Final Determination of the Assistant Administrator for Water Pursuant to Section 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, WV, 3126-3128 [2011-1013]
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Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Notices
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Dated: January 13, 2011.
Rosalinda B. Barrera,
Assistant Deputy Secretary and Director,
Office of English Language Acquisition,
Language Enhancement, and Academic
Achievement for Limited English Proficient
Students.
[FR Doc. 2011–1041 Filed 1–19–11; 8:45 am]
BILLING CODE 4000–01–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–R03–OW–2009–0985; FRL–9254–8]
Final Determination of the Assistant
Administrator for Water Pursuant to
Section 404(c) of the Clean Water Act
Concerning the Spruce No. 1 Mine,
Logan County, WV
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
This is a notice of EPA’s Final
Determination pursuant to section
404(c) of the Clean Water Act to
withdraw the specification of
Pigeonroost Branch, Oldhouse Branch,
and their tributaries, within Logan
County, West Virginia, as a disposal site
for dredged or fill material in
connection with construction,
operation, and reclamation of the
Spruce No. 1 Surface Mine, as
authorized by DA Permit No.
199800436–3 (Section 10: Coal River).
This determination also prohibits the
specification of the defined area
constituting Pigeonroost Branch,
Oldhouse Branch, and their tributaries
for use as a disposal site associated with
future surface coal mining that would be
expected to result in a nature and scale
of adverse chemical, physical, and
biological effects similar to the Spruce
No. 1 mine. EPA’s determination is
based upon a finding that the discharge
of dredged or fill material associated
with the construction and operation of
the Spruce No. 1 Mine would result in
unacceptable adverse effects on wildlife.
DATES: Effective Date: The effective date
of the Final Determination is January 13,
2011.
ADDRESSES: U.S. Environmental
Protection Agency, Office of Water,
Wetlands Division, Mail Code 4502T,
1200 Pennsylvania Ave., NW.,
Washington, DC 20460. EPA has
established a docket for this action
under Docket ID No. EPA–R03–OW–
2009–0985. All documents in the docket
are listed on the https://
www.regulations.gov Web site. Although
listed in the index, some information
may not be publicly available, e.g., CBI
SUMMARY:
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or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically through https://
www.regulations.gov or in hard copy at
the Water Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
(202) 566–1744, and the telephone
number for the Water Docket is (202)
566–2426.
FOR FURTHER INFORMATION CONTACT: Mr.
Chris Hunter, Office of Wetlands,
Oceans, and Watersheds; U.S.
Environmental Protection Agency, Mail
Code 4502T, 1200 Pennsylvania Ave.,
NW., Washington, DC 20460. Additional
information and copies of EPA’s Final
Determination are available at the
following Web site: https://www.epa.gov/
404c/.
SUPPLEMENTARY INFORMATION: Section
404(c) of the CWA, 33 U.S.C. 1344(c),
authorizes EPA to prohibit the
specification (including the withdrawal
of specification) of any defined area as
a disposal site. EPA is authorized to
restrict or deny the use of any defined
area for specification (including the
withdrawal of specification) as a
disposal site, whenever it determines,
after notice and opportunity for public
hearing, that the discharge of such
materials into such area will have an
unacceptable adverse effect on
municipal water supplies, shellfish beds
and fishery areas (including spawning
and breeding areas), wildlife, or
recreational areas.
EPA’s regulations for implementing
section 404(c) are set forth in 40 CFR
part 231. Four major steps in the process
are: (1) The Regional Administrator’s
notice to the U.S. Army Corps of
Engineers (the Corps), the applicant or
permittee, the property owner, and the
State, as appropriate, of the intention to
initiate the section 404(c) process; (2)
the Regional Administrator’s
publication of a Proposed Determination
to withdraw, deny, restrict, or prohibit
the use of the site, soliciting public
comment and offering an opportunity
for a public hearing; (3) the Regional
Administrator’s recommendation to the
Assistant Administrator for Water at
EPA Headquarters to withdraw, deny,
restrict, or prohibit the use of the site
(Recommended Determination); and, (4)
the Assistant Administrator for Water’s
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Final Determination to affirm, modify,
or rescind the Regional
recommendation.
