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Vol. 80
Monday,
No. 143
July 27, 2015
Part II
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 700, 701, 773, et al.
Stream Protection Rule; Proposed Rule
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Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Parts 700, 701, 773, 774, 777,
779, 780, 783, 784, 785, 800, 816, 817,
824, and 827
RIN 1029–AC63
[Docket ID: OSM–2010–0018; S1D1S
SS08011000 SX064A000 156S180110;
S2D2S SS08011000 SX064A000 15X501520]
Stream Protection Rule
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
AGENCY:
We, the Office of Surface
Mining Reclamation and Enforcement
(OSMRE or OSM), are proposing to
revise our regulations, based on, among
other things, advances in science, to
improve the balance between
environmental protection and the
Nation’s need for coal as a source of
energy. This proposed rule would better
protect streams, fish, wildlife, and
related environmental values from the
adverse impacts of surface coal mining
operations and provide mine operators
with a regulatory framework to avoid
water pollution and the long-term costs
associated with water treatment. We
propose to revise our regulations to
clearly define ‘‘material damage to the
hydrologic balance outside the permit
area’’ and require that each permit
specify the point at which adverse
mining-related impacts on groundwater
and surface water would reach that level
of damage; collect adequate premining
data about the site of the proposed
mining operation and adjacent areas to
establish an adequate baseline for
evaluation of the impacts of mining and
the effectiveness of reclamation; adjust
monitoring requirements to enable
timely detection and correction of any
adverse trends in the quality or quantity
of surface water and groundwater or the
biological condition of streams; ensure
protection or restoration of perennial
and intermittent streams and related
resources; ensure that permittees and
regulatory authorities make use of
advances in science and technology;
ensure that land disturbed by mining
operations is restored to a condition
capable of supporting the uses that it
was capable of supporting before
mining; and update and codify the
requirements and procedures for
protection of threatened or endangered
species and designated critical habitat.
The proposed changes would apply to
both surface mines and the surface
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SUMMARY:
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effects of underground mines. The
majority of the proposed revisions
update our regulations to incorporate or
reflect the best available science and
experience gained over the last 30 years.
Approximately thirty percent of the
proposed rule consists of editorial
revisions and organizational changes
intended to improve consistency,
clarity, accuracy, and ease of use.
DATES: Electronic or written comments:
We will accept electronic or written
comments on the proposed rule, the
draft environmental impact statement,
and the draft regulatory impact analysis
on or before September 25, 2015.
ADDRESSES: You may submit comments
by any of the following methods:
Federal eRulemaking Portal: https://
www.regulations.gov. The Docket ID for
the proposed rule is OSM–2010–0018,
while the Docket ID for the draft
environmental impact statement is
OSM–2010–0021 and the docket ID for
the draft regulatory impact analysis is
OSM–2015–0002. Please follow the
online instructions for submitting
comments.
Mail/Hand-Delivery/Courier: Office of
Surface Mining Reclamation and
Enforcement, Administrative Record,
Room 252 SIB, 1951 Constitution
Avenue NW., Washington, DC 20240.
Please include the appropriate Docket
ID: OSM–2010–0018 for the proposed
rule, OSM–2010–0021 for the draft
environmental impact statement, or
OSM–2015–0002 for the draft regulatory
impact analysis.
If you wish to comment on the
information collection aspects of this
proposed rule, submit your comments to
the Department of the Interior Desk
Officer at OMB—OIRA, via email at
OIRA_Submission@omb.eop.gov, or via
facsimile at (202) 395–5806. Also, send
a copy of your comments to John A.
Trelease, Office of Surface Mining
Reclamation and Enforcement, 1951
Constitution Ave. NW., Room 203 SIB,
Washington, DC 20240, or via email at
jtrelease@osmre.gov.
You may review the proposed rule,
the draft environmental impact
statement, and the draft regulatory
impact analysis online at
www.osmre.gov. You also may review
these documents in person at the
location listed below and at the
addresses listed in Part XII under
SUPPLEMENTARY INFORMATION. You may
also review the information collection
requests at https://www.reginfo.gov/
public/do/PRAMain.
Office of Surface Mining Reclamation
and Enforcement, Administrative
Record, Room 101 SIB, 1951
Constitution Avenue NW.,
PO 00000
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Washington, DC 20240, 202–208–
4264.
FOR FURTHER INFORMATION CONTACT:
For the proposed rule: 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.
For the draft environmental impact
statement: Robin T. Ferguson, Office of
Surface Mining Reclamation and
Enforcement, U.S. Department of the
Interior, 1951 Constitution Avenue NW.,
Washington, DC 20240. Telephone:
202–208–2802.
For the draft regulatory impact
analysis: Mark Gehlhar, Office of
Surface Mining Reclamation and
Enforcement, U.S. Department of the
Interior, 1951 Constitution Avenue NW.,
Washington, DC 20240. Telephone:
202–208–2716.
For information collection matters:
John A. Trelease, Office of Surface
Mining Reclamation and Enforcement,
U.S. Department of the Interior, 1951
Constitution Avenue NW., Washington,
DC 20240. Telephone: 202–208–2716.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Why are we proposing to revise our
regulations?
III. What needs does this proposed rule
address?
IV. What Clean Water Act programs protect
streams?
V. What provisions of SMCRA provide legal
authority for the proposed rule?
VI. What is the history of our regulation of
coal mining in relation to buffer zones
for streams?
VII. Why does the proposed rule include
protective measures for ephemeral
streams?
VIII. Overview and Tabular Summaries of
Proposed Revisions and Organizational
Changes
IX. How do we propose to revise specific
provisions of our existing regulations?
A. Section 700.11(d): Termination and
Reassertion of Jurisdiction
B. Section 701.5: Definitions
C. Part 773: Requirements for Permits and
Permit Processing
1. Section 773.5: How must the regulatory
authority coordinate the permitting
process with requirements under other
laws?
2. Section 773.7: How and when will the
regulatory authority review and make a
decision on a permit application?
3. Section 773.15: What findings must the
regulatory authority make before
approving a permit application?
4. Section 773.17: What conditions must
the regulatory authority place on each
permit issued?
D. Part 774: Revision; Renewal; Transfer,
Assignment, or Sale of Permit Rights;
Post-Permit Issuance Requirements
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1. Section 774.10: When must the
regulatory authority review a permit?
2. Section 774.15: How may I renew a
permit?
E. Part 777: General Content Requirements
for Permit Applications
1. Section 777.11: What are the format and
content requirements for permit
applications?
2. Section 777.13: What requirements
apply to the collection, analysis, and
reporting of technical data and to the use
of models?
3. Section 777.15: What information must
my application include to be
administratively complete?
F. Part 779: Surface Mining Permit
Applications—Minimum Requirements
for Information on Environmental
Resources and Conditions
1. Section 779.1: What does this part do?
2. Section 779.2: What is the objective of
this part?
3. Why are we proposing to remove
existing 30 CFR 779.11 and 779.12?
4. Section 779.19: What information on
vegetation must I include in my permit
application?
5. Section 779.20: What information on
fish and wildlife resources must I
include in my permit application?
6. Section 779.21: What information on
soils must I include in my permit
application?
7. Section 779.22: What information on
land use and productivity must I include
in my permit application?
8. Section 779.24: What maps, plans, and
cross-sections must I submit with my
permit application?
G. Part 780: Surface Mining Permit
Applications—Minimum Requirements
for Reclamation and Operation Plans
1. Section 780.1: What does this part do?
2. Section 780.2: What is the objective of
this part?
3. Section 780.12: What information must
the reclamation plan include?
4. Section 780.13: What additional maps
and plans must I include in the
reclamation plan?
5. Why are we proposing to remove
existing 30 CFR 780.15?
6. Section 780.16: What must I include in
the fish and wildlife protection and
enhancement plan?
7. Section 780.19: What baseline
information on hydrology, geology, and
aquatic biology must I provide?
8. Section 780.20: How must I prepare the
determination of the probable hydrologic
consequences of my proposed operation
(PHC determination)?
9. Section 780.21: What requirements
apply to preparation and review of the
cumulative hydrologic impact
assessment (CHIA)?
10. Section 780.22: What information must
I include in the hydrologic reclamation
plan and what information must I
provide on alternative water resources?
11. Section 780.23: What information must
I include in plans for the monitoring of
groundwater, surface water, and the
biological condition of streams during
and after mining?
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12. Section 780.24: What requirements
apply to the postmining land use?
13. Section 780.25: What information must
I provide for siltation structures,
impoundments, and refuse piles?
14. Section 780.28: What additional
requirements apply to proposed
activities in, through, or adjacent to
streams?
15. Section 780.29: What information must
I include in the surface-water runoff
control plan?
16. Section 780.35: What information must
I provide concerning the minimization
and disposal of excess spoil?
17. Section 780.37: What information must
I provide concerning access and haul
roads?
H. Part 783: Underground Mining Permit
Applications—Minimum Requirements
for Information on Environmental
Resources and Conditions
1. Section 783.24: What maps, plans, and
cross-sections must I submit with my
permit application?
I. Part 784: Underground Mining Permit
Applications—Minimum Requirements
for Reclamation and Operation Plans
1. Section 784.11: What must I include in
the general description of my proposed
operation?
2. Section 784.13: What additional maps
and plans must I include in the
reclamation plan?
3. Section 784.19: What baseline
information on hydrology, geology, and
aquatic biology must I provide?
4. Section 784.20: How must I prepare the
determination of the probable hydrologic
consequences of my proposed operation
(PHC determination)?
5. Section 784.21: What requirements
apply to preparation and review of the
cumulative hydrologic impact
assessment (CHIA)?
6. Section 784.22: What information must
I include in the hydrologic reclamation
plan and what information must I
provide on alternative water resources?
7. Section 784.23: What information must
I include in my plans for the monitoring
of groundwater, surface water, and the
biological condition of streams during
and after mining?
8. Section 784.24: What requirements
apply to the postmining land use?
9. Why are we proposing to remove
existing 30 CFR 784.26?
10. Section 784.26: What information must
I provide if I plan to return coal
processing waste to abandoned
underground workings?
11. Section 784.28: What additional
requirements apply to proposed surface
activities in, through, or adjacent to
streams?
12. Section 784.30: When must I prepare a
subsidence control plan and what
information must that plan include?
13. Section 784.35: What information must
I provide concerning the minimization
and disposal of excess spoil?
14. Why are we proposing to remove
existing 30 CFR 784.200?
J. Part 785: Requirements for Permits for
Special Categories of Mining
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1. Section 785.14: What special provisions
apply to proposed mountaintop removal
mining operations?
2. Section 785.16: What special
requirements apply to proposed
variances from approximate original
contour restoration requirements for
steep-slope mining?
3. Section 785.25: What special provisions
apply to proposed operations on lands
eligible for remining?
K. Part 800: Bond, Financial Assurance,
and Liability Insurance Requirements for
Surface Coal Mining and Reclamation
Operations
1. How do we propose to guarantee
treatment of long-term discharges?
2. How do we propose to revise the
definitions in section 800.5?
3. Section 800.9: What requirements apply
to alternative bonding systems?
4. Section 800.11: When and how must I
file a bond?
5. Section 800.12: What form of bond is
acceptable?
6. Section 800.13: What is the liability
period for a bond?
7. Section 800.14: How will the regulatory
authority determine the amount of bond
required?
8. Section 800.15: When must the
regulatory authority adjust the bond
amount and when may I request
adjustment of the bond amount?
9. Section 800.16: What are the general
terms and conditions of the bond?
10. Why are we proposing to remove
existing 30 CFR 800.17?
11. Section 800.18: What special
provisions apply to financial guarantees
for treatment of long-term discharges?
12. Section 800.21: What additional
requirements apply to collateral bonds?
13. Section 800.23: What additional
requirements apply to self-bonds?
14. Section 800.30: When may I replace a
bond or financial assurance instrument
and when must I do so?
15. Section 800.40: How do I apply for
release of all or part of a bond?
16. Section 800.41: How will the regulatory
authority process my application for
bond release?
17. Section 800.42: What are the criteria for
bond release?
18. Section 800.43: When and how must
the regulatory authority provide
notification of its decision on a bond
release application?
19. Section 800.44: Who may file an
objection to a bond release application
and how must the regulatory authority
respond to an objection?
L. Part 816: Permanent Program
Performance Standards—Surface Mining
Activities
1. Section 816.1: What does this part do?
2. Section 816.2: What is the objective of
this part?
3. Section 816.11: What signs and markers
must I post?
4. Section 816.22: How must I handle
topsoil, subsoil, and other plant growth
media?
5. Section 816.34: How must I protect the
hydrologic balance?
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6. Section 816.35: How must I monitor
groundwater?
7. Section 816.36: How must I monitor
surface water?
8. Section 816.37: How must I monitor the
biological condition of streams?
9. Section 816.38: How must I handle acidforming and toxic-forming materials?
10. Section 816.40: What responsibility do
I have to replace water supplies?
11. Section 816.41: Under what conditions
may I discharge to an underground
mine?
12. Section 816.42: What are my
responsibilities to comply with water
quality standards and effluent
limitations?
13. Section 816.43: How must I construct
and maintain diversions and other
channels to convey water?
14. Section 816.45: What sediment control
measures must I use?
15. Section 816.46: What requirements
apply to siltation structures?
16. Section 816.47: What requirements
apply to discharge structures for
impoundments?
17. Section 816.49: What requirements
apply to impoundments?
18. Section 816.57: What additional
performance standards apply to activities
in, through, or adjacent to a perennial or
intermittent stream?
19. Section 816.71: How must I dispose of
excess spoil?
20. Why are we proposing to remove the
provisions for rock-core chimney drains
in existing 30 CFR 816.72?
21. Why are we proposing to remove the
provisions for durable rock fills in
existing 30 CFR 816.73?
22. Section 816.74: What special
requirements apply to the disposal of
excess spoil on a preexisting bench?
23. Section 816.81: How must I dispose of
coal mine waste?
24. Section 816.83: What special
performance standards apply to coal
mine waste refuse piles?
25. Section 816.84: What special
requirements apply to coal mine waste
impounding structures?
26. Section 816.95: How must I protect
surface areas from wind and water
erosion?
27. Section 816.97: How must I protect and
enhance fish, wildlife, and related
environmental values?
28. Section 816.99: What measures must I
take to prevent and remediate
landslides?
29. Section 816.100: What are the
standards for keeping reclamation
contemporaneous with mining?
30. Why are we proposing to remove
existing 30 CFR 816.101?
31. Section 816.102: How must I backfill
the mined area and configure the land
surface?
32. Section 816.104: What special
provisions for backfilling, grading, and
surface configuration apply to sites with
thin overburden?
33. Section 816.105: What special
provisions for backfilling, grading, and
surface configuration apply to sites with
thick overburden?
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34. Section 816.106: What special
provisions for backfilling, grading, and
surface configuration apply to previously
mined areas with a preexisting highwall?
35. Section 816.107: What special
provisions for backfilling, grading, and
surface configuration apply to steep
slopes?
36. Section 816.111: How must I revegetate
the area disturbed by mining?
37. Why are we proposing to remove
existing 30 CFR 816.113 and 816.114?
38. Section 816.115: How long am I
responsible for revegetation after
planting?
39. Section 816.116: What are the
standards for determining the success of
revegetation?
40. Section 816.133: What provisions
concerning the postmining land use
apply to my operation?
41. Why are we proposing to remove the
interpretive rule in existing 30 CFR
816.200?
M. Part 817: Permanent Program
Performance Standards—Underground
Mining Activities
1. Section 817.11: What signs and markers
must I post?
2. Section 817.34: How must I protect the
hydrologic balance?
3. Section 817.40: What responsibility do
I have to replace water supplies?
4. Section 817.44: What restrictions apply
to gravity discharges from underground
mines?
5. Section 817.57: What additional
performance standards apply to surface
activities conducted in, through, or
adjacent to a perennial or intermittent
stream?
6. Section 817.71: How must I dispose of
excess spoil?
7. Section 817.102: How must I backfill
surface excavations and grade and
configure the land surface?
8. Section 817.121: What measures must I
take to prevent, control, or correct
damage resulting from subsidence?
9. Why are we proposing to remove the
interpretive rules in existing 30 CFR
817.200?
N. Part 824: Special Permanent Program
Performance Standards—Mountaintop
Removal Mining Operations
O. Part 827: Special Permanent Program
Performance Standards—Coal
Preparation Plants Not Located Within
the Permit Area of a Mine
X. What effect would this rule have in federal
program states and on Indian lands?
XI. How would this rule affect state
regulatory programs?
XII. How do I submit comments on the
proposed rule?
XIII. Procedural Matters and Required
Determinations
A. Regulatory Planning and Review
(Executive Orders 12866 and 13563)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement
Fairness Act
D. Unfunded Mandates
E. Executive Order 12630—Takings
F. Executive Order 13132—Federalism
G. Executive Order 12988—Civil Justice
Reform
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H. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
I. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
J. Paperwork Reduction Act
K. National Environmental Policy Act
L. Data Quality Act
M. 1 CFR part 51—Incorporation by
reference
I. Executive Summary
Significant advances in scientific
knowledge and mining and reclamation
techniques have occurred in the more
than 30 years that have elapsed since
the enactment of the Surface Mining
Control and Reclamation Act of 1977
(SMCRA or the Act) 1 and the adoption
of federal regulations implementing that
law. The proposed rule seeks to
acknowledge the advancements in
science, technology, policy, and the law
that impact coal communities and
natural resources, based on our
experience and engagement with state
regulatory authorities, industry, nongovernmental organizations, academia,
citizens, and other stakeholders.
The primary purpose of this proposed
rule is to reinforce the need to minimize
the adverse impacts 2 of surface coal
mining operations on surface water,
groundwater, fish, wildlife, and related
environmental values, with particular
emphasis on protecting or restoring
streams and aquatic ecosystems. The
proposed rule, if adopted as final, also
will enhance public health by reducing
exposure to contaminants from coal
mining in drinking water. The proposed
rule has the following seven major
elements:
• First, the proposed rule defines the
term ‘‘material damage to the hydrologic
balance outside the permit area’’ and
requires that each permit establish the
point at which adverse mining-related
impacts on groundwater and surface
water reach an unacceptable level; i.e.,
the point at which adverse impacts from
mining would cause material damage to
the hydrologic balance outside the
permit area.
• Second, the proposed rule sets forth
how to collect adequate premining data
about the site of the proposed mining
operation and adjacent areas to establish
a comprehensive baseline that will
1 30
U.S.C. 1201 et seq.
include loss of headwater streams, longterm degradation of water quality in streams
downstream of a mine, displacement of native
species, fragmentation of large blocks of mature
hardwood forests, compaction and improper
construction of postmining soils that inhibit the
reestablishment of native plant communities and
adverse impacts on watershed hydrology where
coal mining occurs.
2 Impacts
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facilitate evaluation of the effects of
mining operations.
• Third, the proposed rule outlines
how to conduct effective,
comprehensive monitoring of
groundwater and surface water during
and after both mining and reclamation
and during the revegetation
responsibility period to provide realtime information documenting miningrelated changes in water quality and
quantity. Similarly, the proposed rule
addresses the need to require
monitoring of the biological condition of
streams during and after mining and
reclamation to evaluate changes in
aquatic life. Proper monitoring would
enable timely detection of any adverse
trends and allow timely implementation
of any necessary corrective measures.
• Fourth, the proposed rule promotes
the protection or restoration of
perennial and intermittent streams and
related resources, especially the
headwater streams that are critical to
maintaining the ecological health and
productivity of downstream waters.
• Fifth, the proposed rule is intended
to ensure that permittees and regulatory
authorities make use of advances in
information, technology, science, and
methodologies related to surface and
groundwater hydrology, surface-runoff
management, stream restoration, soils,
and revegetation, all of which relate
directly or indirectly to protection of
water resources.
• Sixth, the proposed rule is intended
to ensure that land disturbed by surface
coal mining operations is restored to a
condition capable of supporting the uses
that it was capable of supporting before
mining. Soil characteristics and the
degree and type of revegetation have a
significant impact on surface-water
runoff quantity and quality as well as on
aquatic life and the terrestrial
ecosystems dependent upon perennial
and intermittent streams. The proposed
rule also would require revegetation of
reclaimed minesites with native species
unless and until a conflicting
postmining land use, such as intensive
agriculture, is implemented.
• Seventh, the proposed rule would
update and codify requirements and
procedures to protect threatened and
endangered species and designated
critical habitat under the Endangered
Species Act of 1973.3 It also would
better explain how the fish and wildlife
protection and enhancement provisions
of SMCRA should be implemented.
This proposed rule would more
completely implement SMCRA’s
permitting requirements and
performance standards, provide
regulatory clarity to operators and
stakeholders while better achieving the
purposes of SMCRA as set forth in
section 102 of the Act.4 In particular, the
proposed rule would more completely
realize the purposes in paragraphs (a),
(c), (d), and (f) of that section, which
include establishing a nationwide
program to protect society and the
environment from the adverse effects of
surface coal mining operations and
assuring that surface coal mining
operations are conducted in an
environmentally protective manner and
are not conducted where reclamation is
not feasible. Furthermore, the proposed
rule is intended to address recent court
decisions, mitigate legal challenges, and
strike the appropriate balance between
environmental protection, agricultural
productivity and the Nation’s need for
coal as an essential source of energy,
while providing greater regulatory
certainty to the mining industry.
Apart from the procedural
determinations in Part XIII, this
document does not discuss the benefits
and costs of the proposed rule in detail.
Please refer to the draft regulatory
impact analysis for an in-depth analysis
of projected benefits and costs of the
proposed rule and other alternatives
under consideration.
and adverse impacts on fish, wildlife,
and related environmental values and to
achieve enhancement of those resources
where practicable.6 It also would update
our regulations concerning compliance
with the Endangered Species Act of
1973.7 In addition, we propose to revise
and reorganize our regulations for
clarity, to make them more userfriendly, to remove obsolete and
redundant provisions, and to implement
plain language principles.
Coal mining operations continue to
have adverse impacts on streams, fish,
and wildlife despite the enactment of
SMCRA and the adoption of federal
regulations implementing that law more
than 30 years ago. Those impacts
include loss of headwater streams, longterm degradation of water quality in
streams downstream of a mine,
displacement of pollution-sensitive
species of fish and insects by pollutiontolerant species, fragmentation of large
blocks of mature hardwood forests,
replacement of native species by highly
competitive non-native species that
inhibit reestablishment of native plant
communities, and compaction and
improper construction of postmining
soils that result in a reduction of site
productivity and adverse impacts on
watershed hydrology.
II. Why are we proposing to revise our
regulations?
Our primary purpose in proposing
this rule is to strike a better balance
between ‘‘protection of the environment
and agricultural productivity and the
Nation’s needs for coal as an essential
source of energy.’’ 5 Specifically, the
proposed rule is designed to minimize
the adverse impacts of surface coal
mining operations on surface water,
groundwater, and site productivity, with
particular emphasis on protecting or
restoring streams, aquatic ecosystems,
riparian habitats and corridors, native
vegetation, and the ability of mined land
to support the uses that it was capable
of supporting before mining. Our
proposed changes reflect our experience
during the more than three decades
since adoption of the existing
regulations, as well as advances in
scientific knowledge and mining and
reclamation techniques during that
time. The proposed rule would more
completely implement sections
515(b)(24) and 516(b)(11) of SMCRA,
which provide that, to the extent
possible using the best technology
currently available, surface coal mining
and reclamation operations must be
conducted to minimize disturbances
Impacts on Aquatic Ecology
Headwater streams consist of firstorder through third-order streams 8
under the Strahler stream-order system,
which is the generally-accepted
geographical classification system for
ranking streams by size.9 Headwater
streams are the small swales, creeks,
and streams that connect to form larger
streams and rivers. They trap
floodwaters, recharge groundwater,
remove pollution, provide fish and
wildlife habitat, and sustain the health
of downstream rivers, lakes, and bays.
These streams support diverse
biological communities of aquatic
invertebrates, such as insects, and
4 30
3 16
U.S.C. 1531 et seq.
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6 See
30 U.S.C. 1265(b)(24) and 1266(b)(11).
U.S.C. 1531 et seq.
8 The U.S. Geological Survey sometimes
characterizes only first-order and second-order
streams as headwater streams. See, e.g., Argue, D.
M., Pope, J. P., and Dieffenbach, Fred. 2012.
Characterization of major-ion chemistry and
nutrients in headwater streams along the
Appalachian National Scenic Trail and within
adjacent watersheds, Maine to Georgia: U.S.
Geological Survey Scientific Investigations Report
2011–5151, 63 p., plus CD–ROM, p. 4. Also
available at https://pubs.usgs.gov/sir/2011/5151 (last
accessed February 27, 2015).
9 See https://geography.about.com/od/
physicalgeography/a/streamorder.htm (last
accessed January 29, 2015). A first-order stream has
no tributaries. When two first-order streams join,
they form a second-order stream. When two secondorder streams join, they form a third-order stream.
7 16
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vertebrates, including fish and
salamanders, that are often distinct from
the species found further downstream.
Headwater streams function as sources
of sediment, water, nutrients, and
organic matter for downstream systems.
Riparian vegetation provides organic
matter to headwater streams in the form
of dropped leaves and other plant parts.
This organic matter fuels the aquatic
food web.10 According to the U.S.
Environmental Protection Agency
(EPA), headwater streams that flow only
seasonally or in response to
precipitation events; i.e., intermittent
and ephemeral streams, comprise
approximately 53 percent of the total
stream miles in the continental United
States.11
Headwater streams are the streams
most likely to be directly disturbed or
impacted by coal mining activities. The
EPA estimates that SMCRA permits in
existence between 1992 and 2002
authorized the destruction of 1,208
miles of headwater streams.12 This total
included approximately 2 percent of the
total stream miles and 4 percent of the
first-order and second-order stream
miles in the central Appalachian
coalfields.13
Our proposed rule would address loss
of stream miles in two ways. First, we
propose to amend the standards
governing excess spoil and coal mine
waste to minimize both the generation
of excess spoil and the placement of
excess spoil and coal mine waste in
perennial or intermittent streams.
Second, we propose to adopt standards
that would minimize mining through
perennial and intermittent streams.
When mining through a perennial or an
intermittent stream does occur, our
revised standards would require that the
permittee restore both the hydrological
form and the ecological function of the
mined-through stream segment.
Midwestern studies of reconstructed
stream segments demonstrate that
restoration of hydrological form and
ecological function after mining through
a stream is technologically feasible and
attainable. In Illinois, case studies
documented that streams flowing
through channels reconstructed after
mining can approach the regional
biological diversity found in streams in
unmined watersheds in that region.14
Another Illinois study focused on 25
miles of low-gradient perennial streams
with moderately disturbed premining
watersheds. Those stream segments
were relocated in the 1980s to facilitate
mining and then were restored in their
approximate premining location,
although two of the three streams were
routed through permanent pit
impoundments for part of their length.
In general, the study found that the
premining hydrological form and
ecological function of the streams have
been successfully restored, based on a
comparison with relatively undisturbed
segments of those streams that are
upstream of the mining operations.15
The exception is fish abundance and
diversity, which is substantially lower,
perhaps, the authors suggest, because of
the lack of mature riparian timber and
instream woody debris.16 In addition,
monitoring of habitat, water chemistry,
and biological parameters of a lowgradient stream in Indiana that flows
through a channel reconstructed after
mining has demonstrated rapid recovery
of the stream’s ecological function.17
The general consensus is that
reconstruction and restoration of highgradient streams after mining is more
challenging. However, a 2012 EPA
publication notes that ‘‘restoration of
high-gradient, very small intermittent
and ephemeral channels as part of
stream mitigation projects is common in
10 Palmer, Margaret A. and Emily S. Bernhardt.
2009. Mountaintop Mining Valley Fills and Aquatic
Ecosystems: A Scientific Primer on Impacts and
Mitigation Approaches. p. 12.
11 See https://water.epa.gov/type/rsl/streams.cfm
(last accessed January 12, 2015).
12 U.S. Environmental Protection Agency. 2011. A
Field-Based Aquatic Life Benchmark for
Conductivity in Central Appalachian Streams (Final
Report). Office of Research and Development,
National Center for Environmental Assessment,
Washington, DC. EPA/600/R–10/023F, p. 16.
13 Id. However, the fact that the mining plan in
the permit authorized destruction of a stream
segment does not necessarily mean that the
destruction occurred. In some cases, the permittee
may have decided not proceed with mining or to
alter mining plans subsequent to permit issuance.
An unknown amount of the habitat destruction was
offset through the section 404 permitting process of
the U.S. Army Corps of Engineers, which requires
mitigation of loss or degradation of waters of the
United States.
14 Nawrot, J., W.G. O’Leary, and P. Malone. 2009.
Illinois stream restoration—opportunities for
habitat enhancement: policy, principles, and
practices. Pages 183–195 in Proceedings of the 2009
Geomorphic Reclamation and Natural Stream
Design at Coal Mines: A Technical Interactive
Forum, 28–30 April 2009. Bristol, VA, 226 pp.
15 Williard, Karl, B. Borries, T. Straub, D.
Rosenboom, C. Nielson, and V. Kelly. 2013. Stream
restoration—long term performance: a reassessment.
Final report for Office of Surface Mining
Cooperative Agreement S11AC20024 AS.
16 Id. at 77–78. The restored streams have a
relative lack of minnows and benthic invertivores
along with an abundance of sunfish. Lentic species
replaced lotic species in the two streams that were
routed through permanent pit impoundments.
17 ENVIRON International Corporation.
September 10, 2010. Report for Fish and
Macroinvertebrate Sampling for 2010
Bioassessment Monitoring of West Fork Busseron
Creek. Prepared for Peabody Energy, Evansville,
Indiana.
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coalmining regions.’’ 18 This statement
appears in the context of a discussion of
improving existing degraded stream
channels as mitigation for the adverse
impacts of coal mining elsewhere, but
the principles set forth in the
publication also should apply to
functional restoration of stream
channels newly constructed or
reconstructed as part of surface coal
mining and reclamation operations.
Appendix B of the publication describes
a scenario in which high-gradient
stream channels devoid of aquatic life
on an abandoned minesite in West
Virginia may be restored to biological
health in an estimated 10 years.19
Most adverse impacts of surface coal
mining operations on water quality
occur as a result of the excavation and
fracturing of the rock layers above the
coal seam. The mining process converts
mostly solid rock, which has few pore
spaces and thus offers little opportunity
for chemical reaction with air and
water, into highly fragmented mine
spoil, which contains a vastly greater
number and volume of pore spaces and
thus offers much greater opportunity for
chemical reaction with air and water.
Surface water and groundwater infiltrate
the pore spaces in mine spoil placed in
the backfilled area of a mine or in an
excess spoil fill and react with air and
the surfaces of the rock fragments to
produce drainage with high ionic
concentrations. Specifically, water
percolating through an excess spoil fill
or the backfilled area of a mine typically
contains substantially higher
concentrations of sulfate, bicarbonate,
calcium, and magnesium ions, as well
as some trace metals, compared to the
concentrations of those ions and metals
in groundwater discharges and surface
runoff from areas undisturbed by
mining.20
18 Harman, W., R. Starr, M. Carter, K. Tweedy, M.
Clemmons, K. Suggs, C. Miller. 2012. A FunctionBased Framework for Stream Assessment and
Restoration Projects. U.S. Environmental Protection
Agency, Office of Wetlands, Oceans, and
Watersheds, Washington, DC EPA 843–K–12–006,
p. 230.
19 Id. at 336–339.
20 See, e.g., Lindberg. T.T., E.S. Bernhardt, R. Bier,
A. Helton, R. Merola, A. Vengosh, and R.T. Di
Giulio. 2011. Cumulative impacts of mountaintop
mining on an Appalachian watershed. Proceedings
of the National Academy of Sciences 108: 20929–
20934, 20929. The researchers state that typical
specific conductance levels in low order streams in
West Virginia range from 13 to 253 microSiemens
per centimeter (mS/cm). Specific conductance levels
in streams impacted by mining range from 502 to
2,540 mS/cm. (Specific conductance is a measure of
electrical conductivity. High specific conductance
readings are a strong indicator of land disturbance,
such as agriculture, urbanization, or mining. See
Pond, G.J., M.E. Passmore, F.A. Borsuk, L.
Reynolds, and C.J. Rose. 2008..Downstream effects
of mountaintop coal mining: comparing biological
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When sulfate is the dominant anion in
those discharges, the result can be acid
mine drainage, which mobilizes metals
such as iron, manganese, aluminum,
and zinc that are directly toxic to fish
at high levels.21 But high concentrations
of sulfate ions do not necessarily result
in acid mine drainage because
groundwater discharges and surface
runoff from backfilled areas and excess
spoil fills often also contain elevated
concentrations of alkaline ions
(especially calcium, magnesium, and
carbonate ions), which neutralize the
acidic sulfate ions, thus preventing the
formation of acid mine drainage.22
However, alkaline ions also can have
negative impacts on water quality and
aquatic life. Elevated concentrations of
alkaline ions in mine drainage may
result in significant increases in the pH
and electrical conductivity of streams
that receive discharges from mined
areas.23 Elevated concentrations of both
these ions and sulfate ions are highly
correlated with elevated electrical
conductivity in streams, which is highly
correlated with the loss or absence of
pollution-sensitive species of aquatic
insects and fish even when in-stream
habitat downstream of the mining
activity is otherwise intact.24 The
adverse impacts may extend far
downstream. One study found that
adverse impacts from both surface and
underground mines on water quality in
Appalachian streams extended an
average of 6.2 miles downstream from
the mine.25
The EPA has established an aquatic
life benchmark of 300 microsiemens per
centimeter (mS/cm) for electrical
conductivity, based on a scientific
determination that maintaining
conductivity at or below this level
should prevent the extirpation of 95
percent of invertebrate genera, such as
mayflies, dragonflies, damselflies, and
aquatic beetles, in central Appalachian
streams.26 In other words, mining
conditions using family- and genus-level
macroinvertebrate bioassessment tools. J. N. Am.
Benthol. Soc., 2008, 27(3): 717–737, 720.)
21 Williard, op. cit. at 4.
22 Palmer, M.A. and E.S. Bernhardt. 2009.
Mountaintop Mining Valley Fills and Aquatic
Ecosystems: A Scientific Primer on Impacts and
Mitigation Approaches, p. 14.
23 Id.
24 Id. at 3, 14–15.
25 Petty, T., K. Fulton, M. Strager, G. Merovich,
J. Stiles, and P. Ziemkiewicz. 2010. Landscape
indicators and thresholds of stream ecological
impairment in an intensively mined Appalachian
watershed. Journal of the North American
Benthological Society 29(4): 1292–1309.
26 U.S. Environmental Protection Agency. 2011. A
Field-Based Aquatic Life Benchmark for
Conductivity in Central Appalachian Streams (Final
Report). Office of Research and Development,
National Center for Environmental Assessment,
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activities that cause an increase in the
electrical conductivity of a stream to no
more than 300 mS/cm would be
expected to result in the extirpation of
no more than 5 percent of the
invertebrate genera present in the
stream before mining. A recent study
suggests that a similar benchmark for
fish would be somewhat higher because
adverse impacts on the populations and
diversity of fish species begin to appear
at conductivity readings between 600
and 1,000 mS/cm.27
Elevated electrical conductivity in
streams can persist for many years after
the completion of mining and land
reclamation.28 This water quality
characteristic can prevent or restrict
recolonization by the species of fish 29
and insects 30 that inhabited the affected
stream segment before mining began in
the watershed. Studies in Appalachia of
existing minesites have not found any
ecologically significant improvement in
electrical conductivity with either time
or the extent of reforestation of the
minesite.31 However, a recent study of
test plots on a surface mine in Kentucky
found that the quality of water
emanating from plots that used the
Forestry Reclamation Approach 32 to
Washington, DC. EPA/600/R–10/023F, p. 41. EPA
states that this benchmark applies to parts of West
Virginia and Kentucky and that it may be applicable
to Ohio, Tennessee, Pennsylvania, Virginia,
Alabama, and Maryland in Ecoregions 68, 69, and
70 because the salt matrix and background (calcium
and magnesium cations and sulfate and bicarbonate
anions at circum-neutral pH) is expected to be
similar throughout those ecoregions. EPA further
states that this benchmark also may be appropriate
for other nearby regions, but that it may not apply
when the relative concentrations of dissolved ions
are different.
27 Hitt, N.P. and D.B. Chambers. 2014. Temporal
changes in taxonomic and functional diversity of
fish assemblages downstream from mountaintop
mining. Freshwater Science 33(3):000–000.
Published online June 30, 2014, in unpaginated
form.
28 See, e.g., Lindberg. T.T., E.S. Bernhardt, R. Bier,
A. Helton, R. Merola, A. Vengosh, R.T. Di Giulio.
2011. Cumulative impacts of mountaintop mining
on an Appalachian watershed. Proceedings of the
National Academy of Sciences 108: 20929–20934,
20931. Available at https://www.pnas.org/cgi/doi/
10.1073/pnas.1112381108 (last accessed January 29,
2015).
29 Hitt and Chambers, op. cit.
30 Pond, G.J., M.E. Passmore, N.D. Pointon, J.K.
Felbinger, C.A. Walker, K.J.G. Krock, G.B. Fulton,
and W.L. Nash. 2014. Long-Term Impacts on
Macroinvertebrates Downstream of Reclaimed
Mountaintop Mining Valley Fills in Central
Appalachia. Environmental Management 54(4),
919–933.
31 Id.
32 The Forestry Reclamation Approach is a set of
five steps for reclaiming mined sites to encourage
native forest regeneration. These steps are: (1)
Prepare a suitable growth medium, (2) minimize
compaction, (3) minimize competition from
groundcover, (4) plant early- and late-successional
tree species, and (5) use proper tree-planting
techniques. See https://arri.osmre.gov/FRA/
FRApproach.shtm (last accessed January 6, 2015).
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soil reconstruction improved
dramatically within 3 to 9 years after
spoil placement, with electrical
conductivity apparently stabilizing at
levels 50 percent below those recorded
during the first 3 years.33 Our proposed
rule would address the conductivity
issue by requiring that backfilling
techniques consider impacts on
electrical conductivity, by requiring that
excess spoil fills be constructed in
compacted lifts, and by incorporating
elements of the Forestry Reclamation
Approach into our soil reconstruction
and revegetation rules.
Selenium Impacts
In locations with geological
formations that contain selenium,
mining has sometimes resulted in
elevated levels of selenium in streams
downgradient of the minesite. Mining
exposes elemental selenium to air, thus
facilitating oxidation to selenite and
selenate, which are soluble in water.
Selenium bioaccumulates 34 in fish
tissues, causing reproductive problems,
physical deformities, and, in extreme
cases, mortality in fish in the affected
streams.35 Selenium is beneficial to
animals, including humans, when
ingested in small amounts, but toxic
when ingested in amounts ranging from
0.1 to 10 mg/kg of food.36 Humans have
a dietary requirement estimated to be
0.04 to 0.10 mg/kg of food, but ingestion
of selenium in amounts as low as 0.07
mg per day has been shown to have
deleterious effects similar to arsenic
poisoning.37 Thus, selenium
concentrations in streams may be a
human health concern when the stream
serves as a drinking water supply or
33 Sena, Kenton L., ‘‘Influence of Spoil Type on
Afforestation Success and Hydrochemical Function
on a Surface Coal Mine in Eastern Kentucky’’
(2014). Theses and Dissertations—Forestry. Paper
16, pp. 39 and 60. See https://uknowledge.uky.edu/
forestry_etds/16 (last accessed January 6, 2015).
Electrical conductivity during the first 3 years
averaged between 829 and 1224 mS/cm, depending
upon whether the soil consisted of brown
sandstone, gray sandstone, or a mix. Electrical
conductivity in the last year of the study averaged
between 421 and 564 mS/cm.
34 Bioaccumulation means an increase in the
concentration of a chemical in a biological organism
over time, compared to the chemical’s
concentration in the environment. Compounds
accumulate in living things any time they are taken
up and stored faster than they are broken down
(metabolized) or excreted. See extoxnet.orst.edu/
tibs/bioaccum.htm (last accessed January 6, 2015).
35 Hitt and Chambers, op. cit., suggest that an
aquatic life benchmark for total dissolved selenium
concentrations using the criteria that EPA relied
upon to establish a benchmark for electrical
conductivity would be between four and seven
micrograms per liter, at least for fish.
36 U.S. Environmental Protection Agency,
‘‘Quality Criteria for Water’’ (1976), p. 200.
37 Id.
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when fish in the stream are used for
human consumption.
The proposed rule would address the
environmental and human health
concerns related to selenium by
requiring collection of baseline
hydrologic and geologic information on
this element. If selenium is present in
any of the overburden to be removed as
part of the mining process, the proposed
rule would require that the permit
include limits on selenium discharges to
prevent material damage to the
hydrologic balance outside the permit
area. The hydrologic reclamation plan
and toxic materials handling plan must
address selenium and the surface water
and groundwater monitoring plans must
include selenium.
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Impacts on Stream Flow Regime and
Flooding
In addition to the water quality
impacts discussed above, mining may
affect the flow regime of streams by
removing springs and otherwise causing
changes in base flow, water
temperature, seasonal variations in flow,
and fluctuations in flow in response to
storm events. Reclaimed minesites
generally exhibit both reduced
evapotranspiration (as a result of forest
loss due to mining) and reduced
infiltration of rainfall (as a result of soil
compaction during reclamation),
compared to unmined areas. A 2009
study of flood response in Virginia
watersheds found that flood magnitude
increased with the amount of surfacemined land within the watershed. In
contrast, logging operations that
removed most forest cover in similar
Virginia watersheds increased overall
water yield within the watershed
without increasing flood volume, a
difference that the authors of the study
attributed to the soil compaction
associated with typical surface mine
reclamation. Another study in Maryland
found that the volume of surface runoff
as a result of a storm in a watershed
influenced by surface mining was
significantly higher than the volume of
runoff from an undisturbed forested
watershed as a result of the same-size
storm. The authors attributed this
difference to soil compaction on the
mined land, which reduced infiltration
rates to less than 1 cm/hr, compared to
30 cm/hr in the undisturbed watershed.
Increased surface runoff in response to
storms increases the potential for flood
damage and may adversely impact the
hydrological function of the stream by
causing stream channelization.38 Our
proposed rule would address this issue
38 Sena
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by minimizing soil compaction and
maximizing reforestation.
Impacts on Topography and
Microclimates
Mining impacts on the terrestrial
environment include a loss of
topographic complexity; i.e., regraded
minesites generally are flatter and more
uniform in terms of surface elevation
and configuration when compared with
the premining topography. U.S.
Geological Survey studies of central
Appalachia found that surface coal
mining reduced ridgetop elevations by
an average of 112 feet, raised valley
floor elevations by an average of 174
feet, reduced slope steepness by 9.5–11
percent, and changed slope aspect 39 by
38–41 degrees.40 Changes are less
dramatic in areas with flatter
topography, but the same principle of
greater uniformity and less topographic
diversity after mining and regrading still
applies. Regraded minesites usually lack
the small drainageways and variations
in slope and other topographical
features found prior to mining.
Therefore, they also lack the
microclimates and associated
ecosystems found prior to mining.
Landsat data from 2007–2009 for the
area containing a large mountaintop
removal mining operation in West
Virginia indicate that surface
temperatures of areas disturbed by
mining were warmer and more variable
in all seasons except winter.41 Surface
temperatures influence the type of
vegetation that can survive on mined
land and the extent and rate at which
the premining plant community and
associated fauna can recolonize the site.
Impacts on Soils, Vegetation, and
Terrestrial Wildlife
Other terrestrial impacts include
forest fragmentation (loss of large blocks
of contiguous mature interior forest and
increases in forest edge and grassland
habitat), loss of native forests, changes
in species composition and biodiversity
of both plants and animals, and loss or
severe compaction of soil horizons and
organic matter. At least temporarily,
mining of previously forested areas
adversely impacts species that prefer or
39 Aspect is the compass direction that a slope
faces. It has a significant effect on the soils and
microclimate of the slope and hence on the plant
and animal life found there, as well as the site’s
productivity.
40 Wickham, James, Petra Bohall Wood, Matthew
C. Nicholson, William Jenkins, Daniel Druckenbrod,
Glenn W. Suter, Michael P. Strager, Christine
Mazzarella, Walter Galloway, and John Amos. The
overlooked terrestrial impacts of mountaintop
mining. BioScience 63, no. 5 (2013): 335–348, 338–
339.
41 Id. at 338.
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require interior forest (for example, the
cerulean warbler, the ovenbird, and the
scarlet tanager) and favors species that
prefer or require edge habitat (for
example, the cardinal, the brownheaded cowbird, and many species of
sparrows).
Furthermore, conventional
reclamation techniques typically result
in heavily compacted soils that offer a
hostile environment for native plant
species and soil microorganisms, which
means that minesites reclaimed by those
techniques often are either planted with
or colonized by nonnative species and
remain in a state of arrested ecological
succession. Both soil compaction and
competitive herbaceous ground covers
inhibit the establishment of native
forests similar to those that occupied the
area prior to mining. Soil compaction
also reduces the site indices for tree
growth, which means that the reclaimed
minesite is not capable of supporting a
forest with a productivity equal to that
of the forest that either existed or could
have existed prior to mining.
Our proposed rule would address
terrestrial impacts in a variety of ways,
including a requirement for restoration
of the premining drainage pattern to the
extent possible and incorporation of
elements of the Forestry Reclamation
Approach. Use of that approach would
minimize soil compaction and
maximize reforestation and restoration
of site productivity. Our proposed rule
emphasizes revegetation with native
species, restoration of natural plant
communities whenever there is no
conflict with implemented postmining
land uses, and the protection or
establishment of riparian corridors
along streams to promote protection,
restoration, and enhancement of fish,
wildlife, and related environmental
values. It also would modify the
standards for approval of exceptions to
the approximate original contour
restoration requirement by limiting
exceptions to those necessary to
implement the postmining land use
within the revegetation responsibility
period.
Draft Environmental Impact Statement
(EIS)
The draft EIS for this proposed rule
contains an expanded discussion of the
impacts of mining on the environment.
Almost all the literature surveys and
studies reviewed for this rulemaking
process have been published since the
adoption in 1983 of our principal
regulations concerning protection of the
hydrologic balance 42 and protection of
fish, wildlife, and related environmental
42 48
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values,43 which underscores the need to
update our regulations to reflect new
scientific understanding of impacts
associated with coal mining.
Relationship to 2009 MOU
This proposed rule helps fulfill our
responsibilities under a memorandum
of understanding (MOU) that the
Secretary of the Department of the
Interior, the Administrator of the EPA,
and the Acting Assistant Secretary of
the Army (Civil Works) entered into on
June 11, 2009. This MOU implemented
an interagency action plan designed to
significantly reduce the harmful
environmental consequences of surface
coal mining operations in six
Appalachian states and ensure that
future mining is conducted consistent
with federal law. Specifically, Part III.A.
of the MOU provides that we will
review our ‘‘existing regulatory
authorities and procedures to determine
whether regulatory modifications
should be proposed to better protect the
environment and public health from the
impacts of Appalachian surface coal
mining.’’ It also provides that, at a
minimum, we will consider revisions to
the stream buffer zone rule published
December 12, 2008,44 and our existing
regulatory requirements concerning
approximate original contour.
