at http://www.osmre.gov/resources/ref/mou/ASCM061109.pdf.
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    Consequently, on November 30, 2009, we published an advance notice 
of proposed rulemaking (ANPR) soliciting comments on ten potential 
rulemaking alternatives. See 74 FR 62664-62668. In addition, consistent 
with the MOU, we invited the public to identify other rules that we 
should revise. We also announced our intent to prepare a supplement to 
the EIS developed in connection with the 2008 rule.
    We received approximately 32,750 comments during the 30-day comment 
period that closed December 30, 2009. After evaluating the comments, we 
determined that development of a comprehensive stream protection rule 
(one that is much broader in scope than the 2008 rule) would be the 
most appropriate and effective method of achieving the goals set forth 
in the MOU and the ANPR. We believe that this holistic approach will 
better protect streams and related environmental values. It would not 
be fair, appropriate, scientifically valid or consistent with the 
principles of SMCRA to apply the new protections only in central 
Appalachia, as some commenters on the ANPR advocated. Streams are 
ecologically significant regardless of the region in which they are 
located. The broader scope of the stream protection rule means that we 
will need to prepare a new environmental impact statement rather than 
the supplement to the 2008 EIS that we originally intended to prepare.

III. What is the proposed Federal action?

    The proposed Federal action consists of revisions to various 
provisions of our rules to improve protection of streams from the 
impacts of surface coal mining operations nationwide. Principal 
elements of the proposed action include--
     Collection of Baseline Data. Adding more extensive and 
more specific permit application requirements concerning baseline data 
on hydrology, geology, and aquatic biology; the determination of the 
probable hydrologic consequences of mining; and the hydrologic 
reclamation plan; as well as more specific requirements for the 
cumulative hydrologic impact assessment.
     Definition of Material Damage to Hydrologic Balance. 
Defining the term ``material damage to the hydrologic balance outside 
the permit area.'' This term is critically important because, under 
section 510(b)(3) of SMCRA, the regulatory authority may not approve a 
permit application unless the proposed

[[Page 34668]]

operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area. This term includes streams 
downstream of the mining operation and above underground mines.
     Mining Activities In or Near Streams. Revising the 
regulations governing mining activities in or near streams, including 
mining through streams.
     Additional Monitoring Requirements. Adding more extensive 
and more specific monitoring requirements for surface water, 
groundwater, and aquatic biota during mining and reclamation.
     Corrective Action Thresholds. Establishing corrective 
action thresholds.
     Land Forming and Fill Optimization. Revising the 
backfilling and grading rules, excess spoil rules, and approximate 
original contour restoration requirements to incorporate landform 
restoration principles and reduce discharges of total dissolved solids.
     Approximate Original Contour Exceptions. Limiting 
variances and exceptions from approximate original contour restoration 
requirements.
     Reforestation. Requiring reforestation of previously 
wooded areas.
     Permit Coordination. Requiring that the regulatory 
authority coordinate the SMCRA permitting process with Clean Water Act 
permitting activities to the extent practicable.
     Financial Assurances for Long-Term Discharges of 
Pollutants. Codifying the financial assurance provisions of OSM's March 
31, 1997, policy statement \3\ on correcting, preventing, and 
controlling acid/toxic mine drainage and clarifying that those 
provisions apply to all long-term discharges of pollutants, not just 
pollutants for which effluent limitations exist.
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    \3\ See the document entitled ``Acid Mine Drainage Policy'' at 
http://www.osmre.gov/guidance/significant_guidance.shtm.
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     Stream Definitions. Updating the definitions of perennial, 
intermittent, and ephemeral streams.