As a result of significant new
scientific information confirming and
strengthening EPA’s concerns regarding
the environmental effects of
mountaintop mining operations, and in
particular those operations on the scope
and scale of the Spruce No. 1 Mine, EPA
Region III initiated the Clean Water Act
§ 404(c) process for the Spruce No. 1
Mine on October 16, 2009. The Spruce
No. 1 Mine, as authorized in 2007 by
Department of the Army (DA) Permit
No. 199800436–3 (Section 10: Coal
River), is one of the largest mountaintop
mining projects ever authorized in West
Virginia. The DA Permit authorizes the
Mingo Logan Coal Company to
construct six valley fills, associated
sedimentation structures, and other
discharges of fill material to the Right
Fork of Seng Camp Creek, Pigeonroost
Branch, Oldhouse Branch, and their
tributaries. If fully constructed, the
project will disturb approximately 2,278
acres (about 3.5 square miles) and bury
approximately 7.48 miles of streams
beneath 110 million cubic yards of
excess spoil.1
Following initiation of the Section
404(c) process, EPA Region III
communicated with representatives of
Mingo Logan (a subsidiary of Arch Coal,
Inc.) and the Corps both in person and
by telephone and electronic mail on
several occasions to determine whether
corrective action would be taken to
address EPA Region III’s concerns.
However, corrective action was not
taken to resolve EPA’s concerns. On
April 2, 2010, EPA Region III published
in the Federal Register a Proposed
Determination to prohibit, restrict, or
deny the specification or the use for
specification (including withdrawal of
specification) of certain waters at the
project site as disposal sites for the
discharge of dredged or fill material for
the construction of the Spruce No. 1
Surface Mine. EPA Region III took this
1 EPA’s Final Determination addresses only the
6.6 miles of fill authorized in Pigeonroost Branch,
Oldhouse Branch, and their tributaries. While the
permit also authorizes construction of valley fills
and other discharges to the Right Fork of Seng
Camp Creek and its tributaries, EPA is not
withdrawing specification of those waters, in part
because some of those discharges have already
occurred and because the stream resources in Right
Fork of Seng Camp Creek were subject to a higher
level of historic and ongoing human disturbance
than those found in Pigeonroost Branch or
Oldhouse Branch. Due to litigation and an
agreement with environmental groups, represented
by Ohio Valley Environmental Coalition, operations
following the issuance of this DA Permit have been
limited to the Seng Camp Creek watershed, and as
part of that agreement one valley fill is partially
constructed.
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step because it believed that discharges
authorized by DA Permit No.
199800436–3 (Section 10: Coal River)
would result in a significant loss of
wildlife habitat and also cause
significant degradation of downstream
aquatic ecosystems and therefore could
have unacceptable adverse effects on
wildlife. A public hearing regarding the
Proposed Determination was conducted
on May 18, 2010. EPA Region III
received more than 100 oral comments
and more than 50,000 written comments
both supporting and opposing its
Proposed Determination.
On September 24, 2010, EPA Region
III submitted to EPA Headquarters its
Recommended Determination that the
specification embodied in DA Permit
No. 199800436–3 (Section 10: Coal
River) of Pigeonroost Branch and
Oldhouse Branch as disposal sites for
discharges of dredged or fill material for
construction of the Spruce No. 1 Surface
Mine be withdrawn. EPA Region III
based this recommendation upon a
conclusion that the discharges of
dredged or fill material to Pigeonroost
Branch and Oldhouse Branch for the
purpose of constructing the Spruce No.
1 Surface Mine as authorized would
likely have unacceptable adverse effects
on wildlife.