Ultimately, we determined that
development of a comprehensive,
nationally applicable stream protection
rule would be the most appropriate and
effective method of achieving the
purposes and requirements of SMCRA,
as well as meeting the goals set forth in
the MOU.45
III. What needs does this proposed rule
address?
All versions of the stream buffer zone
rule that we have adopted over the
years, including the version now in
effect, focused primarily on activities in
or within 100 feet of the stream itself.46
43 48
FR 30312 (Jun. 30, 1983).
U.S. District Court for the District of
Columbia vacated the 2008 stream buffer zone rule
on February 20, 2014, in National Parks
Conservation Ass’n v. Jewell, 2014 U.S. Dist. LEXIS
152383 (D.D.C. Feb. 20, 2014). See also 79 FR
76227–76233 (Dec. 22, 2014).
45 In keeping with our commitment in the MOU,
we considered making revisions to our approximate
original contour regulations. Ultimately, we
decided not to propose any major changes to our
permitting requirements and performance standards
concerning approximate original contour
restoration at this time because of cost concerns and
perceived difficulty of implementation. However,
we are proposing revisions to our regulations
governing exceptions to the requirement to restore
the approximate original contour.
46 The 2008 rule was somewhat broader in that it
also included provisions intended to minimize the
creation of excess spoil and to limit the footprint
of excess spoil fills.
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Yet, mining activities beyond the 100foot stream buffer zone can adversely
impact the quality and quantity of water
in streams by disturbing aquifers, by
altering the physical and chemical
nature of recharge zones as well as
surface-water runoff and infiltration
rates and drainage patterns, and by
modifying the topography and
vegetative composition of the
watershed. Thus, there are many
components of our regulations that
could be revised to improve
implementation of SMCRA with regard
to protection of streams in particular
and the hydrologic balance in general.
We have identified six specific areas in
which we propose to revise our
regulations to better protect streams and
associated environmental values.
First, while ephemeral streams derive
their flow from surface runoff from
precipitation events, perennial and
intermittent streams derive their flow
from both groundwater discharges and
surface runoff from precipitation events.
Therefore, there is a need to clearly
define the point at which adverse
mining-related impacts on both
groundwater and surface water reach an
unacceptable level; that is, the point at
which adverse impacts from mining
cause material damage to the hydrologic
balance outside the permit area. Neither
SMCRA nor the existing regulations
define the term ‘‘material damage to the
hydrologic balance outside the permit
area’’ or establish criteria for
determining what level of adverse
impacts would constitute material
damage. In particular, there is no
requirement that the SMCRA regulatory
authority establish a specific standard
for conductivity or selenium, both of
which can have deleterious effects on
aquatic life at elevated levels.
Second, there is a need to collect
adequate premining data about the site
of the proposed mining operation and
adjacent areas to establish a
comprehensive baseline that will
facilitate evaluation of the effects of
mining. The existing rules require data
only for a limited number of waterquality parameters rather than the full
suite needed to establish a complete
baseline against which the impacts of
mining can be compared. The existing
rules also contain no requirement for
determining the biological condition of
streams within the proposed permit and
adjacent areas, so there is no assurance
that the permit application will include
baseline data on aquatic life.
Third, there is a need for effective,
comprehensive monitoring of
groundwater and surface water during
and after both mining and reclamation
and during the revegetation
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responsibility period to provide realtime information documenting miningrelated changes in the values of the
parameters being monitored. Similarly,
there is a need to require monitoring of
the biological condition of streams
during and after mining and reclamation
to evaluate changes in aquatic life.
Proper monitoring will enable timely
detection of any adverse trends and
timely implementation of any necessary
corrective measures. The existing rules
require monitoring of only water
quantity and a limited number of waterquality parameters, not all parameters
necessary to evaluate the impact of
mining and reclamation. The existing
rules do not ensure that the number and
location of monitoring points will be
adequate to determine the impact of
mining and reclamation. They also
allow discontinuance or reduction of
water monitoring too early to ascertain
the impacts of mining and reclamation
on water quality with a reasonable
degree of confidence, especially for
groundwater.
Fourth, there is a need to ensure
protection or restoration of streams and
related resources, including the
headwater streams that are important to
maintaining the ecological health and
productivity of downstream waters. The
existing rules have not always been
applied in a manner sufficient to ensure
protection or restoration of streams,
especially with respect to the ecological
function of streams. Maintenance,
restoration, or establishment of riparian
corridors or buffers, comprised of native
species, for streams is a critical element
of stream protection. In forested areas,
riparian buffers for streams moderate
the temperature of water in the stream,
provide food (in the form of fallen
leaves and other plant parts) for the
aquatic food web, roots that stabilize
stream banks, reduce surface runoff, and
filter sediment and nutrients in surface
runoff.
Fifth, there is a need to ensure that
permittees and regulatory authorities
make use of advances in information,
technology, science, and methodologies
related to surface and groundwater
hydrology, surface-runoff management,
stream restoration, soils, and
revegetation, all of which relate directly
or indirectly to protection of water
resources.
Sixth, there is a need to ensure that
land disturbed by surface coal mining
operations is restored to a condition
capable of supporting the uses that it
was capable of supporting before any
mining, including both those uses
dependent upon stream protection or
restoration and those uses that promote
or support protection and restoration of
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streams and related environmental
values. Existing rules and permitting
practices have focused primarily on the
land’s suitability for a single approved
postmining land use and they have not
always been applied in a manner that
results in the construction of
postmining soils that provide a growth
medium suitable for restoration of
premining site productivity. A corollary
need is to ensure that reclaimed
minesites are revegetated with native
species unless and until a conflicting
postmining land use, such as intensive
agriculture, is implemented. Soil
characteristics and the degree and type
of revegetation have a major impact on
surface-water runoff quantity and
quality as well as on aquatic life and the
terrestrial ecosystems dependent upon
perennial and intermittent streams.
Under the existing rules, sites with
certain postmining land uses have been
revegetated with non-native species
even when the postmining land use is
not implemented prior to final bond
release and even on those portions of
the site where non-native species are
not necessary to achieve the postmining
land use.
The proposed rule would address
these needs in the manner described in
Part IX of this preamble. As mentioned
in Part II of this preamble, we
determined that improved protection of
the hydrologic balance, especially
streams, and related environmental
values would benefit all regions of the
country, not just Appalachia. In
addition, one of the reasons SMCRA
was enacted was to ensure a minimum
level of environmental protection
nationwide by establishing national
surface coal mining and reclamation
standards to prevent competition for
coal markets from undermining the
ability of states to maintain adequate
regulatory programs for coal mining
operations within their borders. See
section 101(g) of SMCRA, 30 U.S.C.
1201(g). Thus, we concluded that a
nationwide rule is required to clearly
articulate a minimum standard for
protection of the hydrologic balance,
especially streams, and related
environmental values that strikes an
appropriate balance between
environmental protection and the
Nation’s need for coal.
IV. What Clean Water Act programs
protect streams?
The goal of the Clean Water Act is to
‘‘restore and maintain the chemical,
physical, and biological integrity of the
Nation’s waters.’’ 47 To achieve that
objective, section 301 of the Clean Water
47 33
U.S.C. 1251(a).
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Act 48 prohibits the discharge of
pollutants from point sources into
waters of the United States unless
consistent with the requirements of the
Act. Section 402 of the Clean Water
Act 49 governs the discharge of
pollutants other than dredged or fill
material, while section 404 50 governs
the discharge of dredged or fill material
into waters of the United States.
Section 303 Water Quality Standards
Section 303 of the Clean Water Act 51
requires states to adopt water quality
standards applicable to their intrastate
and interstate waters. Water quality
standards assist in maintaining the
physical, chemical, and biological
integrity of a water body by designating
uses, setting water quality criteria to
protect those uses, and establishing
provisions to protect water quality from
degradation. Water quality standards
established by states 52 are subject to
EPA review. 40 CFR 131.5; 33 U.S.C.
1313(c). EPA may object to stateadopted water quality standards and
may require changes to the stateadopted water quality standards and, if
the state does not respond to EPA’s
objections, EPA may promulgate federal
standards. 33 U.S.C. 1313(c)(3)–(4); 40
CFR 131.5, 131.21.
Water quality criteria may be
expressed numerically and
implemented in permits through
specific numeric limitations on the
concentration of a specific pollutant in
the water (e.g., 0.1 milligrams of
chromium per liter) or by more general
narrative standards applicable to a wide
set of pollutants. To assist states in
adopting water quality standards that
will meet with EPA’s approval,
Congress authorized EPA to develop
and publish recommended criteria for
water quality that accurately reflect ‘‘the
latest scientific knowledge.’’ 33 U.S.C.
1314(a). Water quality standards are not
self-implementing; they are
implemented through permits, such as
the section 402 permit or the section
404 permit. 33 U.S.C. 1311(b)(1)(C); 40
CFR 122.44(d), 230.10(b).
Section 401 Water Quality
Certification
State water quality standards are
incorporated into all federal Clean
Water Act permits through section 401,
which requires each applicant to submit
U.S.C. 1311.
U.S.C. 1342.
50 33 U.S.C. 1344.
51 33 U.S.C. 1313.
52 EPA may treat an eligible federally-recognized
Indian tribe in the same manner as a state for
implementing and managing certain environmental
programs, including under the Clean Water Act.
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a certification from the affected state
that the discharge will be consistent
with state water quality requirements.
33 U.S.C. 1341(a)(1). Thus, section 401
provides states with a veto over federal
permits that may allow exceedances of
state water quality standards. It also
empowers states to impose and enforce
water quality standards that are more
stringent than those required by federal
law. 33 U.S.C. 1370.
Section 402 National Pollutant
Discharge Elimination System (NPDES)
Section 402 of the Clean Water Act
governs discharges of pollutants other
than dredged or fill material into waters
of the United States. Permits issued
under the authority of section 402 are
known as NPDES permits. They
typically contain numerical limits
called effluent limitations that restrict
the amounts of specified pollutants that
may be discharged. NPDES permits
must contain technology-based effluent
limits and any more stringent water
quality-based effluent limits necessary
to meet applicable state water quality
standards. 33 U.S.C. 1311(b)(1)(A) and
(C), 33 U.S.C. 1342(a); 40 CFR
122.44(a)(1) and (d)(1). Water qualitybased effluent limitations are required
for all pollutants that the permitting
authority determines ‘‘are or may be
discharged at a level [that] will cause,
have the reasonable potential to cause,
or contribute an excursion above any
[applicable] water quality standard,
including State narrative criteria for
water quality.’’ 40 CFR 122.44(d)(1)(i).
The procedure for determining the need
for water quality-based effluent limits is
called a reasonable potential analysis, or
‘‘RPA.’’
Section 402 permits are issued by
EPA unless the state has an approved
program whereby the state issues the
permits, subject to EPA oversight. 33
U.S.C. 1342(b)(e); 551 U.S. 644, 650–651
(2007). The state must submit draft
permits to EPA for review, and EPA may
object to a proposed permit that is not
consistent with the Clean Water Act and
federal regulations. 33 U.S.C. 1342(d);
40 CFR 123.43 and 123.44. If the state
does not adequately address EPA’s
objections, EPA may assume the
authority to issue the permit. 33 U.S.C.
1342(d)(4). EPA’s procedures for the
review of state-issued permits are set
forth in regulations at 40 CFR 123.44
and in memoranda of agreement with
the states.
Section 404 Permits
Section 404(a) of the Clean Water Act
authorizes the Secretary of the Army,
acting through the U.S. Army Corps of
Engineers (ACE or the Corps), to ‘‘issue
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permits . . . for the discharge of
dredged or fill material into the
navigable waters at specified disposal
sites.’’ 33 U.S.C. 1344(a). By this
authority, the ACE regulates discharges
of dredged and fill material into waters
of the United States in connection with
surface coal mining and reclamation
operations. The ACE’s regulations
governing section 404 permit
procedures are set forth at 33 CFR part
325.
Although the ACE is the permitting
authority under section 404, EPA has an
important role in the permitting process.
Section 404(b) of the Clean Water Act
requires that permitting decisions
comply with guidelines developed by
EPA in conjunction with the ACE.
These guidelines, which are referred to
as the ‘‘404(b)(1) Guidelines,’’ are
codified in 40 CFR part 230. Among
other things, the 404(b)(1) Guidelines
prohibit the discharge of fill if it would
cause or contribute to a violation of a
water quality standard or cause or
contribute to significant degradation of
the waters of the United States. 40 CFR
230.10(b), (c)(1) through (c)(3). The
404(b)(1) Guidelines require the ACE to
analyze more than 15 different factors
that could be impacted by the proposed
action, including substrate, suspended
particulates, turbidity, water quality,
water circulation, water level
fluctuations, salinity gradients,
threatened and endangered species,
aquatic organisms in the food web, other
wildlife special aquatic sites, water
supplies, fisheries, recreation,
aesthetics, and parks. 40 CFR 230(c)
through (f). The 404(b)(1) Guidelines
provide that the ACE must ensure that
the proposed discharges would not
cause or contribute to significant
adverse effects on human health or
welfare, aquatic life, or aquatic
ecosystems. 40 CFR 230.10(c)(1) through
(c)(3).
Before the ACE may issue a section
404 permit, it must provide notice to the
public, EPA, and other resource
agencies, which may provide comments
to the ACE for consideration. 33 CFR
325.3(d). In addition, the ACE and EPA
have entered into a Memorandum of
Agreement (MOA) as directed by section
404(q) of the Clean Water Act, 33 U.S.C.
1344(q), that expressly recognizes that
‘‘the EPA has an important role in the
Department of the Army Regulatory
Program under the Clean Water Act[.]’’
The MOA provides that ‘‘[p]ursuant to
its authority under section 404(b)(1) of
the Clean Water Act, the EPA may
provide comments to the Corps
identifying its views regarding
compliance with the section 404(b)(1)
Guidelines’’ and ‘‘[t]he Corps will fully
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consider EPA’s comments when
determining [compliance] with the
National Environmental Policy Act, and
other relevant statutes, regulations, and
policies.’’ Id.
In addition, section 404(c) of the
Clean Water Act provides EPA with the
authority to prohibit, withdraw, deny,
or restrict the specification of disposal
sites that would otherwise be authorized
by a section 404 permit. This provision
is often referred to as EPA’s permit veto
authority.
The ACE reviews individual permit
applications under section 404(a) of the
Clean Water Act on a case-by-case basis.
33 U.S.C. 1344(a). Individual permits
may be issued or denied after a review
involving, among other things, sitespecific documentation and analysis,
opportunity for public hearing, public
interest review, and a formal
determination that the permit is lawful
and warranted. 33 CFR parts 320, 323,
and 325.
Not every discharge is of such
significance that an individual
evaluation of the discharge’s
environmental effects is necessary.
Instead, section 404(e) of the Clean
Water Act authorizes the Secretary of
the Army to issue general permits for
categories of activities involving
discharges of dredged or fill material
that, as a group, have only minimal
impacts on the waters of the United
States. The ACE can issue these general
permits (as well as individual permits)
on a state, regional, or nationwide basis.
The ACE refers to general permits
issued on a nationwide basis as
‘‘nationwide permits’’ (NWP). NWPs
must be reviewed reissued every 5 years
to remain valid. The ACE last reissued
the NWPs on February 21, 2012 (77 FR
10184).
NWP 21, Surface Coal Mining
Activities, provides authorization for
the discharge of dredged or fill material
into waters of the United States when
those discharges are associated with
surface coal mining activities. The
permittee must submit a
preconstruction notification to the ACE
district engineer and receive written
authorization prior to commencing the
activity. The ACE review of
preconstruction notifications under
NWP 21 is focused on the individual
and cumulative adverse effects to the
aquatic environment and on
determining appropriate mitigation
should mitigation be necessary. The
ACE review does not extend to upland
areas or the mining operation as a
whole.
To qualify for NWP 21, an activity
must meet all of the following criteria:
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44445
(1) The activities are already
authorized or are currently being
processed by a SMCRA-approved state
program or an integrated permit
processing procedure by the Department
of the Interior.
(2) The discharge will not cause the
loss of more than 1⁄2 acre of non-tidal
waters of the United States, including
the loss of no more than 300 linear feet
of streambed, unless, for intermittent
and ephemeral streambeds, the ACE
district engineer waives the 300-linearfoot limit by making a written
determination concluding that the
discharge will result in minimal
individual and cumulative adverse
effects.
(3) The discharge is not associated
with the construction of valley fills
which are fill structures associated with
surface coal mining activities that are
typically constructed within valleys
associated with steep, mountainous
terrain.
Any surface mining activity that does
not meet all three criteria must apply for
an individual permit instead unless the
activity qualifies for NWP 49 as
discussed below.
Two other NWPs may apply to coal
mining activities under SMCRA.
NWP 49, Coal Remining Activities,
applies to discharges of dredged or fill
material into non-tidal waters of the
United States when those discharges are
associated with the remining and
reclamation of lands that were
previously mined for coal. The activities
must already be authorized by the
SMCRA regulatory authority or be in
process as part of an integrated permit
processing procedure under SMCRA.
The permittee may conduct new coal
mining activities in conjunction with
the remining activities when he or she
clearly demonstrates to the ACE that the
overall mining plan will result in a net
increase in aquatic resource functions.
The ACE will consider the SMCRA
regulatory authority’s decision regarding
the amount of currently undisturbed
adjacent lands needed to facilitate the
remining and reclamation of the
previously mined area. The total area
disturbed by new mining must not
exceed 40 percent of the total acreage
covered by both the remined area and
the additional area necessary to carry
out the reclamation of the previously
mined area. The permittee must submit
a pre-construction notification and a
document describing how the overall
mining plan will result in a net increase
in aquatic resource functions to the
district engineer and receive written
authorization prior to commencing the
activity.
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NWP 50, Underground Coal Mining
Activities, applies to discharges of
dredged or fill material into non-tidal
waters of the United States when those
discharges are associated with the
remining and reclamation of lands that
were previously mined for coal. The
activities must already be authorized by
the SMCRA regulatory authority or be in
process as part of an integrated permit
processing procedure under SMCRA.
The discharge must not cause the loss
of greater than 1⁄2 acre of non-tidal
waters of the United States, including
the loss of no more than 300 linear feet
of stream bed, unless, for intermittent
and ephemeral streambeds, the ACE
district engineer waives the 300-linearfoot limit by making a written
determination concluding that the
discharge will result in minimal adverse
effects. This NWP does not authorize
coal preparation and processing
activities outside the minesite or
discharges into nontidal wetlands
adjacent to tidal waters. The permittee
must submit a pre-construction
notification to the ACE district engineer
and receive written authorization prior
to commencing the activity.
V. What provisions of SMCRA provide
legal authority for the proposed rule?
This proposed rule would more
completely implement SMCRA’s
permitting requirements and
performance standards and better
achieve the purposes of SMCRA as set
forth in section 102 of the Act.53 It is
intended to balance all relevant
purposes of the Act, which include
ensuring that surface coal mining
operations are conducted in a manner
that protects the environment,
establishing a nationwide program to
protect society and the environment
from the adverse effects of surface coal
mining operations, and ensuring a coal
supply adequate for our Nation’s energy
needs.
Our proposed rule is intended to
address the adverse impacts and needs
discussed in Parts II and III of this
preamble by adding specificity to and
otherwise revising our existing
regulations to more completely
implement various provisions of
SMCRA, including, but not limited to:
Section 101(c),54 in which Congress
finds that ‘‘many surface coal mining
operations result in disturbances of
surface areas that burden and adversely
affect commerce and the public welfare
by * * * polluting the water, by
destroying fish and wildlife habitats, by
impairing natural beauty, * * * and by
53 30
54 30
counteracting governmental programs
and efforts to conserve soil, water, and
other natural resources.’’
Section 102(a),55 which provides that
one of the purposes of the Act is to
‘‘establish a nationwide program to
protect society and the environment
from the adverse effects of surface coal
mining operations.’’
Section 102(d),56 which provides that
one of the purposes of the Act is to
‘‘assure that surface coal mining
operations are so conducted as to
protect the environment.’’
Section 102(f),57 which provides that
one of the purposes of the Act 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.’’
Section 102(m),58 which provides that
the Secretary, wherever necessary,
‘‘exercise the full reach of Federal
constitutional powers to insure the
protection of the public interest through
effective control of surface coal mining
operations.’’
Section 201(c)(2),59 which provides
that the Secretary, acting through
OSMRE, will ‘‘publish and promulgate
such rules and regulations as may be
necessary to carry out the purposes and
provisions of this Act.’’
Section 510(b)(2),60 which provides
that the regulatory authority may not
approve a permit application unless it
first finds that ‘‘the applicant has
demonstrated that reclamation as
required by this Act and the State or
Federal program can be accomplished
under the reclamation plan contained in
the permit application.’’
Section 510(b)(3),61 which provides
that the regulatory authority may not
approve a permit application unless it
first finds that the proposed operation
‘‘has been designed to prevent material
damage to the hydrologic balance
outside the permit area.’’
Section 515(b)(2),62 which requires
that the permittee restore land affected
by surface coal mining and reclamation
operations ‘‘to a condition capable of
supporting the uses which it was
capable of supporting prior to mining.’’
This paragraph also allows restoration
to a condition capable of supporting
‘‘higher or better uses of which there is
reasonable likelihood,’’ provided certain
conditions relating to public health or
U.S.C. 1202.
U.S.C. 1201(c).
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U.S.C. 1202(a).
U.S.C. 1202(d).
57 30 U.S.C. 1202(f).
58 30 U.S.C. 1202(m).
59 30 U.S.C. 1211(c)(2).
60 30 U.S.C. 1260(b)(2).
61 30 U.S.C. 1260(b)(3).
62 30 U.S.C. 1265(b)(2).
safety, water pollution, and consistency
with land use policies, plans, and legal
requirements are met.
Section 515(b)(10),63 which requires
that surface coal mining and
reclamation operations ‘‘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.’’ Section
516(b)(9) 64 contains similar provisions
applicable to underground mining
operations.
Section 515(b)(19),65 which requires
that surface coal mining and
reclamation operations ‘‘establish on the
regraded areas, and all other lands
affected, a diverse, effective, and
permanent vegetative cover of the same
seasonal variety native to the area of
land to be affected and capable of selfregeneration and plant succession at
least equal in extent of cover to the
natural vegetation of the area; except
that introduced species may be used in
the revegetation process where desirable
and necessary to achieve the approved
postmining land use plan.’’ Section
516(b)(6) 66 contains generally similar
provisions applicable to underground
mining operations.
Section 515(b)(22)(A),67 which
requires that all excess spoil material be
‘‘transported and placed in a controlled
manner in position for concurrent
compaction and in such a way to assure
mass stability and to prevent mass
movement.’’
Section 515(b)(23),68 which requires
that surface coal mining and
reclamation operations ‘‘meet such
other criteria as are necessary to achieve
reclamation in accordance with the
purposes of this Act, taking into
consideration the physical,
climatological, and other characteristics
of the site.’’
Section 515(b)(24),69 which provides
that surface coal mining and
reclamation operations must, ‘‘to the
extent possible using the best
technology currently available,
minimize disturbances and adverse
impacts of the operation on fish,
wildlife, and related environmental
values, and achieve enhancement of
such resources where practicable.’’
Section 516(b)(11) 70 contains similar
55 30
63 30
56 30
64 30
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U.S.C. 1265(b)(10).
U.S.C. 1266(b)(9).
65 30 U.S.C. 1265(b)(19).
66 30 U.S.C. 1266(b)(6).
67 30 U.S.C. 1265(b)(22)(A).
68 30 U.S.C. 1265(b)(23).
69 30 U.S.C. 1265(b)(24).
70 30 U.S.C. 1266(b)(11).
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provisions for underground mining
operations.
Finally, section 702(a) of SMCRA 71
provides that ‘‘[n]othing in this Act
shall be construed as superseding,
amending, modifying, or repealing’’ the
Clean Water Act, any rule or regulation
adopted under the Clean Water Act, or
any state laws enacted pursuant to the
Clean Water Act. While this provision
does not provide rulemaking authority,
it does place limits on rulemaking under
SMCRA.
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VI. What is the history of our regulation
of coal mining in relation to buffer
zones for streams?
The U.S. House of Representatives
first passed a bill (H.R. 6482) to regulate
surface coal mining operations in 1972.
Section 9(a) of that bill 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.’’
However, the bill never became law and
the provision did not appear in either
the House or Senate versions of the bills
that ultimately became SMCRA.
Therefore, nothing in SMCRA
specifically establishes or requires a
buffer zone for streams, although
sections 515(b)(24) and 516(b)(11) of
SMCRA 72 require that mining
operations minimize disturbances and
adverse impacts on fish, wildlife, and
related environmental values to the
extent possible using the best
technology currently available. We have
consistently interpreted those and other
provisions of SMCRA as meaning that
protection of perennial and intermittent
streams, with their intrinsic value to
fish and wildlife, is an important
element of the environmental protection
regime that SMCRA established. Since
the enactment of SMCRA, we have
adopted four sets of regulations, which
we discuss below, that included the
concept of a buffer zone for streams.
The 1977 Stream Buffer Zone Rule
In 1977, we published initial
regulatory program regulations
providing that no land within 100 feet
of an intermittent or perennial stream
could be disturbed by surface coal
mining and reclamation operations
unless the regulatory authority
specifically authorizes those operations.
See 30 CFR 715.17(d)(3) and 717.17(d),
as published at 42 FR 62639, 62686,
62697 (Dec. 13, 1977). We stated that we
adopted that rule as a means ‘‘to protect
stream channels from abnormal
erosion’’ from nearby upslope mining
activities.73 However, that rule, which
applies only to the now-limited subset
of surface coal mining and reclamation
operations subject to the initial
regulatory program, does not specify the
conditions under which the regulatory
authority may authorize surface coal
mining operations within the buffer
zone.
The 1979 Stream Buffer Zone Rule
In 1979, we published the original
version of our permanent regulatory
program regulations. Those regulations,
as codified at 30 CFR 816.57 and 817.57,
provided that, with the exception of
stream diversions, the surface of land
within 100 feet of a perennial stream or
a non-perennial stream with a biological
community could not be disturbed by
surface mining activities or surface
operations and facilities associated with
an underground mine unless the
regulatory authority specifically
authorized mining-related activities
closer to or through the stream. Under
the regulations, the regulatory authority
could grant that authorization only after
making a finding that the original
stream channel would be restored and
that, during and after the mining, the
water quantity and quality in the section
of the stream within 100 feet of the
mining activities would not be
adversely affected.
Paragraph (c) of these rules provided
that a biological community existed if,
at any time, the stream 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 two
millimeters at some stage of the part of
their life cycle spent in the flowing
water habitat. See 44 FR 14902, 15175
(Mar. 13, 1979).
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.74 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.’’ 75 In addition,
it states that ‘‘[t]he 100-foot limit is
based on typical distances that should
be maintained to protect stream
73 Id.
71 30
U.S.C. 1292(a).
72 30 U.S.C. 1265(b)(24) and 1266(b)(11).
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74 Id.
at 62652.
at 15176.
75 Id.
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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.’’ 76
The 1983 Stream Buffer Zone Rule
In 1983, we revised 30 CFR 816.57
and 817.57 by deleting the requirement
to restore the original stream channel.
We also replaced the biological
community criterion for determining
which non-perennial streams are
protected under the rule with a
requirement for protection of all
perennial and intermittent streams. We
redefined an intermittent stream as a
stream or reach of a stream that (a)
drains a watershed of at least one square
mile or (b) is below the local water table
for at least some part of the year and
obtains its flow from both surface runoff
and groundwater discharge. Finally, we
replaced the 1979 finding with a
requirement that the regulatory
authority find that the proposed mining
activities would not cause or contribute
to a violation of applicable state or
federal water quality standards and
would not adversely affect the quantity
or quality of the water in the stream or
the other environmental resources of the
stream. See 48 FR 30312, 30327–30328
(Jun. 30, 1983).
In 1983, we also adopted revised
performance standards for coal
preparation plants not located within
the permit area of a mine. At that time,
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. In addition,
it identifies the reason for replacing the
biological community criterion 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:
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
§ 816.57(c). Thus, much confusion arose
when operators attempted to apply the
previous rule’s standards to springs, seeps,
76 Id.
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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.77
Referring to those streams that would
not be protected by 30 CFR 816.57, i.e.,
ephemeral streams, 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.’’ 78
Referring to those streams that would be
protected by 30 CFR 816.57, i.e.,
perennial and intermittent streams, the
preamble also states 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.’’ 79 The preamble 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.’’ 80 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’’.81 It further states
that ‘‘[t]he 100-foot limit is used to
protect streams from sedimentation and
help preserve riparian vegetation and
aquatic habitats.’’ 82
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.83
Finally, the preamble states that we
expanded the finding in 30 CFR
816.57(a)(1) to include environmental
resources of the stream other than water
quantity and quality to clarify ‘‘that
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77 48
FR 30313 (Jun. 30 1983). Based upon
additional scientific information developed over the
last 30 years, we no longer concur with this
characterization of the significance of ephemeral
streams.
78 Id.
79 Id.
80 Id. at 30312.
81 Id. at 30313. However, as discussed in Part II
and elsewhere in this preamble, implementation of
the 1983 rule has not resulted in uniform or
consistent achievement of this primary objective.
82 Id. at 30314.
83 Id.
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regulatory authorities will be allowed to
consider factors other than water
quantity and quality in making bufferzone determinations’’ and ‘‘to provide a
more accurate reflection of the
objectives of Sections 515(b)(10) and
515(b)(24) of the Act.’’ 84 In fact, the
language of the revised finding not only
allowed regulatory authorities to
consider environmental resources of the
stream other than water quantity and
quality, it required that they do so.
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
criterion for non-perennial 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).’’ 85 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.
Industry also challenged the 1983
version of 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.86
Historically, we and some state
regulatory authorities 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 within the permit
area. However, as discussed at length in
the preamble to a 2004 proposed rule,87
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.
One interpretation of the 1983 stream
buffer zone rules appears in our annual
oversight reports for West Virginia for
1999 and 2000, which state 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
at 30316.
re: Permanent Surface Mining Regulation
Litigation II-Round II, 21 ERC 1725, 1741–1742
(D.D.C. 1984).
86 See footnote 21, id. at 1741.
87 See 69 FR 1038–1042 (Jan. 7, 2004).
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85 In
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Conservancy v. Babbitt, Civ. No.
1:99CV01423 (D.D.C.), the plaintiffs
challenged the validity of that
interpretation, alleging that it
constituted rulemaking in violation of
the Administrative Procedure Act.
However, on August 9, 1999, OSMRE,
the U.S. Army Corps of Engineers, EPA,
and the West Virginia Division of
Environmental Protection (WVDEP)
signed a memorandum of understanding
(MOU) in which all four agencies in
effect agreed to an interpretation that
allowed valley fills in intermittent or
perennial streams to be approved only
if the buffer zone findings were made
for the filled stream segments. The MOU
also stated that the Clean Water Act
Section 404(b)(1) Guidelines at 40 CFR
part 230 contain requirements
comparable to the findings required by
the combination of OSMRE’s 1983
stream buffer zone rule and the West
Virginia stream buffer zone rule.
Consequently, the MOU found that,
‘‘where a proposed fill is consistent
with the requirements of the Section
404(b)(1) Guidelines and applicable
requirements for Section 401
certification of compliance with water
quality standards, the fill would also
satisfy the criteria for granting a stream
buffer zone variance under SMCRA and
WVDEP regulations.’’ 88 As a result of
the signing of the MOU, the court
approved an unopposed motion to
dismiss the case mentioned above 89 as
moot in an order filed September 23,
1999.
In a lawsuit filed in the U.S. District
Court for the Southern District of West
Virginia in July 1998, plaintiffs asserted
that the 1983 stream buffer zone rule
should be interpreted to allow mining
activities through a perennial or
intermittent stream or within the buffer
zone for a perennial or intermittent
stream only if the activities are minor
incursions.90 They argued that the rule
did not allow substantial segments of a
perennial or intermittent stream to be
buried underneath excess spoil fills or
other mining-related structures.91 On
October 20, 1999, the district court
ruled in favor of the plaintiffs on this
88 Memorandum Of Understanding among the
U.S. Office of Surface Mining, U.S. Environmental
Protection Agency, U.S. Army Corps of Engineers,
and West Virginia Division Of Environmental
Protection for the Purpose of Clarifying the
Application of Regulations Related to Stream Buffer
Zones under the Surface Mining Control and
Reclamation Act for Surface Coal Mining
Operations that Result in Valley Fills, August 9,
1999, p. 4.
89 West Virginia Highlands Conservancy v.
Babbitt, Civ. No. 1:99CV01423 (D.D.C.).
90 See Bragg v. Robertson, 72 F. Supp. 2d 642,
660–663 (S.D. W. Va. 1999).
91 Id.
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point, holding that the West Virginia
version of 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.92 The court
stated that the construction of fills in
perennial or intermittent streams is
inconsistent with the language of the
West Virginia counterpart to 30 CFR
816.57(a)(1), which provides that the
regulatory authority may authorize
surface mining activities within a
stream buffer zone only after making
certain findings, including a finding that
the proposed activities would not
‘‘adversely affect the normal flow or
gradient of the stream, adversely affect
fish migration or related environmental
values, materially damage the water
quantity or quality of the stream
. . . .’’ 93 The court also concluded that,
contrary to the August 1999 MOU,
satisfaction of the Section 404(b)(1)
Guidelines is not equivalent to
satisfaction of the SMCRA buffer zone
rule.94
On appeal, the U.S. Court of Appeals
for the Fourth Circuit vacated the
judgment of the district court and
remanded the case with instructions to
dismiss the counts concerning the
stream buffer zone rule as barred by the
Eleventh Amendment to the U.S.
Constitution. See Bragg v. West Virginia
Coal Ass’n, 248 F.3d 275, 296 (4th Cir.
2001), cert. denied, 534 U.S. 1113
(2002). While the Fourth Circuit did not
interpret the 1983 version of the stream
buffer zone rule, the brief for the federal
appellants in that case included another
interpretation of the regulation in their
brief. In sum, the federal appellants
supported an interpretation based on
the district court decision and stated
that 30 CFR 816.57 ‘‘prohibits the burial
of substantial portions of intermittent
and perennial streams beneath excess
mining spoil.’’ 95
In a different case related to the
issuance of a nationwide section 404
permit under the Clean Water Act, the
U.S. District Court for the Southern
District of West Virginia stated in an
opinion that SMCRA and the 1983
stream buffer zone rule do not authorize
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92 Id.
93 Id. at 650–653, 661. In a related matter, a
consent decree filed on January 3, 2000, and
approved on February 17, 2000, stated that the West
Virginia stream buffer zone rules only apply
downstream from the toes of downstream faces of
embankments of sediment control structures in
perennial and intermittent streams. Bragg v.
Robertson, 83 F. Supp. 2d 713, 718 n.4 (S.D. W. Va.
2000).
94 Id. at 660.
95 Brief for Federal Appellants at 2, Bragg v. West
Virginia Coal Ass’n, 248 F.3d 275 (4th Cir. 2001)
(No. 99–2683) (footnote omitted).
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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.’’ 96
Yet, on appeal, the U.S. Court of
Appeals for the Fourth Circuit rejected
the district court’s conclusion, stating
that ‘‘SMCRA does not prohibit the
discharge of surface coal mining excess
spoil in waters of the United States.’’ 97
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.’’ 98
In subsequent litigation, the federal
appellants stated that ‘‘OSM has
historically interpreted its ‘stream buffer
zone’ rule . . . to allow for the
construction of valley fills in
intermittent and perennial streams, even
if such fills cover a stream segment. The
traditional interpretation of the [stream
buffer zone] is in harmony with this
Court’s decision in Rivenburgh.’’ 99
Additionally, the U.S. Court of Appeals
for the Fourth Circuit has discussed
SMCRA’s role in the regulation of valley
fills in the context of a challenge to
individual permits under section 404 of
the Clean Water Act.100 See Ohio Valley
Envtl. Coal. v. Aracoma Coal Co., 556
F.3d 177, 195 (4th Cir. 2009) (‘‘Congress
clearly contemplated that the regulation
of the disposal of excess spoil and the
creation of valley fills falls under the
SMCRA rubric.’’).
The 2008 Rule
In 2004, we proposed a rule to revise
the 1983 version of the stream buffer
zone rule in order ‘‘to clarify the
circumstances in which mining
activities such as the construction of
excess spoil fills may be allowed within
the [stream buffer zone]’’.101 Although
we abandoned this proposed rule, we
proposed another rule in 2007, in part
‘‘to end the ambiguity in interpretation
of the stream buffer zone rules and to
ensure that regulatory authorities, mine
operators, other governmental entities,
96 Kentuckians for the Commonwealth, Inc. v.
Rivenburgh, 204 F. Supp. 2d 927, 942 (S.D. W. Va.
2002).
97 Kentuckians for the Commonwealth, Inc. v.
Rivenburgh, 317 F.3d 425, 442 (4th Cir. 2003).
98 Id. at 443. The preamble to a proposed rule,
which 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 rule through 2003.
See especially Part I.B.1. at 69 FR 1038–1040.
99 Corrected Brief for Federal Appellants at 9 n.2,
Ohio Valley Envtl. Coal. v. Bulen, 556 F.3d 177 (4th
Cir. 2009) (Nos. 04–2129 (L), 04–2137, 04–2402)
(footnote omitted).
100 33 U.S.C. 1344.
101 69 FR 1039–1040 (Jan. 7, 2004).
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44449
landowners, and citizens all can have a
common understanding of what the
stream buffer zone rules do and do not
require, consistent with underlying
statutory authority.’’ 102
We subsequently adopted a final rule
that revised the circumstances under
which mining activities may be
conducted in or near perennial or
intermittent streams and established
new requirements for the creation and
disposal of excess spoil and coal mine
waste. Among other things, the rule
required that mining operations be
designed to minimize the creation of
excess spoil and that permit applicants
consider a range of reasonable
alternatives to the disposal of excess
spoil and coal mine waste in perennial
or intermittent streams or their buffer
zones and select the alternative with the
least overall adverse impact on fish,
wildlife, and related environmental
values. With respect to activities in the
stream itself, it replaced the findings in
the 1983 rule with a requirement for a
finding that avoiding disturbance of the
stream is not reasonably possible. It also
required a demonstration of compliance
with the Clean Water Act before the
permittee initiates mining activities in a
perennial or intermittent stream if those
activities require authorization or
certification under the Clean Water Act.
With respect to activities confined to the
stream buffer zone, the rule replaced the
findings in the 1983 rule with a
requirement for a finding 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. That rule, which we
refer to in this preamble as the 2008
rule, took effect January 12, 2009. For a
more detailed history of the 2008 rule,
please refer to the discussion in the
preamble to that rule.103
Litigation Concerning the 2008 Rule
Shortly after publication of the 2008
rule, ten environmental organizations
challenged the validity of the rule. See
Coal River Mountain Watch v. Salazar
(‘‘Coal River’’), No. 08–2212 (D.D.C.,
filed Dec. 22, 2008) and National Parks
Conservation Ass’n v. Salazar
(‘‘NPCA’’), No. 09–115 (D.D.C., filed Jan.
16, 2009).
In NPCA, the Federal Government
filed a motion on April 27, 2009, for
voluntary remand and vacatur of the
2008 rule. The motion was based on the
Secretary’s determination that OSMRE
102 72
FR 48890, 48892 (Aug. 24, 2007).
73 FR 75814, 75816–75818 (Dec. 12,
103 See
2008).
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erred in failing to initiate consultation
with the U.S. Fish and Wildlife Service
(FWS or the Service) under section
7(a)(2) of the Endangered Species Act,
16 U.S.C. 1536(a)(2), to evaluate
possible effects of the 2008 rule on
threatened and endangered species. In
Coal River, the Federal Government
filed a motion on April 28, 2009, to
dismiss the complaint as moot if the
court granted the motion in NPCA.
On August 12, 2009, the court denied
the Federal Government’s motion in
NPCA, holding that, absent a ruling on
the merits, significant new evidence, or
consent of all the parties, a grant of
vacatur would allow the government to
improperly bypass the procedures set
forth in the Administrative Procedure
Act, 5 U.S.C. 551 et seq., for repealing
an agency rule. On the same date, the
court denied the Federal Government’s
motion to dismiss in Coal River. See
Nat’l Parks Conservation Ass’n v.
Salazar, 660 F. Supp. 2d 3, 4 (D.D.C.
2009).
On March 19, 2010, the parties
involved in the NPCA and Coal River
litigation signed a settlement agreement
in which the Secretary agreed to make
best efforts to sign a proposed rule to
amend or replace the 2008 rule within
a year and sign a final rule within
approximately 18 months. On April 2,
2010, the court granted the parties’
motion to hold in abeyance further
judicial proceedings concerning the
2008 rule to allow time for us to
conduct this rulemaking. However, for a
variety of reasons, the Secretary had not
yet published a proposed rule as of the
beginning of 2013. Given this delay, on
March 19, 2013, the court granted the
plaintiffs’ motions to resume the
litigation.
On February 20, 2014, the court
vacated the 2008 rule because ‘‘OSM’s
determination that the revisions to the
stream protection rule encompassed by
the 2008 Rule would have no effect on
threatened and endangered species or
critical habitat was not a rational
conclusion’’ and that therefore our
failure to initiate consultation on the
2008 rule was a violation of section
7(a)(2) of the Endangered Species Act.
NPCA v. Jewell, 2014 U.S. Dist. LEXIS
152383, at * 13–* 14 (D.D.C. Feb. 20,
2014).104 Given the court’s ruling in
NPCA, the court determined that ‘‘there
is no further relief that the court can
grant’’ in Coal River and dismissed that
case. Coal River v. Jewell, No. 08–2212,
104 Pursuant to Federal Rule of Civil Procedure
25(d), S.M.R. ‘‘Sally’’ Jewell was automatically
substituted for Ken Salazar as Secretary of the
Interior.
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Memorandum Decision and Order of
Dismissal at 2.
The court in NPCA remanded the
vacated rule to us for further
proceedings consistent with the
decision.105 The court’s decision also
stated that vacatur of the 2008 rule
resulted in reinstatement of the rule in
effect before the vacated rule took
effect.106 In response, OSMRE published
a notice of vacatur in the Federal
Register.107 Therefore, the proposed
rule that we are publishing today uses
the pre-2008 rules as the baseline for all
proposed changes.
The 2009 Memorandum of
Understanding
As mentioned above, on June 11,
2009, the Secretary, the Administrator
of the EPA, and the Acting Assistant
Secretary of the Army (Civil Works)
entered into an MOU 108 implementing
an interagency action plan designed to
significantly reduce the harmful
environmental consequences of surface
coal mining operations in six
Appalachian states,109 while ensuring
that future mining remains consistent
with federal law. Among other things, in
the MOU we committed to review our
‘‘existing regulatory authorities and
procedures to determine whether
regulatory modifications should be
proposed to better protect the
environment and public health from the
impacts of Appalachian surface coal
mining.’’ It also provides that, at a
minimum, we will consider revisions to
the 2008 rule and our regulatory
requirements concerning approximate
original contour.110
The proposed rule that we are
publishing today is, in part, the result of
our review of existing regulatory
authorities and procedures as promised
in the MOU. The proposed rule would
replace the vacated 2008 rule and the
reinstated pre-2008 rules. However, we
have decided not to propose any major
changes to our permitting requirements
and performance standards concerning
approximate original contour restoration
105 NPCA
v. Jewell, U.S. Dist. LEXIS 152383 at
* 22.
at * 19.
79 FR 76227–76233 (Dec. 22, 2014).
108 The MOU can be viewed online at
www.osmre.gov/resources/mou/ASCM061109.pdf
(last accessed August 1, 2014).
109 Kentucky, Ohio, Pennsylvania, Tennessee,
Virginia, and West Virginia.
110 The MOU also stated that we would develop
guidance clarifying how the 1983 stream buffer
zone rule would be applied to reduce adverse
impacts on streams if the court granted the
Government’s motion in NPCA for remand and
vacatur of the 2008 rule. However, the court in
NPCA did not grant the specific motion mentioned
in the MOU. See Nat’l Parks Conservation Ass’n v.
Salazar, 660 F. Supp. 2d 3, 4 (D.D.C. 2009).
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107 See
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at this time because of cost concerns
and perceived difficulty of
implementation.111
The Advance Notice of Proposed
Rulemaking (ANPRM)
On November 30, 2009 (74 FR 62664–
64668), we published an advance notice
of proposed rulemaking, consistent with
the MOU and National Parks
Conservation Association v. Salazar,
660 F. Supp. 2d 3, 4 (D.D.C. 2009).
Specifically, the notice described ten
alternatives for revising the 2008 rule
and related rules and invited the public
to comment on those alternatives and to
suggest other ways that the 2008 rule
should be revised to better protect
streams and implement the MOU. We
also invited the public to identify
provisions of our regulations other than
the 2008 rule that should be revised to
better protect the environment and the
public from the impacts of Appalachian
surface coal mining. We received
approximately 32,750 comments during
the 30-day comment period.
After evaluating the comments that
we received on the ANPRM, reexamining the 2008 rule, and reexamining practices in and outside
Appalachia, we determined that
development of a comprehensive stream
protection rule would be the most
appropriate and effective method of
better achieving the purposes and
requirements of SMCRA as well as the
goals set forth in the MOU and the
ANPRM. Consequently, we are
proposing a rule that would identify
measures that mine operators and
SMCRA regulatory authorities must take
to prevent or minimize mining-related
impacts on streams and fish, wildlife
and related environmental values.
Thus, the scope of this proposed rule
is broader than the scope of the 2008
rule, which focused primarily on excess
spoil handling, coal mine waste
disposal, and activities conducted in or
near streams. Consistent with the
broader scope of the proposed rule, we
are preparing a new EIS, rather than
supplementing the EIS prepared for the
2008 rule. We also are consulting with
the U.S. Fish and Wildlife Service as
required by section 7 of the Endangered
Species Act. Furthermore, if we
determine that adoption of this
proposed rule may affect species under
the jurisdiction of the National Marine
Fisheries Service (NMFS), we will
consult with NMFS, which is
111 The draft EIS and draft regulatory impact
analysis for this rulemaking evaluate potential
changes to approximate original contour
requirements, including the addition of
landforming and digital modeling requirements, as
part of Alternative 4.
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responsible for administration and
enforcement of the Endangered Species
Act with respect to anadromous and
marine species.