IV. What are the possible alternatives?

    We are in the process of developing alternatives for the proposed 
Federal action. Comments received in response to this notice will 
assist us in that process.
    We will prepare a draft EIS after we complete the initial stages of 
scoping and identify which rulemaking alternatives will be analyzed in 
detail. Following release of the draft EIS, we anticipate publishing a 
notice of proposed rulemaking.
    Listed below are some of the possible alternatives, in addition to 
the No Action Alternative, that we are considering for each element of 
the proposed action:
     Additional Requirements for Collection of Baseline Data. 
Add requirements that permit applicants provide more specific and 
comprehensive baseline data addressing factors such as: (1) Duration of 
sampling needed to demonstrate seasonal variations in hydrology, e.g., 
12 months, 24 months, or other duration; (2) Frequency of sampling for 
various types of baseline data, e.g., monthly, quarterly, annually; (3) 
Location of sampling, e.g., downstream, upstream, off-permit; (4) 
Aquatic biological communities subject to sampling; and (5) Chemical, 
physical, and hydrologic parameters to be sampled.
     Definition of Material Damage to Hydrologic Balance. 
Alternatives for defining the term ``material damage'' include: (1) Any 
impairment of a physical, chemical, or biological function of the 
hydrologic balance; (2) Any quantifiable adverse impact on the quality 
or quantity of surface or groundwater or the biological condition of a 
stream that would preclude or diminish use of the water or stream; (3) 
Any ongoing violation of water quality standards; and (4) 
Differentiating between short term vs. long term impairment.
     Mining Activities In or Near Streams. Alternatives for 
regulating mining activities in, through, or near streams include: (1) 
Prohibiting disturbance of streams with a biological community unless 
the permit applicant demonstrates the ability to restore stream form 
and function; (2) Prohibiting activities and disturbances in all 
streams with a biological community, irrespective of the ability of the 
permit applicant to restore form and function; (3) Prohibiting 
activities in or near streams; (4) Reinstating the 1983 stream buffer 
zone rule; and (5) Addressing whether fills should be included or 
excluded in these restrictions.
     Additional Monitoring Requirements. Permittees would be 
required to provide additional monitoring data based on the following 
considerations: (1) Duration of monitoring, e.g., through final bond 
release; (2) Frequency of sampling, e.g., continuous, weekly, monthly, 
quarterly, annually; (3) Location of sampling, e.g., downstream, 
upstream, off-permit; (4) Biological components subject to sampling; 
(5) Sampling parameters, e.g., chemical, physical, hydrologic; and (6) 
Regular review of monitoring data by regulatory authority, e.g., 
annually, at mid-term review, at permit renewal.
     Corrective Action Thresholds. Alternatives for determining 
the circumstances under which the permittee must take corrective action 
to prevent material damage to the hydrologic balance include: (1) 
Developing numerical water quality thresholds based on biological 
criteria; (2) Developing action thresholds based on water quality trend 
analysis; and (3) Defining key parameters for which thresholds will be 
established.
     Landforming and Fill Optimization. Alternatives for 
evaluating land configuration and handling of excess spoils include: 
(1) Restoring landforms including slope, aspect, and elevation on both 
backfilled areas and excess spoil fills; (2) Allowing postmining 
elevations to exceed premining elevations when necessary to restore 
premining topographic features; (3) Revising requirements to minimize 
creation of excess spoil by maximizing the amount of spoil returned to 
the mined-out area; (4) Revising requirements to minimize excess spoil 
footprints; and (5) Banning excess fill placement in streams.
     Approximate Original Contour Exceptions. Alternatives 
under consideration include: (1) Modifying requirements to ensure that 
exceptions from approximate original contour restoration requirements 
do not result in additional damage to streams with a biological 
community; (2) Prohibiting ``mountain top'' mining (would require a 
statutory change); and (3) Adding requirements to ensure approved 
postmining land uses are achievable and feasible.
     Reforestation. Alternatives under consideration include: 
(1) Requiring reforestation of mined lands to premining diversity and 
stocking or some percentage of premining diversity and stocking; (2) 
Requiring reforestation of all mined lands capable of supporting 
forested land uses; (3) Requiring reforestation of mined lands to the 
extent compatible with postmining land use; (4) Requiring reforestation 
and revegetation of mined lands with native species; and (5) Minimizing 
forest fragmentation.
     Permit Coordination. A provision under consideration 
includes: (1) Enhancing coordination of SMCRA and Clean Water Act 
regulatory programs consistent with the 2009 Memorandum of 
Understanding among DOI, Army Corps of Engineers, and EPA; and (2) 
Standardizing data collection and