The U.S. Fish and Wildlife Service
(USFWS), in its comments on both the
Proposed and Recommended
Determinations, concurred with EPA
Region III’s conclusion that the project,
as authorized, would result in
unacceptable adverse effects on wildlife
and that this conclusion is supported by
the available scientific information.
USFWS also noted that it has
consistently expressed concerns
regarding the loss of headwater streams
and adjacent riparian and terrestrial
habitats associated with the Spruce No.
1 Mine, as well as its likely impacts on
downstream water quality, aquatic
organisms, and terrestrial and aquatic
wildlife that depend on those resources.
Following receipt of the
Recommended Determination, and
consistent with EPA’s Section 404(c)
regulations, EPA Headquarters provided
an opportunity for the project’s
proponents to propose corrective
actions intended to prevent the
unacceptable adverse environmental
impacts presented in the Recommended
Determination. On November 16, 2010,
a consultation meeting was held at EPA
Headquarters in Washington, DC to
discuss the Region III Recommended
Determination and potential corrective
actions that could be undertaken to
avoid the unacceptable adverse impacts
that were of concern to EPA.
Participants at the meeting included the
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3127
EPA Assistant Administrator for Water;
the EPA Region III Regional
Administrator; other EPA staff;
representatives from Arch Coal, Inc.
(parent company of Mingo Logan) and
their legal counsel; the United Company
(a mineral rights owner) and their legal
counsel; the West Virginia Department
of Environmental Protection, and the
District Engineer of the Corps’
Huntington District. At that meeting,
and in subsequent communications,
Arch Coal did not provide EPA with
corrective actions that would
meaningfully address the likely
unacceptable adverse effects outlined in
Region III’s Recommended
Determination.
Following review of the public
comments received, existing and
recently developed scientific data, and
EPA Region III’s Recommended
Determination, EPA has concluded that
the discharge of dredged or fill material
to Pigeonroost Branch and Oldhouse
Branch, in connection with the
construction of valley fills and
sedimentation ponds, as authorized by
DA Permit No. 199800436–3 (Section
10: Coal River), will result in
unacceptable adverse effects on wildlife.
The administrative record developed in
this case fully supports the conclusion
that the Spruce No. 1 Surface Mine will
have unacceptable adverse effects to
wildlife, due to the filling of Pigeonroost
Branch, Oldhouse Branch, and their
tributaries. In addition, the
administrative record demonstrates that
the Spruce No. 1 Surface Mine will have
unacceptable adverse effects on wildlife
downstream of the project site as a
result of increased pollution that the
project will contribute to downstream
waters.
EPA has determined that
unacceptable adverse impacts to
Pigeonroost Branch, Oldhouse Branch,
and their tributaries will occur through
the direct burial of 6.6 miles of highquality stream habitat, including all
wildlife in this watershed that utilize
these streams for all or part of their life
cycles (e.g., macroinvertebrate,
salamander, fish, and water-dependent
bird populations). Pigeonroost Branch,
Oldhouse Branch, and their tributaries
contain diverse and high-quality
wildlife communities that are consistent
with the ecological richness of highquality Appalachian headwater stream
systems. With their adjacent riparian
areas, these streams provide important
habitat for 84 taxa of
macroinvertebrates, up to 46 species of
amphibians and reptiles, 4 species of
crayfish, and 5 species of fish, as well
as birds, bats, and other mammals. As
some of the last remaining high quality,
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Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Notices
least-disturbed headwater stream habitat
within the sub-basin, these streams not
only support resident wildlife, but also
provide ecosystem functions for
downstream waters, serve as refugia for
aquatic life and potential sources for
recolonizing nearby waters, and
ultimately serve to maintain the aquatic
ecosystem integrity in the sub-basin and
the rich animal diversity in the
ecoregion.
Burial of Pigeonroost Branch,
Oldhouse Branch, and their tributaries
will also result in unacceptable adverse
effects on wildlife downstream through
the removal of functions performed by
the buried streams and by
transformation of the buried areas into
pollution sources that will contribute
contaminants to downstream waters.