Comments that we received in
response to the ANPRM differed as to
whether the proposed rule should be
national in scope or whether it should
be limited to central Appalachia or to
steep-slope mining operations. After
evaluating those comments, we have
decided to propose rules that are
national in scope because streams are
ecologically important regardless of
topography or where they are located in
the country. Measures to protect the
quality and quantity of streamflow, both
from surface sources and groundwater
discharges, are likewise important
regardless of topography or location. In
addition, section 101(g) of SMCRA
states that ‘‘[national] surface mining
and reclamation standards are essential
in order to insure that competition in
interstate commerce among sellers of
coal produced in different States will
not be used to undermine the ability of
the several States to improve and
maintain adequate standards on coal
mining operations within their
borders.’’ In other words, national
standards are necessary because they
define a set of environmental protection
requirements that a state cannot relax as
an incentive to coal producers to either
continue to mine coal in the state or to
relocate to the state.
Protecting our water resources and
preventing water pollution is important
everywhere, especially in the arid and
semiarid West and portions of the
country that are experiencing droughts.
There is a need for consistent,
scientifically-valid documentation of
the premining physical, chemical, and
biological condition of streams and the
impacts of mining and reclamation on
those streams. All permits should
include plans for stream protection or
restoration that require use of best
practices to either maintain the
ecological condition of streams or
restore both the physical form and the
ecological function of affected streams.
The proposed rule is sufficiently
flexible to accommodate the different
regions where coal is mined and the
differences in streams found in those
regions.
In addition, the proposed rule would
address some concerns that commenters
on the ANPRM expressed with respect
to other provisions of our regulations
that are not necessarily directly related
to stream protection, but that are
important in terms of protecting the
hydrologic balance or better achieving
other requirements and purposes of
SMCRA. We also propose to reorganize,
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revise, and streamline our rules to
improve their readability and internal
consistency, to update or remove
obsolete provisions, to remove
redundant and unneeded provisions, to
be consistent with court decisions, and
to incorporate plain language principles.
VII. Why does the proposed rule
include protective measures for
ephemeral streams?
Unlike the regulations implementing
the Clean Water Act, the existing
regulations implementing SMCRA
contain no specific protections for
ephemeral streams. As summarized in
Part II of this preamble, scientific
studies completed since the enactment
of SMCRA and the adoption of our
existing rules have documented the
importance of headwater streams,
including ephemeral streams, in
maintaining the ecological health and
function of streams downgradient of
headwater streams. EPA recently
completed a literature review of the
importance of headwater streams and
published a report summarizing the
findings of more than 1,200 peerreviewed studies.112 With some
exceptions, the report generally does not
differentiate between the various types
of headwaters streams, which consist of
a mix of perennial, intermittent, and
ephemeral streams, but it does
emphasize that ephemeral streams are
an important component of headwaters
streams and that they have an effect on
the form and function of downstream
channels and aquatic life. Consistent
with the findings of this report and
other studies, our proposed rule
includes some protections for
ephemeral streams, tailored to their
hydrologic and ecological functions.
We also are considering adopting an
alternative that would provide equal
protection to all streams, without regard
to whether the stream is perennial,
intermittent, or ephemeral. We invite
comment on whether we should adopt
this alternative in the final rule and, if
so, whether we should extend all the
protections that this proposed rule
would afford to perennial and
intermittent streams to ephemeral
streams or whether we should instead
scale back those protections to avoid
undue adverse impacts on the mining
industry, while still providing improved
112 U.S. Environmental Protection Agency,
Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the
Scientific Evidence (Final Report). Office of
Research and Development, National Center for
Environmental Assessment, Washington, DC EPA/
600/R–14/47F (2015). Available at https://
cfpub.epa.gov/ncea/cfm/
recordisplay.cfm?deid=296414 (last accessed June
16, 2015).
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44451
environmental protection to all streams
compared with the existing regulations.
A. What are the findings of the EPA
report?
The report states that the evidence
unequivocally demonstrates that the
stream channels, riparian wetlands,
floodplain wetlands, and open waters
that together form river networks are
clearly connected to downstream waters
in ways that profoundly influence
downstream water integrity. According
to the authors, the body of literature
documenting connectivity and
downstream effects is most abundant for
perennial and intermittent streams and
for riparian and floodplain wetlands.
However, the report states that, although
less abundant, the evidence for
connectivity and downstream effects of
ephemeral streams is strong and
compelling, particularly in context with
the large body of evidence supporting
the physical connectivity and
cumulative effects of channelized flows
that form and maintain stream
networks.113
The report identifies five principal
contributions of ephemeral streams: (1)
Providing streamflow to larger streams;
(2) conveying water into local storage
compartments such as ponds, shallow
aquifers, or streambanks that are
important sources of water for
maintenance of the baseflow in larger
streams; (3) transporting sediment,
woody debris, and nutrients; (4)
providing the biological connectivity
that is necessary either to support the
life cycle of some invertebrates or to
facilitate the transport of terrestrial
invertebrates that serve as food
resources in downstream communities;
and (5) influencing fundamental
biogeochemical processes such as the
assimilation and transformation of
nitrogen that may otherwise have
detrimental impacts on downstream
communities. The report’s explanation
of these contributions is summarized
below. In addition, headwater streams,
including ephemeral and intermittent
streams, shape downstream channels by
accumulating and gradually or
episodically releasing stored materials
such as sediment and large woody
debris.114 These materials help structure
stream and river channels by slowing
the flow of water through channels and
providing substrate and habitat for
aquatic organisms.115
113 Id.
114 Id.
at ES–7.
at ES–8.
115 Id.
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Providing Streamflow to Larger Streams
Ephemeral streams are hydrologically
connected to downstream waters via
channels that convey surface and
subsurface water in direct response to
precipitation. Moreover, these streams
are the defining characteristic of many
watersheds in arid and semi-arid
regions of the United States; thus
serving a critical role in the
maintenance of water resources.116
Conveyance of Water Into Local Storage
Compartments
Ephemeral streams may convey water
to local storage compartments, such as
ponds, shallow aquifers, and
streambanks, and recharge regional
alluvial aquifers, depending upon the
frequency, duration, magnitude, and
timing of precipitation events. These
local storage compartments are
important sources of water for
maintaining baseflow in perennial
streams. Streamflow typically depends
on the delayed (i.e., lagged) release of
shallow groundwater from local storage,
especially during dry periods and in
areas with shallow groundwater tables
and pervious subsurfaces. Relative to
their cumulative surface area, an
inordinate amount of groundwater
recharge occurs in headwater ephemeral
and intermittent channels within arid
drainage basins. Furthermore, in the
southwestern United States, short-term
shallow groundwater storage in alluvial
floodplain aquifers, with gradual release
into stream channels, is a major source
of annual flow in rivers.117
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Transport of Sediment and Nutrients
Ephemeral streams frequently contain
boulders and woody debris that entrain
and store loose, unconsolidated
sediment during smaller precipitation
events that is subsequently released
during infrequent, high-magnitude
precipitation events. Because of the
abundance and distribution of
headwater streams, sediment storage
and transport by those streams can have
a substantial cumulative effect on
downstream waters; headwater streams
are important sediment sources for
maintaining channels and
floodplains.118 Similarly, headwater
streams are important sources of organic
matter (organic carbon) that serves as a
downstream food source for aquatic life
116 U.S. Environmental Protection Agency, The
Ecological and Hydrological Significance of
Ephemeral and Intermittent Streams in the Arid
and Semi-Arid American Southwest. Office of
Research and Development, Washington, DC Final
Report No. EPA/600/R–08/134 (2008).
117 EPA, Connectivity of Streams and Wetlands to
Downstream Waters, op. cit., at ES–8 and 3–11.
118 Id. at 3–15.
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forms such as benthic
macroinvertebrates and that enhances
the fertility of agriculture on alluvial
fans where some of the organic matter
is deposited.119
Biological Connectivity
Headwaters streams, including
ephemeral streams, play an important
role in the dispersal of genetic material
and production and transport of food
resources. For example, headwaters
streams provide habitat that is critical
for completion of one or more life-cycle
stages of many aquatic and semiaquatic
species capable of moving throughout
water networks. These streams provide
habitat for completion of complex life
cycles. They also provide a refuge from
predators, competitors, parasites, or
adverse physical conditions in
downstream waters.120
Because biological connections often
result from passive transport of
organisms or their products with water
flow, biological connectivity often
depends on hydrologic connectivity.
Many living organisms, however, also
can actively move with or against water
flow; others disperse actively or
passively over land by walking, flying,
drifting, or ‘‘hitchhiking.’’ All of these
organism-mediated connections form
the basis of biological connectivity
between headwater streams and
downstream waters. Biological
connections between upstream and
downstream reaches can affect
downstream waters via multiple
pathways or functions. For organisms
capable of significant upstream
movement, headwater streams,
including ephemeral and intermittent
streams, can increase both the amount
and quality of habitat available to those
organisms. Many organisms require
different habitats for different resources
(e.g., food, spawning habitat,
overwintering habitat), and thus move
throughout the river network—both
longitudinally and laterally—over their
life cycles, with some requiring dry
channels to complete part of their life
cycle. Furthermore, dry stream channels
can facilitate dispersal of aquatic
invertebrates by serving as dispersal
corridors for terrestrial adult forms.
Headwater streams also provide food
resources to downstream waters,
especially in the form of terrestrial
invertebrates that accumulate in
intermittent and ephemeral streams
during dry periods and are then
transported downstream by storm flows
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119 Id.
120 Id.
at 3–31 and 3–32.
at ES–8.
Frm 00018
Fmt 4701
during and after a precipitation
event.121
Biogeochemical Processes
There is strong evidence that
headwater streams function as nitrogen
sources (via export) and sinks (via
uptake and transformation) for river
networks. For example, one study
estimated that rapid cycling of
nutrients, including nitrogen, in small
streams with no agricultural or urban
impacts removed 20–40% of the
nitrogen that otherwise would be
delivered to downstream waters.
Nutrients, including nitrogen, are
necessary to support aquatic life, but
excess nutrients lead to eutrophication
and hypoxia, in which over-enrichment
causes dissolved oxygen concentrations
to fall below the level necessary to
sustain most aquatic animal life in the
stream and streambed. Thus, the
influence of streams on nutrient loads
can have significant repercussions for
hypoxia in downstream waters.122
B. What specific rule changes are we
proposing with respect to ephemeral
streams?
We propose to require that the permit
applicant identify and map all
ephemeral streams within the proposed
permit and adjacent areas. The
applicant must describe the physical
and hydrologic characteristics of those
streams in detail, as well as any
associated vegetation in the riparian
zone if one exists. In addition, the
applicant must assess the biological
condition of a representative sample of
those ephemeral streams. See proposed
30 CFR 780.19(c)(6) and 784.19(c)(6).
We also propose to require that the
significance of ephemeral streams be
evaluated during the permitting process
as part of the determination of the
probable hydrologic consequences of
mining and the cumulative hydrologic
impact assessment. See proposed 30
CFR 780.20, 780.21, 784.20, and 784.21.
We further propose to specify that the
backfilling and grading plan in the
reclamation plan required by proposed
30 CFR 780.12(d) and 784.12(d) must
include contour maps, cross-sections, or
models that show in detail the
anticipated final surface configuration,
including drainage patterns, of the
proposed permit area. Proposed 30 CFR
780.28(c)(1) and 784.28(c)(1) would
require that the postmining drainage
pattern, including ephemeral streams,
be similar to the premining drainage
pattern, with limited exceptions.
121 Id.
122 Id.
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at 3–37, 3–38, and 3–39.
at ES–8.
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44453
Under proposed 30 CFR 780.28(b)(3)
and 784.28(b)(3), the reclamation plan
for an operation that proposes to disturb
a perennial, intermittent, or ephemeral
stream, or the surface of land within 100
feet of that stream, must include the
planting of native species, including,
when appropriate, species adapted to
and suitable for planting in riparian
zones, within a corridor at least 100 feet
in width on each side of the stream as
part of the reclamation process
following the completion of mining
activities. The riparian corridor
requirement would not apply to prime
farmland or when a corridor would be
inconsistent with an approved
postmining land use that is actually
implemented before expiration of the
revegetation responsibility period. Nor
would it apply to stream segments that
are buried beneath an excess spoil fill or
a coal mine waste disposal facility.
The following derivation tables
summarize the organizational changes
in the proposed rule, relative to the
existing rules. They also indicate
whether we propose to revise the rule
text in each redesignated section or
paragraph. The organizational changes
serve several purposes, including—
• Breaking up overly long sections
and paragraphs into multiple shorter
sections and paragraphs for ease of
reference and improved comprehension.
• Renumbering sections in the
underground mining rules to align their
numbering with the corresponding
sections in the surface mining rules.
This change would greatly improve ease
of reference and the user-friendliness of
our rules.
• Moving permitting requirements
from subchapter K (performance
standards) to subchapter G to
consolidate permitting requirements in
subchapter G.
• Restructuring subchapter G to better
distinguish between baseline
information requirements and
reclamation plan requirements.
• Removing redundant, suspended,
and obsolete provisions.
The following table is organized in
the numerical order of the existing rule
citations. It includes only those
provisions of the existing regulations
that we propose to move or remove.
Existing rule
Proposed redesignation
Existing text revised in proposed rule?
VIII. Overview and Tabular Summaries
of Proposed Revisions and
Organizational Changes
§ 700.11(d)(1)
§ 700.11(d)(2)
§ 700.11(d)(3)
§§ 816.40 and
§ 779.12(a) .........................................................
None .................................................................
§ 779.12(b) .........................................................
§ 779.24(a) through (f) .......................................
§ 779.24(g) .........................................................
§ 779.24(h) through (k) ......................................
§ 779.24(l) ..........................................................
§ 779.25(a)(1) ....................................................
§ 779.25(a)(2) ....................................................
§ 779.25(a)(3) ....................................................
§ 779.25(a)(4) ....................................................
§ 779.25(a)(5) ....................................................
§ 779.25(a)(6) ....................................................
§ 779.25(a)(7) ....................................................
§ 779.25(a)(8) ....................................................
§ 779.25(a)(9) ....................................................
§ 779.25(a)(10) ..................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
§ 700.11(d)(1)(i) .................................................
§ 700.11(d)(1)(ii) ................................................
§ 700.11(d)(2) ....................................................
§ 701.5 [paragraphs (a) and (b) of definition of
‘‘replacement of water supply’’].
§ 773.7(a) [last sentence] ..................................
§ 773.7(b) ...........................................................
§ 773.15(n) .........................................................
§ 777.13(a) .........................................................
§ 777.13(b) .........................................................
§ 779.11 .............................................................
§ 779.17 ............................................................
§ 779.24(a)(1) through (a)(6) ............................
§ 779.24(a)(10) .................................................
§ 779.24(a)(14) through (a)(17) ........................
§ 779.24(a)(28) .................................................
§ 779.24(a)(18) .................................................
§ 779.24(a)(20) .................................................
§ 779.24(a)(21) .................................................
§ 779.24(a)(22) .................................................
§ 779.24(a)(23) and (a)(24) ..............................
§ 779.24(a)(19) .................................................
§ 779.24(a)(9) ...................................................
§ 779.24(a)(25) .................................................
§ 779.24(a)(26) .................................................
§ 779.24(a)(8) [water wells], § 779.24(a)(27)
[gas and oil wells].
§ 780.14 ............................................................
§ 780.15 ............................................................
§ 780.13 ............................................................
None .................................................................
§ 779.20(a) through (c) .....................................
§ 780.16(a) through (d) .....................................
§ 779.20(d), § 780.16(e) ...................................
§ 780.12 [in general] .........................................
§ 780.12(b) ........................................................
§ 780.12(c) ........................................................
§ 780.12(d) ........................................................
§ 780.12(e) [in general] ....................................
§ 780.12(g) [in general] ....................................
§ 780.12(i) .........................................................
§ 780.12(j) .........................................................
§ 780.12(k) ........................................................
§ 780.12(l) .........................................................
§ 777.13(b) ........................................................
§ 779.24(a)(7) ...................................................
§ 780.12 .............................................................
§ 780.13 .............................................................
§ 780.14 .............................................................
§ 780.15 .............................................................
§ 780.16(a) .........................................................
§ 780.16(b) .........................................................
§ 780.16(c) .........................................................
§ 780.18 [in general] ..........................................
§ 780.18(b)(1) ....................................................
§ 780.18(b)(2) ....................................................
§ 780.18(b)(3) ....................................................
§ 780.18(b)(4) ....................................................
§ 780.18(b)(5) ....................................................
§ 780.18(b)(6) ....................................................
§ 780.18(b)(7) ....................................................
§ 780.18(b)(8) ....................................................
§ 780.18(b)(9) ....................................................
§ 780.21(a) .........................................................
§ 780.21(b)(1) [location and ownership information in first sentence].
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...................................................
...................................................
...................................................
817.40 .......................................
§ 773.7(b)(1) .....................................................
§ 773.7(c) ..........................................................
§ 773.15(m) .......................................................
§ 777.13(a)(1) ...................................................
§ 777.13(a)(2) ...................................................
None .................................................................
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Yes, editorial.
Yes.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
No.
Yes.
Yes, editorial.
Proposed for removal; redundant of remainder
of part 779.
Proposed for removal; redundant of proposed
§ 779.24(a)(3).
Yes, editorial.
Yes.
Yes.
No, except for editorial changes in (a)(17).
No.
Yes.
Yes.
Yes.
No.
Yes, editorial.
Yes.
Yes, editorial.
No.
Yes.
Yes.
Yes, editorial.
Yes.
Yes.
Proposed for removal as obsolete.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Yes, editorial.
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Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
Proposed redesignation
§ 780.21(b)(1) [except location and ownership
information in first sentence].
§ 780.21(b)(2) [first part of first sentence
through ‘‘impoundments’’].
§ 780.21(b)(2) [the part of the first sentence
that pertains to discharges].
§ 780.21(b)(2) [except the part of the first sentence that precedes ‘‘and information on
. . .’’].
§ 780.21(b)(3) ....................................................
§ 780.21(c) .........................................................
§ 780.21(d) .........................................................
§ 780.21(e) .........................................................
§ 780.21(f)(1) through (f)(3) ...............................
§ 780.21(f)(4) .....................................................
§ 780.21(g) .........................................................
§ 780.21(h) .........................................................
§ 780.21(i) ..........................................................
§ 780.21(j) ..........................................................
§ 780.22(a) .........................................................
§ 780.22(b) .........................................................
§ 780.22(c) .........................................................
§ 780.22(d) .........................................................
§ 780.23(a) .........................................................
§ 780.23(b) [except (b)(3)] .................................
§ 780.23(b)(3) ....................................................
§ 780.29 .............................................................
§ 780.35(a) .........................................................
§ 780.35(b) .........................................................
§ 780.35(c) .........................................................
§ 783.11 .............................................................
§ 780.19(b) ........................................................
Yes.
§ 779.24(a)(9) ...................................................
Yes, editorial.
§ 779.24(a)(12) .................................................
Yes, editorial.
§ 780.19(c) ........................................................
Yes.
§ 780.20(b) ........................................................
§ 780.19(g) ........................................................
§ 777.13(d) ........................................................
§ 780.22(b)(1) ...................................................
§ 780.20(a) ........................................................
§ 780.20(c)(1) ...................................................
§ 780.21 ............................................................
§ 780.22(a) ........................................................
§ 780.23(a) ........................................................
§ 780.23(b) ........................................................
§ 780.19(a)(1) ...................................................
§ 780.19(f)(1) through (3) .................................
§ 780.19(f)(4) ....................................................
§ 780.19(f)(5) ....................................................
§ 779.22 ............................................................
§ 780.24(a) ........................................................
§ 780.12(m) .......................................................
§ 780.29(c) ........................................................
§ 780.35(f) and (h) ............................................
§ 780.35(g) ........................................................
§ 780.35(i) .........................................................
None .................................................................
§ 783.12(a) .........................................................
None .................................................................
§ 783.12(b) .........................................................
§ 783.24(a) through (f) .......................................
§ 783.24(g) .........................................................
§ 783.24(h) through (k) ......................................
§ 783.24(l) ..........................................................
§ 783.25(a)(1) ....................................................
§ 783.25(a)(2) ....................................................
§ 783.25(a)(3), [Suspended August 4, 1980] ....
§ 783.17 ............................................................
§ 783.24(a)(1) through (a)(6) ............................
§ 783.24(a)(10) .................................................
§ 783.24(a)(14) through (a)(17) ........................
§ 783.24(a)(28) .................................................
§ 783.24(a)(18) .................................................
§ 783.24(a)(20) .................................................
§ 783.24(a)(21) .................................................
§ 783.25(a)(4)
§ 783.25(a)(5)
§ 783.25(a)(6)
§ 783.25(a)(7)
§ 783.25(a)(8),
§ 783.25(a)(9),
....................................................
....................................................
....................................................
....................................................
[Suspended August 4, 1980] ....
[Suspended August 4, 1980] ....
§ 783.24(a)(22) .................................................
§ 783.24(a)(23) and (a)(24) ..............................
§ 783.24(a)(19) .................................................
§ 783.24(a)(9) ...................................................
§ 783.24(a)(25) .................................................
§ 783.24(a)(26) .................................................
§ 783.25(a)(10) ..................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Existing rule
§ 783.24(a)(8) [water wells], § 783.24(a)(27)
[gas and oil wells].
§ 784.14 ............................................................
§ 784.12 [in general] .........................................
§ 784.12(b) ........................................................
§ 784.12(c) ........................................................
§ 784.12(d) ........................................................
§ 784.12(e) [in general] ....................................
§ 784.12(g) [in general] ....................................
§ 784.12(i) .........................................................
§ 784.12(j) .........................................................
§ 784.12(k) ........................................................
§ 784.12(l) .........................................................
§ 777.13(b) ........................................................
§ 783.24(a)(7) ...................................................
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Proposed for removal; redundant of remainder
of part 783.
Proposed for removal; redundant of proposed
§ 783.24(a)(3).
Yes, editorial.
Yes.
Yes.
No, except for editorial changes in (a)(17).
No.
Yes.
Yes.
Yes. We are re-proposing part of this rule and
proposing to remove the remainder.
Yes.
Yes.
Yes.
Yes, editorial.
Yes, editorial. We are re-proposing this rule.
Yes. We are re-proposing part of this rule and
proposing to remove the remainder.
Yes.
§ 784.12 .............................................................
§ 784.13 [in general] ..........................................
§ 784.13(b)(1) ....................................................
§ 784.13(b)(2) ....................................................
§ 784.13(b)(3) ....................................................
§ 784.13(b)(4) ....................................................
§ 784.13(b)(5) ....................................................
§ 784.13(b)(6) ....................................................
§ 784.13(b)(7) ....................................................
§ 784.13(b)(8) ....................................................
§ 784.13(b)(9) ....................................................
§ 784.14(a) .........................................................
§ 784.14(b)(1) [location and ownership information in first sentence].
§ 784.14(b)(1) [except location and ownership
information in first sentence].
§ 784.14(b)(2) [the part of the first sentence
that precedes ‘‘impoundments’’].
§ 784.14(b)(2) [the part of the first sentence
that pertains to discharges].
VerDate Sep<11>2014
19:15 Jul 24, 2015
Jkt 235001
Existing text revised in proposed rule?
Yes,
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes,
Yes.
Yes,
Yes,
Yes.
Yes,
editorial.
editorial.
editorial.
editorial.
editorial.
§ 784.19(b) ........................................................
Yes.
§ 783.24(a)(9) ...................................................
Yes, editorial.
§ 783.24(a)(12) .................................................
Yes, editorial.
PO 00000
Frm 00020
Fmt 4701
Sfmt 4702
E:\FR\FM\27JYP2.SGM
27JYP2
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
44455
Proposed redesignation
§ 784.14(b)(2) [except the part of the first sentence that precedes ‘‘and information on
. . .’’].
§ 784.14(b)(3) ....................................................
§ 784.14(c) .........................................................
§ 784.14(d) .........................................................
§ 784.14(e)(1) through (e)(3) .............................
§ 784.14(e)(4) ....................................................
§ 784.14(f) ..........................................................
§ 784.14(g) .........................................................
§ 784.14(h) .........................................................
§ 784.14(i) ..........................................................
§ 784.15(a) .........................................................
§ 784.15(b) [except (b)(3)] .................................
§ 784.15(b)(3) ....................................................
§ 784.17 .............................................................
§ 784.18 .............................................................
§ 784.19 .............................................................
§ 784.20 .............................................................
§ 784.21(a) .........................................................
§ 784.21(b) .........................................................
§ 784.21(c) .........................................................
§ 784.22(a) .........................................................
§ 784.22(b) .........................................................
§ 784.22(c) .........................................................
§ 784.22(d) .........................................................
§ 784.23 .............................................................
§ 784.24 .............................................................
§ 784.25 .............................................................
§ 784.26 .............................................................
§ 784.29 .............................................................
§ 784.30 .............................................................
§ 784.200(a) .......................................................
§ 785.14(b) .........................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Existing rule
§ 784.19(c) ........................................................
Yes.
Yes
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes,
No.
No.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes,
Yes,
Yes.
Yes.
Yes,
Yes.
Yes
Yes,
Yes.
Yes,
§ 785.14(c) [introductory text] ............................
§ 785.14(c)(1) [introductory text] ........................
§ 785.14(c)(1)(i) .................................................
§ 785.14(c)(1)(ii) .................................................
§ 785.14(c)(1)(iii)
[except
paragraph
(c)(1)(iii)(G)].
§ 785.14(c)(1)(iii)(G) ...........................................
§ 785.14(c)(1)(iv) ................................................
§ 785.14(c)(1)(v) ................................................
§ 785.14(c)(2) .....................................................
§ 785.14(c)(3) .....................................................
§ 785.14(c)(4) .....................................................
§ 785.14(c)(5) .....................................................
§ 785.14(d)(1) and (2) ........................................
§ 785.14(d)(3) ....................................................
§ 785.16(a) [introductory text] ............................
§ 785.16(a)(1) ....................................................
§ 785.16(a)(2) ....................................................
§ 785.16(a)(3) ....................................................
§ 785.16(a)(4) ....................................................
§ 785.16(b)(1) ....................................................
§ 785.16(b)(2) ....................................................
§ 785.16(c) and (d) ............................................
§ 785.16(e) .........................................................
§ 785.16(f) ..........................................................
§ 785.25(b) [first sentence] ................................
§ 785.25(b) [except first sentence] ....................
§ 800.11(e) .........................................................
§ 800.11(a) through (d) ......................................
§ 800.15(c) [first sentence] ................................
§ 800.16(e)(2) ....................................................
§ 800.17 .............................................................
§ 784.20(b) ........................................................
§ 784.19(g) ........................................................
§ 777.13(d) ........................................................
§ 784.20(a) ........................................................
§ 784.20(c)(1) ...................................................
§ 784.21 ............................................................
§ 784.22(a) ........................................................
§ 784.23(a) ........................................................
§ 784.23(b) ........................................................
§ 783.22 ............................................................
§ 784.24(a) ........................................................
§ 784.12(m) .......................................................
§ 784.31 ............................................................
§ 784.33 ............................................................
§ 784.35 ............................................................
§ 784.30 ............................................................
§ 783.20(a) and (b) ...........................................
§ 784.16(a) through (d) .....................................
§ 783.20(d), § 784.16(e) ...................................
§ 784.19(a)(1) ...................................................
§ 784.19(f)(1) through (4) .................................
§ 784.19(f)(5) ....................................................
§ 784.19(f)(6) ....................................................
§ 784.13 ............................................................
§ 784.37 ............................................................
§ 784.26 ............................................................
§ 784.12(f) .........................................................
§ 784.29(c) ........................................................
§ 784.38 ............................................................
§ 784.24(c) ........................................................
§ 701.5 [definition of ‘‘mountaintop removal
mining’’].
§ 785.14(b) [introductory text] ...........................
§ 785.14(b)(1) ...................................................
§ 785.14(b)(2) ...................................................
§ 785.14(b)(3) ...................................................
§ 785.14(b)(4) ...................................................
§ 785.14(b)(5) ...................................................
§ 785.14(b)(6) ...................................................
§ 785.14(b)(7) ...................................................
§ 785.14(b)(8) ...................................................
None .................................................................
§ 785.14(b)(12) .................................................
§ 785.14(c) ........................................................
§ 785.14(d)(1) ...................................................
§ 785.14(d)(2) ...................................................
§ 785.16(a) (introductory text) ..........................
§ 785.16(a)(1) ...................................................
§ 785.16(a)(2) ...................................................
§ 785.16(a)(9) ...................................................
§ 785.16(a)(10) .................................................
None .................................................................
§ 785.16(b)(1) ...................................................
§ 785.16(b)(2) ...................................................
§ 785.16(b)(3) ...................................................
§ 785.16(b)(4) ...................................................
§ 785.25(b)(1) ...................................................
§ 785.16(b)(2) ...................................................
§ 800.9 ..............................................................
§ 800.11 ............................................................
§ 800.15(a)(2)(ii) ...............................................
§ 800.30(b) ........................................................
None .................................................................
§ 800.30(a) .........................................................
§ 800.30(b) .........................................................
§ 800.40(a) .........................................................
§ 800.30(a)(1) ...................................................
§ 800.30(a)(3) ...................................................
§ 800.40 ............................................................
§ 800.40(b)(1) ....................................................
§ 800.41 ............................................................
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Proposed for removal as unnecessary.
Yes, editorial.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Proposed for removal as unnecessary.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Proposed for removal; redundant of remainder
of part 800.
Yes.
Yes.
Yes, editorial, except for (b)(2)(vi), which has
substantive changes.
Yes, editorial, except for (a)(2), which has
substantive changes.
VerDate Sep<11>2014
19:15 Jul 24, 2015
Jkt 235001
PO 00000
Frm 00021
Fmt 4701
Sfmt 4702
Existing text revised in proposed rule?
Yes,
Yes,
Yes,
Yes,
Yes,
E:\FR\FM\27JYP2.SGM
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
27JYP2
44456
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
Proposed redesignation
Existing text revised in proposed rule?
§ 800.40(b)(2) ....................................................
§ 800.40(c) .........................................................
§ 800.40(d) .........................................................
§ 800.40(e) .........................................................
§ 800.40(f) through (h) .......................................
§ 816.13 .............................................................
§ 816.14 .............................................................
§ 816.15 .............................................................
§ 816.22(a)(1) through (4) .................................
§ 816.22(b) .........................................................
§ 816.22(c) .........................................................
§ 816.22(d)(1) ....................................................
§ 816.22(d)(2) ....................................................
§ 816.22(d)(3) ....................................................
§ 816.22(d)(4) ....................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Existing rule
§ 800.43(a) ........................................................
§ 800.42 ............................................................
§ 800.43(b) ........................................................
§ 800.43(c) ........................................................
§ 800.44(a) through (c) .....................................
§ 816.13(a), (c), (d), and (f) ..............................
§ 816.13(b) ........................................................
§ 816.13(e) ........................................................
§ 816.22(a)(1) and (2) ......................................
§ 780.12(e)(2), § 816.22(c) ...............................
§ 816.22(b) ........................................................
§ 816.22(e)(1) ...................................................
§ 816.22(d)(2) ...................................................
§ 816.22(e)(3) ...................................................
None .................................................................
§ 816.22(e) .........................................................
§ 816.41(a), (b), and (d) ....................................
§ 816.41(c) .........................................................
§ 816.41(e) .........................................................
§ 816.41(f) ..........................................................
§ 816.41(g) .........................................................
§ 816.41(h) .........................................................
§ 816.41(i) ..........................................................
§ 816.42 .............................................................
§ 816.43(a)(3) [last sentence], § 816.43(b) ........
§ 816.43(c)(3) .....................................................
§ 816.46(b)(2), [Suspended December 22,
1986].
§ 816.46(c)(1)(i) .................................................
§ 816.46(c)(1)(ii) and (iii) ...................................
§ 816.57(a) [first sentence] ................................
§ 816.57(a) [except first sentence] ....................
§ 816.57(b) .........................................................
§ 816.71(b)(1) ....................................................
§ 816.71(b)(2) ....................................................
§ 816.71(c) .........................................................
§ 816.71(d)(1) ....................................................
§ 816.71(d)(2) [first sentence] ............................
§ 816.71(d)(2) [second sentence] ......................
§ 816.71(e)(1) ....................................................
§ 816.71(e)(2) ....................................................
§ 816.71(e)(3) ....................................................
§ 816.71(e)(4) ....................................................
§ 816.71(e)(5) ....................................................
§ 816.71(g) .........................................................
§ 816.71(h) .........................................................
§ 816.71(i) ..........................................................
§ 816.71(j) ..........................................................
§ 816.72(a)(1) ....................................................
§ 816.72(a)(2) ....................................................
§ 816.72 [except paragraph (a)] ........................
§ 816.73 .............................................................
§ 816.74(c) [first sentence] ................................
§ 816.74(c) [second sentence] ..........................
§ 816.74(c) [third sentence] ...............................
§ 816.74(c) [fourth sentence] .............................
§ 816.74(d) [except (d)(4)] .................................
§ 816.74(d)(4) ....................................................
§ 816.74(e) .........................................................
§ 816.74(f) ..........................................................
§ 816.74(g) .........................................................
§ 816.74(h) .........................................................
§ 816.81(a) [first sentence] ................................
§ 816.81(a) [except first sentence] ....................
§ 816.81(b) .........................................................
§ 816.81(c) .........................................................
§ 816.81(d) .........................................................
§ 816.81(e) .........................................................
§ 816.81(f) ..........................................................
§ 816.83 [introductory text] ................................
§ 816.83(a) .........................................................
§ 816.83(b) .........................................................
§ 816.83(c) .........................................................
§ 780.12(e)(1)(ii) ...............................................
§ 816.34(a) through (c) .....................................
§ 816.35 ............................................................
§ 816.36 ............................................................
§ 816.38 ............................................................
§ 816.39 ............................................................
§ 816.40 ............................................................
§ 816.41 ............................................................
§ 816.42(a) ........................................................
§ 780.28(c), § 816.57(b) ....................................
Merged into § 816.43(a)(5)(ii) ...........................
None .................................................................
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Proposed for removal; covered by proposed
§ 780.12(g)(1)(iii).
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Proposed for removal.
None .................................................................
§ 816.46(c)(1)(i) and (ii) ....................................
§ 816.57(a)(1) ...................................................
§ 780.28(e)(2) ...................................................
Merged into § 816.11(e) ...................................
§ 780.35(f) and (j) .............................................
§ 816.71(b)(1) ...................................................
§ 780.35(e)(2) and (3) ......................................
§ 780.35(g)(1) and (4) ......................................
§ 816.71(b)(2) ...................................................
Merged into § 780.35(i) ....................................
§ 816.71(d) ........................................................
§ 816.71(g)(1) ...................................................
§ 816.71(h) ........................................................
§ 816.71(i) .........................................................
§ 816.71(g)(3) ...................................................
§ 816.71(j) .........................................................
§ 816.71(k) ........................................................
§ 816.71(l) .........................................................
§ 816.71(m) .......................................................
§ 816.71(e)(2) ...................................................
§ 816.71(e)(1) ...................................................
None .................................................................
None .................................................................
§ 816.74(c)(1) ...................................................
§ 816.74(c)(2) ...................................................
§ 816.74(d)(1) ...................................................
§ 816.74(d)(2) ...................................................
§ 816.74(e) ........................................................
§ 816.74(c)(3) ...................................................
§ 816.74(f) .........................................................
§ 816.74(g) ........................................................
§ 816.74(h) ........................................................
None .................................................................
§ 816.81(a) ........................................................
§ 816.81(b) ........................................................
§ 816.81(c) ........................................................
§ 816.81(d) ........................................................
§ 816.81(e) ........................................................
§ 816.81(g) ........................................................
§ 816.81(h) ........................................................
§ 816.83(a) ........................................................
§ 816.83(b) ........................................................
§ 816.83(c) ........................................................
§ 816.83(d) ........................................................
Proposed for removal as unnecessary.
Yes.
Yes.
Yes
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Proposed for removal.
Proposed for removal.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Proposed for removal.
Yes, editorial.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes, editorial.
Yes.
VerDate Sep<11>2014
19:15 Jul 24, 2015
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Sfmt 4702
E:\FR\FM\27JYP2.SGM
27JYP2
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
44457
Proposed redesignation
Existing text revised in proposed rule?
§ 816.83(d) .........................................................
§ 816.84 [introductory text] ................................
§ 816.84(a) .........................................................
§ 816.84(b) .........................................................
§ 816.84(c) .........................................................
§ 816.84(d) .........................................................
§ 816.84(e) .........................................................
§ 816.97(d) .........................................................
§ 816.97(e) .........................................................
§ 816.97(f) ..........................................................
§ 816.97(g) .........................................................
§ 816.97(h) .........................................................
§ 816.101 [Suspended August 31, 1992] ..........
§ 816.102(a)(2) ..................................................
§ 816.102(a)(3) ..................................................
§ 816.102(a)(4) ..................................................
§ 816.102(a)(5) ..................................................
§ 816.102(b) .......................................................
§ 816.102(d) .......................................................
§ 816.102(f) ........................................................
§ 816.102(g) .......................................................
§ 816.102(h) .......................................................
§ 816.102(i) ........................................................
§ 816.102(j) ........................................................
§ 816.102(k)(1) ...................................................
§ 816.102(k)(2) ...................................................
§ 816.102(k)(3)(i) ...............................................
§ 816.102(k)(3)(ii) ...............................................
§ 816.102(k)(3)(iii) ..............................................
§ 816.111(a) [except (a)(2) and (a)(4)] ..............
§ 816.111(a)(2) ..................................................
§ 816.111(a)(4) ..................................................
§ 816.111(b)(1) ..................................................
§ 816.111(b)(2) ..................................................
§ 816.111(b)(3) ..................................................
§ 816.111(b)(4) ..................................................
§ 816.111(b)(5) ..................................................
§ 816.111(c) .......................................................
§ 816.111(d) .......................................................
§ 816.113 ...........................................................
§ 816.114 ...........................................................
§ 816.116(a) [introductory text] ..........................
§ 816.116(a)(1) ..................................................
§ 816.116(a)(2) [first sentence] ..........................
§ 816.116(a)(2) [second sentence] ....................
§ 816.116(b) [introductory text], (b)(1), (b)(2),
and introductory text of (b)(3).
§ 816.116(b)(3)(i) ...............................................
§ 816.116(b)(3)(ii) ..............................................
§ 816.116(b)(3)(iii) ..............................................
§ 816.116(b)(4) ..................................................
§ 816.116(b)(5) ..................................................
§ 816.116(c) .......................................................
§ 816.133(a) [introductory text] ..........................
§ 816.133(a)(1) ..................................................
§ 816.133(a)(2) ..................................................
§ 816.133(b) [first sentence] ..............................
§ 816.133(b) [last sentence] ..............................
§ 816.133(c) .......................................................
§ 816.133(d)(1) ..................................................
§ 816.83(e) ........................................................
§ 816.84(a) ........................................................
§ 816.84(b) ........................................................
§ 816.84(c) ........................................................
§ 816.84(d) ........................................................
§ 816.84(e) ........................................................
§ 780.25(d)(3)(iv) ..............................................
§ 816.97(b)(5) and (c)(4) ..................................
§ 816.97(d) ........................................................
§ 816.97(e) ........................................................
§ 816.97(f) .........................................................
§ 816.97(g) ........................................................
None .................................................................
§ 816.102(a)(3) [introductory text] ....................
§ 816.102(a)(4) .................................................
§ 816.102(a)(5) .................................................
§ 816.102(a)(6) .................................................
§ 816.102(b) [introductory text] and (b)(1) .......
§ 816.102(b)(3) .................................................
§ 816.102(d) ......................................................
§ 816.102(a)(2) .................................................
§ 816.102(a)(3)(i) ..............................................
§ 816.102(a)(3)(ii) .............................................
§ 816.102(f) .......................................................
§ 816.102(a)(1)(iii) ............................................
§ 816.102(a)(1)(iv) ............................................
§ 816.102(a)(1)(i) ..............................................
§ 816.102(a)(1)(ii) .............................................
§ 816.102(a)(1)(v) .............................................
§ 816.111(a) and (b) .........................................
§ 780.12(g)(3)(i) ................................................
§ 780.12(g)(3)(ii) ...............................................
§ 780.12(g)(3)(iii) ..............................................
§ 780.12(g)(3)(iv) ..............................................
§ 780.12(g)(3)(v) ...............................................
§ 780.12(g)(3)(vi) ..............................................
§ 780.12(g)(3)(vii) .............................................
§ 780.12(g)(4) ...................................................
§ 780.12(g)(5) ...................................................
§ 816.111(e) ......................................................
§ 816.111(d) ......................................................
§ 816.116(b) ......................................................
§ 816.116(a) ......................................................
§ 816.116(c) ......................................................
§ 816.116(d) ......................................................
None .................................................................
§ 816.133(d)(2) ..................................................
§ 816.133(d)(3) ..................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Existing rule
§ 785.16(a)(2) ...................................................
None .................................................................
§ 816.133(d)(4) ..................................................
§ 816.133(d)(5) ..................................................
§ 816.133(d)(6) ..................................................
§ 816.133(d)(7) ..................................................
§ 816.133(d)(8) ..................................................
§ 816.133(d)(9) ..................................................
§ 816.133(d)(10) ................................................
§ 816.200 ...........................................................
§ 817.13 .............................................................
§ 817.14(a) .........................................................
§ 785.16(a)(3) ...................................................
§ 785.16(a)(5) ...................................................
§ 785.16(a)(9) ...................................................
§ 785.16(a)(6) ...................................................
§ 785.16(a)(7) ...................................................
§ 785.16(a)(10) .................................................
§ 785.16(a)(4) ...................................................
None .................................................................
§ 817.13(a), (d), (e), and (g) .............................
§ 817.13(b) ........................................................
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
Proposed for removal.
Yes.
No.
Yes.
No.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
No.
Yes.
Yes, editorial.
No.
Yes, editorial.
Yes.
Yes, editorial.
Yes.
Yes.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Proposed for removal; superseded by remainder of proposed § 816.116.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Proposed
for
removal;
redundant
of
§ 785.16(a).
Yes, editorial.
Proposed for removal as unnecessary and duplicative.
Yes, editorial.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Proposed for removal as obsolete.
Yes, editorial.
Yes, editorial.
VerDate Sep<11>2014
19:15 Jul 24, 2015
Jkt 235001
§ 816.116(e) ......................................................
§ 816.116(f)(1) and (f)(2) ..................................
§ 816.116(f)(3) ..................................................
§ 816.116(g) ......................................................
§ 816.116(h) ......................................................
§ 816.115 ..........................................................
§ 816.133 [introductory text] .............................
§ 816.133(a) ......................................................
§ 816.133(b) ......................................................
§ 780.24(b) ........................................................
§ 780.24(e) ........................................................
§ 780.24(b) ........................................................
None .................................................................
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Frm 00023
Fmt 4701
Sfmt 4702
E:\FR\FM\27JYP2.SGM
27JYP2
44458
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
Proposed redesignation
Existing text revised in proposed rule?
§ 817.14(b) .........................................................
§ 817.15 .............................................................
§ 817.22(a)(1) through (4) .................................
§ 817.22(b) .........................................................
§ 817.22(c) .........................................................
§ 817.22(d)(1) ....................................................
§ 817.22(d)(2) ....................................................
§ 817.22(d)(3) ....................................................
§ 817.22(d)(4) ....................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Existing rule
§ 817.13(c) ........................................................
§ 817.13(f) .........................................................
§ 817.22(a)(1) and (2) ......................................
§ 784.12(e)(2), § 817.22(c) ...............................
§ 817.22(b) ........................................................
§ 817.22(e)(1) ...................................................
§ 817.22(d)(2) ...................................................
§ 817.22(e)(3) ...................................................
None .................................................................
§ 817.22(e) .........................................................
§ 817.41(a), (b), and (d) ....................................
§ 817.41(c) .........................................................
§ 817.41(e) .........................................................
§ 817.41(f) ..........................................................
§ 817.41(g) .........................................................
§ 817.41(j) ..........................................................
§ 817.41(h) .........................................................
§ 817.41(i) ..........................................................
§ 817.42 .............................................................
§ 817.43(a)(3) [last sentence], § 817.43(b) ........
§ 817.43(c)(3) .....................................................
§ 817.46(b)(2) [Suspended December 22,
1986].
§ 817.46(c)(1)(i) .................................................
§ 817.46(c)(1)(ii) and (iii) ...................................
§ 817.57(a) [first sentence] ................................
§ 817.57(a) [except first sentence] ....................
§ 817.57(b) .........................................................
§ 817.71(b)(1) ....................................................
§ 817.71(b)(2) ....................................................
§ 817.71(c) .........................................................
§ 817.71(d)(1) ....................................................
§ 817.71(d)(2) [first sentence] ............................
§ 817.71(d)(2) [second sentence] ......................
§ 817.71(e)(1) ....................................................
§ 817.71(e)(2) ....................................................
§ 817.71(e)(3) ....................................................
§ 817.71(e)(4) ....................................................
§ 817.71(e)(5) ....................................................
§ 817.71(g) .........................................................
§ 817.71(h) .........................................................
§ 817.71(i) ..........................................................
§ 817.71(j) ..........................................................
§ 817.72(a)(1) ....................................................
§ 817.72(a)(2) ....................................................
§ 817.72 [except paragraph (a)] ........................
§ 817.73 .............................................................
§ 817.74(c) [first sentence] ................................
§ 817.74(c) [second sentence] ..........................
§ 817.74(c) [third sentence] ...............................
§ 817.74(c) [fourth sentence] .............................
§ 817.74(d) [except (d)(4)] .................................
§ 817.74(d)(4) ....................................................
§ 817.74(e) .........................................................
§ 817.74(f) ..........................................................
§ 817.74(g) .........................................................
§ 817.74(h) .........................................................
§ 817.81(a) [first sentence] ................................
§ 817.81(a) [except first sentence] ....................
§ 817.81(b) .........................................................
§ 817.81(c) .........................................................
§ 817.81(d) .........................................................
§ 817.81(e) .........................................................
§ 817.81(f) ..........................................................
§ 817.83 [introductory text] ................................
§ 817.83(a) .........................................................
§ 817.83(b) .........................................................
§ 817.83(c) .........................................................
§ 817.83(d) .........................................................
§ 817.84 [introductory text] ................................
§ 817.84(a) .........................................................
§ 817.84(b) .........................................................
§ 817.84(c) .........................................................
§ 784.12(e)(1)(ii) ...............................................
§ 817.34(a) through (c) .....................................
§ 817.35 ............................................................
§ 817.36 ............................................................
§ 817.38 ............................................................
§ 817.39 ............................................................
§ 817.40 ............................................................
§ 817.41 ............................................................
§ 817.44 ............................................................
§ 817.42(a) ........................................................
§ 784.28(c), § 817.57(b) ....................................
Merged into § 817.43(a)(5)(ii) ...........................
None .................................................................
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Proposed for removal; covered by proposed
§ 784.12(g)(1)(iii).
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes.
Yes.
Yes.
Proposed for removal.
None .................................................................
§ 817.46(c)(1)(i) and (ii) ....................................
§ 817.57(a)(1) ...................................................
§ 784.28(e)(2) ...................................................
Merged into § 817.11(e) ...................................
§ 784.35(f) and (j) .............................................
§ 817.71(b)(1) ...................................................
§ 784.35(e)(2) and (3) ......................................