[[Page 34669]]

management to enhance sharing among regulatory agencies and the public.
     Long-Term Discharges of Pollutants. A provision under 
consideration includes: (1) Incorporating our March 31, 1997 policy 
statement (see footnote 3 above) into SMCRA regulations and clarifying 
that those provisions apply to all long-term discharges of pollutants.
     Stream Definitions. Alternatives under consideration 
include: (1) Updating the current definitions of perennial, 
intermittent, and ephemeral streams to include biological criteria; (2) 
Retaining the current definitions with the 1-square mile criterion for 
intermittent streams removed; (3) Adopting the stream definitions used 
by the Corps of Engineers--``waters of the United States''-- in place 
of stream definitions; and (4) Using a flow-based (hydraulic) 
definition with no reference to biological condition.

V. How do I submit comments?

    Consistent with 43 CFR 46.235, we invite all interested persons, 
organizations, and agencies to provide comments, suggestions, and any 
other information relevant to the scope of the EIS, the scope of the 
proposed Federal action, potential alternatives for the proposed 
Federal action, and studies and impacts that the EIS should address. 
See ADDRESSES for the methods by which we will accept comments.
    We also anticipate conducting several open houses in various 
locations in coal producing regions of the U.S. in July 2010. The 
following locations are under consideration: Morgantown, WV; Beckley, 
WV; Hazard, KY; Birmingham, AL; Evansville, IN; Carbondale, IL; 
Fairfield, TX; Farmington, NM; and Gillette, WY. The open houses will 
provide an opportunity for the public to review information and provide 
oral and written comments regarding the scope of the issues to be 
addressed and identification of the significant issues related to the 
proposed action and possible alternatives. Information regarding the 
specific dates and locations will be posted on OSM's Web site, http://www.osmre.gov, and in local news media.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment, including your personal identifying 
information, may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so. Comments that we receive after the close of the comment 
period (see DATES) or sent to an address other than those listed in 
ADDRESSES may not be considered.
    If you previously submitted comments in response to the ANPR or the 
April 30, 2010 Notice of Intent, you do not need to resubmit them. We 
will consider all ANPR and April 30th comments as part of this EIS 
scoping process.

VI. How do I request to participate as a cooperating agency?

    Consistent with 43 CFR 46.225, we, the lead agency, invite eligible 
Federal, state, tribal, and local governmental entities to indicate 
whether they have an interest in being a cooperating agency in the 
preparation of the EIS. Qualified entities are those with jurisdiction 
by law, as defined in 40 CFR 1508.15, or special expertise, as defined 
in 40 CFR 1508.26. Potential cooperating agencies should consider their 
authority and capacity to assume the responsibilities of a cooperating 
agency and make the necessary resources available in a timely manner, 
as discussed in the document entitled ``Factors for Determining 
Cooperating Agency Status,''\4\ which is Attachment 1 to the Council on 
Environmental Quality's January 30, 2002, Memorandum for the Heads of 
Federal Agencies: Cooperating Agencies in Implementing the Procedural 
Requirements of the National Environmental Policy Act. We will not be 
able to provide financial assistance to cooperating agencies. If you 
previously indicated that you were interested in being a cooperating 
agency, no further action is required.
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    \4\ See http://ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagencymemofactors.html.
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    If you have an interest in participating as a cooperating agency, 
please contact the person listed in FOR FURTHER INFORMATION CONTACT and 
identify those aspects of the EIS process in which you are interested 
in participating. The regulations at 43 CFR 46.230 and Items 4 through 
6 in the document discussed in the preceding paragraph list the 
activities in which cooperating agencies may wish to participate.

    Dated: June 10, 2010.
Sterling Rideout,
Assistant Director, Program Support.
[FR Doc. 2010-14727 Filed 6-17-10; 8:45 am]
BILLING CODE 4310-05-P