Based on recent peer-reviewed
literature, as well as available data from
adjacent mine sites and from the active
portion of the Spruce No. 1 Mine, EPA
has concluded that the full construction
of the Spruce No. 1 Mine will transform
these headwater streams from highquality habitat into sources of pollutants
(particularly total dissolved solids and
selenium) that will travel downstream
and adversely impact the wildlife
communities that utilize these
downstream waters. Increased pollutant
levels will lead to loss of
macroinvertebrate communities and
population shifts to more pollutiontolerant taxa, specifically the extirpation
of ecologically important
macroinvertebrates. Through the loss of
stream macroinvertebrate communities,
there will be, in turn, substantial effects
on fish, amphibian, and bird
populations that rely on these
communities as a food source.
Furthermore, the increased loading of
pollutants to downstream receiving
waters will increase the potential for
harmful golden algal blooms, while
increased selenium exposure will result
in impaired salamander populations
and adverse effects to the reproduction
of fish and bird species, thus harming
the ability of these local populations to
rebound. The loss of macroinvertebrate
prey populations, increased risk of
harmful golden algal blooms, and
additional exposure to selenium will
have an unacceptable adverse effect on
the 26 fish species found in Spruce Fork
(the receiving stream for Pigeonroost
Branch and Oldhouse Branch), and will
also have an unacceptable adverse effect
on amphibians, reptiles, crayfish, and
bird species that depend on downstream
waters for food or habitat.
Furthermore, these adverse impacts
do not comply with the requirements of
the Clean Water Act (CWA) and EPA’s
implementing regulations under section
404(b)(1). EPA has determined that the
Spruce No. 1 Surface Mine fails to
adequately evaluate less
environmentally damaging alternatives,
will cause or contribute to significant
degradation of waters of the United
States (especially when considered in
the context of the significant cumulative
losses and impairment of streams across
the Central Appalachian ecoregion), and
lacks compensatory mitigation to
adequately offset the impacts to
Pigeonroost Branch and Oldhouse
Branch. These failures to comply with
the Guidelines serve to strengthen EPA’s
judgment about the unacceptability of
the significant adverse impacts that will
occur.
Based on these findings and pursuant
to section 404(c) of the CWA, EPA’s
Final Determination withdraws the
specification of Pigeonroost Branch,
Oldhouse Branch, and their tributaries,
as described in DA Permit No.
199800436–3 (Section 10: Coal River),
as a disposal site for the discharge of
dredged or fill material for the purpose
of construction, operation, and
reclamation of the Spruce No. 1 Surface
Mine. This Final Determination also
prohibits the specification of the
defined area constituting Pigeonroost
Branch, Oldhouse Branch, and their
tributaries for use as a disposal site
associated with future surface coal
mining that would be expected to result
in a nature and scale of adverse
chemical, physical, and biological
effects similar to the Spruce No. 1 mine.
This Final Determination does not affect
discharges to Seng Camp Creek as
authorized in DA Permit No.
19980043603 (Section 10: Coal River)
associated with the Spruce No.1 Surface
Mine.
EPA continues to work effectively
with the Corps, the mining industry,
and the public to evaluate proposed
Appalachian surface coal mining
projects and to enable permitting of
environmentally responsible mining
projects that authorize continued coal
production while preventing
unacceptable adverse effects on wildlife.
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9254–2 ]
Intent to Grant Patent License
Environmental Protection
Agency (EPA).
AGENCY:
Notice of Intent to Grant CoExclusive Patent License.
ACTION:
[FR Doc. 2011–1013 Filed 1–18–11; 8:45 am]
Pursuant to 35 U.S.C. 207
(Patents) and 37 CFR part 404 (U.S.