§ 784.35(g)(1) and (4) ......................................
§ 817.71(b)(2) ...................................................
Merged into § 784.35(i) ....................................
§ 817.71(d) ........................................................
§ 817.71(g)(1) ...................................................
§ 817.71(h) ........................................................
§ 817.71(i) .........................................................
§ 817.71(g)(3) ...................................................
§ 817.71(j) .........................................................
§ 817.71(k) ........................................................
§ 817.71(l) .........................................................
§ 817.71(m) .......................................................
§ 817.71(e)(2) ...................................................
§ 817.71(e)(1) ...................................................
None .................................................................
None .................................................................
§ 817.74(c)(1) ...................................................
§ 817.74(c)(2) ...................................................
§ 817.74(d)(1) ...................................................
§ 817.74(d)(2) ...................................................
§ 817.74(e) ........................................................
§ 817.74(c)(3) ...................................................
§ 817.74(f) .........................................................
§ 817.74(g) ........................................................
§ 817.74(h) ........................................................
None .................................................................
§ 817.81(a) ........................................................
§ 817.81(b) ........................................................
§ 817.81(c) ........................................................
§ 817.81(d) ........................................................
§ 817.81(e) ........................................................
§ 817.81(g) ........................................................
§ 817.81(h) ........................................................
§ 817.83(a) ........................................................
§ 817.83(b) ........................................................
§ 817.83(c) ........................................................
§ 817.83(d) ........................................................
§ 817.83(e) ........................................................
§ 817.84(a) ........................................................
§ 817.84(b) ........................................................
§ 817.84(c) ........................................................
§ 817.84(d) ........................................................
Proposed for removal as unnecessary.
Yes.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Proposed for removal.
Proposed for removal.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Proposed for removal.
Yes, editorial.
Yes.
Yes, editorial.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
VerDate Sep<11>2014
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E:\FR\FM\27JYP2.SGM
27JYP2
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
44459
Proposed redesignation
Existing text revised in proposed rule?
§ 817.84(d) .........................................................
§ 817.84(e) .........................................................
§ 817.97(d) .........................................................
§ 817.97(e) .........................................................
§ 817.97(f) ..........................................................
§ 817.97(g) .........................................................
§ 817.97(h) .........................................................
§ 817.102(a)(2) ..................................................
§ 817.102(a)(3) ..................................................
§ 817.102(a)(4) ..................................................
§ 817.102(a)(5) ..................................................
§ 817.102(b) .......................................................
§ 817.102(d) .......................................................
§ 817.102(f) ........................................................
§ 817.102(g) .......................................................
§ 817.102(h) .......................................................
§ 817.102(i) ........................................................
§ 817.102(j) ........................................................
§ 817.102(k)(1) ...................................................
§ 817.102(k)(2) ...................................................
§ 817.102(l) ........................................................
§ 817.111(a) [except (a)(2) and (a)(4)] ..............
§ 817.111(a)(2) ..................................................
§ 817.111(a)(4) ..................................................
§ 817.111(b)(1) ..................................................
§ 817.111(b)(2) ..................................................
§ 817.111(b)(3) ..................................................
§ 817.111(b)(4) ..................................................
§ 817.111(b)(5) ..................................................
§ 817.111(c) .......................................................
§ 817.111(d) .......................................................
§ 817.113 ...........................................................
§ 817.114 ...........................................................
§ 817.116(a) [introductory text] ..........................
§ 817.116(a)(1) ..................................................
§ 817.116(a)(2) [first sentence] ..........................
§ 817.116(a)(2) [second sentence] ....................
§ 817.116(b) [introductory text], (b)(1), (b)(2),
and introductory text of (b)(3).
§ 817.116(b)(3)(i) ...............................................
§ 817.116(b)(3)(ii) ..............................................
§ 817.116(b)(3)(iii) ..............................................
§ 817.116(b)(4) ..................................................
§ 817.116(b)(5) ..................................................
§ 817.116(c) .......................................................
§ 817.121(c)(1) ...................................................
§ 817.121(c)(2) ...................................................
§ 817.121(c)(3) ...................................................
§ 817.121(c)(4)(i) through (c)(4)(iv) [Suspended
December 22, 1999].
§ 817.121(c)(4)(v) ..............................................
§ 817.121(c)(5) ...................................................
§ 817.121(d) .......................................................
§ 817.121(e) .......................................................
§ 817.121(f) ........................................................
§ 817.121(g) .......................................................
§ 817.133(a) [introductory text] ..........................
§ 817.133(a)(1) ..................................................
§ 817.133(a)(2) ..................................................
§ 817.133(b) [first sentence] ..............................
§ 817.133(b) [last sentence] ..............................
§ 817.133(c) .......................................................
§ 817.133(d)(1) ..................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Existing rule
§ 817.84(e) ........................................................
§ 784.25(d)(3)(iv) ..............................................
§ 817.97(b)(5) and (c)(4) ..................................
§ 817.97(d) ........................................................
§ 817.97(e) ........................................................
§ 817.97(f) .........................................................
§ 817.97(g) ........................................................
§ 817.102(a)(3) [introductory text] ....................
§ 817.102(a)(4) .................................................
§ 817.102(a)(5) .................................................
§ 817.102(a)(6) .................................................
§ 817.102(b) [introductory text] and (b)(1) .......
§ 817.102(b)(2) .................................................
§ 817.102(d) ......................................................
§ 817.102(a)(2) .................................................
§ 817.102(a)(3)(i) ..............................................
§ 817.102(a)(3)(ii) .............................................
§ 817.102(f) .......................................................
§ 817.102(a)(1)(i) ..............................................
§ 817.102(a)(1)(ii) .............................................
§ 817.102(a)(1)(vii) ...........................................
§ 817.111(a) and (b) .........................................
§ 784.12(g)(3)(i) ................................................
§ 784.12(g)(3)(ii) ...............................................
§ 784.12(g)(3)(iii) ..............................................
§ 784.12(g)(3)(iv) ..............................................
§ 784.12(g)(3)(v) ...............................................
§ 784.12(g)(3)(vi) ..............................................
§ 784.12(g)(3)(vii) .............................................
§ 784.12(g)(4) ...................................................
§ 784.12(g)(5) ...................................................
§ 817.111(e) ......................................................
§ 817.111(d) ......................................................
§ 817.116(b) ......................................................
§ 817.116(a) ......................................................
§ 817.116(c) ......................................................
§ 817.116(d) ......................................................
None .................................................................
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
Yes.
No.
Yes.
No.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
No.
Yes.
Yes, editorial.
No.
Yes, editorial.
Yes.
Yes, editorial.
Yes.
Yes.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Proposed for removal; superseded by remainder of proposed § 817.116.
Yes.
Yes.
Yes.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Proposed for removal.
§ 817.116(e) ......................................................
§ 817.116(f)(1) and (f)(2) ..................................
§ 817.116(f)(3) ..................................................
§ 817.116(g) ......................................................
§ 817.116(h) ......................................................
§ 817.115 ..........................................................
§ 817.121(c) ......................................................
§ 817.121(d) ......................................................
§ 817.121(e) ......................................................
None .................................................................
§ 817.121(f) .......................................................
§ 817.121(g) ......................................................
§ 817.121(h) ......................................................
§ 817.121(i) .......................................................
§ 817.121(j) .......................................................
§ 817.121(k) ......................................................
§ 817.133 [introductory text] .............................
§ 817.133(a) ......................................................
§ 817.133(b) ......................................................
§ 784.24(b) ........................................................
§ 784.24(e) ........................................................
§ 784.24(b) ........................................................
None .................................................................
§ 817.133(d)(2) ..................................................
§ 817.133(d)(3) ..................................................
§ 785.16(a)(2) ...................................................
None .................................................................
§ 817.133(d)(4) ..................................................
§ 817.133(d)(5) ..................................................
§ 817.133(d)(6) ..................................................
§ 817.133(d)(7) ..................................................
§ 817.133(d)(8) ..................................................
§ 817.133(d)(9) ..................................................
§ 817.133(d)(10) ................................................
§ 785.16(a)(3) ...................................................
§ 785.16(a)(5) ...................................................
§ 785.16(a)(9) ...................................................
§ 785.16(a)(6) ...................................................
§ 785.16(a)(7) ...................................................
§ 785.16(a)(10) .................................................
§ 785.16(a)(4) ...................................................
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Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Proposed
for
removal;
redundant
of
§ 785.16(a).
Yes, editorial.
Proposed for removal as unnecessary and duplicative.
Yes, editorial.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
E:\FR\FM\27JYP2.SGM
27JYP2
44460
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
Existing rule
Proposed redesignation
Existing text revised in proposed rule?
§ 817.200 [except paragraph (d)(1)] ..................
§ 817.200(d)(1) ..................................................
§ 824.11(a) [introductory text] and (a)(1) ...........
§ 824.11(a)(2) and (a)(3) ...................................
§ 824.11(a)(4) ....................................................
None .................................................................
§ 784.24(c) ........................................................
§ 824.11(a) ........................................................
§ 701.5 [definition of ‘‘mountaintop removal
mining’’].
None .................................................................
§ 824.11(a)(5) ....................................................
§ 824.11(a)(6) ....................................................
§ 824.11(a)(7) ....................................................
§ 824.11(a)(8) ....................................................
§ 824.11(a)(9) ....................................................
§ 824.11(a)(10) ..................................................
§ 824.11(b)(1) ...................................................
§ 824.11(b)(2) ...................................................
§ 824.11(b)(3) ...................................................
§ 824.11(b)(4) ...................................................
§ 785.14(b)(9) ...................................................
None .................................................................
§ 824.11(a)(11) ..................................................
§ 827.12(a) through (l) .......................................
§ 824.11(b)(5) ...................................................
Merged with introductory text of § 827.12 ........
Proposed for removal; redundant of proposed
§ 785.14(b)(3).
Yes.
Yes.
Yes, editorial.
Yes.
Yes.
Proposed for removal; redundant of proposed
paragraph (b)(1).
Yes.
Yes, editorial.
The following table is organized in
numerical order of the proposed rule
citations. It does not include those
provisions of the proposed rule for
which there is no counterpart in the
existing regulations. In addition, it
includes only those provisions of the
proposed rule for which we propose to
move the existing rule counterpart to a
different paragraph or section; i.e., those
provisions that we propose to
redesignate.
Proposed for removal as obsolete.
Yes.
Yes, editorial.
Yes, editorial.
Proposed rule
Existing rule counterpart
§ 700.11(d)(1) ....................................................
§ 700.11(d)(2) ....................................................
§ 700.11(d)(3) ....................................................
§ 701.5 [definition of ‘‘mountaintop removal
mining’’].
§ 773.7(b)(1) ......................................................
§ 773.7(c) ...........................................................
§ 773.15(m) ........................................................
§ 777.13(a)(1) ....................................................
§ 777.13(a)(2) ....................................................
§ 777.13(b) .........................................................
§ 777.13(d) .........................................................
§ 779.17 .............................................................
§ 779.20(a) through (c) ......................................
§ 779.20(d) .........................................................
§ 779.22 .............................................................
§ 779.24(a)(1) through (a)(6) .............................
§ 779.24(a)(7) ....................................................
§ 700.11(d)(1)(i) ................................................
§ 700.11(d)(1)(ii) ...............................................
§ 700.11(d)(2) ...................................................
§ 785.14(b), § 824.11(a)(2) and (a)(3) ..............
Yes, editorial.
Yes.
Yes.
Yes, editorial.
§ 773.7(a) [last sentence] .................................
§ 773.7(b) ..........................................................
§ 773.15(n) ........................................................
§ 777.13(a) ........................................................
§ 777.13(b) ........................................................
§§ 780.21(a) and 784.14(a) ..............................
§§ 780.21(d) and 784.14(d) ..............................
§ 779.12(b) ........................................................
§ 780.16(a) ........................................................
§ 780.16(c) ........................................................
§ 780.23(a) ........................................................
§ 779.24(a) through (f) ......................................
§ 780.21(b)(1) [location and ownership information in first sentence].
§ 780.21(b)(2) [first part of first sentence
through
‘‘impoundments’’]
and
§ 779.25(a)(7).
§ 779.24(g) ........................................................
§ 780.21(b)(2) [the part of the first sentence
that pertains to discharges].
§ 779.24(h) through (k) .....................................
§ 779.25(a)(1) ...................................................
§ 779.25(a)(6) ...................................................
§ 779.25(a)(2) ...................................................
§ 779.25(a)(3) ...................................................
§ 779.25(a)(4) ...................................................
§ 779.25(a)(5) ...................................................
§ 779.25(a)(8) ...................................................
§ 779.25(a)(9) ...................................................
§ 779.25(a)(10) .................................................
Yes,
Yes,
No.
Yes.
Yes,
Yes.
Yes.
Yes,
Yes.
Yes.
Yes.
Yes.
Yes,
§ 779.24(l) .........................................................
§ 780.18 [in general] .........................................
§ 780.18(b)(1) ...................................................
§ 780.18(b)(2) ...................................................
§ 780.18(b)(3) ...................................................
§ 780.18(b)(4) ...................................................
§ 816.22(e) ........................................................
§ 816.22(b) ........................................................
§ 780.18(b)(5) ...................................................
§ 816.111(a)(2) .................................................
§ 816.111(a)(4) .................................................
§ 816.111(b)(1) .................................................
No.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
No.
§ 779.24(a)(9) ....................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
§ 779.24(a)(10) ..................................................
§ 779.24(a)(12) ..................................................
§ 779.24(a)(14) through (a)(17) .........................
§ 779.24(a)(18) ..................................................
§ 779.24(a)(19) ..................................................
§ 779.24(a)(20) ..................................................
§ 779.24(a)(21) ..................................................
§ 779.24(a)(22) ..................................................
§ 779.24(a)(23) and (a)(24) ...............................
§ 779.24(a)(25) ..................................................
§ 779.24(a)(26) ..................................................
§ 779.24(a)(8) [water wells], § 779.24(a)(27)
[gas and oil wells].
§ 779.24(a)(28) ..................................................
§ 780.12 [in general] ..........................................
§ 780.12(b) .........................................................
§ 780.12(c) .........................................................
§ 780.12(d) .........................................................
§ 780.12(e) [in general] ......................................
§ 780.12(e)(1)(ii) ................................................
§ 780.12(e)(2) ....................................................
§ 780.12(g) [in general] ......................................
§ 780.12(g)(3)(i) .................................................
§ 780.12(g)(3)(ii) ................................................
§ 780.12(g)(3)(iii) ................................................
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editorial.
editorial.
editorial.
editorial.
editorial.
Yes, editorial.
Yes.
Yes, editorial.
No, except for editorial changes in (a)(17).
Yes.
Yes.
Yes.
Yes.
No.
Yes, editorial.
No.
Yes.
Yes.
E:\FR\FM\27JYP2.SGM
27JYP2
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
Proposed rule
Existing rule counterpart
§ 780.12(g)(3)(iv) ...............................................
§ 780.12(g)(3)(v) ................................................
§ 780.12(g)(3)(vi) ...............................................
§ 780.12(g)(3)(vii) ...............................................
§ 780.12(g)(4) ....................................................
§ 780.12(g)(5) ....................................................
§ 780.12(i) ..........................................................
§ 780.12(j) ..........................................................
§ 780.12(k) .........................................................
§ 780.12(l) ..........................................................
§ 780.12(m) ........................................................
§ 780.13 .............................................................
§ 780.14 .............................................................
§ 780.15 .............................................................
§ 780.16(a) through (d) ......................................
§ 780.16(e) .........................................................
§ 780.19(a)(1) ....................................................
§ 780.19(b) .........................................................
§ 816.111(b)(2) .................................................
§ 816.111(b)(3) .................................................
§ 816.111(b)(4) .................................................
§ 816.111(b)(5) .................................................
§ 816.111(c) ......................................................
§ 816.111(d) ......................................................
§ 780.18(b)(6) ...................................................
§ 780.18(b)(7) ...................................................
§ 780.18(b)(8) ...................................................
§ 780.18(b)(9) ...................................................
§ 780.23(b)(3) ...................................................
§ 780.14 ............................................................
§ 780.12 ............................................................
§ 780.13 ............................................................
§ 780.16(b) ........................................................
§ 780.16(c) ........................................................
§ 780.22(a) ........................................................
§ 780.21(b)(1) [except location and ownership
information in the first sentence].
§ 780.21(b)(2) [except the part of the first sentence that precedes ‘‘and information on
. . . ’’].
§ 780.22(b) ........................................................
§ 780.22(c) ........................................................
§ 780.22(d) ........................................................
§ 780.21(c) ........................................................
§ 780.21(f)(1) through (f)(3) ..............................
§ 780.21(b)(3) ...................................................
§ 780.21(f)(4) ....................................................
§ 780.21(g) ........................................................
§ 780.21(h) ........................................................
§ 780.21(e) ........................................................
§ 780.21(i) .........................................................
§ 780.21(j) .........................................................
§ 780.23(b) [except (b)(3)] ................................
§ 816.133(b) [first sentence], § 816.133(c) .......
None .................................................................
§ 780.19(c) .........................................................
§ 780.19(f)(1) through (3) ..................................
§ 780.19(f)(4) .....................................................
§ 780.19(f)(5) .....................................................
§ 780.19(g) .........................................................
§ 780.20(a) .........................................................
§ 780.20(b) .........................................................
§ 780.20(c)(1) .....................................................
§ 780.21 .............................................................
§ 780.22(a) .........................................................
§ 780.22(b)(1) ....................................................
§ 780.23(a) .........................................................
§ 780.23(b) .........................................................
§ 780.24(a) .........................................................
§ 780.24(b) .........................................................
§ 780.24(c) .........................................................
§ 780.24(e) .........................................................
§ 780.25(d)(3)(iv) ...............................................
§ 780.28(c) .........................................................
§ 780.28(e)(2) ....................................................
§ 780.29(c) .........................................................
§ 780.35(e)(2) and (3) ........................................
§ 780.35(f) ..........................................................
§ 783.24(a)(14)
§ 783.24(a)(18)
§ 783.24(a)(19)
§ 783.24(a)(20)
§ 783.24(a)(21)
through (a)(17) .........................
..................................................
..................................................
..................................................
..................................................
§ 816.133(b) [last sentence] .............................
§ 816.84(e) ........................................................
§ 816.43(a)(3) [last sentence], § 816.43(b) ......
§ 816.57(a) [except first sentence] ...................
§ 780.29 ............................................................
§ 816.71(c) ........................................................
§ 780.35(a) [in part], § 816.71(b)(1) [first sentence].
§ 780.35(b), § 816.71(d)(1) ...............................
§ 780.35(a) [in part] ..........................................
§ 780.35(c) ........................................................
§ 816.71(b)(1) [second sentence] .....................
§ 783.12(b) ........................................................
§ 784.21(a) ........................................................
§ 784.21(c) ........................................................
§ 784.15(a) ........................................................
§ 783.24(a) through (f) ......................................
§ 784.14(b)(1) [location and ownership information in first sentence].
§ 784.14(b)(2) [the part of the first sentence
that
precedes
‘‘impoundments’’]
§ 783.25(a)(7).
§ 783.24(g) ........................................................
§ 784.14(b)(2) [the part of the first sentence
that pertains to discharges].
§ 783.24(h) through (k) .....................................
§ 783.25(a)(1) ...................................................
§ 783.25(a)(6) ...................................................
§ 783.25(a)(2) ...................................................
§ 783.25(a)(3), [Suspended August 4, 1980] ...
§ 783.24(a)(22)
§ 783.24(a)(23)
§ 783.24(a)(25)
§ 783.24(a)(26)
..................................................
and (a)(24) ...............................
..................................................
..................................................
§ 783.25(a)(4) ...................................................
§ 783.25(a)(5) ...................................................
§ 783.25(a)(8), [Suspended August 4, 1980] ...
§ 783.25(a)(9), [Suspended August 4, 1980] ...
§ 780.35(g) .........................................................
§ 780.35(h) .........................................................
§ 780.35(i) ..........................................................
§ 780.35(j) ..........................................................
§ 783.17 .............................................................
§ 783.20(a) and (b) ............................................
§ 783.20(d) .........................................................
§ 783.22 .............................................................
§ 783.24(a)(1) through (a)(6) .............................
§ 783.24(a)(7) ....................................................
§ 783.24(a)(9) ....................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
§ 783.24(a)(10) ..................................................
§ 783.24(a)(12) ..................................................
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Existing text revised in proposed rule?
Yes.
Yes,
No.
Yes,
Yes.
Yes,
Yes,
Yes.
Yes,
Yes,
Yes,
Yes.
Yes,
Yes.
Yes.
Yes.
Yes.
Yes.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes, modeled on existing §§ 784.200(a) and
817.200(d)(1).
Yes.
Yes, editorial.
Yes.
Yes
Yes.
Yes.
Yes, editorial.
Yes.
Yes,
Yes,
Yes,
Yes,
Yes.
Yes.
Yes.
Yes.
Yes,
editorial.
editorial.
editorial.
editorial.
editorial.
Yes, editorial.
Yes.
Yes, editorial.
No, except for editorial changes in (a)(17).
Yes.
Yes.
Yes.
Yes. We are re-proposing part of this rule and
proposing to remove the remainder.
Yes.
Yes.
Yes, editorial. We are re-proposing this rule.
Yes. We are re-proposing part of this rule and
proposing to remove the remainder.
E:\FR\FM\27JYP2.SGM
27JYP2
44462
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
Proposed rule
Existing rule counterpart
§ 783.24(a)(8) [water wells], § 783.24(a)(27)
[gas and oil wells].
§ 783.24(a)(28) ..................................................
§ 784.12 [in general] ..........................................
§ 784.12(b) .........................................................
§ 784.12(c) .........................................................
§ 784.12(d) .........................................................
§ 784.12(e) [in general] ......................................
§ 784.12(e)(1)(ii) ................................................
§ 784.12(e)(2) ....................................................
§ 784.12(f) ..........................................................
§ 784.12(g) [in general] ......................................
§ 784.12(g)(3)(i) .................................................
§ 784.12(g)(3)(ii) ................................................
§ 784.12(g)(3)(iii) ................................................
§ 784.12(g)(3)(iv) ...............................................
§ 784.12(g)(3)(v) ................................................
§ 784.12(g)(3)(vi) ...............................................
§ 784.12(g)(3)(vii) ...............................................
§ 784.12(g)(4) ....................................................
§ 784.12(g)(5) ....................................................
§ 784.12(i) ..........................................................
§ 784.12(j) ..........................................................
§ 784.12(k) .........................................................
§ 784.12(l) ..........................................................
§ 784.12(m) ........................................................
§ 784.13 .............................................................
§ 784.14 .............................................................
§ 784.16(a) through (d) ......................................
§ 784.16(e) .........................................................
§ 784.19(a)(1) ....................................................
§ 784.19(b) .........................................................
§ 783.25(a)(10) .................................................
Yes.
§ 783.24(l) .........................................................
§ 784.13 [in general] .........................................
§ 784.13(b)(1) ...................................................
§ 784.13(b)(2) ...................................................
§ 784.13(b)(3) ...................................................
§ 784.13(b)(4) ...................................................
§ 817.22(e) ........................................................
§ 817.22(b) ........................................................
§ 784.26 ............................................................
§ 784.13(b)(5) ...................................................
§ 817.111(a)(2) .................................................
§ 817.111(a)(4) .................................................
§ 817.111(b)(1) .................................................
§ 817.111(b)(2) .................................................
§ 817.111(b)(3) .................................................
§ 817.111(b)(4) .................................................
§ 817.111(b)(5) .................................................
§ 817.111(c) ......................................................
§ 817.111(d) ......................................................
§ 784.13(b)(6) ...................................................
§ 784.13(b)(7) ...................................................
§ 784.13(b)(8) ...................................................
§ 784.13(b)(9) ...................................................
§ 784.15(b)(3) ...................................................
§ 784.23 ............................................................
§ 784.12 ............................................................
§ 784.21(b) ........................................................
§ 784.21(c) ........................................................
§ 784.22(a) ........................................................
§ 784.14(b)(1) [except location and ownership
information].
§ 784.14(b)(2) [except the part of the first sentence that precedes ‘‘and information on
. . . ’’].
§ 784.22(b) ........................................................
§ 784.22(c) ........................................................
§ 784.22(d) ........................................................
§ 784.14(c) ........................................................
§ 784.14(e)(1) through (e)(3) ............................
§ 784.14(b)(3) ...................................................
§ 784.14(e)(4) ...................................................
§ 784.14(f) .........................................................
§ 784.14(g) ........................................................
§ 784.14(h) ........................................................
§ 784.14(i) .........................................................
§ 784.15(b) [except (b)(3)] ................................
§ 817.133(b) [first sentence], § 817.133(c) .......
§ 784.200(a), § 817.200(d)(1) ...........................
§ 817.133(b) [last sentence] .............................
§ 817.84(e) ........................................................
§ 784.25 ............................................................
§ 817.43(a)(3) [last sentence], § 817.43(b) ......
§ 817.57(a) [except first sentence] ...................
§ 784.29 ............................................................
§ 784.20 ............................................................
§ 784.17 ............................................................
§ 784.18 ............................................................
§ 784.19, § 817.71(b)(1), (c), (d)(1), and (d)(2)
[second sentence].
§ 784.24 ............................................................
§ 784.30 ............................................................
§ 785.14(c) ........................................................
§ 785.14(c) [introductory text] ...........................
§ 785.14(c)(1) [introductory text] ......................
§ 785.14(c)(1)(i) ................................................
§ 785.14(c)(1)(ii) ...............................................
§ 785.14(c)(1)(iii)
[except
paragraph
(c)(1)(iii)(G)].
§ 785.14(c)(1)(iii)(G) .........................................
§ 785.14(c)(1)(iv) ..............................................
§ 785.14(c)(1)(v) ...............................................
§ 785.14(c)(2) ...................................................
No.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
No.
Yes.
Yes,
No.
Yes,
Yes.
Yes,
Yes,
Yes.
Yes,
Yes,
Yes,
Yes.
Yes,
Yes.
Yes.
Yes.
Yes.
§ 784.19(c) .........................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
§ 784.19(f)(1) through (4) ..................................
§ 784.19(f)(5) .....................................................
§ 784.19(f)(6) .....................................................
§ 784.19(g) .........................................................
§ 784.20(a) .........................................................
§ 784.20(b) .........................................................
§ 784.20(c)(1) .....................................................
§ 784.21 .............................................................
§ 784.22(a) .........................................................
§ 784.23(a) .........................................................
§ 784.23(b) .........................................................
§ 784.24(a) .........................................................
§ 784.24(b) .........................................................
§ 784.24(c) .........................................................
§ 784.24(e) .........................................................
§ 784.25(d)(3)(iv) ...............................................
§ 784.26 .............................................................
§ 784.28(c) .........................................................
§ 784.28(e)(2) ....................................................
§ 784.29(c) .........................................................
§ 784.30 .............................................................
§ 784.31 .............................................................
§ 784.33 .............................................................
§ 784.35 .............................................................
§ 784.37 .............................................................
§ 784.38 .............................................................
§ 785.14(b) .........................................................
§ 785.14(b) (introductory text) ...........................
§ 785.14(b)(1) ....................................................
§ 785.14(b)(2) ....................................................
§ 785.14(b)(3) ....................................................
§ 785.14(b)(4) ....................................................
§ 785.14(b)(5)
§ 785.14(b)(6)
§ 785.14(b)(7)
§ 785.14(b)(8)
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....................................................
....................................................
....................................................
....................................................
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editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
Yes.
Yes.
Yes,
Yes,
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes,
Yes,
Yes.
Yes
Yes.
Yes.
No.
No.
Yes.
editorial.
editorial.
editorial.
editorial.
Yes.
Yes,
Yes,
Yes,
Yes,
Yes,
Yes,
Yes,
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
Yes,
Yes,
Yes,
Yes,
editorial.
editorial.
editorial.
editorial.
E:\FR\FM\27JYP2.SGM
27JYP2
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
44463
Existing rule counterpart
Existing text revised in proposed rule?
§ 785.14(b)(9) ....................................................
§ 785.14(b)(12) ..................................................
§ 785.14(c) .........................................................
§ 785.14(d)(1) ....................................................
§ 785.14(d)(2) ....................................................
§ 785.16(a) (introductory text) ...........................
§ 785.16(a)(1) ....................................................
§ 785.16(a)(2) ....................................................
§ 785.16(a)(3) ....................................................
§ 785.16(a)(4) ....................................................
§ 785.16(a)(5) ....................................................
§ 785.16(a)(6) ....................................................
§ 785.16(a)(7) ....................................................
§ 785.16(a)(9) ....................................................
§ 785.16(a)(10) ..................................................
§ 785.16(b)(1) ....................................................
§ 785.16(b)(2) ....................................................
§ 785.16(b)(3) ....................................................
§ 785.16(b)(4) ....................................................
§ 785.25(b)(1) ....................................................
§ 785.25(b)(2) ....................................................
§ 800.9 ...............................................................
§ 800.11 .............................................................
§ 800.15(a)(2)(ii) ................................................
§ 800.30(a)(1) ....................................................
§ 800.30(a)(3) ....................................................
§ 800.30(b) .........................................................
§ 800.40 .............................................................
§ 824.11(a)(9) ...................................................
§ 785.14(c)(4) ...................................................
§ 785.14(c)(5) ...................................................
§ 785.14(d)(1) and (2) ......................................
§ 785.14(d)(3) ...................................................
§ 785.16(a) [introductory text] ...........................
§ 785.16(a)(1) ...................................................
§ 816.133(d)(2) .................................................
§ 816.133(d)(4) .................................................
§ 816.133(d)(10) ...............................................
§ 816.133(d)(5) .................................................
§ 816.133(d)(7) .................................................
§ 816.133(d)(8) .................................................
§ 785.16(a)(3), § 816.133(d)(6) .........................
§ 785.16(a)(4), § 816.133(d)(9) .........................
§ 785.16(b)(2) ...................................................
§ 785.16(c) and (d) ...........................................
§ 785.16(e) ........................................................
§ 785.16(f) .........................................................
§ 785.25(b) [first sentence] ...............................
§ 785.25(b) [except first sentence] ...................
§ 800.11(e) ........................................................
§ 800.11(a) through (d) .....................................
§ 800.15(c) [first sentence] ...............................
§ 800.30(a) ........................................................
§ 800.30(b) ........................................................
§ 800.16(e)(2) ...................................................
§ 800.40(a) ........................................................
§ 800.41 .............................................................
§ 800.40(b)(1) ...................................................
§ 800.42 .............................................................
§ 800.43(a) .........................................................
§ 800.43(b) .........................................................
§ 800.43(c) .........................................................
§ 800.44(a) through (c) ......................................
§ 816.13(a), (c), (d), and (f) ...............................
§ 816.13(b) .........................................................
§ 816.13(e) .........................................................
§ 816.22(a)(1) and (2) ........................................
§ 816.22(b) .........................................................
§ 816.22(c) .........................................................
§ 816.22(d)(2) ....................................................
§ 816.22(e)(1) ....................................................
§ 816.22(e)(3) ....................................................
§ 816.34(a) through (c) ......................................
§ 816.35 .............................................................
§ 816.36 .............................................................
§ 816.38 .............................................................
§ 816.39 .............................................................
§ 816.40 .............................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Proposed rule
§ 800.40(c) ........................................................
§ 800.40(b)(2) ...................................................
§ 800.40(d) ........................................................
§ 800.40(e) ........................................................
§ 800.40(f) through (h) ......................................
§ 816.13 ............................................................
§ 816.14 ............................................................
§ 816.15 ............................................................
§ 816.22(a)(1) through (4) ................................
§ 816.22(c) ........................................................
§ 816.22(b) ........................................................
§ 816.22(d)(2) ...................................................
§ 816.22(d)(1) ...................................................
§ 816.22(d)(3) ...................................................
§ 816.41(a), (b), and (d) ...................................
§ 816.41(c) ........................................................
§ 816.41(e) ........................................................
§ 816.41(f) .........................................................
§ 816.41(g) ........................................................
§ 816.41(h) and paragraphs (a) and (b) of definition of ‘‘replacement of water supply’’ in
§ 701.5.
§ 816.41(i) .........................................................
§ 816.42 ............................................................
§ 816.43(c)(3) ...................................................
§ 816.46(c)(1)(ii) and (iii) ..................................
§ 816.57(a) [first sentence] ...............................
§ 816.43(a)(3) (last sentence), § 816.43(b) ......
§ 816.71(b)(2) ...................................................
§ 816.71(d)(2) [first sentence] ..........................
§ 816.71(e)(1) ...................................................
§ 816.72(a)(2) ...................................................
§ 816.72(a)(1) ...................................................
§ 816.71(e)(2) ...................................................
§ 816.71(e)(5) ...................................................
§ 816.71(e)(3) ...................................................
§ 816.71(e)(4) ...................................................
§ 816.71(g) ........................................................
§ 816.71(h) ........................................................
§ 816.71(i) .........................................................
§ 816.71(j) .........................................................
§ 816.74(c) [first sentence] ...............................
§ 816.74(c) [second sentence] .........................
Yes.
Yes, editorial.
Yes.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes, editorial.
Yes, editorial.
Yes.
Yes
Yes.
Yes, editorial, except for (b)(2)(vi), which has
substantive changes.
Yes, editorial, except for (a)(2), which has
substantive changes.
Yes.
Yes, editorial.
Yes, editorial.
Yes, editorial
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes, editorial.
Yes.
Yes.
Yes.
Yes, editorial.
Yes.
Yes, editorial.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
§ 816.41 .............................................................
§ 816.42(a) .........................................................
§ 816.43(a)(5)(ii) ................................................
§ 816.46(c)(1)(i) and (ii) .....................................
§ 816.57(a)(1) ....................................................
§ 816.57(b) .........................................................
§ 816.71(b)(1) ....................................................
§ 816.71(b)(2) ....................................................
§ 816.71(d) .........................................................
§ 816.71(e)(1) ....................................................
§ 816.71(e)(2) ....................................................
§ 816.71(g)(1) ....................................................
§ 816.71(g)(3) ....................................................
§ 816.71(h) .........................................................
§ 816.71(i) ..........................................................
§ 816.71(j) ..........................................................
§ 816.71(k) .........................................................
§ 816.71(l) ..........................................................
§ 816.71(m) ........................................................
§ 816.74(c)(1) .....................................................
§ 816.74(c)(2) .....................................................
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Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes,
Yes.
Yes.
Yes.
Yes,
Yes.
Yes,
Yes.
Yes.
Yes,
Yes.
Yes.
Yes,
Yes,
Yes,
E:\FR\FM\27JYP2.SGM
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
editorial.
27JYP2
44464
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Proposed rule
Existing rule counterpart
§ 816.74(c)(3) .....................................................
§ 816.74(d)(1) ....................................................
§ 816.74(d)(2) ....................................................
§ 816.74(e) .........................................................
§ 816.74(f) ..........................................................
§ 816.74(g) .........................................................
§ 816.74(h) .........................................................
§ 816.81(a) .........................................................
§ 816.81(b) .........................................................
§ 816.81(c) .........................................................
§ 816.81(d) .........................................................
§ 816.81(e) .........................................................
§ 816.81(g) .........................................................
§ 816.81(h) .........................................................
§ 816.83(a) .........................................................
§ 816.83(b) .........................................................
§ 816.83(c) .........................................................
§ 816.83(d) .........................................................
§ 816.83(e) .........................................................
§ 816.84(a) .........................................................
§ 816.84(b) .........................................................
§ 816.84(c) .........................................................
§ 816.84(d) .........................................................
§ 816.84(e) .........................................................
§ 816.97(b)(5) and (c)(4) ...................................
§ 816.97(d) .........................................................
§ 816.97(e) .........................................................
§ 816.97(f) ..........................................................
§ 816.97(g) .........................................................
§ 816.102(a)(1)(i) ...............................................
§ 816.102(a)(1)(ii) ..............................................
§ 816.102(a)(1)(iii) ..............................................
§ 816.102(a)(1)(iv) .............................................
§ 816.102(a)(1)(v) ..............................................
§ 816.102(a)(2) ..................................................
§ 816.102(a)(3) [introductory text] .....................
§ 816.102(a)(3)(i) ...............................................
§ 816.102(a)(3)(ii) ..............................................
§ 816.102(a)(4) ..................................................
§ 816.102(a)(5) ..................................................
§ 816.102(a)(6) ..................................................
§ 816.102(b) [introductory text] and (b)(1) .........
§ 816.102(b)(3) ..................................................
§ 816.102(d) .......................................................
§ 816.102(f) ........................................................
§ 816.111(a) and (b) ..........................................
§ 816.111(d) .......................................................
§ 816.111(e) .......................................................
§ 816.116(a) .......................................................
§ 816.116(b) .......................................................
§ 816.116(c) .......................................................
§ 816.116(d) .......................................................
§ 816.116(e) .......................................................
§ 816.116(f)(1) and (f)(2) ...................................
§ 816.116(f)(3) ...................................................
§ 816.116(g) .......................................................
§ 816.116(h) .......................................................
§ 816.115 ...........................................................
§ 816.133 [introductory text] ..............................
§ 816.133(a) .......................................................
§ 816.133(b) .......................................................
§ 817.13(a), (d), (e), and (g) ..............................
§ 817.13(b) .........................................................
§ 817.13(c) .........................................................
§ 817.13(f) ..........................................................
§ 817.22(a)(1) and (2) ........................................
§ 817.22(b) .........................................................
§ 817.22(c) .........................................................
§ 817.22(d)(2) ....................................................
§ 817.22(e)(1) ....................................................
§ 817.22(e)(3) ....................................................
§ 817.34(a) through (c) ......................................
§ 817.35 .............................................................
§ 817.36 .............................................................
§ 816.74(d)(4) ...................................................
§ 816.74(c) [third sentence] ..............................
§ 816.74(c) [fourth sentence] ............................
§ 816.74(d) [except (d)(4)] ................................
§ 816.74(e) ........................................................
§ 816.74(f) .........................................................
§ 816.74(g) ........................................................
§ 816.81(a) [first sentence] ...............................
§ 816.81(a) [except first sentence] ...................
§ 816.81(b) ........................................................
§ 816.81(c) ........................................................
§ 816.81(d) ........................................................
§ 816.81(e) ........................................................
§ 816.81(f) .........................................................
§ 816.83 [introductory text] ...............................
§ 816.83(a) ........................................................
§ 816.83(b) ........................................................
§ 816.83(c) ........................................................
§ 816.83(d) ........................................................
§ 816.84 [introductory text] ...............................
§ 816.84(a) ........................................................
§ 816.84(b) ........................................................
§ 816.84(c) ........................................................
§ 816.84(d) ........................................................
§ 816.97(d) ........................................................
§ 816.97(e) ........................................................
§ 816.97(f) .........................................................
§ 816.97(g) ........................................................
§ 816.97(h) ........................................................
§ 816.102(k)(3)(i) ..............................................
§ 816.102(k)(3)(ii) .............................................
§ 816.102(k)(1) .................................................
§ 816.102(k)(2) .................................................
§ 816.102(k)(3)(iii) .............................................
§ 816.102(g) ......................................................
§ 816.102(a)(2) .................................................
§ 816.102(h) ......................................................
§ 816.102(i) .......................................................
§ 816.102(a)(3) .................................................
§ 816.102(a)(4) .................................................
§ 816.102(a)(5) .................................................
§ 816.102(b) ......................................................
§ 816.102(d) ......................................................
§ 816.102(f) .......................................................
§ 816.102(j) .......................................................
§ 816.111(a) [except (a)(2) and (a)(4)] .............
§ 816.114 ..........................................................
§ 816.113 ..........................................................
§ 816.116(a)(1) .................................................
§ 816.116(a) [introductory text] .........................
§ 816.116(a)(2) [first sentence] ........................
§ 816.116(a)(2) [second sentence] ...................
§ 816.116(b)(3)(i) ..............................................
§ 816.116(b)(3)(ii) .............................................
§ 816.116(b)(3)(iii) ............................................
§ 816.116(b)(4) .................................................
§ 816.116(b)(5) .................................................
§ 816.116(c) ......................................................
§ 816.133(a) [introductory text] .........................
§ 816.133(a)(1) .................................................
§ 816.133(a)(2) .................................................
§ 817.13 ............................................................
§ 817.14(a) ........................................................
§ 817.14(b) ........................................................
§ 817.15 ............................................................
§ 817.22(a)(1) through (4) ................................
§ 817.22(c) ........................................................
§ 817.22(b) ........................................................
§ 817.22(d)(2) ...................................................
§ 817.22(d)(1) ...................................................
§ 817.22(d)(3) ...................................................
§ 817.41(a), (b), and (d) ...................................
§ 817.41(c) ........................................................
§ 817.41(e) ........................................................
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Yes,
Yes,
Yes,
Yes,
Yes.
Yes,
Yes.
Yes,
Yes,
Yes,
Yes,
Yes,
Yes.
Yes,
Yes.
Yes.
Yes.
Yes.
Yes,
Yes,
Yes,
Yes,
Yes,
Yes.
Yes.
Yes.
Yes.
No.
Yes.
No.
Yes,
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes,
Yes.
Yes
Yes,
Yes.
Yes.
Yes.
Yes.
Yes,
Yes.
Yes,
Yes,
Yes,
Yes,
Yes,
Yes,
Yes,
Yes.
Yes.
Yes.
Yes,
Yes.
Yes,
Yes.
Yes.
Yes.
E:\FR\FM\27JYP2.SGM
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27JYP2
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
Existing rule counterpart
§ 817.38 .............................................................
§ 817.39 .............................................................
§ 817.40 .............................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Proposed rule
§ 817.41(f) .........................................................
§ 817.41(g) ........................................................
§ 817.41(j) and paragraphs (a) and (b) of definition of ‘‘replacement of water supply’’ in
§ 701.5.
§ 817.41(h) ........................................................
§ 817.42 ............................................................
§ 817.43(c)(3) ...................................................
§ 817.41(i) .........................................................
§ 817.46(c)(1)(ii) and (iii) ..................................
§ 817.57(a) [first sentence] ...............................
§ 817.43(a)(3) [last sentence], § 817.43(b) ......
§ 817.71(b)(2) ...................................................
§ 817.71(d)(2) [first sentence] ..........................
§ 817.71(e)(1) ...................................................
§ 817.72(a)(2) ...................................................
§ 817.72(a)(1) ...................................................
§ 817.71(e)(2) ...................................................
§ 817.71(e)(5) ...................................................
§ 817.71(e)(3) ...................................................
§ 817.71(e)(4) ...................................................
§ 817.71(g) ........................................................
§ 817.71(h) ........................................................
§ 817.71(i) .........................................................
§ 817.71(j) .........................................................
§ 817.74(c) [first sentence] ...............................
§ 817.74(c) [second sentence] .........................
§ 817.74(d)(4) ...................................................
§ 817.74(c) [third sentence] ..............................
§ 817.74(c) [fourth sentence] ............................
§ 817.74(d) [except (d)(4)] ................................
§ 817.74(e) ........................................................
§ 817.74(f) .........................................................
§ 817.74(g) ........................................................
§ 817.81(a) [first sentence] ...............................
§ 817.81(a) [except first sentence] ...................
§ 817.81(b) ........................................................
§ 817.81(c) ........................................................
§ 817.81(d) ........................................................
§ 817.81(e) ........................................................
§ 817.81(f) .........................................................
§ 817.83 [introductory text] ...............................
§ 817.83(a) ........................................................
§ 817.83(b) ........................................................
§ 817.83(c) ........................................................
§ 817.83(d) ........................................................
§ 817.84 [introductory text] ...............................
§ 817.84(a) ........................................................
§ 817.84(b) ........................................................
§ 817.84(c) ........................................................
§ 817.84(d) ........................................................
§ 817.97(d) ........................................................
§ 817.97(e) ........................................................
§ 817.97(f) .........................................................
§ 817.97(g) ........................................................
§ 817.97(h) ........................................................
§ 817.102(k)(1) .................................................
§ 817.102(k)(2) .................................................
§ 817.102(l) .......................................................
§ 817.102(g) ......................................................
§ 817.102(a)(2) .................................................
§ 817.102(h) ......................................................
§ 817.102(i) .......................................................
§ 817.102(a)(3) .................................................
§ 817.102(a)(4) .................................................
§ 817.102(a)(5) .................................................
§ 817.102(b) ......................................................
§ 817.102(d) ......................................................
§ 817.102(f) .......................................................
§ 817.102(j) .......................................................
§ 817.111(a) [except (a)(2) and (a)(4)] .............
§ 817.114 ..........................................................
§ 817.113 ..........................................................
§ 817.116(a)(1) .................................................
§ 817.41 .............................................................
§ 817.42(a) .........................................................
§ 817.43(a)(5)(ii) ................................................
§ 817.44 .............................................................
§ 817.46(c)(1)(i) and (ii) .....................................
§ 817.57(a)(1) ....................................................
§ 817.57(b) .........................................................
§ 817.71(b)(1) ....................................................
§ 817.71(b)(2) ....................................................
§ 817.71(d) .........................................................
§ 817.71(e)(1) ....................................................
§ 816.71(e)(2) ....................................................
§ 817.71(g)(1) ....................................................
§ 817.71(g)(3) ....................................................
§ 817.71(h) .........................................................
§ 817.71(i) ..........................................................
§ 817.71(j) ..........................................................
§ 817.71(k) .........................................................
§ 817.71(l) ..........................................................
§ 817.71(m) ........................................................
§ 817.74(c)(1) .....................................................
§ 817.74(c)(2) .....................................................
§ 817.74(c)(3) .....................................................
§ 817.74(d)(1) ....................................................
§ 817.74(d)(2) ....................................................
§ 817.74(e) .........................................................
§ 817.74(f) ..........................................................
§ 817.74(g) .........................................................
§ 817.74(h) .........................................................
§ 817.81(a) .........................................................
§ 817.81(b) .........................................................
§ 817.81(c) .........................................................
§ 817.81(d) .........................................................
§ 817.81(e) .........................................................
§ 817.81(g) .........................................................
§ 817.81(h) .........................................................
§ 817.83(a) .........................................................
§ 817.83(b) .........................................................
§ 817.83(c) .........................................................
§ 817.83(d) .........................................................
§ 817.83(e) .........................................................
§ 817.84(a) .........................................................
§ 817.84(b) .........................................................
§ 817.84(c) .........................................................
§ 817.84(d) .........................................................
§ 817.84(e) .........................................................
§ 817.97(b)(5) and (c)(4) ...................................
§ 817.97(d) .........................................................
§ 817.97(e) .........................................................
§ 817.97(f) ..........................................................
§ 817.97(g) .........................................................
§ 817.102(a)(1)(i) ...............................................
§ 817.102(a)(1)(ii) ..............................................
§ 817.102(a)(1)(vii) .............................................
§ 817.102(a)(2) ..................................................
§ 817.102(a)(3) [introductory text] .....................
§ 817.102(a)(3)(i) ...............................................
§ 817.102(a)(3)(ii) ..............................................
§ 817.102(a)(4) ..................................................
§ 817.102(a)(5) ..................................................
§ 817.102(a)(6) ..................................................
§ 817.102(b) [introductory text] and (b)(1) .........
§ 817.102(b)(2) ..................................................
§ 817.102(d) .......................................................
§ 817.102(f) ........................................................
§ 817.111(a) and (b) ..........................................
§ 817.111(d) .......................................................
§ 817.111(e) .......................................................
§ 817.116(a) .......................................................
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Yes.
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Yes.
Yes.
Yes.
Yes,
Yes.
Yes.
Yes.
Yes,
Yes.
Yes,
Yes.
Yes.
Yes.
Yes.
Yes.
Yes,
Yes,
Yes,
Yes.
Yes,
Yes,
Ye.s
Yes,
Yes,
Yes,
Yes,
Yes.
Yes,
Yes.
Yes.
Yes,
Yes,
Yes,
Yes.
Yes,
Yes.
Yes,
Yes,
Yes,
Yes,
Yes,
Yes.
Yes,
Yes.
Yes.
Yes.
Yes.
Yes,
Yes,
Yes.
Yes.
Yes.
Yes.
Yes.
No.
Yes.
No.
Yes,
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes,
E:\FR\FM\27JYP2.SGM
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44466
Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
Existing rule counterpart
§ 817.116(b) .......................................................
§ 817.116(c) .......................................................
§ 817.116(d) .......................................................
§ 817.116(e) .......................................................
§ 817.116(f)(1) and (f)(2) ...................................
§ 817.116(f)(3) ...................................................
§ 817.116(g) .......................................................
§ 817.116(h) .......................................................
§ 817.115 ...........................................................
§ 817.133 [introductory text] ..............................
§ 817.133(a) .......................................................
§ 817.133(b) .......................................................
§ 817.121(c) .......................................................
§ 817.121(d) .......................................................
§ 817.121(e) .......................................................
§ 817.121(f) ........................................................
§ 817.121(g) .......................................................
§ 817.121(h) .......................................................
§ 817.121(i) ........................................................
§ 817.121(j) ........................................................
§ 817.121(k) .......................................................
§ 824.11(a) .........................................................
§ 824.11(b)(1) ....................................................
§ 824.11(b)(2) ....................................................
§ 824.11(b)(3) ....................................................
§ 824.11(b)(4) ....................................................
§ 824.11(b)(5) ....................................................
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Proposed rule
§ 817.116(a) [introductory text] .........................
§ 817.116(a)(2) [first sentence] ........................
§ 817.116(a)(2) [second sentence] ...................
§ 817.116(b)(3)(i) ..............................................
§ 817.116(b)(3)(ii) .............................................
§ 817.116(b)(3)(iii) ............................................
§ 817.116(b)(4) .................................................
§ 817.116(b)(5) .................................................
§ 817.116(c) ......................................................
§ 817.133(a) [introductory text] .........................
§ 817.133(a)(1) .................................................
§ 817.133(a)(2) .................................................
§ 817.121(c)(1) .................................................
§ 817.121(c)(2) .................................................
§ 817.121(c)(3) .................................................
§ 817.121(c)(4)(v) .............................................
§ 817.121(c)(5) .................................................
§ 817.121(d) ......................................................
§ 817.121(e) ......................................................
§ 817.121(f) .......................................................
§ 817.121(g) ......................................................
§ 824.11(a) [introductory text] and (a)(1) .........
§ 824.11(a)(5) ...................................................
§ 824.11(a)(6) ...................................................
§ 824.11(a)(7) ...................................................
§ 824.11(a)(8) ...................................................
§ 824.11(a)(11) .................................................
Yes.
Yes.
Yes,
Yes.
Yes.
Yes.
Yes.
Yes,
Yes.
Yes,
Yes,
Yes,
Yes,
Yes,
Yes,
Yes,
Yes.
Yes,
Yes,
Yes,
Yes,
Yes,
Yes.
Yes.
Yes,
Yes.
Yes.
In general, we drafted the proposed
rule using plain language principles,
consistent with section 501(b) of
SMCRA, 30 U.S.C. 1251(a), which
provides that regulations must be
‘‘concise and written in plain,
understandable language,’’ and
Executive Order 13563, which provides
that our regulatory system ‘‘must ensure
that regulations are accessible,
consistent, written in plain language,
and easy to understand.’’ 123 In addition,
a June 1, 1998, Executive Memorandum
on Plain Language in Government
Writing 124 requires the use of plain
language in all proposed and final
rulemaking documents published after
January 1, 1999. The Office of the
Federal Register also encourages the use
of plain language in writing regulations,
as set forth in detail at
www.plainlanguage.gov and associated
links.
Plain language requirements vary
from one document to another,
depending on the intended audience.
Plain language documents have logical
organization and easy-to-read design
features like short sections, short
sentences, tables, and lots of white
space. They use common everyday
words (except for necessary technical
terms), pronouns, the active voice, and
a question-and-answer format when
feasible.
The proposed rule and preamble use
the pronouns ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ to
refer to OSMRE, and the pronouns ‘‘I,’’
‘‘you,’’ and ‘‘your’’ to refer to a permit
applicant or permittee. We avoid use of
the word ‘‘shall’’ in the proposed rule
and preamble, except in quoted
material. Instead, we use ‘‘must’’ to
indicate an obligation, ‘‘will’’ to identify
a future event, and ‘‘may not’’ to convey
a prohibition.
We invite comment on how we could
more fully incorporate plain language
principles.
version of these rules. See 53 FR 44356–
44363 (Nov. 2, 1988). We propose to
revise paragraph (d)(1) of the existing
rules by removing the phrase ‘‘the
reclaimed site of’’ from the existing
introductory language because the
regulatory authority’s jurisdiction
extends to the entire surface coal mining
and reclamation operation, not just to
the lands disturbed and reclaimed by
the operation. Hence, any decision to
terminate jurisdiction likewise should
extend to the entire operation.
We propose to improve the structure
of the existing rule by placing the
termination of jurisdiction requirements
for initial program operations in
paragraph (d)(1) and the requirements
for permanent program operations in
paragraph (d)(2). We also propose to add
a provision to paragraph (d)(2)(ii) to
reflect the proposed addition to 30 CFR
part 800 of provisions concerning
financial assurances for treatment of
long-term discharges. In particular, we
propose to allow the regulatory
authority to terminate jurisdiction over
all portions of a minesite and all aspects
of the operation, except treatmentrelated facilities and obligations, once
the permittee posts an acceptable
financial assurance under proposed 30
CFR 800.18 to guarantee treatment of all
long-term discharges. Termination of
jurisdiction may not occur until all
performance bonds for the remainder of
the permit area are fully released. Our
proposed rule would improve the
efficiency of regulatory authorities by
eliminating unnecessary inspections of
123 76
124 63
FR 3821 (Jan. 21, 2011).
FR 31883–31886 (Jun. 10, 1998).
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19:15 Jul 24, 2015
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IX. How do we propose to revise
specific provisions of our existing
regulations?
In this portion of the preamble, we
discuss selected provisions of our
proposed rule in the order in which the
regulations that we propose to revise
would appear in Title 30, Chapter VII of
the Code of Federal Regulations. In
general, we do not discuss proposed
organizational changes (see Part VIII of
this preamble for a listing of
organizational changes), nonsubstantive
editorial revisions (e.g., plain language
changes, correction of grammatical
errors, and syntax improvements), crossreference changes, or revisions of a
minor nature. No substantive change in
meaning is intended for proposed
revisions made in accordance with plain
language principles.
A. Section 700.11(d): Termination and
Reassertion of Jurisdiction
The basis and purpose for our
termination-of-jurisdiction rules is set
forth in the preamble to the 1988
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E:\FR\FM\27JYP2.SGM
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the portion of the permit area that has
been fully reclaimed. It also would
eliminate the need for federal oversight
of those sites and allow the property
owner to acquire full control over the
land. Continuing to conduct inspections
of a fully-reclaimed minesite or of fullycompleted operations would divert
scarce resources from unreclaimed sites
and other regulatory program
responsibilities.
Because of the restructuring described
above, we propose to redesignate
existing paragraph (d)(2) as paragraph
(d)(3). This paragraph provides that the
regulatory authority must reassert
jurisdiction if the termination was based
upon fraud, collusion, or
misrepresentation of a material fact. We
also propose to revise this provision to
clarify that it applies to both intentional
and unintentional misrepresentations of
a material fact, including the subsequent
discovery of a discharge that requires
treatment. Our proposed revision is
consistent with the decision of the U.S.
Court of Appeals for the District of
Columbia Circuit that upheld our
termination of jurisdiction rules.125
In addition, proposed paragraph (d)(4)
would specify that the termination of
jurisdiction provisions of proposed
paragraphs (d)(1) and (2) do not apply
to proposed 30 CFR 817.40, which
contains the domestic water supply
replacement requirements for
underground mines, or to the structural
damage repair or compensation
requirements of 30 CFR 817.121(c)(2).
Proposed paragraph (d)(4) is consistent
with the decision of the U.S. District
Court for the District of Columbia
concerning termination of jurisdiction
for the water replacement and
subsidence damage correction
obligations imposed on underground
mines by section 720(a) of SMCRA.126
In that decision, the court held that
those obligations are not subject to the
termination of jurisdiction provisions of
30 CFR 700.11(d).127
Finally, we propose to revise existing
30 CFR 700.11(d)(1)(ii), which we
propose to redesignate as 30 CFR
700.11(d)(2), to specify that the
requirements of that paragraph also
apply to coal exploration activities, as
was intended when we first published
our termination-of-jurisdiction rules in
1988.128 The phrase ‘‘or of a coal
exploration site’’ was inadvertently
omitted from the published text of
125 Nat’l Wildlife Fed’n v. Lujan, 950 F.2d 765,
770 (D.C. Cir. 1991); see also Brief for the Secretary
at 27 n. 11.
126 30 U.S.C. 1309a(a).
127 Nat’l Mining Ass’n v. Babbitt, No. 95–0938,
slip op. at 15 (D.D.C. May 29, 1998).
128 53 FR 44360 (Nov. 2, 1988).
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existing 30 CFR 700.11(d)(1). We plan to
correct this inadvertent error when
publishing a final rule. However, we
invite comment on whether we should
instead limit the scope of that
requirement to termination of
jurisdiction for coal exploration permits
issued under 30 CFR 772.12. The
rationale for a limitation of this nature
is that, unlike coal exploration permits,
coal exploration notices do not require
regulatory authority approval and do
not involve activities that substantially
disturb the land surface.
B. Section 701.5: Definitions
This portion of the preamble
discusses, in alphabetical order, each
definition that we propose to add,
remove, or revise.
Acid Drainage
We propose to revise the definition of
this term to clarify that the same
definition applies to the term ‘‘acid
mine drainage.’’ We also propose to
correct the terminology in the definition
to comport with the terminology used in
SMCRA. Specifically, we propose to
replace the undefined term ‘‘surface
coal mine and reclamation operation’’
with ‘‘surface coal mining and
reclamation operations,’’ which is
defined at section 701(27) of SMCRA,129
as well as in 30 CFR 700.5.
Adjacent Area
Proposed paragraph (a) would revise
and broaden the existing definition of
‘‘adjacent area’’ to ensure that it
includes all areas outside the proposed
or actual permit area within which there
is a reasonable possibility of adverse
impacts from surface coal mining
operations or underground mining
activities, as applicable. The existing
definition limits the adjacent area to
areas where adverse impacts could
reasonably be expected to occur and, for
underground mining, to areas where
subsidence is probable. Those limits are
too restrictive because they effectively
limit baseline data collection and
monitoring to the area in which adverse
impacts are almost certain to occur. If
impacts occur outside that area, there
will be no baseline data against which
to evaluate those impacts. Therefore, we
propose to revise the definition to
include areas where impacts are
reasonably possible, as determined by
the regulatory authority on a sitespecific basis.
The revised definition would
emphasize that the term ‘‘adjacent area’’
is both site-specific and contextspecific. As in the existing definition,
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U.S.C. 1291(27).
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the nature of the resource and the
context in which the regulations use the
term ‘‘adjacent area’’ would determine
the size and dimensions of the adjacent
area for that resource. Our regulations
require that each permit application
contain information concerning historic
resources, fish and wildlife resources,
surface water, groundwater, and geology
for the proposed permit and adjacent
areas. The size and boundaries of the
adjacent area in the context of historic
resources, which are stationary, may
differ substantially from the size and
boundaries of the adjacent area for
surface water, for which flow patterns
are determined by topography, and the
size and boundaries of the adjacent area
for groundwater, which has a migration
pattern determined by geology.
Proposed paragraph (b) would specify
that the adjacent area for an
underground mine includes both the
area overlying the proposed
underground workings and the area
within a reasonable angle of draw 130
from the perimeter of the underground
workings. This provision would ensure
that the adjacent area includes all areas
in which subsidence may reasonably
occur.
Proposed paragraph (c) would specify
that, for all operations, the adjacent area
also includes the area that might be
affected physically or hydrologically by
dewatering existing underground mine
pools as part of surface or underground
mining operations, plus the area that
might be affected physically or
hydrologically by mine pools that
develop after cessation of mining
activities.
We considered adding another
paragraph to specify that, in the context
of surface-water resources, the adjacent
area would include, at a minimum, the
HUC–12 (U.S. Geological Survey 12digit Watershed Boundary Dataset) 131
watershed or watersheds in which the
proposed or actual permit area is
located. However, we decided against
including that provision because HUC
boundaries are fixed and do not vary
with the location of the mining
operation. Surface-water data collected
from those portions of the HUC–12
watershed that are upgradient of the
130 The angle of draw is the angle between the
outside edge of an underground mine void and the
point on the surface to which subsidence may
extend when the strata overlying the mine void
collapse. Draw usually proceeds at an angle of 65–
75° to the horizontal. This definition is adapted
from: Ailsa Allaby and Michael Allaby. ‘‘angle of
draw.’’ A Dictionary of Earth Sciences. 1999.
Retrieved February 02, 2015, from
Encyclopedia.com: https://www.encyclopedia.com/
doc/1O13-angleofdraw.html.
131 See https://water.usgs.gov/GIS/huc.html (last
accessed September 8, 2014).
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proposed operation would be of little or
no value in making permitting decisions
or evaluating the impacts of mining. In
addition, HUC–12 watersheds typically
contain between 10,000 and 40,000
acres, which is much larger than the
area necessary or appropriate to
establish baseline conditions for most
coal mines, which are only tens or
hundreds of acres in size.
We invite comment on whether the
definition should prescribe a more
appropriate minimum size for the
adjacent area for surface-water resources
and, if so, how that minimum size
should be determined. For example, a
2002 OSMRE reference document on
baseline data recommends that the
adjacent area for surface water include
both the surface-water runoff drainage
area for the proposed operation and at
least the next higher-order drainage
area.
Approximate Original Contour
We propose to revise the definition of
this term to explain its scope and to
incorporate plain language principles.
In concert with these changes, we
propose to clarify that the term refers to
the general surface configuration of the
land within the permit area as it existed
before any mining, not the configuration
that existed immediately prior to the
proposed or current operation. We
intend this change to operate as a
requirement that operations backfill and
regrade previously mined areas to
closely resemble the general surface
configuration that existed before any
mining, except as provided in 30 CFR
816.106 or 817.106. This approach is
consistent with section 515(b)(2) of
SMCRA,132 which requires that surface
coal mining and reclamation operations
be conducted so as to ‘‘restore the land
affected to a condition capable of
supporting the uses which it was
capable of supporting prior to any
mining . . . .’’ In ruling on the
regulations implementing that provision
of the Act, the U.S. District Court for the
District of Columbia subsequently held
that ‘‘[t]he use of the word ‘any’
indicates that Congress intended the
operator to restore the land to the
condition that existed before it was ever
mined.’’ 133
Our proposed addition of the phrase
‘‘within the permit area’’ when referring
to the general surface configuration is
intended to clarify that determinations
of approximate original contour must be
132 30
U.S.C. 1265(b)(2).
re Permanent Surface Mining Regulation
Litig. I, Round I (PSMRL I, Round I), 1980 U.S. Dist.
LEXIS 17722 at * 95 (D.D.C. 1980), 14 Env’t Rep.
Cas. (BNA) 1083, 1107, 10 Envtl. L. Rep. (Envtl.
Law Inst.) 20208.
made based on the general surface
configuration of the permit area, not the
general surface configuration of the
surrounding area. The proposed
addition is consistent with section
701(2) of SMCRA,134 which defines
‘‘approximate original contour’’ as
meaning ‘‘that surface configuration
achieved by backfilling and grading of
the mined area so that the reclaimed
area . . . closely resembles the general
surface configuration of the land prior to
mining and blends into and
complements the drainage pattern of the
surrounding terrain . . . .’’ The
statutory definition clearly applies the
term ‘‘general surface configuration’’
only to the area that is mined and
reclaimed; it does not extend to the
surrounding area. Instead, with respect
to the surrounding area, the statutory
definition requires that the general
surface configuration of the reclaimed
area blend into and complement the
drainage pattern of the surrounding
terrain. Limiting the scope of the term
‘‘general surface configuration’’ to the
mined and reclaimed area also is
consistent with the discussion and
diagrams in the legislative history of
SMCRA. See H.R. Rep. No. 94–45, at 94
(1975).
In addition, we propose to revise the
definition to include an exception for
excess spoil fills, consistent with a June
18, 1999, legal opinion from the
Department of the Interior’s Office of the
Solicitor. That opinion confirmed that
the AOC restoration requirements of
SMCRA do not apply to the
construction of excess spoil fills, in part
because the statutory definition of
approximate original contour in section
701(2) of SMCRA 135 applies only to
‘‘that surface configuration achieved by
backfilling and grading of the mined
area.’’ Excess spoil fills are not part of
the backfilling process and they are at
least initially located outside the mined
area. We also propose to add an
exception for coal mine waste refuse
piles because the same rationale applies
to the construction of those piles.
Furthermore, sections 515(b)(11) and
516(b)(4) of SMCRA 136 clearly envision
the construction of permanent coal mine
waste refuse piles on the land’s surface,
but there is no requirement to restore
the surface of that land to approximate
original contour, nor would it be
possible to do so. Instead, section
515(b)(11) of the Act 137 requires that the
operation ‘‘assure the final contour of
the waste pile will be compatible with
133 In
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134 30
natural surroundings and that the site
can and will be stabilized and
revegetated according to the provisions
of the Act.’’ Section 516(b)(4) 138
includes similar language for refuse
piles associated with underground
mines.
We also propose to revise the
definition to clarify that, consistent with
the legislative history, the potentially
confusing placement of the phrase
‘‘including any terracing or access
roads’’ in the statutory definition does
not mean that terraces and access roads
must be regraded to the approximate
original contour. As explained in the
legislative history of the definition of
approximate original contour, Congress
added this phrase to clarify that the
AOC restoration requirement does not
prohibit the construction of terraces or
the retention of access roads on
backfilled areas.139 Therefore, we
propose to add language stating that the
requirements of the definition do not
prohibit the approval of terracing under
30 CFR 816.102 or 817.102 or the
retention of access roads under 30 CFR
816.150 or 817.150.
Finally, we propose to replace the
cross-references to 30 CFR 816.133 and
817.133 with cross-references to 30 CFR
780.24(b) and 784.24(b), respectively.
This change reflects our proposal to
move the relevant portions of 30 CFR
816.133 and 817.133 to 30 CFR
780.24(b) and 784.24(b), respectively.
Backfill
We propose to add a definition of
‘‘backfill’’ to clarify the difference
between backfill, excess spoil fills, and
thick overburden returned to the minedout area under 30 CFR 816.105, all of
which have different permitting
requirements and performance
standards. We derived our proposed
definition from the definition of
‘‘backfill’’ in A Dictionary of Mining,
Mineral, and Related Terms (U.S.
Bureau of Mines, 1968). However, we
modified that definition by tailoring it
to coal mining and the purpose stated in
the first sentence of this discussion.
Specifically, we propose to define
‘‘backfill,’’ when used as a noun, as the
spoil and waste materials used to fill the
void resulting from an excavation
created for the purpose of extracting
coal from the earth. When used as a
verb, the term would refer to the process
of filling that void. The definition also
would include all materials used to
restore the approximate original contour
of the mined-out area. We propose to
U.S.C. 1291(2).
135 Id.
138 30
136 30
U.S.C. 1265(b)(11) and 1266(b)(4).
137 30 U.S.C. 1265(b)(11).
Frm 00034
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U.S.C. 1266(b)(4).
H.R. Rep. No. 95–218, at 178 (1977) and
H.R. Rep. No. 95–493, at 112 (1977) (Conf. Rep.).
139 See
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make conforming changes to the
definition of excess spoil, which is
discussed below under a separate
heading.
Bankfull
We propose to add a definition of this
technical and scientific term because we
use this term in our proposed
regulations to more precisely fix the
boundaries of stream buffer zones and
riparian corridors and in our proposed
stream restoration requirements. Under
our proposed definition, bankfull would
mean the water level or stage at which
a stream, river, or lake is at the top of
its banks and any further rise would
result in water moving into the flood
plain. The proposed definition parallels
the one that appears in the National
Weather Service glossary.140
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Biological Condition
We propose to add a definition of
biological condition in conjunction with
the new permitting requirements and
performance standards concerning
documentation, protection, and
restoration of biological communities in
streams. Specifically, we propose to
define biological condition as a measure
of the ecological health of a stream or
segment of a stream as determined by
the type, diversity, distribution,
abundance, and physiological state of
aquatic organisms and communities
found in the stream or stream segment.
The biological condition of a water body
is the ultimate indicator of watershed
health because aquatic organisms and
communities reflect the cumulative
conditions of all other watershed
components and processes.141
Our proposed rule would require
application of a multimetric biological
assessment and taxonomic assessment
protocol to determine biological
condition. See, e.g., proposed 30 CFR
780.19(e) and 784.19(e). Multimetric
indices include metrics such as species
richness, complexity, and tolerance as
well as trophic measures. They provide
a quantitative comparison (often
referred to as an index of biological or
biotic integrity) of the ecological
complexity of biological assemblages
relative to a regionally-defined reference
condition. For example, River
Invertebrate Prediction and
Classification System models quantify
biological condition by comparing the
observed taxa at a site to the taxa that
would be expected to be present in the
absence of human-caused stress.142
Our existing regulations do not
specifically require collection of the
baseline data necessary to determine the
biological condition of streams.
Consequently, the permit application
often lacks specific descriptions of the
aquatic community residing in streams
within the permit and adjacent areas.
The lack of baseline information on the
biological condition of streams creates
an impediment to determining whether
the proposed operation has been
designed to prevent material damage to
the hydrologic balance outside the
permit area, as required by sections
507(b) and 510(b)(3) of SMCRA.143 It
also creates an impediment to
evaluating whether the operation has
been and is being conducted to
minimize adverse impacts on fish,
wildlife, and related environmental
values, as required by sections
515(b)(24) and 516(b)(11) of SMCRA.144
Furthermore, preparation of a
comprehensive cumulative hydrologic
impact assessment is not always
possible if the permit application does
not include information on the
biological condition of streams. While
the information sometimes may be
available from the agencies responsible
for implementing the Clean Water Act,
those agencies generally do not assess
the cumulative loading of substances
legally discharged into the receiving
stream until the stream becomes
impaired.
Cumulative Impact Area
Sections 507(b)(11) and 510(b)(3) of
SMCRA 145 require that the regulatory
authority prepare an assessment of the
probable cumulative impact of all
anticipated mining in the area upon the
hydrology of the general area. In 1983,
we adopted a definition of cumulative
impact area to identify both the extent
of the area that must be included in this
evaluation and the scope of the term
‘‘anticipated mining.’’ 146 The first
sentence of the 1983 definition
mentions only anticipated mining,
while the second sentence includes
existing operations in the list of the
types of operations encompassed by the
term ‘‘anticipated mining.’’ We propose
to resolve this inconsistency by
replacing the term ‘‘anticipated mining’’
with ‘‘existing and anticipated mining’’
or its equivalent.
140 See https://forecast.weather.gov/
glossary.php?word=BANKFULL (last accessed
January 16, 2015).
141 https://water.epa.gov/polwaste/nps/watershed/
biotic.cfm (last accessed June 8, 2015).
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142 Id.
143 30
U.S.C. 1257(b) and 1260(b)(3).
U.S.C. 1265(b)(24) and 1266(b)(11).
145 30 U.S.C. 1257(b)(1)) and 1260(b)(3).
146 48 FR 43956, 43957 (Sept. 26, 1983).
144 30
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44469
In addition, we propose to add
language clearly specifying that the term
‘‘mining’’ includes both surface and
underground mining operations.
Discharges of water from underground
mines can cause material damage to the
hydrologic balance outside the permit
area, as demonstrated by a 2010
incident in which water discharged
from an underground mine resulted in
a golden algae bloom in Dunkard Creek
in West Virginia and Pennsylvania that
caused a major fish kill.147 Our revised
definition would clarify that the
cumulative impact area includes the
area within which the proposed or
actual operation may interact with the
impacts of all existing and anticipated
surface and underground coal mining
operations.
We propose to restructure the
definition for clarity. Proposed
paragraphs (a) through (c) would specify
the areas that must be included in the
cumulative impact area.
Proposed paragraph (a) would require
that the cumulative impact area include
the actual or proposed permit area. The
addition of the ‘‘actual or proposed’’
language reflects the fact that the
cumulative impact area is a concept that
applies both before and after permit
issuance.
Proposed paragraph (b) would require
that the cumulative impact area include
the HUC–12 (U.S. Geological Survey 12digit Watershed Boundary Dataset) 148
watershed or watersheds in which the
actual or proposed permit area is
located. We propose to add this
provision to establish a bright-line
standard for the minimum size of the
cumulative impact area. For operations
that straddle a ridgeline or other
watershed boundary, the cumulative
impact area must include, at a
minimum, the HUC–12 watershed on
each side of the ridgeline or other
boundary.
Proposed paragraph (c) would provide
that, in addition to the areas specified
in proposed paragraphs (a) and (b), the
cumulative impact area must include
any other area within which impacts
resulting from an actual or proposed
surface or underground coal mining
operation may interact with the impacts
of all existing and anticipated surface
and underground coal mining on
surface-water and groundwater systems,
including the impacts that existing and
147 Reynolds, Louis. Update on Dunkard Creek
(November 23, 2009). U.S. Environmental
Protection Agency, Region 3, Environmental
Analysis and Innovation Division, Office of
Monitoring and Assessment, Freshwater Biology
Team.
148 See https://water.usgs.gov/GIS/huc.html (last
accessed September 8, 2014).
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anticipated mining will have during
mining and reclamation and after final
bond release. Proposed paragraphs (c)(1)
through (6) would specify the minimum
components of the term ‘‘existing and
anticipated mining.’’ Proposed
paragraphs (c)(1) through (3) are
substantively identical to paragraphs (a)
through (c) of the existing definition.
Proposed paragraph (c)(4) would
specify that ‘‘anticipated mining’’
includes any proposed surface or
underground mining operation for
which a person has submitted a request
for an authorization, certification, or
permit under the Clean Water Act.
Inclusion of proposed operations for
which the Clean Water Act
authorization process has begun would
assist in preparation of a more
comprehensive analysis on the part of
both the permit applicant or permittee
and the regulatory authority.
Proposed paragraph (c)(5) would
modify paragraph (d) of the existing
definition to clarify that anticipated
mining includes all lands for which a
resource recovery and protection plan
has been either approved or submitted
to and reviewed by the authorized
officer of the Bureau of Land
Management under 43 CFR 3482.1(b).
The added language would clarify the
point at which lands containing leased
Federal coal must be included within
the cumulative impact area.
Proposed paragraph (c)(6) would
specify that anticipated mining
includes, for underground mines, all
areas of contiguous coal reserves
adjacent to an existing or proposed
underground mine that are owned or
controlled by the applicant. This
addition is appropriate because, barring
significant changes in economic or
regulatory conditions, the mine very
likely will be extended into those
reserves in the future.
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Ecological Function
We propose to add a definition of this
term in concert with our proposal to
require that permittees restore the
ecological function of the segments of
perennial and intermittent streams
through which they mine. Ecological
function includes physical parameters,
biological parameters, and a
consideration of physical and biological
interactions as nutrients and energy are
collected and transferred down the
stream continuum.149 Specifically, we
propose to define this term as including
the role that the stream plays in
149 Vannote, R. L., G. W. Minshall, K. W.
Cummins, J. R. Sedell, and C. E. Cushing. The river
continuum concept. (1980) Can. J. Fish. Aquat. Sci.
37:130–137.
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dissipating energy and transporting
water, sediment, organic matter, and
nutrients downstream. It also includes
the ability of the stream ecosystem to
retain and transform inorganic materials
needed for biological processes into
organic forms (forms containing carbon)
and to oxidize those organic molecules
back into elemental forms through
respiration and decomposition. Finally,
the term includes the role that the
stream plays in the life cycles of plants,
insects, amphibians (especially
salamanders), reptiles, fish, birds, and
mammals that either reside in the
stream or depend upon it for habitat,
reproduction, food, water, or protection
from predators. The proposed definition
is based upon a functional assessment
guidebook that the U.S. Army Corps of
Engineers developed for ephemeral and
intermittent streams in central
Appalachia.150 The biological condition
of a stream is one measure of its
ecological function.
Ephemeral Stream
We propose to redefine ‘‘ephemeral
stream’’ in a manner that is
substantively identical to the manner in
which the U.S. Army Corps of Engineers
defines that term in Part F of the 2012
reissuance of the nationwide permits
under section 404 of the Clean Water
Act. See 77 FR 10184, 10288 (Feb. 21,
2012). Adoption of a substantively
identical definition would promote
consistency in application and
interpretation of that term under both
SMCRA and Clean Water Act programs.
We invite comment on whether the
definition in the final rule should
include language specifying that the
U.S. Army Corps of Engineers has the
ultimate authority to determine the
point at which an ephemeral stream
becomes an intermittent stream or a
perennial stream and vice versa.
Further, if the final rule includes
language to that effect, we invite
comment on whether the definition also
should provide that any determination
that the Corps makes concerning these
transition points will be controlling for
purposes of SMCRA regulatory
programs. Commenters should discuss
the applicability of two SMCRA
provisions in this context. First, section
702(a) of SMCRA 151 provides that
‘‘[n]othing in this Act shall be construed
as superseding, amending, modifying, or
repealing’’ the Clean Water Act, any rule
150 ‘‘Operational Draft Regional Guidebook for the
Functional Assessment of High-Gradient Ephemeral
and Intermittent Headwater Streams in Western
West Virginia and Eastern Kentucky.’’ ERDC/EL
TR–10–11, July 2010, U.S. Army Engineer Research
and Development Center, Vicksburg, MS.
151 30 U.S.C. 1292(a).
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or regulation adopted under the Clean
Water Act, or any state laws enacted
pursuant to the Clean Water Act.
Second, section 505(b) of SMCRA 152
provides that any provision of any state
law or regulation may not be construed
to be inconsistent with SMCRA if it
‘‘provides for more stringent land use
and environmental controls and
regulations of surface coal mining and
reclamation operation[s] than do the
provisions of this Act or any regulation
issued pursuant thereto.’’ In other
words, should our regulations allow
states to adopt and apply stream
definitions in a manner that would
protect a greater length of stream than
would the Corps determinations?
The primary difference between our
existing definition and the Corps
definition that we propose to adopt
concerns the treatment of snowmelt.
Our existing definition classifies
streamflow in response to the melting of
snow and ice as an ephemeral stream,
whereas the Corps definition is silent on
this point. The preamble to the Corps
definition notes that the Corps declined
to accept a recommendation from a
commenter that streamflow resulting
from snowmelt be classified as an
ephemeral stream. The preamble
explains that, while snowmelt may
contribute to the flow of ephemeral
streams, snowmelt also contributes to
the flow of intermittent and perennial
streams, especially in areas with deep
snow packs. The preamble further states
that the definition appropriately focuses
on the duration of flow and that melting
snow should not be considered a
precipitation event because the
development of a snowpack occurs over
the course of a winter season. See 77 FR
10184, 10262 (Feb. 21, 2012).
Excess Spoil
Our existing rules define excess spoil
as spoil material disposed of in a
location other than the mined-out area.
The definition excludes spoil used to
achieve the approximate original
contour or to blend the mined-out area
with the surrounding terrain in nonsteep slope areas. However, the existing
definition is silent with respect to the
characterization of spoil placed on the
mined-out area in excess of the amount
of spoil needed to restore the
approximate original contour. We
propose to revise the definition of
excess spoil and add a definition of
backfill to more clearly differentiate
among backfill, material placed in
excess spoil fills, and thick overburden
returned to the mined-out area under 30
CFR 816.105.
152 30
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Specifically, we propose to define
excess spoil as including all spoil
material disposed of in a location other
than the mined-out area within the
permit area. The definition also would
include all spoil material placed above
the approximate original contour within
the mined-out area as part of the
continued construction of an excess
spoil fill with a toe located outside the
mined-out area. The added language
concerning continuation of an excess
spoil fill onto the mined-out area is
intended to ensure that the fill is
constructed using consistent standards
for the entire structure so that the fill is
uniformly stable.
The revised definition would retain
the clarification that spoil used to
restore the approximate original contour
of the mined-out area is not excess
spoil. It also would retain the exception
for spoil used to blend the mined-out
area with the surrounding terrain in
non-steep slope areas. We propose to
add a new provision clarifying that the
definition does not include spoil
material placed within the mined-out
area in accordance with the thick
overburden provisions of 30 CFR
816.105(b)(1), even if it exceeds the
amount needed to restore the
approximate original contour, unless
that material is a continuation of an
excess spoil fill. This provision would
eliminate any ambiguity regarding thick
overburden treatment in the existing
rules and is consistent with the thick
overburden provisions of section
515(b)(3) of SMCRA,153 which makes no
reference to the excess spoil provisions
of section 515(b)(22) of SMCRA 154 in
establishing requirements for the
placement and grading of spoil within
the mined-out area.
In summary, under our proposed rule,
the general backfilling and grading
requirements of 30 CFR 816.102 or
817.102 would apply to all spoil placed
in the mined-out area for the purpose of
restoring the approximate original
contour within the parameters of those
rules. The thick overburden
performance standards of 30 CFR
816.105(b) would apply to all spoil
placed in or on the mined-out area in
excess of the approximate original
contour parameters established in 30
CFR 816.102(a)(1) or 817.102(a)(1), with
the exception of spoil that is a
continuation of an excess spoil fill with
a toe located outside the mined-out area.
For all operations, the excess spoil
disposal requirements of 30 CFR 816.71
and 816.74 or 817.71 and 817.74 would
govern the construction of excess spoil
153 30
U.S.C. 1265(b)(3).
154 30 U.S.C. 1265(b)(22).
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fills, including any spoil placed above
the approximate original contour within
the mined-out area as part of the
continuation of an excess spoil fill with
a toe located outside the mined-out area.
Fill
We propose to define the term ‘‘fill’’
to clarify the meaning of this term as it
is used in the context of surface coal
mining operations under SMCRA and to
differentiate this term from the term
‘‘fill material’’ as used and defined in
the regulations implementing section
404 of the Clean Water Act.155 See 33
CFR 323.2(e) and 40 CFR 232.2. Our
proposed definition would include only
permanent, non-impounding structures
constructed for the purpose of disposing
of excess spoil and solid coal mine
waste, consistent with the common
usage of this term in the context of coal
mining operations. It would not include
any impoundments or temporary
structures. It has no relationship to
whether construction of the excess spoil
or coal mine waste disposal facility
involves the discharge of dredged or fill
material into waters of the United States
under the Clean Water Act.
Fugitive Dust
We propose to remove this definition
because it defines a term that we no
longer use in our regulations. See the
preamble discussions of proposed 30
CFR 780.12(f) and our proposed removal
of existing 30 CFR 780.15 and 784.26 for
further explanation.
Groundwater
This definition would replace the
existing definition of the term ‘‘Ground
water.’’ We propose to replace the
words ‘‘ground water’’ with the single
word ‘‘groundwater’’ throughout our
regulations for internal consistency. We
also propose to revise the definition to
add clarity and to more closely resemble
generally-accepted definitions in
scientific and trade publications.
Specifically, our proposed definition is
adapted from Freeze and Cherry
(1979) 156 and a publication entitled
‘‘The ABCs of Aquifers.’’ 157 Under the
proposed rule, ‘‘groundwater’’ would
mean subsurface water located in those
portions of soils and geologic formations
that are completely saturated with
water; i.e., those zones where all the
pore spaces and rock fractures are
completely filled with water. We
U.S.C. 1344.
R. A., and Cherry, J. A. Groundwater.
(1979), Prentice-Hall, Englewood Cliffs, NJ, p. 2.
157 Stone, Andrew. ‘‘The ABCs of Aquifers,’’ (May
30, 2010); available at https://
www.nationaldriller.com/articles/85773-the-abcsof-aquifers (last accessed September 8, 2014).
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156 Freeze,
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propose to add a sentence clarifying that
this term includes subsurface water in
both regional and perched aquifers, but
that it does not include water in soil
horizons that are temporarily saturated
by precipitation events.
Perched aquifers occur where
subsurface water collects above
unsaturated rock formations as a result
of a discontinuous impermeable
layer.158 Perched aquifers are fairly
common in glacial sediments.159 They
also occur in other sedimentary
formations where weathered layers,
ancient soils or caliche (found in arid or
semiarid areas) have created
impermeable zones.160 Perched aquifers
are often removed by surface coal
mining operations; they need not be
restored unless restoration is needed to
prevent material damage to the
hydrologic balance outside the permit
area.
Highwall Remnant
We propose to remove this definition
because the term ‘‘highwall remnant’’ is
self-explanatory and because the
existing definition inappropriately
limits the term to remining operations.
There is no basis under SMCRA for this
limitation.
Hydrologic Balance
The existing definition of hydrologic
balance mentions water quality, but
focuses on water quantity, water flow
and movement, water storage, and
changes in the physical state of water.
We propose to revise this definition to
include provisions relating to water
quality and the impact of water quality
on the biological condition of streams.
Specifically, we propose to add
language stating that the term includes
interactions that result in changes in the
chemical composition or physical
characteristics of groundwater and
surface water, which may affect the
biological condition of streams and
other water bodies. The proposed
revisions are intended to clarify that
water quality is as important as water
quantity. They are consistent with the
manner and context in which the term
‘‘hydrologic balance’’ appears in
SMCRA. Sections 507, 508, 510, 515,
and 516 of SMCRA161 contain repeated
references to water quality
considerations. As summarized in Part
II of this preamble, in many cases,
adverse impacts on water quality and
the resulting change in the biological
condition of streams are the principal
158 Id.
159 Id.
160 Id.
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cause of material damage to the
hydrologic balance outside the permit
area as we proposed to define that term
in 30 CFR 701.5.
Intermittent Stream
We propose to redefine ‘‘intermittent
stream’’ in a manner that is
substantively identical to the manner in
which the U.S. Army Corps of Engineers
defines that term in Part F of the 2012
reissuance of the nationwide permits
under section 404 of the Clean Water
Act. See 77 FR 10184, 10288 (Feb. 21,
2012). Adoption of a substantivelyidentical definition would promote
consistency in application and
interpretation of that term under both
SMCRA and Clean Water Act programs.
We invite comment on whether the
definition in the final rule should
include language specifying that the
U.S. Army Corps of Engineers has the
ultimate authority to determine the
point at which an ephemeral stream
becomes an intermittent stream or a
perennial stream and vice versa.
Further, if the final rule includes
language to that effect, we invite
comment on whether the definition also
should provide that any determination
that the Corps makes concerning these
transition points will be controlling for
purposes of SMCRA regulatory
programs. Commenters should discuss
the applicability of two SMCRA
provisions in this context. First, section
702(a) of SMCRA 162 provides that
‘‘[n]othing in this Act shall be construed
as superseding, amending, modifying, or
repealing’’ the Clean Water Act, any rule
or regulation adopted under the Clean
Water Act, or any state laws enacted
pursuant to the Clean Water Act.
Second, section 505(b) of SMCRA 163
provides that any provision of any state
law or regulation may not be construed
to be inconsistent with SMCRA if it
‘‘provides for more stringent land use
and environmental controls and
regulations of surface coal mining and
reclamation operation[s] than do the
provisions of this Act or any regulation
issued pursuant thereto.’’ In other
words, should our regulations allow
states to adopt and apply stream
definitions in a manner that would
protect a greater length of stream than
would the Corps determinations?
Our existing definition has two
principal differences with the Corps’
definition that we propose to adopt.
First, paragraph (b) of our existing
definition of an intermittent stream
would not consider a stream with a base
flow resulting from the melting of a
162 30
163 30
U.S.C. 1292(a).
U.S.C. 1255(b).
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snowpack to be an intermittent stream
because the snowpack does not lie
below the local water table and because
snowmelt is not considered
groundwater. However, the preamble to
the definition of ‘‘ephemeral stream’’
that the Corps adopted as part of the
2012 reissuance of the nationwide
permits under section 404 of the Clean
Water Act states that snowmelt
contributes to the flow of intermittent
and perennial streams, especially in
areas with deep snow packs, and that
melting snow should not be considered
a precipitation event because the
development of a snowpack occurs over
the course of a winter season. See 77 FR
10184, 10262 (Feb. 21, 2012). In
essence, the preamble discussion would
allow a stream originating from a
melting snowpack to be considered an
intermittent stream even though the
definition of ‘‘intermittent stream’’
requires groundwater as the source of
base flow. We invite comment on
whether we should revise our proposed
definition of ‘‘intermittent stream’’ to
include language consistent with the
discussion of snowmelt in the preamble
to the Corps’ definition of ‘‘ephemeral
stream.’’
Second, we propose to remove
paragraph (a) of our existing definition
of ‘‘intermittent stream.’’ That paragraph
automatically designates any stream or
reach of a stream that drains a
watershed of at least one square mile as
an intermittent stream. This provision is
inconsistent with generally-accepted
stream classification systems because it
is based on watershed size rather than
streambed characteristics and duration
and source of streamflow. For example,
one study in West Virginia found
perennial streams with a median
drainage area of less than 0.1 square
mile and intermittent flows with a
median drainage area of 14.5 acres, both
of which are much smaller than one
square mile (640 acres).164 On the other
hand, ephemeral streams in arid regions
can have drainage areas of dozens of
square miles. Furthermore, the existing
definition could be construed as
meaning that all streams with a
watershed greater than one square mile
are intermittent, even when they would
otherwise be classified as perennial
streams.
We originally adopted the watershedsize criterion because Alabama and
Illinois found it easy to administer and
apply and because we believed that a
164 Paybins, Katherine M., ‘‘Flow Origin, Drainage
Area, and Hydrologic Characteristics for Headwater
Streams in the Mountaintop Coal-Mining Region of
Southern West Virginia, 2000–2001.’’ WaterResources Investigations Report 02–4300, U.S.
Department of the Interior Geological Survey.
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stream with a watershed of that size has
a potential for flood volumes that would
necessitate application of the streamchannel diversion requirements.165 As
explained below, we no longer find
either reason compelling.
First, the easy-to-administer argument
is valid only if the watershed-size
criterion was the only criterion for
determining whether a stream is
intermittent. However, that is not the
case. The existing definition also
provides that any stream that is below
the local water table for at least part of
the year and obtains its flow from both
surface runoff and groundwater
discharge is an intermittent stream. As
discussed above, both perennial and
intermittent streams often have
watersheds much smaller than one
square mile, so the permit applicant and
the regulatory authority still must
conduct a hydrological evaluation of
streams in watersheds smaller than one
square mile to determine whether they
are nonetheless intermittent or
perennial based on the source of
streamflow.
With respect to the second reason, the
possibility of flood damage from
diversion of an otherwise-ephemeral
stream with a watershed greater than
one square mile does not justify
retention of a definition of intermittent
stream that is not consistent with
definitions used by the U.S. Army Corps
of Engineers and the scientific
community. The preamble to 30 CFR
816.43 and 817.43 requests comment on
whether we should revise our
regulations governing diversions to
adopt design requirements based on
whether the diversion is permanent or
temporary rather than on whether the
flow being diverted is perennial,
intermittent, or ephemeral.
Land Use
We propose to revise the introductory
text of this definition for clarity and to
add a sentence specifying that the
individual land use categories in the
definition are the categories to be used
in the regulatory program. In addition,
we propose to remove the third sentence
of the first paragraph of the existing
definition. That sentence reads:
‘‘Changes of land use from one of the
following categories to another shall be
considered as a change to an alternative
land use which is subject to approval by
the regulatory authority.’’ This sentence
is inconsistent with the revisions that
we are proposing to 30 CFR 780.24 and
784.24, as discussed later in this
preamble. Under our proposed revisions
to those rules, a proposed postmining
165 44
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land use that differs from the actual
premining land use would not require
approval as a higher or better use if the
land as it existed before mining was
already capable of supporting that use
in its existing condition. Moreover, this
change would better implement section
515(b)(2) of SMCRA,166 which provides
that the permittee must ‘‘restore the
land affected to a condition capable of
supporting the uses [not just the use that
existed immediately prior to mining]
which it was capable of supporting prior
to any mining, or higher or better uses
of which there is reasonable
likelihood.’’ This statutory language
indicates that the alternative postmining
land use requirements in our rules
should apply only when the applicant
or permittee proposes a higher or better
use, not a use that the land was capable
of supporting before mining.
We also propose to revise the
definition of cropland in paragraph (a)
of the definition of land use to more
accurately and inclusively describe the
types of plantings and planting settings
associated with that land use category.
Specifically, we propose to include
commercial nursery plantings,
vegetables, fruits, nuts, and other plants
typically grown in fields, orchards,
vineyards, and similar settings
involving intensive agricultural uses.
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Material Damage
We propose to revise a cross-reference
to 30 CFR 784.20 in this definition to be
consistent with our proposed
redesignation of existing § 784.20 as
§ 784.30. We propose no other changes
to this definition, which applies only in
the context of damage that occurs as a
result of subsidence caused by
underground mining operations. It is
not related to, nor does it replace or
supersede, the definition of ‘‘material
damage to the hydrologic balance
outside the permit area’’ or
requirements related to that definition.
Material Damage to the Hydrologic
Balance Outside the Permit Area
Our existing regulations do not define
this term, which, as discussed below, is
central to one of the principal findings
required for approval of a permit
application. Section 510(b)(3) of
SMCRA 167 specifies that the regulatory
authority may not approve a permit
application unless the regulatory
authority has ‘‘made an assessment of
the probable cumulative impact of all
anticipated mining in the area on the
hydrologic balance specified in section
507(b).’’ This assessment is generally
referred to as the cumulative hydrologic
impact assessment (CHIA). Section
507(b)(11) of SMCRA,168 the pertinent
part of the SMCRA section referenced in
the quote above, requires that each
permit application include—
a determination of the probable hydrologic
consequences of the mining and reclamation
operations, both on and off the mine site,
with respect to the hydrologic regime,
quantity and quality of water in surface and
ground water systems including the
dissolved and suspended solids under
seasonal flow conditions and the collection
of sufficient data for the mine site and
surrounding areas so that an assessment can
be made by the regulatory authority of the
probable cumulative impact of all anticipated
mining in the area upon the hydrology of the
area and particularly upon water availability.