Government patent licensing
regulations), EPA hereby gives notice of
its intent to grant a co-exclusive,
royalty-bearing, revocable license to
practice the inventions described and
claimed in the U.S. patents and patent
applications listed at the end of this
message, and all corresponding patents
issued throughout the world, and all
reexamined patents and reissued
patents granted in connection with such
patent applications, to Oakland
Technology, LLC of Farmington Hills,
Michigan.
The inventions pertain to hybrid
vehicle technology, particularly
hydraulic hybrid drive systems,
methods, and components. The
proposed license will contain
appropriate terms, limitations, and
conditions negotiated in accordance
with 35 U.S.C. 209 and 37 CFR 404.5
and 404.7 of the U.S. Government
patent licensing regulations. EPA will
finalize terms and conditions and grant
the license unless, within 15 days from
the date of this notice, EPA receives, at
the address below, written objections to
the grant, together with supporting
documentation. The documentation
from objecting parties having an interest
in practicing the inventions listed in the
patents and patent applications below
should include an application for a
nonexclusive license with the
information set forth in 37 CFR 404.8.
The EPA Patent Attorney and other EPA
officials will review all written
responses and then make
recommendations on a final decision to
the Director or Deputy Director of the
Office of Transportation and Air
Quality, who have been delegated the
authority to issue patent licenses under
EPA Delegation 1–55.
The proposed license will apply to
the following patents and patent
applications:
BILLING CODE 6560–50–P
Method or Vehicle Licensed Inventions
Dated: January 13, 2011.
Peter S. Silva,
Assistant Administrator, Office of Water.
SUMMARY:
Patent No.
Title
5,495,912 ...........
Hybrid Powertrain Vehicle .........................................................................................
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]]>Agencies
[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Notices]
[Pages 3126-3128]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1013]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-R03-OW-2009-0985; FRL-9254-8]
Final Determination of the Assistant Administrator for Water
Pursuant to Section 404(c) of the Clean Water Act Concerning the Spruce
No. 1 Mine, Logan County, WV
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This is a notice of EPA's Final Determination pursuant to
section 404(c) of the Clean Water Act to withdraw the specification of
Pigeonroost Branch, Oldhouse Branch, and their tributaries, within
Logan County, West Virginia, as a disposal site for dredged or fill
material in connection with construction, operation, and reclamation of
the Spruce No. 1 Surface Mine, as authorized by DA Permit No.
199800436-3 (Section 10: Coal River). This determination also prohibits
the specification of the defined area constituting Pigeonroost Branch,
Oldhouse Branch, and their tributaries for use as a disposal site
associated with future surface coal mining that would be expected to
result in a nature and scale of adverse chemical, physical, and
biological effects similar to the Spruce No. 1 mine. EPA's
determination is based upon a finding that the discharge of dredged or
fill material associated with the construction and operation of the
Spruce No. 1 Mine would result in unacceptable adverse effects on
wildlife.
DATES: Effective Date: The effective date of the Final Determination is
January 13, 2011.
ADDRESSES: U.S. Environmental Protection Agency, Office of Water,
Wetlands Division, Mail Code 4502T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. EPA has established a docket for this action
under Docket ID No. EPA-R03-OW-2009-0985. All documents in the docket
are listed on the https://www.regulations.gov Web site. Although listed
in the index, some information may not be publicly available, e.g., CBI
or other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through https://www.regulations.gov or in hard copy at the Water Docket,
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Water Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: Mr. Chris Hunter, Office of Wetlands,
Oceans, and Watersheds; U.S. Environmental Protection Agency, Mail Code
4502T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Additional
information and copies of EPA's Final Determination are available at
the following Web site: https://www.epa.gov/404c/.
SUPPLEMENTARY INFORMATION: Section 404(c) of the CWA, 33 U.S.C.
1344(c), authorizes EPA to prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal site.
EPA is authorized to restrict or deny the use of any defined area for
specification (including the withdrawal of specification) as a disposal
site, whenever it determines, after notice and opportunity for public
hearing, that the discharge of such materials into such area will have
an unacceptable adverse effect on municipal water supplies, shellfish
beds and fishery areas (including spawning and breeding areas),
wildlife, or recreational areas.