Section 510(b)(3) also specifies that
the regulatory authority may not
approve a permit unless the application
affirmatively demonstrates and the
regulatory authority finds in writing that
the proposed operation ‘‘has been
designed to prevent material damage to
the hydrologic balance outside the
permit area.’’ However, SMCRA does
not define or explain the meaning of the
term ‘‘material damage to the hydrologic
balance outside the permit area.’’
Our existing regulations do not fully
integrate the implementation of sections
507(b)(11) and 510(b)(3) of SMCRA 169
because they do not require collection of
sufficient data for the proposed permit
area and surrounding areas to prepare
an adequate CHIA and because they do
not define or establish criteria for
determining material damage to the
hydrologic balance outside the permit
area. In particular, they do not
specifically require data related to the
biological community in streams or data
comprised of a complete suite of the
chemical and physical constituents and
properties of groundwater and surface
water. Without sound baseline
information on surface-water and
groundwater quality and quantity and
the biological communities in streams,
the regulatory authority cannot prepare
an adequate cumulative hydrologic
impact assessment or determine
whether the proposed mining operation
has been designed to prevent material
damage to the hydrologic balance
outside the permit area. This proposed
rule is intended to correct this problem
by adding a definition of the term
‘‘material damage to the hydrologic
balance outside the permit area’’ and by
refining and expanding baseline data
requirements for permit applications,
which we discuss later in this preamble
in connection with proposed 30 CFR
780.19. These two changes would
promote more effective implementation
of sections 507(b)(11) and 510(b)(3) of
SMCRA 170 and, in combination with
the improved monitoring requirements
in proposed 30 CFR 780.23 and 816.35
through 816.37, would better protect
streams.
In developing a definition of
‘‘material damage to the hydrologic
balance outside the permit area,’’ we
looked to our previous statements on
this matter in preambles to our
regulations concerning hydrology and
geology. We also examined other
provisions of SMCRA and the legislative
history of section 510(b)(3) of
SMCRA.171 Several commenters on a
proposed rule on hydrology and geology
that we published on June 25, 1982 (47
FR 27712), requested that we add a
definition of material damage to the
hydrologic balance outside the permit
area to our regulations. However, the
preamble to the final rule that we
adopted in response to that proposed
rule explains that we declined the
requests for a definition ‘‘because the
gauges for measuring material damage
may vary from area to area and from
operation to operation. OSM[RE] has not
established fixed criteria, except for
those established under §§ 816.42 and
817.42 related to compliance with
water-quality standards and effluent
limitations.’’ 172 The preamble provides
no further explanation of that statement,
but it does state that we agreed with
commenters that ‘‘regulatory authorities
should establish criteria to measure
material damage.’’ 173
In the 30 years since we published
that preamble, very few states have
adopted a definition or established
programmatic criteria for material
damage to the hydrologic balance
outside the permit area. Therefore,
adoption of a federal definition of
material damage to the hydrologic
balance outside the permit area is both
necessary and appropriate to ensure
effective and consistent application of
that term.
In addition, the absence of either a
federal definition of or criteria for
material damage to the hydrologic
balance outside the permit area has
made it difficult for us to determine
whether states are effectively
implementing their counterparts to 30
CFR 773.15(c) and section 510(b)(3) of
170 30
U.S.C. 1257(b)(11) and 1260(b)(3).
U.S.C. 1260(b)(3).
172 48 FR 43973 (Sept. 26, 1983).
173 Id.
171 30
166 30
167 30
U.S.C. 1265(b)(2).
U.S.C. 1260(b)(3).
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169 30
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U.S.C. 1257(b)(11) and 1260(b)(3).
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SMCRA.174 As we have long recognized,
definitions can help us more effectively
implement SMCRA: ‘‘Many of the terms
used by Congress are not defined or
explained and thus are too vague to be
enforced effectively until given more
precise meanings.’’ 175
The legislative history of section
510(b)(3) of SMCRA 176 provides little
illumination as to the meaning of
material damage to the hydrologic
balance outside the permit area and thus
is of little assistance in developing a
definition. The term first appears in
H.R. 2, the House version of the
legislation that ultimately became
SMCRA. Earlier unsuccessful precursors
to SMCRA used the phrase ‘‘significant
irreparable offsite damage,’’ which also
was undefined. In explaining the change
in terminology, the Committee report
states only that the previous phrase was
‘‘deleted in favor of language that
specifies that the mine is to be designed
to prevent damage to the hydrologic
balance outside the permit area.’’ 177
There is no discussion of whether, in
making this substitution, Congress
intended to eliminate the elements of
‘‘significant’’ and ‘‘irreparable’’ from the
standard, or whether the new language
is merely a nonsubstantive change in
wording.
When we declined to define ‘‘material
damage to the hydrologic balance
outside the permit area’’ in 1983, we
noted that the only fixed criteria that we
established at the time for such damage
were those included in ‘‘§§ 816.42 and
817.42 related to compliance with
water-quality standards and effluent
limitations.’’ However, we do not think
it appropriate to interpret this preamble
statement as meaning that any
exceedance of water quality standards
or effluent limitations, no matter how
minor and no matter what the cause,
would constitute material damage to the
hydrologic balance outside the permit
area.
Our proposed definition reflects our
conclusion that the mere possibility of
an acid or toxic discharge or other type
of degradation of surface water or
groundwater does not provide an
adequate basis for permit denial on the
grounds that it would not prevent
material damage to the hydrologic
balance outside the permit area. Instead,
for a permit to be denied on this basis,
there must be some probability of the
formation of acid or toxic mine drainage
that may continue after the completion
of mining and land reclamation, and
there must be a reasonable likelihood
that the reclamation plan proposed by
the applicant will not be capable of
preventing the formation of that
drainage. We base our conclusion, in
part, on our prior statements relating to
the preparation of cumulative
hydrologic impact assessments. We find
these statements to be particularly
instructive because section 510(b)(3) of
SMCRA,178 which refers to those
assessments, also contains the term
‘‘material damage to the hydrologic
balance outside the permit area.’’ In
particular, in the preamble to the 1983
version of 30 CFR 780.21(g), we stated
that the cumulative hydrologic impact
assessment must be ‘‘accomplished in
an environmentally and scientifically
sound fashion,’’ and that it ‘‘cannot
reasonably be extended to include
remote and speculative impacts.’’ 179
Instead, we determined that the
assessment ‘‘should be based upon
those impacts that have a reasonable
likelihood for occurring and which are
sufficiently defined to enable the
regulatory authority to reach a
decision.’’ 180
That preamble, however, does not
define or otherwise clarify the meaning
of ‘‘reasonable likelihood’’ and
‘‘sufficiently defined.’’ Thus, we looked
to other sources, including related
provisions of SMCRA, to provide some
guidance as to what material damage to
the hydrologic balance outside the
permit area means in the context of
water quality parameters for which
there are no effluent limitations. Section
508(a)(13) of SMCRA 181 requires that
each reclamation plan include—
[A] detailed description of the measures to be
taken during the mining and reclamation
process to assure the protection of:
(A) the quality of surface and ground water
systems, both on- and off-site, from adverse
effects of the mining and reclamation
process;
(B) the rights of present users to such
water; and
(C) the quantity of surface and ground
water systems, both on- and off-site, from
adverse effects of the mining and reclamation
process or to provide alternative sources of
water where such protection of quantity
cannot be assured[.]
In 1979, we noted that this provision
of SMCRA, along with sections 102,
510(b)(3), and 522(a) through (d) of the
Act,182 ‘‘requires that mining not be
permitted at all, if reclamation cannot
be feasibly performed to protect water
178 30
179 48
174 30
U.S.C. 1260(b)(3).
FR 15148 (Mar. 13, 1979).
176 30 U.S.C. 1260(b)(3).
177 H.R. Rep. No. 218, at 65 (1977).
183 44
U.S.C. 1260(b)(3).
FR at 43972 (Sept. 26, 1983).
181 30
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U.S.C. 1258(a)(13).
U.S.C. 1202, 1260(b)(3), and 1272(a)
through (d).
182 30
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FR 15156 (Mar. 13 1979).
U.S.C. 1258(a)(13).
185 30 U.S.C. 1265 and 1266.
186 30 U.S.C. 1265(b)(10).
187 33 U.S.C. 1251(a) and 1313(c).
188 44 FR 15156 (Mar. 13, 1979).
184 30
180 Id.
175 44
uses. Thus, to the extent that mining
would result in unacceptable discharges
of sulfates and total dissolved solids, the
regulatory authority should not issue
permits for the areas involved.’’ 183 As
that passage from the 1979 preamble
indicates, we have never interpreted
section 508(a)(13) of SMCRA 184 to
operate as an absolute prohibition on
mining operations that would have
adverse effects on the hydrologic
balance. In our judgment, this provision
also does not supersede the performance
standards in sections 515 and 516 of
SMCRA,185 which recognize that mining
may cause some adverse effects on
surface water and groundwater,
particularly within the permit area. See,
e.g., section 515(b)(10) of SMCRA,186
which provides that surface coal mining
and reclamation operations must 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 both during
and after surface coal mining operations
and during reclamation.’’ Significantly,
this provision of SMCRA uses the term
‘‘minimize’’ rather than ‘‘prevent’’ when
describing the standard that surface coal
mining and reclamation operations must
meet in this context.
With these considerations in mind,
we have designed our proposed
definition of material damage to the
hydrologic balance outside the permit
area to protect all designated uses of
surface water and all existing and
reasonably foreseeable uses of surface
water and groundwater outside the
permit area. Specifically, in relevant
part, under our proposed definition,
‘‘material damage to the hydrologic
balance outside the permit area’’ would
mean any adverse impact from surface
or underground mining operations on
the quantity or quality of surface water
or groundwater, or on the biological
condition of a perennial or intermittent
stream, that would preclude any
designated surface-water use under
sections 101(a) and 303(c) of the Clean
Water Act 187 or any existing or
reasonably foreseeable use of surface
water or groundwater outside the permit
area. Our proposed definition is
consistent with our statement in the
1979 preamble that mining should not
be permitted at all if reclamation cannot
feasibly protect water uses.188
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States have developed multimetric
bioassessment protocols for use in
determining the biological condition of
streams and other surface waters for
purposes of preparing the water quality
inventory required under section 305(b)
of the Clean Water Act. Multimetric
indices include metrics such as species
richness, complexity, and tolerance as
well as trophic measures. They provide
a quantitative comparison (often
referred to as an index of biological or
biotic integrity) of the ecological
complexity of biological assemblages
relative to a regionally-defined reference
condition. Under proposed 30 CFR
780.19(e)(2) and 784.19(e)(2), states
would be required to establish a
correlation between these index values
and each designated use under sections
101(a) and 303(c) of the Clean Water
Act, as well as any other existing or
reasonably foreseeable uses. In other
words, we anticipate that the SMCRA
regulatory authority, with assistance
from the appropriate Clean Water Act
agencies, will define the range of index
values required to support each existing,
reasonably foreseeable, and designated
use of the stream segment in question.
Any change in the biological condition
of the stream or other surface-water
body, as documented by index scores
resulting from use of the bioassessment
protocol for monitoring purposes, that
would preclude attainment or
maintenance of an existing, reasonably
foreseeable, or designated use of surface
water would constitute material damage
to the hydrologic balance outside the
permit area if the change in scores is a
result of the SMCRA operation. We seek
comment on the effectiveness of using
index scores from bioassessment
protocols to ascertain impacts on
existing, reasonably foreseeable, or
designated uses. If you disagree with the
use of index scores from bioassessment
protocols, please identify a viable and
scientifically-valid alternative.
The regulations implementing the
Clean Water Act define ‘‘existing uses’’
as ‘‘those uses actually attained in a
waterbody on or after November 28,
1975, whether or not they are included
in the water quality standards.’’ See 40
CFR 131.3. In the context of this
proposed definition, we intend to
interpret the term ‘‘existing uses’’ in a
similar fashion; i.e., existing uses would
be those uses in existence at the time of
preparation of the permit application,
regardless of whether those uses are
designated uses. Alternatively, we may
replace the term ‘‘existing uses’’ with
‘‘premining uses’’ for purposes of
clarity. We invite comment on this
topic.
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The second part of the proposed
definition of ‘‘material damage to the
hydrologic balance outside the permit
area’’ provides that this term means any
adverse impact from surface coal mining
and reclamation operations or from
underground mining activities,
including any adverse impacts from
subsidence that may occur as a result of
underground mining activities, on the
quality or quantity of surface water or
groundwater, or on the biological
condition of a perennial or intermittent
stream, that would impact threatened or
endangered species, or have an adverse
effect on designated critical habitat,
outside the permit area in violation of
the Endangered Species Act of 1973, 16
U.S.C. 1531 et seq. This provision is
intended to ensure compliance with
both the Endangered Species Act and
the fish and wildlife protection
provisions of sections 515(b)(24) and
516(b)(11) of SMCRA. We also are
considering alternative language for the
second part of the definition. That
alternative would replace the phrase
‘‘that would impact threatened or
endangered species, or have an adverse
effect on designated critical habitat,
outside the permit area in violation of
the Endangered Species Act of 1973, 16
U.S.C. 1531 et seq.’’ with ‘‘that would
jeopardize the continued existence of
threatened or endangered species, or
result in the destruction or adverse
modification of designated critical
habitat, outside the permit area in
violation of the Endangered Species Act
of 1973, 16 U.S.C. 1531 et seq.’’ The
second alternative would parallel the
language of existing and proposed 30
CFR 816.97(b) and 817.97(b).
State water quality standards and
associated water quality criteria provide
a starting point for establishment of
material damage criteria under SMCRA
for surface waters, but they are not the
endpoint. SMCRA material damage
criteria must be no less stringent than
Clean Water Act water quality standards
and criteria in all cases, but, in some
situations, they may need to be more
stringent to protect unique uses or to
comply with the Endangered Species
Act. In addition, the SMCRA regulatory
authority may need to establish
numerical material damage criteria for
parameters of concern for which there
are no numerical water quality
standards or water quality criteria under
the Clean Water Act.
The Clean Water Act does not apply
to groundwater, so the SMCRA
regulatory authority would need to use
best professional judgment to establish
material damage criteria to protect
existing and reasonably foreseeable uses
of groundwater. Material damage
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criteria for groundwater also would
need to take into consideration the
needs of any threatened or endangered
species.
The proposed definition does not
differentiate between permanent or
long-term impacts and temporary or
short-term impacts. Any impact that
would preclude a designated, existing,
or reasonably foreseeable use of surface
water outside the permit area, or an
existing or reasonably foreseeable use of
groundwater outside the permit area,
would constitute material damage to the
hydrologic balance, regardless of the
duration of the impairment. Isolated
noncompliant discharges would not be
considered material damage unless
those discharges are of a magnitude
sufficient to preclude a protected use.
We invite comment on whether the
definition should exclude temporary
adverse impacts if the permit applicant
can demonstrate that there will be no
long-term adverse impacts after mining
is completed.
Nothing in the proposed definition is
intended to supersede the water supply
replacement provisions of sections 717
and 720 of SMCRA.189 In other words,
material damage to the hydrologic
balance outside the permit area would
not exist solely because the operation
destroys or damages protected water
supplies, provided that the permittee
replaces those supplies in accordance
with applicable regulatory program
requirements (i.e., proposed 30 CFR
816.40 or 817.40) and the definition of
‘‘replacement of water supply’’ in 30
CFR 701.5.
The definition would apply to adverse
impacts from subsidence resulting from
underground mining operations and to
other adverse impacts resulting from
underground mining operations; e.g.,
dewatering a stream by mining through
a fracture zone or dewatering an aquifer
or saturated zone that serves as a water
supply for legitimate uses. It would not
be limited to the impacts of surface
mining activities or the impacts of
activities conducted on the surface of
land in connection with an
underground coal mine. Section
510(b)(3) of SMCRA190 applies to all
applications for permits or permit
revisions. This provision has never
contained an exception for impacts from
underground mining operations or for
any other type of surface coal mining
operations for which a permit is
required.
189 30
190 30
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U.S.C. 1260(b)(3).
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Paragraphs (a) and (d) of section 516
of SMCRA191 require that the Secretary
take into consideration the distinct
difference between surface and
underground coal mining when
promulgating regulations for
underground mining operations.
However, this provision does not justify
allowing underground mining
operations or subsidence resulting from
underground mining operations to
dewater or degrade a stream to the
extent of precluding an existing,
reasonably foreseeable, or designated
use of that stream. Doing so would hold
underground mines to a lesser standard
of environmental protection than
surface mines. Nothing in the
environmental protection purposes of
SMCRA, as set forth in paragraphs (a),
(c), (d), and (f) of section 102 of the
Act,192 suggests or supports the
adoption of a lesser standard for
underground mines.
We are aware of concerns that
including impacts from subsidence in
the definition could effectively prohibit
use of the longwall mining method or
other high-extraction methods of
underground mining to recover a
substantial proportion of coal reserves.
However, application of this definition
to the area overlying proposed
underground workings and the area
within a reasonable angle of draw from
the perimeter of those workings would
not prohibit all mining operations that
would result in subsidence of streams.
It would only prohibit mining
operations that would result in
dewatering of a stream to the extent that
the stream would no longer be able to
support existing or reasonably
foreseeable uses or designated uses of
the stream under the Clean Water Act
and for which there are no viable
measures to prevent this impact. Our
draft regulatory impact analysis found
that the proposed rule, including this
definition, would not strand or sterilize
any reserves; i.e., the proposed rule
would not make any coal reserves that
are technically and economically
feasible to mine under baseline
conditions unavailable for extraction.
Underground mine operators cannot
avoid application of section 510(b)(3) of
SMCRA193 by drawing the permit
boundaries for the mine to include
undisturbed areas that may be affected
by subsidence. In revising the definition
of ‘‘permit area’’ in 1983, we specifically
rejected a suggestion that the definition
should include all areas overlying
underground workings. Instead, we
191 30
U.S.C. 1266(a) and (d).
U.S.C. 1202(a),(c),(d), and (f).
193 30 U.S.C. 1260(b)(3).
192 30
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stated that the permit area consists of all
‘‘areas for which reclamation operations
are planned and for which the
performance bond can be accurately
set,’’ which, we further explain, would
not include areas with subsidence
potential but no planned disturbance.194
We recognize that some state regulatory
programs may include the area
overlying the proposed underground
workings and other undisturbed areas
with subsidence potential within their
definitions of ‘‘permit area.’’ Should our
proposed definition of material damage
to the hydrologic balance outside the
permit area become final, those states
would need to specify that the
prohibition on the approval of permit
applications for operations that would
result in material damage to the
hydrologic balance outside the permit
area applies to all lands to which that
prohibition would apply under the
federal regulations. In other words, state
regulatory authorities would have to
ensure that the prohibition would apply
to all lands overlying the underground
mine workings and to all lands within
a reasonable angle of draw 195 from the
perimeter of those workings, if those
lands are not otherwise disturbed by
surface operations or facilities
associated with the underground mine.
redesignation of existing § 784.20 as
§ 784.30. We propose no other
substantive revisions to this definition—
only a plain language revision to the last
sentence.
Parameters of Concern
We propose to add a definition of this
term because we use this term
extensively in our proposed rule. Under
the proposed definition, parameters of
concern would consist of those
chemical or physical characteristics or
properties of surface water or
groundwater that could be altered by
mining activities in a manner that
would adversely impact the quality of
surface water or groundwater or the
biological condition of a stream.
Perennial Stream
We propose to redefine ‘‘perennial
stream’’ in a manner that is
substantively identical to the manner in
which the U.S. Army Corps of Engineers
defines that term in Part F of the 2012
reissuance of the nationwide permits
under section 404 of the Clean Water
Act. See 77 FR 10184, 10288 (Feb. 21,
2012). Adoption of a substantively
identical definition would promote
consistency in application and
interpretation of that term under both
SMCRA and Clean Water Act programs.
Mountaintop Removal Mining
We invite comment on whether the
definition in the final rule should
We propose to consolidate the
include language specifying that the
descriptions of mountaintop removal
U.S. Army Corps of Engineers has the
mining operations in existing 30 CFR
ultimate authority to determine the
785.14(b) and 824.11(a)(2) and (3) into
point at which an ephemeral stream
a new definition in § 701.5 for clarity
becomes an intermittent stream or a
and ease of use. This new definition is
perennial stream and vice versa.
consistent with section 515(c)(2) of
SMCRA,196 which pertains to operations Further, if the final rule includes
language to that effect, we invite
that ‘‘remove an entire coal seam or
comment on whether the definition also
seams running through the upper
should provide that any determination
fraction of a mountain, ridge, or hill
that the Corps makes concerning these
. . . by removing all of the overburden
transition points will be controlling for
and creating a level plateau or a gently
purposes of SMCRA regulatory
rolling contour with no highwalls
programs. Commenters should discuss
remaining, and capable of supporting
the applicability of two SMCRA
postmining uses in accord with the
provisions in this context. First, section
requirements of this section.’’ We
702(a) of SMCRA 197 provides that
anticipate that this definition also may
‘‘[n]othing in this Act shall be construed
be useful in correcting misconceptions
about the meaning of this term and what as superseding, amending, modifying, or
repealing’’ the Clean Water Act, any rule
types of operations it includes.
or regulation adopted under the Clean
Occupied Residential Dwelling and
Water Act, or any state laws enacted
Structures Related Thereto
pursuant to the Clean Water Act.
We propose to revise a cross-reference Second, section 505(b) of SMCRA 198
to 30 CFR 784.20 in this definition to be provides that any provision of any state
consistent with our proposed
law or regulation may not be construed
to be inconsistent with SMCRA if it
194 48 FR 14820 (Apr. 5, 1983).
‘‘provides for more stringent land use
195 The angle of draw would be determined on a
and environmental controls and
site-specific basis after evaluating the thickness of
regulations of surface coal mining and
the strata overlying the coal seam, the lithology of
the strata overlying the coal seam, and the thickness
of the coal seam mined.
196 30 U.S.C. 1265(c)(2).
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198 30
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U.S.C. 1292(a).
U.S.C. 1255(b).
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reclamation operation[s] than do the
provisions of this Act or any regulation
issued pursuant thereto.’’ In other
words, should our regulations allow
states to adopt and apply stream
definitions in a manner that would
protect a greater length of stream than
would the Corps determinations?
Our existing definition has two
principal differences with the Corps’
definition that we propose to adopt.
First, our existing definition of a
perennial stream would not consider a
stream with a base flow resulting from
the melting of a snowpack to be a
perennial stream because the snowpack
does not lie below the local water table
and because snowmelt is not considered
groundwater. However, the preamble to
the definition of ‘‘ephemeral stream’’
that the Corps adopted as part of the
2012 reissuance of the nationwide
permits under section 404 of the Clean
Water Act states that snowmelt
contributes to the flow of intermittent
and perennial streams, especially in
areas with deep snow packs, and that
melting snow should not be considered
a precipitation event because the
development of a snowpack occurs over
the course of a winter season. See 77 FR
10184, 10262 (Feb. 21, 2012). In
essence, the preamble discussion would
allow a stream originating from a
melting snowpack to be considered a
perennial stream even though the
definition of ‘‘perennial stream’’
requires groundwater as the source of
base flow. We invite comment on
whether we should revise our proposed
definition of ‘‘perennial stream’’ to
include language consistent with the
discussion of snowmelt in the preamble
to the Corps’ definition of ‘‘ephemeral
stream.’’
Second, the Corps’ definition of
‘‘perennial stream’’ refers to continuous
flow year-round ‘‘during a typical year.’’
Our existing definition refers to
continuous flow during all of the
calendar year. The Corps’ definition—
and hence our proposed definition—
reflect the fact that perennial streams or
segments of those streams may cease
flowing during periods of sustained
below-normal precipitation. Our
proposed adoption of the Corps’
definition would have the effect of
clarifying that those stoppages do not
result in reclassification of the stream as
intermittent.
Reclamation
The existing definition of reclamation
in 30 CFR 701.5 provides that this term
‘‘means those actions taken to restore
mined land as required by this chapter
to a postmining land use approved by
the regulatory authority.’’ This
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definition is too narrow and does not
fully implement SMCRA.
First, the existing definition applies
only to the mined area, not to the entire
disturbed area. Section 102(e) of
SMCRA 199 states that one of the
purposes of SMCRA is to ‘‘assure that
adequate procedures are undertaken to
reclaim surface areas as
contemporaneously as possible with the
surface coal mining operations.’’ Among
other things, the definition of ‘‘surface
coal mining operations’’ in section
701(28) of SMCRA 200 includes all
activities conducted on the surface of
lands in connection with a surface coal
mine. Those activities are not limited to
mined areas. In addition, paragraph (B)
of the definition includes ‘‘the areas
upon which such activities occur or
where such activities disturb the natural
land surface.’’ Therefore, we propose to
apply the definition to the entire
disturbed area, rather than limiting it to
the mined area.
Second, the existing definition
includes only actions taken to restore
land to an approved postmining land
use, not to all actions taken to restore
land and water to the conditions
required by the Act and regulatory
program. Third, the existing definition
implies that the land must be restored
to an actual postmining land use when,
in fact, section 515(b)(2) of SMCRA201
requires only that the land be restored
to a condition in which it is capable of
supporting the uses it was capable of
supporting prior to any mining or,
subject to certain restrictions, higher or
better uses.
The proposed definition corrects
these deficiencies. Our proposed rule
would define reclamation as meaning
those actions taken to restore the mined
land and associated disturbed areas to a
condition in which the site is (1)
capable of supporting the uses it was
capable of supporting prior to any
mining or any higher or better uses
approved by the regulatory authority,
and (2) meets all other requirements of
the permit and regulatory program that
pertain to restoration of the site. In
addition, our proposed definition
specifically details what reclamation
means for sites with discharges that
require treatment. For those sites, we
propose to revise the definition to
specify that the term also includes those
actions taken or that must be taken to
eliminate, remediate or treat those
discharges, including both discharges
from the mined area and all other
discharges that are hydrologically
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U.S.C. 1202(e).
U.S.C. 1291(28).
201 30 U.S.C. 1265(b)(2).
200 30
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connected to either the mined area or
the mining operation, regardless of
whether those discharges are located
within the disturbed area.
However, nothing in this proposed
definition should be construed as
meaning that the regulatory authority
may approve a permit application for an
operation that will cause, or that is
likely to cause, a postmining discharge
that requires treatment to prevent
pollution. Doing so would violate
SMCRA as explained in the acid mine
drainage policy statement that we
issued on March 31, 1997.202
Reclamation Plan
We propose to add this definition to
clarify which provisions of our permit
application requirements are considered
part of the reclamation plan. Section
701(21) of SMCRA 203 defines
‘‘reclamation plan’’ as ‘‘a plan submitted
by an applicant for a permit under a
State program or Federal program which
sets forth a plan for reclamation of the
proposed surface coal mining operations
pursuant to section 508 [of SMCRA.]’’ In
this proposed rule, we propose to adopt
a streamlined version of the statutory
definition that complies with plain
language principles, eliminates the
unnecessary reference to state or federal
programs, and contains adaptations
needed to reflect the structure and
organization of the regulations that
correspond to the reclamation plan
requirements of SMCRA. Specifically,
the proposed rule would replace the
reference to section 508 of SMCRA 204
with references to 30 CFR parts 780,
784, and 785. Part 780 contains the rules
that implement section 508 of
SMCRA.205 Part 784 is the underground
mining counterpart of part 780. Part 785
contains permit application
requirements, including reclamation
plan requirements, that apply to special
categories of mining.
Renewable Resource Lands
We propose to revise this definition to
clarify that it includes recharge areas for
surface waters, not just recharge areas
for underground waters. We find no
legal or technical reason to exclude
recharge areas for lakes, ponds, and
wetlands from classification as
renewable resource lands. Section
202 ‘‘Policy Goals and Objectives on Correcting,
Preventing and Controlling Acid/Toxic Mine
Drainage,’’ OSMRE, March 31, 1997. Available at
www.osmre.gov/lrg/docs/amdpolicy033197.pdf (last
accessed August 27, 2014).
203 30 U.S.C. 1291(21).
204 30 U.S.C. 1258.
205 30 U.S.C. 1258.
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522(a)(3)(C) of SMCRA 206 uses this term
in the context of establishing criteria for
designating lands as unsuitable for
certain types of surface coal mining
operations. Specifically, it provides that
lands are eligible for designation if
surface coal mining operations would
‘‘affect renewable resource lands in
which such operations could result in a
substantial loss or reduction of longrange productivity of water supply
. . .’’ This statutory provision further
provides that those lands ‘‘include
aquifers and aquifer recharge areas,’’ but
it does not limit the scope of that
provision to those areas. Many towns
and cities depend upon surface-water
reservoirs for their water supply, which
means that paragraph (a)(3)(C) would
include the watersheds of those
reservoirs. Surface disturbances like
mining that involve removal of
vegetation can significantly impact both
the quantity and quality of water
available from those watersheds.
Replacement of Water Supply
We propose to revise this definition
by moving existing paragraphs (a) and
(b), which describe how the water
supply replacement obligation may be
satisfied, to the performance standards
at 30 CFR 816.40 and 817.40. Existing
paragraphs (a) and (b) of the definition
are more appropriately categorized as
performance standards, which means
that they should be codified as part of
the performance standards in
subchapter K, not as part of the
definition of this term.
Temporary Diversion
We propose to revise this definition in
a manner that avoids using part of the
term itself (‘‘diversion’’) as part of the
definition. In addition, the existing
definition, which includes only
diversions of streams and overland flow,
could be construed as excluding
diversion channels used to convey
surface runoff or pit water to a siltation
structure or treatment facility. We
propose to revise the definition to
specifically include those channels.
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Waters of the United States
To promote consistency with the
Clean Water Act, we propose to define
this term as having the same meaning as
the corresponding definition in 40 CFR
230.3(s), which is part of the Section
404(b)(1) Guidelines under the Clean
Water Act
C. Part 773: Requirements for Permits
and Permit Processing
1. Section 773.5: How must the
regulatory authority coordinate the
permitting process with requirements
under other laws?
Section 773.5 specifies that each
regulatory program must provide for the
coordination of review and issuance of
SMCRA permits with applicable
provisions of various federal laws. It
implements, in part, section 503(a)(6) of
SMCRA,207 which requires that each
state regulatory program establish ‘‘a
process for coordinating the review and
issuance of permits for surface coal
mining and reclamation operations with
any other Federal or State permit
process applicable to the proposed
operations.’’
We propose to add the Clean Water
Act, 33 U.S.C. 1251 et seq., to the list
of laws for which coordination is
required under both state and federal
regulatory programs. Almost all surface
coal mining operations require Clean
Water Act permits and both SMCRA and
the Clean Water Act are concerned with
protection of water quality, so it makes
sense to coordinate the SMCRA and
Clean Water Act permitting processes.
Coordination of the SMCRA and Clean
Water Act permitting processes also
would assist in reducing or eliminating
potential conflicts between SMCRA and
Clean Water Act permits. That outcome
would be consistent with section 702(a)
of SMCRA,208 which provides that
‘‘[n]othing in this Act shall be construed
as superseding, amending, modifying, or
repealing’’ the Clean Water Act, any rule
or regulation adopted under the Clean
Water Act, or any state laws enacted
pursuant to the Clean Water Act.
In addition, we propose to add the
National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. 4371 et seq., to
the list of laws for which a coordination
process is required under federal
regulatory programs. There is no need or
basis to apply this coordination
requirement to state regulatory programs
approved under SMCRA because the
Departmental Manual excludes permit
applications under state SMCRA
regulatory programs from NEPA
compliance. See 516 DM 13.3.
Finally, we propose to clarify that
only federal regulatory programs must
establish a process for coordination with
the National Historic Preservation Act of
1966 (NHPA), 54 U.S.C. 300101 et seq.
This change is consistent with National
Mining Association v. John M. Fowler,
324 F.3d 752 (D.C. Cir. 2003), in which
207 30
206 30
U.S.C. 1272(a)(3)(C).
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U.S.C. 1292(a).
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the court held that projects licensed or
permitted by state and local agencies
pursuant to a delegation or approval by
a federal agency are not federally
funded or federally licensed
undertakings for purposes of section 106
of the NHPA.
2. Section 773.7: How and when will
the regulatory authority review and
make a decision on a permit
application?
We propose to restructure 30 CFR
773.7(a) to improve clarity and
eliminate a grammatical error in the
existing language. There are no
substantive revisions to this paragraph.
We also propose to add 30 CFR
773.7(b)(2), which would list the factors
that the regulatory authority must
consider in determining what
constitutes a reasonable time for
notifying a permit applicant whether the
application has been approved or
disapproved, in whole or in part. The
factors in proposed paragraphs (b))(2)(i)
through (iv) reflect the factors listed in
section 514(b) of SMCRA.209 Proposed
paragraph (b)(2)(v) would require
consideration of the time required to
complete the interagency permitting
coordination process under 30 CFR
773.5.
Finally, we propose to redesignate
existing 30 CFR 773.7(b) as 30 CFR
773.7(c) and revise that paragraph to
specifically state that an applicant for
the transfer, assignment, or sale of
permit rights has the burden of proof for
establishing that the application is in
compliance with all regulatory program
requirements. We propose to make this
change because the transfer, assignment,
or sale of permit rights is a type of
permit revision, which means that an
application of that nature is subject to
section 510(a) of SMCRA.210 In relevant
part, that paragraph of the Act states
that the applicant for a permit or permit
revision has the burden of establishing
that the application is in compliance
with all requirements of the applicable
regulatory program.
3. Section 773.15: What findings must
the regulatory authority make before
approving a permit application?
Most of the changes that we propose
to make to this section result from either
the application of plain language
principles or an effort to clarify the
meaning and scope of the findings that
the regulatory authority must make
before approving a permit application.
Proposed paragraph (c)(2) would
clarify that the finding that the proposed
209 30
210 30
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U.S.C. 1260(a).
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permit area is not within an area
designated as unsuitable for surface coal
mining operations under 30 CFR parts
762 and 764 or 769 applies only to lands
that are designated as unsuitable for the
type of surface coal mining operations
that the permit applicant proposed to
conduct. For example, lands may be
designated as unsuitable only for
surface mining, in which case the
regulatory authority may approve a
permit for an underground mine.
Similarly, proposed paragraph (c)(3)
would clarify that the finding that the
proposed permit area is not within an
area subject to the prohibitions of 30
CFR 761.11 does not apply in situations
in which one or more of the exceptions
(valid existing rights, the existing
operation exemption, landowner
consent, joint approval, etc.) to those
prohibitions applies.
We propose to revise the finding in
paragraph (e) concerning the assessment
of the cumulative hydrologic impacts of
mining by adding paragraph (e)(3),
which would require that the regulatory
authority find that it has inserted into
the permit criteria defining material
damage to the hydrologic balance
outside the permit area on a site-specific
basis, expressed in numerical terms for
each parameter of concern, as required
by § 780.21(b) or § 784.21(b). Our
proposed revision is intended to ensure
that permit-specific criteria are both
established and readily available to the
permittee, inspectors, and permit
reviewers.
Existing paragraph (j) provides that,
before approving a permit application,
the regulatory authority must find that
the proposed operation is not likely to
either jeopardize the continued
existence of threatened or endangered
species or result in destruction or
adverse modification of critical habitat,
as determined under the Endangered
Species Act of 1973, 16 U.S.C. 1531 et
seq. In response to discussions with the
U.S. Fish and Wildlife Service
concerning compliance with the
Endangered Species Act, we propose to
modify paragraph (j) to extend the
finding to include species that the
Secretary has proposed for listing as
threatened or endangered.211 The
proposed change is consistent with
section 7(a)(4) of the Endangered
Species Act, which provides that
211 We will revise this provision and other
proposed rules concerning protection of threatened
and endangered species to include the National
Marine Fisheries Service (NMFS), which is
responsible for administration and enforcement of
the Endangered Species Act with respect to
anadromous and marine species, if we determine
that this rulemaking may affect species under
NMFS jurisdiction.
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‘‘[e]ach Federal agency shall confer with
the Secretary on any agency action
which is likely to jeopardize the
continued existence of any species
proposed to be listed under section 4 or
result in the destruction or adverse
modification of critical habitat proposed
to be designated for such species.’’ It
also would assist in implementing the
fish and wildlife protection provisions
of sections 515(b)(24) and 516(b)(11) of
SMCRA. The conferencing requirement
of section 7(a)(4) of the Endangered
Species Act is not the same as the
consultation requirement for threatened
and endangered species under section
7(a)(2) of the Endangered Species Act.
Also, the U.S. Fish and Wildlife Service
is responsible for determining allowable
take of species listed as threatened or
endangered.
We propose to remove existing
paragraph (m), which applies to permits
to be issued under 30 CFR 785.25
(permits containing lands eligible for
remining). This finding is not needed
because it merely repeats requirements
already stated in 30 CFR 785.25. In
addition, paragraph (m) is duplicative of
paragraph (h), which requires a finding
that the applicant has satisfied all
applicable requirements of 30 CFR part
785. Removal of existing paragraph (m)
would result in the redesignation of
existing paragraph (n) as paragraph (m).
In addition, we propose to add a new
paragraph (n), which would require that
the regulatory authority find that the
applicant has demonstrated that the
operation has been designed to prevent
the formation of discharges that would
require long-term treatment after mining
has been completed. The regulatory
authority also would be required to find
that the applicant has demonstrated that
there is no credible evidence that the
design of the operation will not work as
intended to prevent the formation of
discharges of that nature.
Avoiding creation of discharges that
require long-term treatment benefits
both the permittee (because the
permittee would bear the cost of treating
the discharge) and the public (because
there is no risk of environmental
damage or use of tax receipts to pay for
treatment if the permittee defaults).
Adoption of proposed paragraph (n)
would incorporate into regulation one of
the provisions of the policy entitled
‘‘Hydrologic Balance Protection: Policy
Goals and Objectives on Correcting,
Preventing, and Controlling Acid/Toxic
Mine Drainage’’ 212 that we issued on
March 31, 1997. In that policy, we
212 See www.osmre.gov/lrg/docs/
amdpolicy033197.pdf (last accessed August 5,
2014).
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explain that approval of a permit that
would result in the creation of a
discharge requiring long-term treatment
would be inconsistent with SMCRA: ‘‘In
no case should a permit be approved if
the determination of probable
hydrologic consequences or other
reliable hydrologic analysis predicts the
formation of a postmining pollutional
discharge that would require continuing
long-term treatment without a defined
endpoint.’’ 213 The regulatory authority
may rely upon data from similar
completed mining operations under
conditions that are representative of
those found at the site of the proposed
operation as credible evidence for this
demonstration and finding.
We explained our authority for this
provision when we issued our policy
document:
Several commenters expressed concern that
OSM exceeded its statutory authority by
focusing on section 510(b)(3) of SMCRA,
which provides that no permit application
may be approved unless the regulatory
authority finds that the operation has been
designed to prevent material damage to the
hydrologic balance outside the permit area,
and interpreting that section as requiring the
prevention of AMD [acid mine drainage]
formation. The commenters noted that
sections 515(b)(10) and 516(b)(9) of SMCRA
refer to minimization (rather than
prevention) of hydrologic disturbances and
avoidance (rather than the prevention) of
AMD, with the prevention of AMD formation
being only one of the three avoidance
mechanisms listed in these sections.
Response: The minimization and
avoidance provisions of sections 515(b)(10)
and 516(b)(9) of SMCRA do not negate the
material damage prevention requirement of
section 510(b)(3). Furthermore, the Act
specifies that the provisions cited by the
commenters apply only during mining and
reclamation. OSM interprets this limitation
as meaning that conducting operations in a
manner likely to result in AMD production
is acceptable only when AMD formation is
expected to be a temporary phenomenon. In
other words, discharge treatment is an
appropriate means of avoiding AMD and
minimizing damage to the hydrologic balance
only when the need for treatment has a
defined endpoint.
*
*
*
*
*
The approach adopted in the policy
statement is fully consistent with the Rith
Energy decision in which the IBLA [Interior
Board of Land Appeals] upheld OSM’s
refusal to approve a mining plan that sought
to minimize, rather than avoid, AMD. In that
case, the IBLA agreed with OSM that ‘‘the
statute, as properly read, requires the agency
to minimize disturbance to the prevailing
hydrologic balance by avoiding acid or toxic
mine drainage. Minimizing the contact of
water and toxic-producing deposits, as
argued by petitioner [Rith Energy], is not the
standard.’’ 111 IBLA 249. The policy
213 Id.,
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statement accords with Rith Energy because
it provides that ‘‘[p]ermits may only be
approved where the operation is designed to
ensure that off-site material damage to the
hydrologic balance will be prevented.’’
(Emphasis added.) Permittees may not plan
in advance to allow AMD to occur and then
simply mitigate the effects of the AMD.214
Finally, we propose to add a new
required finding in paragraph (o) in
response to discussions with the U.S.
Fish and Wildlife Service concerning
compliance with the Endangered
Species Act. This finding would specify
that, to the extent possible using the
best technology currently available, the
proposed operation has been designed
to minimize disturbances and adverse
impacts on fish, wildlife, and related
environmental values, as identified in
§ 779.20 or § 783.20, and to enhance
those resources where practicable, as
required under § 780.16 and § 784.16.
The proposed language is similar to
sections 515(b)(24) and 516(b)(11) of
SMCRA 215 and is intended to reinforce
those statutory provisions.
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4. Section 773.17: What conditions must
the regulatory authority place on each
permit issued?
We propose to revise paragraph (c) of
this section to require that the permittee
comply with all applicable requirements
of the Act rather than all applicable
performance standards of the Act. We
propose to make this change because the
condition also requires compliance with
the requirements of the regulatory
program, which means that the
applicable performance standards
would be in the program, not the Act.
We propose to revise paragraph (e) of
this section to require that the permittee
notify the regulatory authority and other
appropriate state and federal regulatory
agencies of any adverse impact to the
environment or public health or safety
as a result of a noncompliance with any
term or condition of the permit.
Notification would allow those agencies
to take any necessary action to minimize
the impacts of the noncompliance on
the environment or public health or
safety, consistent with the purpose
stated in section 102(a) of SMCRA.216
We propose to add a new permit
condition in paragraph (h) of this
section to require that the permittee
obtain all necessary authorizations,
certifications, and permits in
accordance with Clean Water Act
requirements before conducting any
activities that require approval or
authorization under the Clean Water
Act. The new condition would be
consistent with section 702(a) of
SMCRA,217 which provides that
‘‘[n]othing in this Act shall be construed
as superseding, amending, modifying, or
repealing’’ the Clean Water Act,218 or
any rule or regulation adopted under the
Clean Water Act, or any state laws
enacted pursuant to the Clean Water
Act. It also would be consistent with our
efforts to enhance coordination between
the SMCRA and Clean Water Act
regulatory authorities. Permit conditions
are directly enforceable under SMCRA.
Therefore, the addition of this permit
condition would mean that the SMCRA
regulatory authority must take
enforcement action if the permittee does
not obtain all necessary Clean Water Act
authorizations, certifications, and
permits before beginning any activity
under the SMCRA permit that also
requires approval, authorization, or
certification under the Clean Water Act.
D. Part 774: Revision; Renewal;
Transfer, Assignment, or Sale of Permit
Rights; Post-Permit Issuance
Requirements.
1. Section 774.10: When must the
regulatory authority review a permit?
We propose to revise paragraphs (a)(2)
and (a)(3) of this section to establish
identical review requirements for
permits for mountaintop removal
mining operations under 30 CFR 785.14
and for permits that include a variance
from approximate original contour
restoration requirements under 30 CFR
785.16. This change is appropriate
because the statutory review
requirements for those types of
operations in paragraphs (c)(6) and
(e)(6) of section 515 of SMCRA 219 are
substantively identical. Furthermore,
these reviews are one-time events, not
recurring requirements like midterm
permit reviews.
In concert with this change, we
propose to move the midterm review
requirements for permits with a
variance for a delay in contemporaneous
reclamation requirements because of
combined surface and underground
mining from paragraph (a)(2) to a new
paragraph (a)(4). Creation of the new
single-topic paragraph also is in keeping
with plain language principles.
2. Section 774.15: How may I renew a
permit?
We propose to revise paragraph (b)(2)
of this section by adding paragraph
(b)(2)(vii), which would require that
each application for permit renewal
214 Id.
217 30
215 30
at 12 and 14.
U.S.C. 1265(b)(24) and 1266(b)(11).
216 30 U.S.C. 1202.
218 33
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U.S.C. 1292(a).
U.S.C. 1251 et seq.
219 30 U.S.C. 1265(c)(6) and (e)(6).
include an analysis of the monitoring
results for surface water, groundwater,
and the biological condition of streams
and an evaluation of the accuracy and
adequacy of the determination of the
probable hydrologic consequences of
mining (PHC determination). We also
propose to add paragraph (b)(2)(viii),
which would require that the renewal
application include either an update of
the PHC determination or
documentation that the findings in the
existing PHC determination are still
valid. Similarly, we propose to revise
paragraph (c)(1) of this section by
adding paragraph (c)(1)(viii), which
would authorize the regulatory
authority to withhold approval of a
permit renewal application if
monitoring results or the updated PHC
determination indicate that the finding
that the regulatory authority made
under 30 CFR 773.15(e) that the
operation is designed to prevent
material damage to the hydrologic
balance outside the permit area is no
longer accurate.
These revisions would assist the
regulatory authority in ensuring that the
operation continues to be designed and
conducted to prevent material damage
to the hydrologic balance outside the
permit area. A narrow reading of section
510(b)(3) of SMCRA 220 and 30 CFR
773.15(e) might hold that the finding
concerning material damage to the
hydrologic balance outside the permit
area is required only for the approval of
an application for a permit or permit
revision. However, we interpret section
510(b)(3) of SMCRA more broadly.
Addition of a requirement for an
equivalent finding as a prerequisite for
the approval of permit renewal
applications is consistent with the
intent and purpose of section 510(b)(3)
of the Act.221
Proposed paragraph (b)(2)(v) is
substantively identical to existing
paragraph (b)(2)(iii), with the exception
that we propose to remove the provision
requiring that the application for a
permit renewal include any additional
bond requested by the regulatory
authority. This provision is both
unnecessary and out of sequence
because, at the time that the permittee
submits the application for renewal, the
amount of additional bond needed, if
any, would not yet be known. The
regulatory authority determines the
amount of additional bond required
after completing a technical review of
the renewal application. Proposed
paragraph (c)(1)(vi), like existing
paragraph (c)(1)(v), provides that the
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221 30
E:\FR\FM\27JYP2.SGM
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U.S.C. 1260(b)(3).
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regulatory authority may deny a permit
renewal application if the applicant has
not submitted the additional bond
required by the regulatory authority.
This paragraph provides sufficient
protection against renewal of a permit
that lacks the necessary bond coverage.