EPA's regulations for implementing section 404(c) are set forth in
40 CFR part 231. Four major steps in the process are: (1) The Regional
Administrator's notice to the U.S. Army Corps of Engineers (the Corps),
the applicant or permittee, the property owner, and the State, as
appropriate, of the intention to initiate the section 404(c) process;
(2) the Regional Administrator's publication of a Proposed
Determination to withdraw, deny, restrict, or prohibit the use of the
site, soliciting public comment and offering an opportunity for a
public hearing; (3) the Regional Administrator's recommendation to the
Assistant Administrator for Water at EPA Headquarters to withdraw,
deny, restrict, or prohibit the use of the site (Recommended
Determination); and, (4) the Assistant Administrator for Water's
[[Page 3127]]
Final Determination to affirm, modify, or rescind the Regional
recommendation.
As a result of significant new scientific information confirming
and strengthening EPA's concerns regarding the environmental effects of
mountaintop mining operations, and in particular those operations on
the scope and scale of the Spruce No. 1 Mine, EPA Region III initiated
the Clean Water Act Sec. 404(c) process for the Spruce No. 1 Mine on
October 16, 2009. The Spruce No. 1 Mine, as authorized in 2007 by
Department of the Army (DA) Permit No. 199800436-3 (Section 10: Coal
River), is one of the largest mountaintop mining projects ever
authorized in West Virginia. The DA Permit authorizes the Mingo Logan
Coal Company to construct six valley fills, associated sedimentation
structures, and other discharges of fill material to the Right Fork of
Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch, and their
tributaries. If fully constructed, the project will disturb
approximately 2,278 acres (about 3.5 square miles) and bury
approximately 7.48 miles of streams beneath 110 million cubic yards of
excess spoil.\1\
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\1\ EPA's Final Determination addresses only the 6.6 miles of
fill authorized in Pigeonroost Branch, Oldhouse Branch, and their
tributaries. While the permit also authorizes construction of valley
fills and other discharges to the Right Fork of Seng Camp Creek and
its tributaries, EPA is not withdrawing specification of those
waters, in part because some of those discharges have already
occurred and because the stream resources in Right Fork of Seng Camp
Creek were subject to a higher level of historic and ongoing human
disturbance than those found in Pigeonroost Branch or Oldhouse
Branch. Due to litigation and an agreement with environmental
groups, represented by Ohio Valley Environmental Coalition,
operations following the issuance of this DA Permit have been
limited to the Seng Camp Creek watershed, and as part of that
agreement one valley fill is partially constructed.
---------------------------------------------------------------------------
Following initiation of the Section 404(c) process, EPA Region III
communicated with representatives of Mingo Logan (a subsidiary of Arch
Coal, Inc.) and the Corps both in person and by telephone and
electronic mail on several occasions to determine whether corrective
action would be taken to address EPA Region III's concerns. However,
corrective action was not taken to resolve EPA's concerns. On April 2,
2010, EPA Region III published in the Federal Register a Proposed
Determination to prohibit, restrict, or deny the specification or the
use for specification (including withdrawal of specification) of
certain waters at the project site as disposal sites for the discharge
of dredged or fill material for the construction of the Spruce No. 1
Surface Mine. EPA Region III took this step because it believed that
discharges authorized by DA Permit No. 199800436-3 (Section 10: Coal
River) would result in a significant loss of wildlife habitat and also
cause significant degradation of downstream aquatic ecosystems and
therefore could have unacceptable adverse effects on wildlife. A public
hearing regarding the Proposed Determination was conducted on May 18,
2010. EPA Region III received more than 100 oral comments and more than
50,000 written comments both supporting and opposing its Proposed
Determination.
On September 24, 2010, EPA Region III submitted to EPA Headquarters
its Recommended Determination that the specification embodied in DA
Permit No. 199800436-3 (Section 10: Coal River) of Pigeonroost Branch
and Oldhouse Branch as disposal sites for discharges of dredged or fill
material for construction of the Spruce No. 1 Surface Mine be
withdrawn. EPA Region III based this recommendation upon a conclusion
that the discharges of dredged or fill material to Pigeonroost Branch
and Oldhouse Branch for the purpose of constructing the Spruce No. 1
Surface Mine as authorized would likely have unacceptable adverse
effects on wildlife.
The U.S. Fish and Wildlife Service (USFWS), in its comments on both
the Proposed and Recommended Determinations, concurred with EPA Region
III's conclusion that the project, as authorized, would result in
unacceptable adverse effects on wildlife and that this conclusion is
supported by the available scientific information. USFWS also noted
that it has consistently expressed concerns regarding the loss of
headwater streams and adjacent riparian and terrestrial habitats
associated with the Spruce No. 1 Mine, as well as its likely impacts on
downstream water quality, aquatic organisms, and terrestrial and
aquatic wildlife that depend on those resources.
Following receipt of the Recommended Determination, and consistent
with EPA's Section 404(c) regulations, EPA Headquarters provided an
opportunity for the project's proponents to propose corrective actions
intended to prevent the unacceptable adverse environmental impacts
presented in the Recommended Determination. On November 16, 2010, a
consultation meeting was held at EPA Headquarters in Washington, DC to
discuss the Region III Recommended Determination and potential
corrective actions that could be undertaken to avoid the unacceptable
adverse impacts that were of concern to EPA. Participants at the
meeting included the EPA Assistant Administrator for Water; the EPA
Region III Regional Administrator; other EPA staff; representatives
from Arch Coal, Inc. (parent company of Mingo Logan) and their legal
counsel; the United Company (a mineral rights owner) and their legal
counsel; the West Virginia Department of Environmental Protection, and
the District Engineer of the Corps' Huntington District. At that
meeting, and in subsequent communications, Arch Coal did not provide
EPA with corrective actions that would meaningfully address the likely
unacceptable adverse effects outlined in Region III's Recommended
Determination.
Following review of the public comments received, existing and
recently developed scientific data, and EPA Region III's Recommended
Determination, EPA has concluded that the discharge of dredged or fill
material to Pigeonroost Branch and Oldhouse Branch, in connection with
the construction of valley fills and sedimentation ponds, as authorized
by DA Permit No. 199800436-3 (Section 10: Coal River), will result in
unacceptable adverse effects on wildlife. The administrative record
developed in this case fully supports the conclusion that the Spruce
No. 1 Surface Mine will have unacceptable adverse effects to wildlife,
due to the filling of Pigeonroost Branch, Oldhouse Branch, and their
tributaries. In addition, the administrative record demonstrates that
the Spruce No. 1 Surface Mine will have unacceptable adverse effects on
wildlife downstream of the project site as a result of increased
pollution that the project will contribute to downstream waters.
EPA has determined that unacceptable adverse impacts to Pigeonroost
Branch, Oldhouse Branch, and their tributaries will occur through the
direct burial of 6.6 miles of high-quality stream habitat, including
all wildlife in this watershed that utilize these streams for all or
part of their life cycles (e.g., macroinvertebrate, salamander, fish,
and water-dependent bird populations). Pigeonroost Branch, Oldhouse
Branch, and their tributaries contain diverse and high-quality wildlife
communities that are consistent with the ecological richness of high-
quality Appalachian headwater stream systems. With their adjacent
riparian areas, these streams provide important habitat for 84 taxa of
macroinvertebrates, up to 46 species of amphibians and reptiles, 4
species of crayfish, and 5 species of fish, as well as birds, bats, and
other mammals. As some of the last remaining high quality,
[[Page 3128]]
least-disturbed headwater stream habitat within the sub-basin, these
streams not only support resident wildlife, but also provide ecosystem
functions for downstream waters, serve as refugia for aquatic life and
potential sources for recolonizing nearby waters, and ultimately serve
to maintain the aquatic ecosystem integrity in the sub-basin and the
rich animal diversity in the ecoregion.