We propose to revise paragraph
(c)(1)(ii) to specify that the regulatory
authority will apply the permit
eligibility standards in 30 CFR 773.12
through 773.14 in making this
determination. In other words,
applicants for permit renewal may avail
themselves of the provisionally-issued
permit procedures of 30 CFR 773.14 and
the exception in 30 CFR 773.13 for
unanticipated events or conditions at
remining sites. Extending the exception
for unanticipated events or conditions at
remining sites to permit renewals is
consistent with the intent of Congress in
enacting section 510(e) of SMCRA.222
In addition, as a matter of equitable
treatment, a permittee with a violation
who is seeking renewal of a permit
should have the same opportunity to
obtain a provisionally-renewed permit
as a person with a violation who is
seeking to obtain a new permit has to
obtain a provisionally-issued permit.
Under 30 CFR 773.14, the regulatory
authority may provisionally issue a
permit if (1) the applicant certifies that
each outstanding violation is being
abated to the satisfaction of the agency
with jurisdiction over the violation and
the regulatory authority has no evidence
to the contrary, (2) the applicant and
operations owned or controlled by the
applicant are in compliance with any
abatement plan approved by the agency
with jurisdiction over the violation, (3)
the applicant is pursuing a good faith
challenge to the pertinent ownership or
control listing and there is no initial
judicial decision in force affirming the
listing, or (4) the violation is the subject
of a good faith administrative or judicial
appeal contesting the validity of the
violation and there is no initial judicial
decision in force affirming the violation.
Our proposed revisions to 30 CFR
774.15(c)(1)(ii) would apply the same
principles and criteria to the permit
renewal process. In addition, the
provisions of 30 CFR 773.14(c), which
specify the actions that the regulatory
authority must take to suspend or
revoke the permit if the permittee ceases
to be eligible for a provisionally-issued
permit, would apply.
We also propose assorted other
nonsubstantive changes to 30 CFR
774.15 to improve compliance with
plain language principles.
222 30
E. Part 777: General Content
Requirements for Permit Applications
1. Section 777.11: What are the format
and content requirements for permit
applications?
We propose to revise paragraph (a)(3)
of this section to require that permit
applications be filed in an electronic
format prescribed by the regulatory
authority, unless the regulatory
authority grants an exception to this
requirement for good cause. We propose
this change to facilitate public
participation and interagency
coordination in the permitting process
because it is much more efficient and
convenient to review and exchange
information online or by email than it
is to review hard copies, which are
time-consuming to produce and which
may involve considerable travel to other
offices to review documents that cannot
be copied. Electronic filing also would
assist in the coordination of regulatory
and inspection activities required by
section 713 of SMCRA.223 Furthermore,
use of an electronic format for the
permitting process can improve
efficiency by enabling correction letters
and applicant responses to occur in real
time with less expense to the regulatory
authority and the applicant. Finally,
electronic filing promotes attainment of
the goals of the Paperwork Reduction
Act.
2. Section 777.13: What requirements
apply to the collection, analysis, and
reporting of technical data and to the
use of models?
We propose to consolidate existing
paragraphs (a) and (b) into proposed
paragraph (a) because both paragraphs
pertain to technical data and analyses.
Existing paragraph (a) would be
recodified as paragraph (a)(1) and
existing paragraph (b) would be
recodified as paragraph (a)(2).
Proposed paragraph (a)(1) would add
a requirement for submission of
metadata, which consists of data
describing the contents and context of
data files. The availability of metadata
greatly increases the usefulness of the
original data by providing information
about how, where, when, and by whom
the data were collected and analyzed. It
enables reviewers to evaluate the
validity of both the data itself and
comparisons with data collected at other
times and other places by other persons.
Existing paragraph (a) already required
submission of much of this information,
i.e., the names of persons or
organizations that collected and
analyzed the data, the dates that the
U.S.C. 1260(e).
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data were collected and analyzed, and
descriptions of the methodology used to
collect and analyze the data. We also
propose to revise the rule to add
requirements for submission of the field
sampling sheets prepared for water
samples collected from wells (the sheets
would identify the presence of any well
screens as well as the depth at which
the sample was taken). For all samples
that require laboratory analysis, the
proposed rule would require
information pertaining to the quality
assurance and quality control
procedures used by the laboratory that
analyzed the sample. For electronic
data, the proposed rule would require
identification of any transformations
that the data underwent. The proposed
rule would not limit metadata to the
specific items listed in proposed
paragraph (a)(1). Although not specified
in the proposed rule, metadata should
be generated in a format commonly used
by the scientific community.
Proposed paragraph (b) would require
that all sampling and analyses of
groundwater and surface water
performed to meet the permitting
requirements of subchapter G of our
regulations be conducted according to
the methodology in 40 CFR parts 136
and 434. Proposed paragraph
corresponds to the provisions
concerning water-quality sampling and
analysis methodologies in existing 30
CFR 780.21(a) and 784.14(a). Moving
this provision to 30 CFR 777.13 would
consolidate the requirements
concerning sampling and analysis
methodologies for groundwater and
surface water in one location and
expand their applicability to all
pertinent data and analyses required for
permit applications under subchapter G,
which should promote better data
collection and analysis procedures and,
hence, improved permitting decisions.
We propose to eliminate the
incorporation by reference of the 15th
edition of the ‘‘Standard Methods for
the Examination of Water and
Wastewater’’ in existing 30 CFR
780.21(a) and 784.14(a). That document
is now obsolete because the current
edition is the 22nd edition, which was
published in 2012. However, rather than
incorporating the current edition of the
‘‘Standard Methods for the Examination
of Water and Wastewater,’’ we propose
to remove the existing incorporation by
reference of the 15th edition of that
document while retaining the provision
in the existing rule that allows use of
the sampling and analysis
methodologies in 40 CFR parts 136 and
434. This proposed change would
ensure that sampling and analysis
methodologies under SMCRA are
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consistent with those approved by EPA
for use for Clean Water Act purposes.
We invite comment on whether there
are any unique SMCRA-related
requirements that would necessitate
incorporating the current edition of the
‘‘Standard Methods for the Examination
of Water and Wastewater’’ into our rule.
In other words, would the collection
and analysis of the baseline and
monitoring data that we propose to
require under this rule involve the use
of sampling and analysis methodologies
that 40 CFR parts 136 and 434 do not
include?
Proposed paragraph (c) would require
that all geological sampling and
analyses performed to meet the
permitting requirements of subchapter G
of our regulations be conducted using a
scientifically-valid methodology. This
new provision should promote better
geologic data collection and analysis
procedures and, hence, improved
permitting decisions. Scientificallyvalid methodologies include, but are not
limited to, those set forth in the
Engineering Geology Field Manual,
Second Edition (1998), developed by the
Bureau of Reclamation within the U.S.
Department of the Interior.
We propose to move the provisions
concerning the use of models found in
existing 30 CFR 780.21(d) and 784.14(d)
to 30 CFR 777.13(d) to consolidate
requirements concerning the use of
models in the latter paragraph. If
adopted as final, proposed paragraph (d)
would apply to all permit application
requirements. The existing provisions in
30 CFR 780.21(d) and 784.14(d) apply
only to hydrologic data, but we find no
scientific reason for limiting the use of
modeling in this manner. We also
propose to modify the existing
provisions by adding paragraph (d)(2),
which would require that all models be
calibrated using actual site-specific data
and that they be validated for the region
and ecosystem in which they will be
used. The additional requirements are
intended to improve the accuracy and
validity of any models used. Finally, we
propose to add a new paragraph (d)(3)
clarifying that the regulatory authority
has the discretionary authority to
prohibit the use of models and to
require the submission of additional
actual, site-specific data.
3. Section 777.15: What information
must my application include to be
administratively complete?
We propose to revise this section to
use terminology consistent with the
revisions to the permitting regulations
published on September 28, 1983 (48 FR
44344), which removed the term
‘‘complete application’’ and replaced it
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with the terms ‘‘administratively
complete application’’ and ‘‘complete
and accurate application.’’
F. Part 779: Surface Mining Permit
Applications—Minimum Requirements
for Information on Environmental
Resources and Conditions
1. Section 779.1: What does this part
do?
Existing 30 CFR 779.1 states that part
779 establishes the minimum
requirements for the Secretary’s
approval of regulatory program
provisions for the environmental
resources contents of permit
applications for surface mining
activities. However, the content
requirements and standards for approval
of state regulatory programs are located
in 30 CFR parts 730 through 732.
Therefore, we propose to revise 30 CFR
779.1 to specify that part 779 sets forth
permit application requirements relating
to environmental resources and
conditions.
2. Section 779.2: What is the objective
of this part?
We propose to revise this section to
reflect plain language principles and to
clarify that the objective of part 779 is
to ensure that the permit applicant
provides the regulatory authority with a
complete and accurate description of
both the environmental resources that
may be impacted or affected by
proposed surface mining activities and
the environmental conditions that exist
within the proposed permit and
adjacent areas. The existing language
does not mention environmental
conditions, such as the information on
climate required by 30 CFR 779.18.
3. Why are we proposing to remove
existing 30 CFR 779.11 and 779.12?
We propose to remove 30 CFR 779.11,
which requires a description of the
existing premining environmental
resources within the proposed permit
and adjacent areas, because the
requirements for this description are set
out in detail in other sections of part
779. Therefore, existing 30 CFR 779.11
is redundant and unnecessary.
We propose to remove existing 30
CFR 779.12(a) because the anticipated
mining schedule that it requires is
duplicative of proposed 30 CFR
779.24(a)(3). We propose to move the
cultural resource requirements of
existing 30 CFR 779.12(b) to a new 30
CFR 779.17 devoted to that topic.
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4. Section 779.19: What information on
vegetation must I include in my permit
application?
We propose to revise existing 30 CFR
779.19 by adding more specificity and
making submission of vegetation
information mandatory rather than
discretionary as under the existing
rules. The changes that we propose are
needed to ensure that native plant
communities are restored on reclaimed
areas as required by section 515(b)(19)
of SMCRA.224 Further, these changes are
intended to implement, in part, section
515(b)(24) of SMCRA,225 which requires
that, ‘‘to the extent possible using the
best technology currently available,’’
surface coal mining and reclamation
operations be conducted in a manner
that will ‘‘minimize disturbances and
adverse impacts on fish, wildlife, and
related environmental values, and
achieve enhancement of such resources
where practicable.’’
Restoration or establishment of native
plant communities is the most effective
way of restoring or enhancing wildlife
habitat. The Virginia Department of
Conservation and Natural Resources
describes the benefits of native plants as
follows:
The benefit of growing plants within the
region they evolved is they are more likely
to thrive under the local conditions while
being less likely to invade new habitats.
Native plants are well adapted to local
environmental conditions, maintain or
improve soil fertility, reduce erosion, and
often require less fertilizer and pesticides
than many alien plants. These characteristics
save time and money and reduce the amount
of harmful run-off threatening the aquatic
resources of our streams, rivers, and
estuaries. In addition, functionally healthy
and established natural communities are
better able to resist invasions by alien plant
species. So the use of native plants can help
prevent the spread of alien species already
present in a region and help avert future
introductions. ***
Native plants provide familiar sources of
food and shelter for wildlife. As natural
habitats are replaced by urban and suburban
development, the use of native plants in
landscaping can provide essential shelter for
displaced wildlife. Land managers can use
native plants to maintain and restore wildlife
habitat. Native wildlife species comprise a
majority of the game and non-game animals
we manage habitat for, and they evolved with
native plant species. Although alien species
are often promoted for their value as wildlife
food plants, there is no evidence that alien
plant materials are superior to native plants.
For instance, on land managed for upland
game animals, native warm season grasses
(big and little bluestem, switch grass, Indian
grass, coastal panic grass, gama grass), and
other native forbs (butterfly weed, ironweed,
224 30
225 30
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U.S.C. 1265(b)(24).
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Joe Pye weed) offer good sources of nutrition
without the ecological threats associated with
nonnative forage plants. Dramatic increases
in nesting success of both game birds and
songbirds have been observed in fields
planted with native grasses, which also offer
superior winter cover. In addition, warm
season grasses provide productive and
palatable livestock forage. ***
On a broader ecological scale, planting
native species contributes to the overall
health of natural communities. Disturbances
of intact ecosystems that open and fragment
habitat, such as land clearing activities,
increase the potential of invasion by alien
species. Native plants provide important
alternatives to alien species for conservation
and restoration projects in these disturbed
areas. They can fill many land management
needs currently occupied by nonnative
species, and often with lower costs and
maintenance requirements. Once established
in an appropriate area, most native plant
species are hardy and do not require
watering, fertilizers, or pesticides.226
A U.S. Fish and Wildlife Service
publication describes the benefits of
native plants as follows:
Native plants naturally occur in the region
in which they evolved. While non-native
plants might provide some of the above
benefits, native plants have many additional
advantages. Because native plants are
adapted to local soils and climate conditions,
they generally require less watering and
fertilizing than non-natives. Natives are often
more resistant to insects and disease as well,
and so are less likely to need pesticides.
Wildlife evolved with plants; therefore, they
use native plant communities for food, cover
and rearing young. Using native plants helps
preserve the balance and beauty of natural
ecosystems.227
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Notwithstanding the advantages of
native plant communities, many
regraded and revegetated areas do not
contain a diverse, effective, permanent
vegetative cover of the same seasonal
variety native to the area as required by
section 515(b)(19) of SMCRA.228
Instead, areas that were previously
forested were backfilled, regraded, and
revegetated in a manner that makes the
land incapable of achieving its
premining forested status. Those lands
are now heavily compacted grasslands
with scrub trees. Neither grassland nor
the trees are representative of the native
premining vegetation. A 2007 study
estimates that Appalachia alone
contains between 750,000 and 1.5
million acres of such reclaimed mine
226 https://www.dcr.virginia.gov/natural_heritage/
nativeplants.shtml (last accessed August 27, 2014).
227 Slattery, Britt E., Kathryn Reshetiloff, and
Susan M. Zwicker. 2003. ‘‘Native Plants for Wildlife
Habitat and Conservation Landscaping: Chesapeake
Bay Watershed.’’ U.S. Fish and Wildlife Service,
Chesapeake Bay Field Office, Annapolis, MD. 82
pp.
228 30 U.S.C. 1265(b)(19).
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land.229 Our proposed refinements to
the regulations would lead to better
implementation of the revegetation
requirements of section 515(b)(19) of
SMCRA.230 In addition, the proposed
rule would assist in the implementation
of section 508(a)(2) of SMCRA,231 which
requires that the reclamation plan in
each permit application identify both
the premining land uses and the
capability of the land prior to any
mining to support a variety of uses.
Moreover, the proposed rule is
consistent with Section 2.(a)(2)(iv) of
Executive Order 13112, ‘‘Invasive
Species,’’ which requires that ‘‘[e]ach
Federal agency whose actions may affect
the status of invasive species shall, to
the extent practicable and permitted by
law, . . . provide for the restoration of
native species and habitat conditions in
ecosystems that have been invaded.’’ 232
Proposed paragraph (a) would require
that the permit application identify,
describe, and map existing vegetation
and plant communities, as well as those
plant communities that would exist
under conditions of natural succession.
The description and map must be
adequate to evaluate whether the
vegetation provides important habitat
for fish and wildlife and whether the
site contains any native plant
communities of local or regional
significance.
Proposed paragraph (b) would require
that the applicant adhere to the
classifications in the National
Vegetation Classification Standard
(NVCS) 233 in preparing the description
required under proposed paragraph (a).
The NVCS is the standard endorsed by
the Federal Geographic Data
Committee.234 Use of this standard
would promote consistent identification
of plant communities and development
of appropriate revegetation plans to
restore those communities following
mining.
Proposed paragraph (c) would allow
the regulatory authority to approve the
use of other generally-accepted
vegetation classification systems in lieu
229 Zipper, C.E., J.A. Burger, J.M. McGrath, and B.
Amichev, ‘‘Carbon Accumulation Potentials of PostSMCRA Coal-Mined Lands.’’ Paper prepared for
presentation at the 30 Years of SMCRA and Beyond
Symposium, June 2–7, 2007. Published by the
American Society of Mining and Reclamation, R. I.
Barnhisel, ed. (unpaginated document).
230 30 U.S.C. 1265(b)(19).
231 30 U.S.C. 1258(a)(2).
232 64 FR 6184 (Feb. 8, 1999).
233 See https://www.fgdc.gov/standards/projects/
FGDC-standards-projects/vegetation/
(last accessed August 5, 2014).
234 See https://www.fgdc.gov/standards/projects/
FGDC-standards-projects/vegetation (last accessed
January 21, 2015).
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of the NVCS. We invite comment on
what other systems may exist.
Proposed paragraph (d) would require
that the application include a
discussion of the potential for
reestablishing the plant communities
described in paragraph (a) after the
completion of mining. This discussion
would assist the regulatory authority in
evaluating the proposed revegetation
plan and in determining which plant
communities the permittee must
reestablish.
5. Section 779.20: What information on
fish and wildlife resources must I
include in my permit application?
The fish and wildlife resource
information requirements in existing 30
CFR 780.16(a) identify the baseline fish
and wildlife resource information that
each permit application must include.
Therefore, we propose to move it to part
779, which contains environmental
resource information requirements for
permit applications. Part 779 is a better
fit for a fish and wildlife resource
information requirement than part 780,
which contains operation and
reclamation plan requirements. The fish
and wildlife information requirements
in existing 30 CFR 780.16(a) and
proposed 30 CFR 779.20 are necessary
to fully implement the fish and wildlife
protection and enhancement
requirements of section 515(b)(24) of
SMCRA.235
Proposed paragraph (c)(1) is similar to
the portion of existing 30 CFR
780.16(a)(2)(i) that pertains to species
listed or proposed for listing as
threatened or endangered under the
Endangered Species Act of 1973, 16
U.S.C. 1531 et seq., and to critical
habitat designated under that law. We
propose to add a requirement that the
site-specific resource information
include a description of the effects of
future state or private activities that are
reasonably certain to occur within the
proposed permit and adjacent areas. The
requested information will assist the
U.S. Fish and Wildlife Service in
fulfilling its responsibilities under the
coordination process pertaining to
threatened or endangered species.
Proposed paragraph (c)(2) is
substantively identical to the portion of
existing 30 CFR 780.16(a)(2)(i) that
pertains to species or habitat protected
by state statutes similar to the
Endangered Species Act.
In proposed paragraph (c)(3), which
corresponds to existing 30 CFR
780.16(a)(2)(ii), we propose to expand
the list of examples of habitat of
unusually high value to fish and
235 30
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wildlife to include areas that support
populations of endemic species that are
vulnerable because of restricted ranges,
limited mobility, limited reproductive
capacity, or specialized habitat
requirements. We propose to delete the
reference to important streams in the
existing regulation because proposed
paragraph (c)(5) would require sitespecific information for all perennial
and intermittent streams, not just
important streams.
Proposed paragraph (c)(4) is
substantively identical to existing 30
CFR 780.16(a)(2)(iii), except for the
addition of language clarifying that this
provision includes species identified as
sensitive by a state or federal agency.
Proposed paragraph (c)(6) would require
submission of site-specific information
when native plant communities of local
or regional ecological significance are
present.
Proposed paragraph (d) includes the
U.S. Fish and Wildlife Service permit
application review provisions found at
30 CFR 780.16(c) in our existing rules.
We propose to revise those provisions in
response to discussions with the U.S.
Fish and Wildlife Service concerning
compliance with the Endangered
Species Act. We will further revise this
provision and other proposed rules
concerning protection of threatened and
endangered species to include the
National Marine Fisheries Service
(NMFS), which is responsible for
administration and enforcement of the
Endangered Species Act with respect to
anadromous and marine species, if we
determine that this rulemaking may
affect species under NMFS jurisdiction.
Proposed paragraph (d)(1)(i) would
require that the regulatory authority
provide the fish and wildlife resource
information included in the permit
application under proposed paragraph
(c) to the applicable regional or field
office of the U.S. Fish and Wildlife
Service whenever that information
includes species listed as threatened or
endangered under the Endangered
Species Act, critical habitat designated
under that law, or species proposed for
listing as threatened or endangered
under that law. The proposed rule
would require that the regulatory
authority provide this information to the
Service no later than the time that it
provides written notice of receipt of an
administratively complete permit
application to the Service under
§ 773.6(a)(3)(ii). Under the existing rule,
the Service must request this
information from the regulatory
authority rather than receiving it
automatically.
Proposed paragraph (d)(1)(ii) is
similar to the existing rule in that it
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allows the Service to request fish and
wildlife resource information submitted
as part of permit applications even
when the information in those
applications does not include species
listed as threatened or endangered
under the Endangered Species Act,
critical habitat designated under that
law, or species proposed for listing as
threatened or endangered under that
law. Under both the existing and
proposed rules, the regulatory authority
must provide that information to the
Service within 10 days of receipt of the
request.
Proposed paragraph (d)(2) specifies
how the regulatory authority must
handle comments received from the
Service and how any disagreements are
to be resolved. This proposed paragraph
generally parallels the provisions that
we and the Service agreed to as a result
of a formal section 7(a)(2) Endangered
Species Act consultation pertaining to
the approval and conduct of surface coal
mining and reclamation operations
under a SMCRA regulatory program.
Specifically, proposed paragraphs
(d)(2)(i) through (iii) provide that if the
regulatory authority does not agree with
a Service recommendation that pertains
to fish and wildlife or plants listed as
threatened or endangered under the
Endangered Species Act or to critical
habitat designated under that law, the
regulatory authority must explain the
rationale for that decision in a comment
disposition document and must provide
a copy of that document to the pertinent
Service field office. The proposed rule
also would require that the regulatory
authority provide a copy of that
document to the appropriate OSMRE
field office for informational purposes
and to allow the OSMRE field office to
monitor resolution of the disagreement.
If the Service field office does not
concur with the regulatory authority’s
decision and the regulatory authority
and the Service field office are
subsequently unable to conclude an
agreement at that level, the proposed
rule allows either the regulatory
authority or the Service to elevate the
issue through the chain of command of
the regulatory authority, the Service,
and OSMRE for resolution.
Proposed paragraph (d)(2)(iv)
provides that the regulatory authority
may not approve the permit application
until all issues are resolved in
accordance with this process and the
regulatory authority receives written
documentation from the Service that all
issues have been resolved. Like all
provisions in proposed paragraph (d)(2),
this provision is intended to ensure the
protection of threatened and endangered
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species in accordance with the
Endangered Species Act.
Proposed paragraph (e) provides that
the regulatory authority may require the
prevention of adverse impacts to
streams and watersheds in the permit
and adjacent areas in order to protect
exceptional environmental values. The
proposed rule would require that all
decisions be based upon scientific
principles and analyses. In addition, it
would require coordination with state
and federal fish and wildlife agencies
and agencies responsible for
implementing the Clean Water Act
before taking action under this
paragraph. The protection that this
proposed rule would provide through
the permitting process would be in
addition to any protection that might be
available through the process for
designating lands as unsuitable for
surface coal mining operations under
section 522 of SMCRA.236 The proposed
rule is consistent with section 102(c) of
SMCRA,237 which provides that one of
the purposes of the Act is to ‘‘assure that
surface mining operations are not
conducted where reclamation as
required by this Act is not feasible.’’
Section 515(b)(23) of SMCRA,238
requires that surface coal mining and
reclamation operations ‘‘meet such
other criteria as are necessary to achieve
reclamation in accordance with the
purposes of this Act, taking into
consideration the physical,
climatological, and other characteristics
of the site.’’ The site-specific nature of
our proposed rule is consistent with this
provision of the Act.
6. Section 779.21: What information on
soils must I include in my permit
application?
Existing 30 CFR 779.21 requires that
each permit applicant submit adequate
soil survey information for the proposed
permit area. On August 4, 1980, we
suspended the existing rules insofar as
they apply to lands other than prime
farmland.239 The suspension reflects the
February 26, 1980, decision of the U.S.
District Court for the District of
Columbia in litigation concerning the
permanent regulatory program rules that
we adopted in 1979. In that decision,
the court held that section 507(b)(16) of
SMCRA 240 is a clear expression of
congressional intent to require soil
surveys only for prime farmlands
identified by a reconnaissance
inspection. The court also ruled that the
236 30
U.S.C. 1272.
U.S.C. 1202(c).
238 30 U.S.C. 1265(b)(23).
239 45 FR 51548 (Aug. 4, 1980).
240 30 U.S.C. 1257(b)(16).
237 30
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Secretary’s reliance on section 508(a)(3)
of SMCRA 241 as justification for the rule
was misplaced.242
We propose to lift the suspension of
existing 30 CFR 779.21 and replace the
provisions of the existing rule with
revised rule text that is consistent with
the court decision. Proposed paragraph
(a) would require that the application
include the results of a reconnaissance
inspection of the proposed permit area
to determine whether or not prime
farmland is present, as required by 30
CFR 785.17(b)(1). If that inspection
indicates that prime farmland may be
present, proposed paragraph (e) would
require that the application include the
soil survey information required by 30
CFR 785.17(b)(3). Proposed paragraphs
(a) and (e) do not contain any new
requirements; they merely include and
cross-reference existing prime farmland
regulations.
Proposed paragraph (b) would require
a map showing all soil mapping units
located within the proposed permit
area, if the National Cooperative Soil
Survey (NCSS) has completed and
published a soil survey for the area. The
application also would be required to
include either a link to the appropriate
soil survey information on the Natural
Resources Conservation Service (NRCS)
Web site, which is located at https://
websoilsurvey.sc.egov.usda.gov/App/
HomePage.htm (as of August 27, 2014),
or the equivalent information in paper
form.
Proposed paragraph (c) would require
a description of soil depths within the
proposed permit area. Proposed
paragraph (d) would require detailed
information on soil quality to satisfy the
requirements of proposed 30 CFR
780.12(e)(2)(ii) if the permit applicant
seeks approval for the use of soil
substitutes or supplements under 30
CFR 780.12(e). Proposed paragraph (e) is
discussed above together with proposed
paragraph (a). Proposed paragraph (f)
would require that the permit applicant
provide any other information that the
regulatory authority finds necessary to
determine land use capability and to
prepare the reclamation plan.
The revised version of 30 CFR 779.21
that we are proposing today would be
consistent with the decision in PSMRL
I, Round I. First, the proposed rule
would not require that the applicant
conduct an actual soil survey for lands
other than prime farmland. Instead, it
would require submission of only
241 30
U.S.C. 1258(a)(3).
re Permanent Surface Mining Regulation
Litig. I, Round I (PSMRL I, Round I), 1980 U.S. Dist.
LEXIS 17722 at *62 (D.D.C., February 26, 1980), 14
Env’t Rep. Cas. (BNA) 1083, 10 Envtl. L. Rep.
(Envtl. Law Inst.) 20208.
existing soil survey information, which,
apart from transferring pertinent
information to the permit application
maps, can be provided by reference to
the appropriate link to the NRCS Web
site. The proposed rule would not
require that the applicant conduct an
actual soil survey if the information is
not available from the NRCS. (The
NRCS has completed soil surveys for
more than 99 percent of the land area
within the conterminous states.)
Second, the statutory basis for
proposed 30 CFR 779.21 is section
508(a)(2) of SMCRA,243 not section
508(a)(3).244 The court held that section
508(a)(3) did not constitute authority for
the prior rule. However, section
508(a)(2) provides that—
Each reclamation plan submitted as part of a
permit application pursuant to any approved
State program or a Federal program under the
provisions of this Act shall include, in the
degree of detail necessary to demonstrate that
reclamation required by the State or Federal
program can be accomplished, a statement of:
*
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*
*
*
All the information that we propose to
require in 30 CFR 779.21 consists of soil
and foundation characteristics. Section
508(a)(2) of SMCRA 245 requires the
applicant to include that information in
each permit application, not just in
those applications that contain prime
farmland. Identification of soil mapping
units and submission of available soil
survey information about those units, as
proposed paragraph (b) would require,
is critical to determining the premining
capability of the land, as required by
section 508(a)(2)(B) of SMCRA,246 and
to establishing the soil salvage and
replacement requirements needed to
ensure that the revegetation
requirements of the Act and regulations
can be met.
Likewise, the premining soil depth,
soil quality, and other information that
would be required under proposed
paragraphs (c), (d), and (f) also is needed
for the applicant and the regulatory
authority to effectively determine the
premining capability of the land and to
establish the soil salvage, soil substitute,
and soil replacement requirements
needed to ensure that the revegetation
requirements of the Act and regulations
can be met. Furthermore, soil depth and
242 In
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*
(B) the capability of the land prior to any
mining to support a variety of uses giving
consideration to soil and foundation
characteristics, topography, and vegetative
cover, and, if applicable, a soil survey
prepared pursuant to section 507(b)(16).
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U.S.C. 1258(a)(2).
U.S.C. 1258(a)(3).
245 30 U.S.C. 1258(a)(2).
246 30 U.S.C. 1258(a)(2)(B).
44485
quality are critical to determining the
productivity of the site and hence to
establishing pertinent revegetation
success standards for the site for certain
postmining land uses.
7. Section 779.22: What information on
land use and productivity must I
include in my permit application?
The counterpart in our existing rules
to this section is 30 CFR 780.23(a). We
propose to delete the second sentence of
existing paragraph (a)(1), which
provides that the application must
include a description of the historical
use of the land if the premining use
changed within the 5 years preceding
the anticipated starting date of the
proposed operation. SMCRA does not
include a similar provision and this
timeframe has sometimes proven
difficult to determine with precision.
Furthermore, this information has little
or no value in the existing permitting
process because it is not a criterion or
determinant of any permitting decisions
under the existing rules.
The proposed rule would continue to
require that the application include a
narrative analysis of the capability of
the land before any mining to support
a variety of uses, as required by section
508(a)(2)(B) of SMCRA.247 We propose
to require a description of all historical
uses of the land without a time
limitation and without limitation to the
single use preceding the permit
application, as a component of this
narrative because historical uses
provide documentation, in part, of
premining land use capability. Our
proposed revisions are consistent with
the legislative history of this provision
of SMCRA, which states that:
The description is to serve as a benchmark
against which the adequacy of reclamation
and the degradation resulting from the
proposed mining may be measured. It is
important that the potential utility which the
land had for a variety of uses be the
benchmark rather than any single, possibly
low value, use which by circumstances may
have existed at the time mining began.248
Thus, it is clear that a single-use
criterion is not in accordance with
sections 508(a) and 515(b)(2) of
SMCRA 249 or the legislative history of
section 508(a). The postmining land use
must be compared with the variety of
uses that the land was capable of
supporting before any mining, not just
a single premining use.
We also propose to add paragraph
(b)(3), which would require that the
permit application include a narrative
243 30
244 30
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247 30
U.S.C. 1258(a)(2)(B).
Rep. No. 95–128, at 76–77 (1977).
249 30 U.S.C. 1258(a) and 1265(b)(2), respectively.
248 S.
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analysis of the premining productivity
of the proposed permit area for fish and
wildlife. Section 508(a)(2)(C) of
SMCRA 250 lists productivity in terms of
the average yield of food, fiber, forage,
or wood products, but it is not an
exclusive list of productivity measures
that can be used to assess premining
productivity. The fish and wildlife
information required by proposed
paragraph (b)(3) would assist the
regulatory authority in evaluating the
environmental impacts of the proposed
operation and in determining what fish
and wildlife protection and
enhancement measures may be
appropriate. Limiting productivity
measures to quantifiable commodity
indicators such as food, fiber, and wood
products would incorrectly ignore the
underlying purposes of SMCRA, one of
which is to establish a nationwide
program to protect society and the
environment from the adverse effects of
surface coal mining operations.251
Following the same logic, we propose
to add paragraph (c), which would
allow the regulatory authority to require
submission of any additional
information that the regulatory authority
deems necessary to determine the
condition, capability, and productivity
of the land within the proposed permit
area. This additional information may
include data concerning the site’s
carbon absorption and storage
capability.
8. Section 779.24: What maps, plans,
and cross-sections must I submit with
my permit application?
We propose to consolidate existing 30
CFR 779.24 and 779.25 into 30 CFR
779.24 and add a new paragraph (c) to
clarify that the regulatory authority may
require that the applicant submit all
materials in a digital format that
includes all necessary metadata. We
invite comment on whether the digital
format option should instead be
mandatory to facilitate review by both
the public and the regulatory authority.
Other substantive proposed changes
are discussed below.
Proposed paragraph (a)(3) would
require a description of the size,
sequence, and timing of the mining of
subareas for which the applicant
anticipates seeking additional permits
or expansion of an existing permit in the
future. The corresponding existing rule
at 30 CFR 779.24(c) applies this
requirement to areas for which the
applicant anticipates seeking additional
permits. However, in practice,
regulatory authorities do not always
250 30
U.S.C. 1258(a)(2)(C).
251 See 30 U.S.C. 1202(a).
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require a new permit application for
additional acreage to be mined. Some
state regulatory programs allow
expansion by means of permit
amendments or revisions. We have
approved state program amendments of
this nature, provided that the program
amendment specifies that the permit
amendment or revision application is
subject to the same information
requirements as a new permit and that
the application must be processed and
approved in the same manner as a new
permit. We have found that
amendments containing those
provisions are no less stringent than
section 510(a)(3) of SMCRA,252 which
provides that, except for incidental
boundary revisions, any extension of the
area covered by a permit must be made
by application for a new permit. The
proposed language would reflect this
reality and ensure that the description
would include all subareas for which
the applicant anticipates seeking
approval to mine in the future, not just
those subareas for which the applicant
anticipates seeking new permits.
Proposed paragraphs (a)(7), (a)(8),
(a)(9), (a)(18), (a)(20), and (a)(27) would
allow certain information that is not
particularly amenable to display on a
map to instead be submitted in a table
cross-referenced to a map if approved by
the regulatory authority. This
information would include depth of
water, gas and oil wells; ownership of
wells and groundwater resources;
ownership and descriptions of surfacewater features; and elevations and
geographic coordinates of test borings,
core samplings, and monitoring stations.
In proposed paragraph (a)(11), we
propose to add a provision requiring
mapping of all public water supplies
and wellhead protection zones 253
located within one-half mile of the
proposed permit area. This information
would be important in preparing the
cumulative hydrologic impact
assessment required by section 510(b)(3)
of SMCRA 254 and may be of value in
preparing the PHC determination and
hydrologic reclamation plan for the
proposed permit.
Proposed paragraph (a)(13) would add
a requirement for a map showing the
location of any discharge, including, but
not limited to, a mine-water treatment
or pumping facility, into or from an
active, inactive, or abandoned
underground mine that is hydrologically
U.S.C. 1260(b)(3).
wellhead protection zone or area is a surface
and subsurface land area regulated under the Safe
Drinking Water Act (42 U.S.C. 330f-300j) to prevent
contamination of a well or well-field supplying a
public water system.
254 30 U.S.C. 1260(b)(3).
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253 A
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connected to the proposed permit area
or that is located within one-half mile,
measured horizontally, of the proposed
permit area. The applicant will need
this information to prepare the
determination of the probable
hydrologic consequences of mining
required by section 507(b)(11) of
SMCRA.255 In addition, the regulatory
authority will need this information to
prepare the cumulative hydrologic
impact assessment required by the same
provision of the Act and by section
510(b)(3) of SMCRA.256
We propose to add a requirement in
paragraphs (a)(18) and (20) that the
application include the geographic
coordinates of test borings, core
samplings, and monitoring stations. Our
inspectors have found that this
information often is time-consuming or
difficult to locate in the permit file or to
determine from maps included in that
file, so a list of features with their
geographic coordinates should improve
the efficiency with which regulatory
authority and OSMRE personnel
perform their duties by greatly
improving the ability of regulatory
authority and OSMRE personnel to
field-check those locations using GPS
devices. The requirement for geographic
coordinates also is intended to ensure
that the locations of these features are
determined by an actual survey rather
than approximated on a topographic
map.
Proposed paragraph (a)(19) would
expand upon the requirement in
existing 30 CFR 779.25(a)(6) for the
location and extent of subsurface water,
if encountered, by adding provisions
concerning aquifers that currently are
found only in the corresponding
requirements for underground mines at
existing 30 CFR 783.25(a)(6).
Specifically, we propose to require that
the application include the areal and
vertical distribution of aquifers and a
portrayal of seasonal variations in
hydraulic head in different aquifers.
This information is equally important
for proposed surface mining operations
because it would be used to establish
baseline groundwater conditions and
predict the impacts of the proposed
mining operation on those aquifers,
regardless of whether the proposed
operation is a surface mine or an
underground mine. Furthermore,
section 507(b)(14) of SMCRA,257 which
is the primary statutory counterpart to
proposed 30 CFR 779.24, expressly
requires that the application include the
location of aquifers. In addition,
255 30
U.S.C. 1257(b)(11).
U.S.C. 1260(b)(3).
257 30 U.S.C. 1257(b)(14).
256 30
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proposed 30 CFR 779.24(a)(19) would
include a requirement for the estimated
elevation of the water table, which
section 507(b)(14) of SMCRA also
requires.
In proposed paragraph (a)(21), we
propose to add a requirement that the
maps, cross-sections, and plans include
the commonly used names of the coal
seams to be mined, overburden strata,
and the stratum immediately below the
lowest coal seam to be mined. This
information would assist reviewers in
predicting the impacts of the proposed
operation by facilitating consultation
with published reference materials on
the coal seams and geological strata in
question.
In proposed paragraph (a)(27), we
propose to add a requirement that the
application identify all directional or
horizontal drilling for hydrocarbon
extraction operations, including those
using hydraulic fracturing methods,
within or underlying the proposed
permit and adjacent areas. Both the
applicant and the regulatory authority
need this information to determine the
probable hydrologic consequences of
the proposed operation and to ensure
that the operation’s design takes these
operations and wells into consideration.
G. Part 780: Surface Mining Permit
Applications—Minimum Requirements
for Reclamation and Operation Plans
1. Section 780.1: What does this part
do?
Existing 30 CFR 780.1 states that part
780 provides the minimum
requirements for the Secretary’s
approval of regulatory program
provisions for the mining operations
and reclamation plan portions of permit
applications for surface mining
activities, except to the extent that part
785 establishes different requirements.
However, the content requirements and
standards for approval of state
regulatory programs are located in 30
CFR parts 730 through 732. Therefore,
we propose to revise 30 CFR 780.1 to
specify that part 780 sets forth permit
application requirements for
reclamation and operation plans for
proposed operations.
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2. Section 780.2: What is the objective
of this part?
We propose to revise this section to
specifically mention reclamation of the
disturbed area to reflect the fact that
part 780 includes numerous reclamation
requirements. The existing rule only
mentions surface mining activities. We
recognize that this change is not
essential because the definition of
‘‘surface mining activities’’ in 30 CFR
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700.5 includes reclamation, but adding
a mention of reclamation in 30 CFR
780.2 would make this rule clearer to
the reader.
3. Section 780.12: What information
must the reclamation plan include?
Paragraph (a): General Requirements
Proposed paragraph (a) is
substantively identical to existing 30
CFR 780.18(a) with one exception. The
existing rule requires that each permit
application contain a reclamation plan
showing how the applicant will comply
with section 515 of SMCRA,258 the
federal performance standards in
subchapter K of 30 CFR Chapter VII, and
the environmental protection
performance standards of the regulatory
program. We propose to revise this
provision to be more consistent with
section 508(a) of SMCRA,259 which
requires that each reclamation plan
include the information ‘‘necessary to
demonstrate that reclamation required
by the State or Federal program can be
accomplished.’’ The existing rule is too
limiting in that it refers only to
performance standards, not to all
reclamation requirements. In addition,
the references to section 515 of SMCRA
and subchapter K of 30 CFR Chapter VII
in the existing rule are inconsistent with
the principle of state primacy under
section 503(a) of SMCRA,260 which
specifies that a state with an approved
regulatory program assumes exclusive
jurisdiction over surface coal mining
and reclamation operations on nonFederal, non-Indian lands within its
borders, except as provided in sections
521 and 523 261 and title IV 262 of the
Act. Therefore, we propose to revise
paragraph (a) by deleting the references
to performance standards and to section
515 of SMCRA and subchapter K of 30
CFR Chapter VII. Instead, we propose to
require that each permit application
include a reclamation plan showing
how the applicant will comply with the
reclamation requirements of the
applicable regulatory program.
Paragraph (b): Reclamation Timetable
Section 508(a)(7) of SMCRA 263
requires the reclamation plan for each
permit application include ‘‘a detailed
estimated timetable for the
accomplishment of each major step in
the reclamation plan.’’ Existing 30 CFR
780.18(b)(1) implements this provision
in part. We propose to revise the
PO 00000
258 30
U.S.C. 1265.
U.S.C. 1258(a).
260 30 U.S.C. 1253(a).
261 30 U.S.C. 1271 and 1273.
262 30 U.S.C. 1231 through 1243.
263 30 U.S.C. 1258(a)(7).
259 30
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existing rule by listing the activities
which, at a minimum, must be
considered major steps in the
reclamation process. In typical
chronological order, those steps include,
but are not limited to, backfilling,
grading, restoration of the form of all
reconstructed perennial and
intermittent stream segments, soil
redistribution, planting, demonstration
of revegetation success, restoration of
the ecological function of all
reconstructed perennial and
intermittent stream segments, and
application for each phase of bond
release. Establishment of a timetable
that includes those steps should
promote consistency in the application
of this provision and result in a more
comprehensive timetable, which would
implement section 508(a)(7) of SMCRA
more completely.
The regulatory authority must
evaluate the proposed timetable to
determine whether it meets the
contemporaneous reclamation
requirements of section 515(b)(16) of
SMCRA.264 Once approved as part of
the permit, this timetable serves as a
standard for evaluating compliance with
the contemporaneous reclamation
requirements of section 515(b)(16) of
SMCRA.265
Paragraph (c): Reclamation Cost
Estimate
We propose to revise this paragraph,
which appears at 30 CFR 780.18(b)(2) in
our existing rules, by clarifying that the
cost estimates must include both direct
and indirect costs and by requiring that
the permit applicant use current,
standardized construction cost
estimation methods and equipment cost
guides in developing estimates of the
cost of reclamation. These changes
should improve the accuracy of cost
estimates and increase the usefulness of
these estimates to the regulatory
authority in determining the amount of
performance bond required under
section 509 of SMCRA 266 and 30 CFR
part 800.
Paragraph (d): Backfilling and Grading
Plan
Proposed paragraph (d) corresponds
to existing 30 CFR 780.18(b)(3). We
propose to add more specificity to the
existing rule, which requires ‘‘[a] plan
for backfilling, soil stabilization,
compacting, and grading, with contour
maps or cross-sections that show the
anticipated final surface configuration
of the proposed permit area, in
264 30
U.S.C. 1265(b)(16).
265 Id.
266 30
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accordance with 30 CFR 816.102
through 816.107.’’
Proposed paragraph (d)(1) would
require that the reclamation plan
contain a plan for backfilling the minedout area, compacting the backfill, and
grading the disturbed area in accordance
with 30 CFR 817.102 through 817.107 of
this chapter, using the best technology
currently available. It also would
specify that the plan must limit
compaction to the minimum necessary
to achieve stability requirements unless
additional compaction is necessary to
reduce infiltration to minimize leaching
and discharges of parameters of
concern. The added language is
intended to achieve a balance between
minimizing compaction, which research
has shown stunts the growth of most
crops and woody plants,267 and the
need to minimize the formation of
discharges that contain sulfate and other
ions that could have adverse impacts on
receiving streams and their aquatic life.
Proposed paragraph (d)(1) also would
require that the plan be accompanied by
models, contour maps, or cross-sections
that show in detail the anticipated final
surface elevations and configuration of
the proposed permit area, including
drainage patterns. The regulatory
authority would use this information to
determine whether the proposed plan
satisfies the backfilling, grading, and
surface configuration requirements of 30
CFR 816.102 through 816.107.
Proposed paragraph (d)(2) would
require that the plan describe in detail
how the permittee will conduct
backfilling and reclamation activities
and handle acid-forming and toxicforming materials, if present, to prevent
the formation of acid or toxic mine
drainage from acid-forming and toxicforming materials within the
overburden. It also would require an
explanation of how the method selected
will protect groundwater and surface
water in accordance with 30 CFR
816.38, which contains the performance
standards for handling acid-forming and
toxic-forming materials. Proposed
paragraph (d)(2) would implement in
part the requirements in section
515(b)(3) of SMCRA 268 that surface coal
mining and reclamation operations
compact spoil where advisable to
prevent leaching of toxic materials,
cover all acid-forming and other toxic
materials, and shape and grade
267 See, e.g., Hamza, M. A., and W. K. Anderson.
‘‘Soil compaction in cropping systems: a review of
the nature, causes and possible solutions.’’ Soil and
tillage research 82.2 (2005): 121–145; Crossley, D.
I. ‘‘The effect of a compact subsoil horizon on root
penetration.’’ Journal of Forestry 38.10 (1940): 794–
796.
268 30 U.S.C. 1265(b)(3).
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overburden and spoil to prevent water
pollution. It also would implement, in
part, section 515(b)(14) of SMCRA,269
which requires that all acid-forming
materials and toxic materials be ‘‘treated
or buried and compacted or otherwise
disposed of in a manner designed to
prevent contamination of ground or
surface waters.’’
Paragraph (e): Soil Handling Plan
We propose to extensively revise our
existing rules concerning soils to
promote salvage, preservation, and
redistribution of the best available soil
materials for the purpose of creating a
growing medium (soil) suitable for the
intended vegetation, including creation
of a root zone of sufficient depth for that
vegetation. Proposed paragraph (e)
would include those provisions of our
existing rules at 30 CFR 816.22(b) and
(e) that are permitting requirements
rather than performance standards in an
effort to consolidate permit application
information and review requirements in
subchapter G rather than having them
split between subchapters G (permit
requirements) and K (performance
standards).
We propose to extensively revise our
existing rules to better implement
section 515(b)(5) of SMCRA,270 which
states that surface coal mining
operations must—
remove the topsoil from the land in a
separate layer, replace it on the backfill area,
or if not utilized immediately, segregate it in
a separate pile from other spoil and when the
topsoil is not replaced on a backfill area
within a time short enough to avoid
deterioration of the topsoil, maintain a
successful cover by quick growing plant or
other means thereafter so that the topsoil is
preserved from wind and water erosion,
remains free of any contamination by other
acid or toxic material, and is in a usable
condition for sustaining vegetation when
restored during reclamation, except if topsoil
is of insufficient quantity or of poor quality
for sustaining vegetation, or if other strata
can be shown to be more suitable for
vegetation requirements, then the operator
shall remove, segregate, and preserve in a
like manner such other strata which is best
able to support vegetation.
Proposed paragraph (e)(1)(i) is similar
to the first sentence of existing 30 CFR
780.18(b)(4). It would require that the
reclamation plan include a plan and
schedule for removal, storage, and
redistribution of topsoil, subsoil, and
other material to be used as a final
growing medium in accordance with 30
CFR 816.22.
Consistent with proposed 30 CFR
816.22(f), we also propose to add a
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270 30
U.S.C. 1265(b)(14).
U.S.C. 1265(b)(5).