Burial of Pigeonroost Branch, Oldhouse Branch, and their
tributaries will also result in unacceptable adverse effects on
wildlife downstream through the removal of functions performed by the
buried streams and by transformation of the buried areas into pollution
sources that will contribute contaminants to downstream waters. Based
on recent peer-reviewed literature, as well as available data from
adjacent mine sites and from the active portion of the Spruce No. 1
Mine, EPA has concluded that the full construction of the Spruce No. 1
Mine will transform these headwater streams from high-quality habitat
into sources of pollutants (particularly total dissolved solids and
selenium) that will travel downstream and adversely impact the wildlife
communities that utilize these downstream waters. Increased pollutant
levels will lead to loss of macroinvertebrate communities and
population shifts to more pollution-tolerant taxa, specifically the
extirpation of ecologically important macroinvertebrates. Through the
loss of stream macroinvertebrate communities, there will be, in turn,
substantial effects on fish, amphibian, and bird populations that rely
on these communities as a food source.
Furthermore, the increased loading of pollutants to downstream
receiving waters will increase the potential for harmful golden algal
blooms, while increased selenium exposure will result in impaired
salamander populations and adverse effects to the reproduction of fish
and bird species, thus harming the ability of these local populations
to rebound. The loss of macroinvertebrate prey populations, increased
risk of harmful golden algal blooms, and additional exposure to
selenium will have an unacceptable adverse effect on the 26 fish
species found in Spruce Fork (the receiving stream for Pigeonroost
Branch and Oldhouse Branch), and will also have an unacceptable adverse
effect on amphibians, reptiles, crayfish, and bird species that depend
on downstream waters for food or habitat.
Furthermore, these adverse impacts do not comply with the
requirements of the Clean Water Act (CWA) and EPA's implementing
regulations under section 404(b)(1). EPA has determined that the Spruce
No. 1 Surface Mine fails to adequately evaluate less environmentally
damaging alternatives, will cause or contribute to significant
degradation of waters of the United States (especially when considered
in the context of the significant cumulative losses and impairment of
streams across the Central Appalachian ecoregion), and lacks
compensatory mitigation to adequately offset the impacts to Pigeonroost
Branch and Oldhouse Branch. These failures to comply with the
Guidelines serve to strengthen EPA's judgment about the unacceptability
of the significant adverse impacts that will occur.
Based on these findings and pursuant to section 404(c) of the CWA,
EPA's Final Determination withdraws the specification of Pigeonroost
Branch, Oldhouse Branch, and their tributaries, as described in DA
Permit No. 199800436-3 (Section 10: Coal River), as a disposal site for
the discharge of dredged or fill material for the purpose of
construction, operation, and reclamation of the Spruce No. 1 Surface
Mine. This Final Determination also prohibits the specification of the
defined area constituting Pigeonroost Branch, Oldhouse Branch, and
their tributaries for use as a disposal site associated with future
surface coal mining that would be expected to result in a nature and
scale of adverse chemical, physical, and biological effects similar to
the Spruce No. 1 mine. This Final Determination does not affect
discharges to Seng Camp Creek as authorized in DA Permit No.
19980043603 (Section 10: Coal River) associated with the Spruce No.1
Surface Mine.
EPA continues to work effectively with the Corps, the mining
industry, and the public to evaluate proposed Appalachian surface coal
mining projects and to enable permitting of environmentally responsible
mining projects that authorize continued coal production while
preventing unacceptable adverse effects on wildlife.
Dated: January 13, 2011.
Peter S. Silva,
Assistant Administrator, Office of Water.
[FR Doc. 2011-1013 Filed 1-18-11; 8:45 am]
BILLING CODE 6560-50-P