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requirement that the application include
a plan for salvaging, protecting, and
redistributing or otherwise using all
organic matter (duff, other organic litter,
and vegetative materials such as tree
tops, small logs, and root balls) found
on the site. Acceptable uses for organic
matter are as a soil supplement, to
promote revegetation, to assist in stream
restoration, or to provide wildlife
habitat. Preservation and distribution of
organic matter on the regraded site
would assist in meeting the requirement
of section 515(b)(19) of SMCRA 271 to
establish on the regraded area a diverse,
effective, and permanent vegetative
cover of the same seasonal variety
native to the area. Our proposed rule
also is consistent with the findings of an
extensive literature review of
reforestation on minesites in
Appalachia. That review recommended
that ‘‘all surface organic debris
(including stumps, stems, roots, and
litter), all soil layers, and the soft
saprolite and weathered rock materials
under the soil be removed, mixed in the
process of excavating, hauling and
dumping, and placed on the surface of
reclaimed mine sites to a depth of 1 to
2 meters.’’ 272
Proposed paragraph (e)(1)(ii) provides
that the plan must require the removal,
segregation, stockpiling, and
redistribution of the B and C horizons
and other underlying strata or portions
thereof to the extent that those horizons
and strata are needed to provide the root
zone required to restore premining land
use capability or to comply with the
revegetation requirements of 30 CFR
816.111 and 816.116. The proposed rule
differs from the existing rule at 30 CFR
816.22(e) in that the existing rule
provides that salvage and redistribution
of these soil materials is discretionary
on the part of the regulatory authority.
However, the subsoil (the B and C
horizons) also is important for plant
growth. Plant roots extend through the
topsoil into the subsoil (root zone),
which provides a substantial proportion
of the plant’s nutrient requirements. For
example, field studies have shown that
between 45 percent and 65 percent of
nitrogen available to plants from the soil
lies below a depth of 6 inches. During
dry summer weather, many plants,
especially deep-rooted plants like alfalfa
and most trees, depend for their survival
on moisture available in the subsoil.
Alfalfa extracts 55 percent of its
moisture requirements from soil
271 30
U.S.C. 1265(b)(19).
C. E., J. A. Burger, C D. Barton, and
J. G. Skousen. ‘‘Rebuilding Soils on Mined Land for
Native Forest in Appalachia’’ (2012). Soil Sci. Soc.
Am. J. (77:337–349), p. 347.
272 Zipper,
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materials deeper than one foot and is
capable of extracting water from subsoil
up to 6 feet in depth. Even mediumrooted crops like wheat and corn extract
up to 40 percent of their moisture
requirements from soil materials deeper
than one foot. Finally, many plants
depend on root penetration well into the
subsoil for physical support, especially
where topsoil is thin. If plant roots are
unable to penetrate deeply into a
reclaimed subsoil, soil capability for
plant growth will be degraded.273
Therefore, a failure to require salvage
and redistribution of the B and C
horizons under these conditions would
result in a failure to restore the site to
a condition in which it is capable of
supporting those land uses that it was
capable of supporting before any
mining, as required by section 515(b)(2)
of SMCRA.274
Furthermore, proposed paragraph
(e)(1)(ii) is consistent with, and would
improve implementation of, section
515(b)(5) of SMCRA,275 which provides
that if strata other than the topsoil ‘‘can
be shown to be more suitable for
vegetation requirements, then the
operator shall remove, segregate, and
preserve in a like manner such other
strata which is best able to support
vegetation.’’ The U.S. District Court for
the District of Columbia upheld this
interpretation of section 515(b)(5) of
SMCRA in 1980 in PSMRL I, Round I
concerning the 1979 version of our
regulations at 30 CFR 816.22(d),276
which required segregation of the B
horizon and portions of the C horizon if
the regulatory authority determined that
those materials were necessary or
desirable to ensure soil productivity:
Section 515(b)(5) authorizes segregation [of
materials other than topsoil] if the topsoil
cannot sustain vegetation or if other strata
enhance post-mining vegetation. This is
essentially what the regulations command.
They focus on ‘‘soil productivity,’’ and grant
the regulatory authority power to require
segregation if necessary to improve such
productivity.277
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Proposed paragraph (e)(1)(iii) would
require that the plan explain how soil
materials would be handled and stored
to avoid contamination by acid-forming
or toxic-forming materials and to
minimize the loss of desirable soil
characteristics during handling and
273 Alberta Transportation, ‘‘Alberta
Transportation Guide to Reclaiming Borrow
Excavations’’ (December 2013); pp. 5–6.
274 30 U.S.C. 1265(b)(2).
275 30 U.S.C. 1265(b)(5).
276 30 CFR 816.22(d) was subsequently
redesignated as 30 CFR 816.22(e) on May 16, 1983.
See 48 FR 22100.
277 PSMRL I, Round I, supra, slip op. at 54, 1980
U.S. Dist. LEXIS 17722 at *83.
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storage. These provisions mirror similar
requirements in section 515(b)(5) of
SMCRA.278
Proposed paragraph (e)(2) contains
expanded criteria and requirements for
the approval and use of soil substitutes
or supplements. It differs from existing
30 CFR 816.22(b) most significantly in
that the existing rule allows use of
topsoil substitutes or supplements if the
resulting soil medium is equal to or
more suitable than the existing topsoil
in terms of its capability to sustain
vegetation. We propose to eliminate the
provision allowing use of topsoil
substitutes or supplements when the
resulting growing medium (soil) is only
equal to the existing topsoil in terms of
its capability to sustain vegetation. Our
proposed revision would improve the
implementation of section 515(b)(5) of
SMCRA,279 which allows use of other
overburden strata in place of the topsoil
only if those strata ‘‘can be shown to be
more suitable for vegetation
requirements.’’ Nothing in this
provision of SMCRA authorizes the use
of other strata in place of topsoil if the
resulting medium is only equal in its
ability to meet vegetation requirements.
While section 515(b)(5) of SMCRA 280
is silent on the use of subsoil
substitutes, we propose to apply the
same standards to the use of subsoil
substitutes and supplements as we do to
topsoil substitutes and supplements.
The subsoil is an important part of the
growing medium in that, among other
things, it provides the root zone
required by many plants for physical
support, moisture, and nutrient
uptake.281 Therefore, application of the
same standards for subsoil substitutes as
for topsoil substitutes is appropriate to
ensure that the reclaimed site is restored
to a condition in which it is capable of
supporting the uses that it was capable
of supporting before any mining, as
required by section 515(b)(2) of
SMCRA.282
Proposed paragraph (e)(2)(i) explains
that proposed paragraph (e)(2) would
apply to all permit applicants proposing
to use appropriate overburden materials
as a supplement to or substitute for the
existing topsoil or subsoil on the
proposed permit area.
Proposed paragraph (e)(2)(ii)(A)
would require that the permit applicant
demonstrate, and the regulatory
authority find in writing, that either the
quality of the existing topsoil and
278 30
U.S.C. 1265(b)(5).
279 Id.
280 Id.
281 Alberta Transportation, ‘‘Alberta
Transportation Guide to Reclaiming Borrow
Excavations’’ (December 2013); pp. 5–6.
282 30 U.S.C. 1265(b)(2).
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subsoil is inferior to that of the
alternative overburden materials
proposed for use or that the quantity of
existing topsoil and subsoil is not
adequate to provide the optimal rooting
depth or to meet other growth
requirements of the native species to be
planted under the revegetation plan. In
the latter case, the proposed rule also
would require that the soil handling
plan provide for the salvage and
redistribution of all existing soil
materials as a component of the
approved growing medium to obtain the
benefits of the native existing soil
materials as a source of seeds, other
plant propagules, mycorrhizae, other
soil flora and fauna, and other biological
components that promote revegetation.
Studies in Appalachia have found that
native soils contain nitrogen and
phosphorus in organic forms that are
readily available to plants; they also
contain organic carbon that is essential
to soil microorganisms and nutrient
cycling.283 The author of an extensive
literature review of reforestation on
minesites in Appalachia concluded that
native soils ‘‘will be the most favorable
material available on most mine sites for
use in constructing mine soils for
reforestation’’ and that, when use of
rock spoil is necessary, the native soils,
as well as stumps and woody debris,
should be mixed with those spoils to
enhance their chemical, biological, and
physical properties.284
Proposed paragraph (e)(2)(ii)(B)
would require that the permit applicant
demonstrate, and the regulatory
authority find in writing, that use of the
alternative overburden materials, either
in combination with or in place of the
topsoil or subsoil, would result in a
growing medium (soil) that will provide
superior rooting depth in comparison to
the existing topsoil and subsoil and that
will be more suitable to sustain the
vegetation required by the approved
postmining land use and the
revegetation plan than the existing
topsoil and subsoil.
Proposed paragraph (e)(2)(ii)(C)
would require that overburden materials
selected for use as a soil substitute or
supplement be the best materials
available in the proposed permit area to
support the native vegetation to be
established on the reclaimed area or the
crops to be planted on that area.
The demonstrations and findings
required by proposed paragraphs
(e)(2)(ii)(A) through (C) would, in part,
improve implementation of section
283 Zipper,
et al. (2012), op. cit. at 346.
284 Id.
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515(b)(5) of SMCRA,285 which provides
that ‘‘if topsoil is of insufficient quantity
or of poor quality for sustaining
vegetation, or if other strata can be
shown to be more suitable for vegetation
requirements, then the operator shall
remove, segregate, and preserve in a like
manner such other strata which is best
able to support vegetation.’’ In addition,
these demonstrations and findings are
intended to ensure the establishment of
a growing medium on the reclaimed
area that is capable of supporting the
uses that the land was capable of
supporting before any mining, as
required by section 515(b)(2) of
SMCRA.286 Finally, the emphasis on the
use of native species to determine
optimal rooting depths and other growth
requirements when evaluating the
suitability of potential soil substitutes is
consistent with section 515(b)(19) of
SMCRA,287 which requires
establishment of a diverse, effective, and
permanent vegetative cover of the same
seasonal variety native to the area of
land to be affected and capable of selfregeneration and plant
succession. . . .’’
Proposed paragraphs (e)(2)(iii) and
(iv) would expand upon the second and
third sentences of existing 30 CFR
780.18(b)(4), which establish minimum
content requirements for the
demonstration of the suitability of
potential soil substitutes or supplements
and which allow the regulatory
authority to require other analyses, field
trials, or greenhouse tests if necessary.
Proposed paragraph (e)(2)(iii) would
require that the regulatory authority
specify suitability criteria for potential
soil substitutes and supplements;
chemical and physical analyses, field
trials, or greenhouse tests that the
applicant must conduct on potential soil
substitutes and supplements; and
sampling objectives, sampling
techniques, and the techniques to be
used to analyze the samples collected.
Proposed paragraph (e)(2)(iv)(A) would
require that demonstrations of the
suitability of potential soil substitutes
and supplements include the physical
and chemical soil characteristics and
root zones needed to support the type of
vegetation to be established on the
reclaimed area. Proposed paragraph
(e)(2)(iv)(B) would require that those
demonstrations include a comparison
and analysis of the thickness, total
depth, texture, percent coarse fragments,
pH, thermal toxicity, and areal extent of
the different kinds of soil horizons and
overburden materials available within
the proposed permit area, based upon a
statistically valid sampling procedure.
Proposed paragraphs (e)(2)(iii) and
(iv) are intended to ensure that the
determination of the suitability of
potential soil substitutes and
supplements is conducted in a
scientifically-sound manner. Use of
scientifically-invalid sampling and
analytical techniques or a lack of
comprehensive criteria for the
evaluation and approval of potential soil
substitutes and supplements could
result in the establishment of an inferior
growing medium on the reclaimed area
that is incapable of supporting the uses
that it was capable of supporting before
any mining. Such a result would be
inconsistent with section 515(b)(2) of
SMCRA.288 It also would be
inconsistent with the requirement in
section 515(b)(5) of SMCRA 289 that any
topsoil substitutes be shown to be more
suitable for vegetation requirements
than the existing soil and that any
substitute materials be the best able to
support vegetation.
Proposed paragraph (e)(2)(v) would
require that the soil handling plan
include a plan for testing and evaluating
overburden materials during both
removal and redistribution to ensure
that the permittee removes and
redistributes only those overburden
materials approved for use as soil
substitutes or supplements. This
requirement would provide a safeguard
against the salvage and redistribution of
overburden materials that have not been
approved for use as soil substitutes or
supplements. Use of unapproved
materials could result in the
establishment of an inferior growing
medium on the reclaimed area that is
incapable of supporting the uses that it
was capable of supporting before any
mining. Such a result would be
inconsistent with section 515(b)(2) of
SMCRA.290 It also would be
inconsistent with the requirement in
section 515(b)(5) of SMCRA 291 that any
topsoil substitutes be shown to be more
suitable for vegetation requirements
than the existing soil and that any
substitute materials be the best able to
support vegetation.
Paragraph (f): Surface Stabilization Plan
We propose to add this paragraph to
replace existing 30 CFR 780.15, which
requires that the reclamation plan
include an air pollution control plan for
fugitive dust. Under existing 30 CFR
780.15, at a minimum, the permit
292 In re Permanent Surface Min. Regulation Litig.
I, Round II (PSMRL I, Round II), 1980 U.S. Dist.
LEXIS 17660 at *43–44 (D.D.C., May 16, 1980), 19
Env’t Rep. Cas. (BNA) 1477.
293 48 FR 1161 (Jan. 10, 1983).
288 30
U.S.C. 1265(b)(2).
U.S.C. 1265(b)(5).
290 30 U.S.C. 1265(b)(2).
291 30 U.S.C. 1265(b)(5).
285 30
289 30
U.S.C. 1265(b)(5).
U.S.C. 1265(b)(2).
287 30 U.S.C. 1265(b)(19).
286 30
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application must include a ‘‘plan for
fugitive dust control practices, as
required under 30 CFR 816.95.’’ We
propose to remove 30 CFR 780.15
because the references to fugitive dust
and cross-references to 30 CFR 816.95 in
the existing rule refer to provisions that
we removed in 1983 in response to a
court decision striking down our
authority to regulate air pollution under
SMCRA, except for air pollution
attendant to erosion. The court held that
‘‘the legislative history indicates that
Congress only intended to regulate air
pollution related to erosion.’’ 292 The
1983 rulemaking removed all
requirements in 30 CFR 816.95 for
fugitive dust control practices,
including requirements for monitoring
of fugitive dust to determine compliance
with federal and state air quality
standards. That rulemaking also
changed the section heading of 30 CFR
816.95 from ‘‘Air resources protection’’
to ‘‘Stabilization of surface areas’’ and
replaced the air quality performance
standards formerly located in that
section with soil stabilization
requirements that contain no mention of
fugitive dust or air quality monitoring.
See 48 FR 1160–1163 (Jan. 10, 1983).
However, the 1983 rulemaking did
not remove the parallel permitting
requirements in 30 CFR 780.15 and
784.26. Instead, we stated in the
preamble to that rulemaking that we
agreed with a commenter that we also
needed to amend the permit application
rules at 30 CFR 780.15 and 784.26 for
consistency with the revisions to 30
CFR 816.95 and 817.95, and that we
would do so in a subsequent
independent rulemaking.293 Adoption
of this proposed rule would fulfill that
commitment in part by adding permit
application information requirements
consistent with the 1983 revisions to 30
CFR 816.95. In other words, we propose
to replace the obsolete air pollution
control plan requirements in existing 30
CFR 780.15 with the surface
stabilization plan requirements in
proposed 30 CFR 780.12(f) to
correspond with the requirements in
existing 30 CFR 816.95, as revised in
1983.
Proposed paragraph (f) would add a
permitting counterpart to the current
performance standard at 30 CFR
816.95(a), which provides that all
exposed surface areas must be protected
and stabilized to effectively control
erosion and air pollution attendant to
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erosion. We also propose to add crossreferences to the current dust control
performance standards for roads in 30
CFR 816.150 and 816.151.
Paragraph (g): Revegetation Plan
We propose to extensively revise this
paragraph, which appears at 30 CFR
780.18(b)(5) in our existing rules, by
adding specificity for elements of the
revegetation plan, by incorporating
those provisions of 30 CFR 816.111 that
are more appropriately considered
permitting requirements rather than
performance standards, and by ensuring
that there is a detailed counterpart in
the revegetation plan to the revegetation
performance standards in 30 CFR
816.111 through 816.116, when
appropriate. The various components of
proposed paragraph (g) are intended to
ensure compliance with or improve
implementation of section 515(b)(19) of
SMCRA,294 which requires that surface
coal mining and reclamation operations
establish ‘‘a diverse, effective, and
permanent vegetative cover of the same
seasonal variety native to the area of
land to be affected and capable of selfregeneration and plant succession at
least equal in extent of cover to the
natural vegetation of the area; except,
that introduced species may be used in
the revegetation process where desirable
and necessary to achieve the approved
postmining land use plan.’’
Proposed paragraph (g)(1)(ii) would
add a site preparation element to the
revegetation plan to reflect extensive
research documenting the adverse
impacts of excessive compaction on
vegetation, especially woody plants.
The new element would require a
description of the measures that the
permittee will take to avoid compaction
or, when avoidance is not possible, to
minimize and alleviate compaction of
the root zone during backfilling,
grading, soil redistribution, and
planting.
In addition, we propose to require in
paragraph (g)(1)(viii) that the
revegetation plan identify any normal
husbandry practices that the permittee
intends to use and explain whether the
permittee intends to conduct irrigation
or apply fertilizer after the first year
and, if so, for how long and to what
extent. This information will assist the
regulatory authority in determining
whether the proposed practices are
normal husbandry practices or whether
they are augmentative in nature, which
would necessitate restarting the
revegetation responsibility period under
proposed 30 CFR 816.115, which
corresponds to existing 30 CFR
294 30
816.116(c). These provisions would
serve as the permit application
information counterpart to the
performance standards in proposed 30
CFR 816.115(a)(1) and (b), which
correspond to existing 30 CFR
816.116(c)(1) and (c)(4).
Proposed paragraph (g)(1)(xi) would
add a requirement that the revegetation
plan include the measures that the
permittee will take to avoid the
establishment of invasive species on
reclaimed areas or to control those
species if they do become established.
Invasive species are highly detrimental
to native ecosystems, agriculture, and
forestry. They have posed a problem on
some minesites either because the
permit improperly allowed the use of
invasive non-native species or because
of the reclamation practices used. We
propose to add this provision to
improve the implementation of section
515(b)(19) of SMCRA,295 which requires
the establishment of a diverse, effective,
and permanent vegetative cover of the
same seasonal variety native to the area,
and section 515(b)(2) of SMCRA,296
which requires restoration of mined
land to a condition capable of
supporting the uses it was capable of
supporting before any mining. Allowing
the establishment of invasive species
also would be inconsistent with the fish
and wildlife protection provisions of
section 515(b)(24) of SMCRA.297
Moreover, proposed paragraph (g)(1)(xi)
is consistent with Section 2.(a)(2)(i) and
(iv) of Executive Order 13112, ‘‘Invasive
Species,’’ which requires that ‘‘[e]ach
Federal agency whose actions may affect
the status of invasive species shall, to
the extent practicable and permitted by
law, . . . (i) prevent the introduction of
invasive species; . . . [and] (iv) provide
for the restoration of native species and
habitat conditions in ecosystems that
have been invaded.’’ 298
Proposed paragraph (g)(2) would
require that the plan be designed to
create a diverse, effective, permanent
vegetative cover that is consistent with
the vegetative communities described in
the permit application in accordance
with 30 CFR 779.19. It also would
require that the plan meet the other
requirements of 30 CFR 816.116(a) and
(b).
Proposed paragraph (g)(3) is
substantively identical to the speciesselection criteria of existing 30 CFR
816.111(a)(2), (a)(4), and (b), with two
exceptions. Proposed paragraph (g)(3)(i)
would prohibit the use of introduced
U.S.C. 1265(b)(19).
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species unless they are non-invasive.
This proposed requirement is consistent
with section 515(b)(19) of SMCRA,299
which allows the use of introduced
species only if they are desirable.
Invasive introduced species are not
desirable because they out-compete
native vegetation and can have adverse
impacts on fish and wildlife, which
would be inconsistent with the fish and
wildlife protection requirements of
section 515(b)(24) of SMCRA.300
Moreover, proposed paragraph (g)(3)(i)
is consistent with Section 2.(a)(2)(i) of
Executive Order 13112, ‘‘Invasive
Species,’’ which requires that ‘‘[e]ach
Federal agency whose actions may affect
the status of invasive species shall, to
the extent practicable and permitted by
law, . . . prevent the introduction of
invasive species’’.301
Proposed paragraph (g)(3)(ii) would
provide that the species selected need to
be capable of stabilizing the soil surface
from erosion only to the extent that
control of erosion with herbaceous
species is consistent with establishment
of a permanent vegetative cover that
resembles native plant communities in
the area. We propose to add this
qualifier because some level of erosion
is natural and because excessive
herbaceous cover can inhibit
establishment of woody plants, as
discussed at length elsewhere in this
preamble.
Proposed paragraphs (g)(4) and (g)(5)
are substantively identical to existing 30
CFR 816.116(c) and (d). Both paragraphs
would provide limited exceptions to the
species-selection requirements of
proposed paragraphs (g)(3)(i), (iv), and
(v), which correspond to the speciesselection provisions of section
515(b)(19) of SMCRA.302 Proposed
paragraph (g)(3) would provide an
exception for temporary cover, while
proposed paragraph (g)(4) would
provide an exception for long-term,
intensive agricultural postmining land
uses. These exceptions would be
consistent with section 515(b)(19) of
SMCRA,303 which allows the use of
introduced species ‘‘in the revegetation
process where desirable and necessary
to achieve the approved postmining
land use plan.’’ Proposed paragraph
(g)(4) also would implement section
515(b)(20) of SMCRA 304 to the extent
that it provides exceptions to the
requirements of section 515(b)(19) for
299 30
U.S.C. 1265(b)(19).
U.S.C. 1265(b)(24).
301 64 FR 6184 (Feb. 8, 1999).
302 30 U.S.C. 1265(b)(19).
303 Id.
304 30 U.S.C. 1265(b)(20).
300 30
295 30
U.S.C. 1265(b)(19).
U.S.C. 1265(b)(2).
297 30 U.S.C. 1265(b)(24).
298 64 FR 6184 (Feb. 8, 1999).
296 30
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long-term, intensive agricultural
postmining land uses.
Proposed paragraph (g)(6) would
require that a professional forester or
ecologist develop and certify all
revegetation plans that include the
establishment of trees and shrubs. It also
would require that those plans include
site-specific planting prescriptions for
canopy trees, understory trees and
shrubs, and herbaceous ground cover
compatible with establishment of those
trees and shrubs. In addition, this
proposed paragraph would require that
the plan rely exclusively upon the use
of native species unless those species
are inconsistent with the approved
postmining land use and that land use
is implemented before the entire bond
amount for the area in question has been
fully released.
Paragraph (h): Stream Restoration Plan
We propose to add this paragraph to
require that the reclamation plan
expressly address in detail how the
permittee will restore the form and
ecological function of each segment of a
perennial or intermittent stream that is
proposed to be mined through under 30
CFR 780.28. The plan must conform to
the requirements of 30 CFR 780.28 and
816.57. The U.S. Army Corps of
Engineers may require additional onsite
or offsite mitigation under section 404
of the Clean Water Act.305
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Paragraph (i): Coal Resource
Conservation Plan
Proposed paragraph (i) corresponds to
existing 30 CFR 780.18(b)(6). We
propose to add language consistent with
the existing coal recovery performance
standard at 30 CFR 816.59. Proposed
paragraph (i) would implement section
508(a)(6) of SMCRA,306 which provides
that the reclamation plan must include
a statement of ‘‘the consideration which
has been given to maximize the
utilization and conservation of the solid
fuel resource being recovered so that
reaffecting the land in the future can be
minimized.’’
Paragraph (j): Plan for Disposal of
Noncoal Waste Materials
Proposed paragraph (j) corresponds to
existing 30 CFR 780.18(b)(7). We
propose to clarify that this requirement
applies to all noncoal waste materials
resulting from mining and reclamation
activities, but not to coal combustion
residuals such as fly ash and bottom
ash. The existing rule applies to ‘‘debris,
acid-forming and toxic-forming
materials, and materials constituting a
fire hazard.’’ We propose to delete the
reference to acid-forming and toxicforming materials because proposed 30
CFR 780.22 contains the permit
application information requirements
for those materials. As revised,
proposed paragraph (j) would apply to
all noncoal waste materials covered by
30 CFR 816.89. It would serve as the
permit application information
counterpart to the performance
standards for disposal of noncoal waste
materials in 30 CFR 816.89.
We also propose to require that the
reclamation plan describe the type and
quantity of noncoal waste materials that
the permittee intends to dispose of
within the proposed permit area, how
the permittee intends to dispose of those
materials in accordance with 30 CFR
816.89, and the locations of any noncoal
waste material disposal sites within the
proposed permit area, as well as the
contingency plans developed to
preclude sustained combustion of
combustible noncoal materials. These
permit application information
requirements would enable the
regulatory authority to evaluate the
potential environmental impacts of the
disposal of noncoal waste materials and
ensure that the permit includes
appropriate measures to protect society
and the environment from the adverse
effects of this aspect of surface coal
mining operations, as provided in
section 102(a) of SMCRA.307
Paragraph (m): Consistency With Land
Use Plans and Landowner Plans
In the existing rules, this paragraph
appears in 30 CFR 780.23(b)(3).
However, section 780.23(b) applies only
in the context of the postmining land
use, which is not consistent with the
underlying statutory requirement at
section 508(a)(8) of SMCRA.308 That
provision of the Act requires that the
reclamation plan describe the
consideration that has been given to
making the surface coal mining and
reclamation operations themselves
consistent with surface owner plans and
applicable state and local land use plans
and programs. This provision is separate
and distinct from the requirement in
section 508(a)(3) of the Act 309 that the
reclamation plan discuss the
relationship of the postmining land use
to existing land use policies and plans
and the comments of the surface owner.
Therefore, we propose to move the
provision in existing 30 CFR
780.23(b)(3) to new § 780.12(m) to
ensure that, in discussing consistency
307 30
U.S.C. 1202(a).
U.S.C. 1258(a)(8).
309 30 U.S.C. 1258(a)(3).
305 33
U.S.C. 1344.
306 30 U.S.C. 1258(a)(6).
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4. Section 780.13: What additional maps
and plans must I include in the
reclamation plan?
We propose to redesignate existing 30
CFR 780.14 as 30 CFR 780.13. We also
propose to combine existing paragraphs
(a) and (b) into paragraph (a) and
redesignate existing paragraph (c) as
paragraph (b).
We propose to remove the
requirement in existing 30 CFR
780.14(b)(7) for maps showing each air
pollution collection and control facility
because that requirement is associated
with regulations in 30 CFR 816.95 that
the court struck down in 1980 and that
we removed in 1983. Specifically, the
court struck down our authority to
regulate air pollution under SMCRA,
except for air pollution attendant to
erosion.310 See the portion of this
preamble concerning our proposed
removal of 30 CFR 780.15 for additional
discussion.
In proposed paragraph (a)(7), which
corresponds to existing paragraph (b)(6),
we propose to add a requirement for a
map showing the location of each point
at which water will be discharged from
the proposed permit area to a surfacewater body and the name of that water
body, consistent with equivalent
requirements in sections 507(b)(10) and
(14) of SMCRA.311
In proposed paragraph (a)(11), which
corresponds to existing paragraph
(b)(11), we propose to replace 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
on September 26, 1983 (48 FR 44006).
We also propose to add a reference to
siltation structures, consistent with our
addition of that terminology and
requirements for those structures on
September 26, 1983 (48 FR 44032).
We propose to add paragraphs (a)(12)
through (a)(14), which would require a
map showing each segment of a
perennial or intermittent stream that
would be mined through, buried, or
diverted; any perennial or intermittent
stream segment to be restored, any
temporary or permanent stream-channel
310 PSMRL I, Round II, 1980 U.S. Dist. LEXIS
17660 at *43–44, 19 Env’t Rep. Cas. (BNA) 1477.
311 30 U.S.C. 1257(b)(10) and (14).
308 30
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with surface owner plans and applicable
state and local land use plans, the
reclamation plan addresses the
consistency of the proposed operations
(not just the proposed postmining land
use) with those plans.
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diversion, and each segment of a
perennial or intermittent stream that
would be improved as part of the fish
and wildlife enhancement plan. The
regulatory authority would need this
information to assist in evaluating
whether the proposed application is in
compliance with requirements
pertaining to activities in perennial and
intermittent streams in proposed 30 CFR
780.28 and 816.57.
We also propose to add paragraph
(a)(15), which would require a map
showing the location and geographic
coordinates of each point at which the
applicant proposes to monitor
groundwater, surface water, or the
biological condition of perennial and
intermittent streams. The regulatory
authority would need this information
to determine whether the application
includes a sufficient number of
monitoring sites and whether those sites
are adequately distributed and located
to ensure that monitoring results are
representative of the entire permit area,
as required by proposed 30 CFR 780.23.
In addition, we propose to revise
existing 30 CFR 780.14(c), which we
propose to redesignate as 30 CFR
780.13(b), by replacing the crossreferences to 30 CFR 780.35(c) and
816.71(b) with a cross-reference to 30
CFR 780.35 to be consistent with other
changes that we are proposing to those
rules. Those changes include moving
the design certification requirement
formerly located in section 816.71(b) to
30 CFR 780.35(b) to consolidate
permitting requirements in subchapter
G. The existing rules also include a
cross-reference to the certification
requirements in 30 CFR 816.73(c) for
durable rock fills. We do not propose to
include a similar cross-reference in 30
CFR 780.13(b) because we are proposing
to remove 30 CFR 816.73 in its entirety,
which means that durable rock fills
would no longer be allowed.
We propose to add paragraph (c),
which would authorize the regulatory
authority to require submission of the
information required by paragraph (a) in
a digital format, when appropriate. We
invite comment on whether submission
of this information in a digital format
should be mandatory rather than
discretionary to facilitate review and
analysis by the public and the
regulatory authority.
5. Why are we proposing to remove
existing 30 CFR 780.15?
We propose to remove existing 30
CFR 780.15 and redesignate existing 30
CFR 780.13 as 30 CFR 780.15 because
the references to fugitive dust and crossreferences to 30 CFR 816.95 in existing
30 CFR 780.15 refer to provisions that
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we removed in 1983 in response to a
court decision striking down our
authority to regulate air pollution under
SMCRA, except for air pollution
attendant to erosion. The court held that
‘‘the legislative history indicates that
Congress only intended to regulate air
pollution related to erosion’’ 312 and that
‘‘the Secretary’s authority to regulate
[air] pollution is limited to activities
related to erosion.’’ 313 The court
remanded former 30 CFR 816.95 and
817.95 (1979), which contained
performance standards for fugitive dust
control, for revision. However, the court
did not address the parallel permitting
requirements at 30 CFR 780.15 and
784.26.
The 1983 rulemaking removed all
requirements in 30 CFR 816.95 for
fugitive dust control practices,
including requirements for monitoring
of fugitive dust to determine compliance
with federal and state air quality
standards. That rulemaking also
changed the section heading of 30 CFR
816.95 from ‘‘Air resources protection’’
to ‘‘Stabilization of surface areas’’ and
replaced the air quality performance
standards formerly located in 30 CFR
816.95 with soil stabilization
requirements that contain no mention of
fugitive dust or air quality monitoring.
See 48 FR 1160–1163 (Jan. 10, 1983).
However, the 1983 rulemaking did
not remove the parallel permitting
requirements in 30 CFR 780.15. Instead,
we stated in the preamble to that
rulemaking that we agreed with a
commenter that we also needed to
amend the permit application rules at
30 CFR 780.15 and 784.26 for
consistency with the revisions to 30
CFR 816.95 and 817.95, and that we
would do so in a subsequent
independent rulemaking.314 Adoption
of this proposed rule would fulfill that
long-delayed commitment.
In concert with the removal of 30 CFR
780.15, we propose to redesignate
existing 30 CFR 780.13, which concerns
blasting, as 30 CFR 780.15.
6. Section 780.16: What must I include
in the fish and wildlife protection and
enhancement plan?
Proposed 30 CFR 780.16 is the
counterpart to paragraphs (b) and (c) of
existing 30 CFR 780.16. Our proposed
revisions to the existing rule would
provide greater specificity on the
measures that the fish and wildlife
protection and enhancement plan in the
permit application must include. The
proposed revisions would improve
implementation of section 515(b)(24) of
SMCRA,315 which provides that ‘‘to the
extent possible using the best
technology currently available,’’ surface
coal mining and reclamation operations
must ‘‘minimize disturbances and
adverse impacts of the operation on fish,
wildlife, and related environmental
values, and achieve enhancement of
those resources where practicable.’’ The
proposed revisions also are consistent
with paragraphs (a) and (d) of section
102 of SMCRA,316 which provide that
two of the purposes of SMCRA are
establishing ‘‘a nationwide program to
protect society and the environment
from the adverse effects of surface coal
mining operations’’ and assuring ‘‘that
surface coal mining operations are so
conducted as to protect the
environment.’’
Likewise, the proposed revisions to 30
CFR 780.16 are consistent with section
515(b)(23) of SMCRA,317 which requires
that surface coal mining and
reclamation operations ‘‘meet such
other criteria as are necessary to achieve
reclamation in accordance with the
purposes of this Act, taking into
consideration the physical,
climatological, and other characteristics
of the site.’’ Long-standing case law
supports the Secretary’s authority to
adopt these regulations 318 and provides
the Secretary ‘‘great deference’’ in
determining how to ensure that the
Act’s provisions are enforced.319
Proposed paragraph (a) contains
general requirements analogous to
existing 30 CFR 780.16(b)(1) and (2).
Like the existing rules, it provides that
the fish and wildlife protection and
enhancement plan must be consistent
with the performance standards for fish
and wildlife protection and
enhancement at 30 CFR 816.97 and
must be specific to the fish and wildlife
resources of the proposed permit and
adjacent areas as identified in the
permit application in accordance with
30 CFR 779.20. We propose to add a
requirement that the plan also comply
with the specific protection and
enhancement requirements of 30 CFR
780.16(b) through (e).
Proposed paragraph (b) concerns
protection of threatened and endangered
species. Like the existing rule, it would
require a description of how the
proposed operation will comply with
the Endangered Species Act. We
315 30
U.S.C. 1265(b)(24).
U.S.C. 1202(a) and (d).
U.S.C. 1265(b)(23).
318 Nat’l Wildlife Fed’n v. Hodel, 839 F.2d 694,
735 (D.C. Cir. 1988).
319 Nat’l Wildlife Fed’n v. Lujan, 1990 U.S. Dist.
LEXIS 8869 at *84 (D.D.C. 1990).
316 30
317 30
312 PSMRL I, Round II, 1980 U.S. Dist. LEXIS
17660 at *43–44, 19 Env’t Rep. Cas. (BNA) 1477.
313 Id. at *42.
314 48 FR 1161 (Jan. 10, 1983).
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propose to add a provision that would
expressly require that the fish and
wildlife protection and enhancement
plan contain a description of any
species-specific protection and
enhancement plans developed under
the Endangered Species Act, which
would include any plans developed in
accordance with the existing formal
section 7(a)(2) Endangered Species Act
consultation pertaining to the approval
and conduct of surface coal mining and
reclamation operations under a SMCRA
regulatory program. We propose to add
these provisions in response to
discussions with the U.S. Fish and
Wildlife Service concerning compliance
with the Endangered Species Act.
Proposed paragraph (c) would contain
requirements for the protection of fish
and wildlife other than threatened and
endangered species. It would require
that the fish and wildlife protection and
enhancement plan describe how, to the
extent possible using the best
technology currently available, the
proposed operation will minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values, as required by section 515(b)(24)
of SMCRA.320 It lists a number of
measures that the fish and wildlife
protection and enhancement plan must
include to minimize disturbance and
adverse impacts, including timing of
operations to avoid or minimize
disruption to wildlife and retention of
forest cover and native vegetation for as
long as possible.
As discussed below, riparian
(streamside) vegetation plays a critical
role in maintaining or restoring the
ecological function of a stream.
Therefore, proposed paragraph (c)(3)
would specify that the fish and wildlife
enhancement plan must require
maintenance of an intact forested buffer
at least 100 feet wide between surface
disturbance and a perennial or
intermittent stream to the extent
possible. This requirement would apply
only when the stream is located in a
forested area.
Researchers have found that, in small,
well-shaded upland streams, as much as
75 percent of the organic food base may
be supplied by dissolved organic
compounds or detritus such as fruit,
limbs, leaves and insects that fall from
the forest canopy in the riparian zone.
321 Benthic detritivores (bacteria, fungi
320 30
U.S.C. 12658(b)(24).
David J., ‘‘Riparian Forest Buffers:
Function and Design for Protection and
Enhancement of Water Resources,’’ NA–PR–07–91,
U.S. Dept. of Agriculture, Forest Service,
Northeastern Area State and Private Forestry (1991).
Unpaginated document available at https://
321 Welsch,
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and invertebrates) that live on the
stream bottom feed on the detritus and
form the basis of the aquatic food chain.
They pass on this energy when they are,
in turn, consumed by larger benthic
fauna and eventually by fish. Thus, the
streamside forest functions as an
important energy source for the entire
aquatic food chain from headwaters to
estuary.322
Furthermore, forested riparian buffers
are essential to prevent excessively high
water temperatures in coldwater streams
and to moderate temperature variations
in other streams. One study found a
four-fold decline in fish density in
coldwater streams after removal of the
forested riparian buffer.323 Another
study found that invertebrate
populations in streams with forested
buffers of 100 feet exhibited no change
following clearcutting of the area
outside the buffer zone. However,
streams in watersheds in which
clearcutting operations left narrower
forested buffers experienced significant
changes in the species diversity of
invertebrate populations, with the
extent of the changes correlating to
buffer width.324
Studies of effective buffer widths for
wildlife generally recommend wider
buffers than those required for sediment
control and protection of water quality.
For example, recommended buffer
widths for conservation of forestdwelling birds often exceed 300 feet.325
A comprehensive guide to riparian
forest buffers in the Chesapeake Bay
watershed provides a range of
recommended minimum buffer widths
for different objectives: 50 to 275 feet for
wildlife habitat, 60 to 225 feet for flood
mitigation, 50 to 175 feet for sediment
removal, 35 to 140 feet for nitrogen
removal, 20 to 60 feet for water
temperature moderation, and 20 to 45
feet for bank stabilization and aquatic
food web maintenance.326 The
minimum 100-foot buffer width that we
www.na.fs.fed.us/spfo/pubs/n_resource/buffer/
cover.htm (last accessed January 16, 2015).
322 Id.
323 P. Lee et al., ‘‘Quantitative review of riparian
buffer width guidelines from Canada and the
United States,’’ Journal of Environmental
Management 70 (2004) 165–180, p. 172. The review
noted that fish populations recovered after stream
temperatures decreased following reforestation.
324 Id.
325 Fischer, R. A. and J.C. Fischenich, Design
recommendations for riparian corridors and
vegetated buffer strips (2000) in ‘‘EMRRP Technical
Notes Collection’’ (ERDC TN–EMRRP–SR–24), U.S.
Army Engineer Research and Development Center,
Vicksburg, MS.
326 Palone, Roxane S. and Albert H. Todd, ed.
‘‘Chesapeake Bay Riparian Handbook: A Guide for
Establishing and Maintaining Riparian Forest
Buffers,’’ U.S. Dept. of Agriculture, Forest Service,
Northeastern Area State and Private Forestry, May
1997, rev. June 1998. Figure 6–3, p. 132.
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propose to adopt lies within the lower
end of the range of recommended
minimum widths for wildlife habitat
and flood mitigation, in the middle of
the range for sediment removal and
nitrogen removal, and exceeds the range
recommended for water temperature
moderation and bank stabilization and
aquatic food web maintenance.
Therefore, the 100-foot minimum width
that we have proposed for the riparian
buffer is an appropriate midrange
compromise that strikes a balance
among property rights and the various
recommended buffer widths for relevant
objectives, consistent with section 102(f)
of SMCRA,327 which provides that one
of the purposes of SMCRA is to strike
a balance between environmental
protection and the need for coal
production.
We propose to specify that the buffer
width must be measured horizontally on
a line perpendicular to the stream
beginning at the bankfull elevation or, if
there are no discernible streambanks,
the centerline of the active channel. We
derived this provision primarily from
Natural Resources Conservation Service
Conservation Practice Standard Code
391 (‘‘Riparian Forest Buffer’’) (July
2010), which states: ‘‘Measurement shall
begin at and perpendicular to the
normal water line, bank-full elevation,
or the top of the bank as determined
locally.’’ For streams that lack defined
banks, our proposed rule would adopt
the standard used in a riparian buffer
conservation zone model ordinance,
which calls for measurement from the
centerline of the stream in those
circumstances.328
Another measure listed in proposed
paragraph (c) is a requirement for
periodic evaluation of the impacts of the
operation on fish, wildlife, and related
environmental values in the permit and
adjacent areas. This paragraph would
require that the permittee use that
information to modify operations or take
other action if necessary to avoid or
minimize unforeseen adverse impacts
on fish, wildlife, and related
environmental values.
Proposed paragraph (d)(1) would
require that the fish and wildlife
protection and enhancement plan
include a description of the measures
that the permit applicant proposes to
implement as the best technology
currently available to enhance fish,
wildlife, and related environmental
values both within and outside the area
327 30
U.S.C. 1202(f).
River Coalition and New Jersey Dept.
of Environmental Protection, Division of Watershed
Management, ‘‘Riparian Buffer Conservation Zone
Model Ordinance,’’ Part IV (March 2005).
328 Passaic
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to be disturbed by mining activities,
where practicable. If the applicant
determines that it is not practicable to
implement any enhancement measures,
the application would have to explain
the rationale for this determination.
Proposed paragraphs (d)(1)(i) through
(xi) list examples of potential
enhancement measures. However, the
applicant may select other measures.
There is no expectation that each
application will include all the
measures listed here.
Under proposed paragraph (d)(2),
implementation of fish and wildlife
enhancement measures would be
mandatory whenever the proposed
operation would result in the long-term
loss of native forest, other native plant
communities, or a segment of a
perennial or intermittent stream. In this
context, ‘‘long-term’’ means that the
permittee would not be able to correct
the resource loss before expiration of the
period of extended revegetation
responsibility as prescribed in proposed
30 CFR 816.115. Thus, the removal of
significant native forest cover and the
loss of the ecological benefits associated
with that cover would be considered a
long-term loss, as would the burial of a
perennial or intermittent stream
segment by an excess spoil fill or coal
mine waste disposal facility.
We invite comment on whether there
are other interpretations of ‘‘long-term’’
that we should consider. We also invite
comment on whether the regulatory
authority may consider mitigation
measures approved under the authority
of the Clean Water Act as satisfying the
separate SMCRA requirement for
mandatory enhancement measures.
Acceptance may enhance coordination
of permitting reviews under SMCRA
and the Clean Water Act. We request
that anyone with data on the
effectiveness and long-term viability of
Clean Water Act mitigation measures
that have already been implemented
submit that data to us for consideration
in our decision as to whether to accept
Clean Water Act mitigation measures as
fish and wildlife enhancement measures
under SMCRA. We also request that
anyone with data on downstream
impacts from coal mining and the
effectiveness of Clean Water Act
mitigation measures on those impacts
submit that data to us for consideration.
Finally, we request that anyone with
data on the cumulative downstream
impacts of coal mining that are not
addressed by Clean Water Act
mitigation measures or National
Pollutant Discharge Elimination System
(NPDES) permits submit that data to us
for consideration.
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Proposed paragraph (d)(2)(ii) would
require that the scope of the
enhancement measures be
commensurate with the potential longterm adverse impact to those resources
and that the measures be permanent in
nature. For example, riparian corridors
must be protected by conservation
easements (dedicated to an appropriate
agency or organization) or deed
restrictions or so that the newly planted
vegetation is not destroyed after bond
release and termination of jurisdiction
under SMCRA. We invite comment on
whether our regulations should define
‘‘commensurate’’ in this context and, if
so, how we should define that term.
Proposed paragraph (d)(2)(iii)(A)
would require that enhancement
measures be implemented within the
watershed in which the proposed
operation is located, unless
opportunities for enhancement are not
available within that watershed. In the
latter situation, the proposed rule would
allow the permit applicant to propose
enhancement measures for
implementation in the nearest adjacent
watershed in which enhancement
opportunities exist. Proposed paragraph
(d)(2)(iii)(B) would require that each
regulatory program prescribe the size of
the watershed for purposes of paragraph
(d)(2)(iii)(A) of this section, using a
generally-accepted watershed
classification system. We invite
comment on whether we should instead
establish a standard size nationwide as
part of the final rule. The HUC–12 (U.S.
Geological Survey 12-digit Watershed
Boundary Dataset) watershed is one
possibility.
Proposed paragraph (d)(2)(iv) would
require that completion of mandatory
enhancement measures be made a
condition of permit issuance to ensure
that this requirement is both enforceable
and covered by the performance bond
posted for the operation.
Proposed paragraph (d)(3) would
require that the area to be disturbed by
implementation of enhancement
measures be included within the
proposed permit area whenever
implementation of those measures
would result in more than a de minimis
disturbance of the surface of land
outside the area to be mined. This
provision would ensure that the
regulatory authority can enforce
implementation of those measures
under the SMCRA permit and that their
implementation would be covered by
the performance bond for the operation.
Proposed paragraph (e) would contain
the U.S. Fish and Wildlife Service
permit application review provisions
located at existing 30 CFR 780.16(c). We
propose to revise these provisions in
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44495
response to discussions with the U.S.
Fish and Wildlife Service concerning
compliance with the Endangered
Species Act.
Proposed paragraph (e)(1)(i) would
require that the regulatory authority
provide the fish and wildlife protection
and enhancement plan developed under
this section as part of the permit
application to the applicable regional or
field office of the U.S. Fish and Wildlife
Service whenever the resource
information submitted under proposed
30 CFR 779.20 includes species listed as
threatened or endangered under the
Endangered Species Act, critical habitat
designated under that law, or species
proposed for listing as threatened or
endangered under that law. The
proposed rule would require that the
regulatory authority provide this
information to the Service no later than
the time that the regulatory authority
provides written notice of receipt of an
administratively complete permit
application to the Service under
proposed 30 CFR 773.6(a)(3)(ii). Under
existing 30 CFR 780.16(c), the Service
must request this information from the
regulatory authority rather than
receiving it automatically.
Proposed paragraph (e)(1)(ii) is
similar to existing 30 CFR 780.16(c) in
that it would allow the Service to
request an opportunity to review the
fish and wildlife protection and
enhancement plans submitted as part of
other permit applications even when the
resource information in those
applications does not include species
listed as threatened or endangered
under the Endangered Species Act,
critical habitat designated under that
law, or species proposed for listing as
threatened or endangered under that
law. Under both the existing and
proposed rules, the regulatory authority
must provide that information to the
Service within 10 days of receipt of the
request.
Proposed paragraph (e)(2) would
specify how the regulatory authority
must handle comments received from
the Service and how any disagreements
are to be resolved. Proposed paragraph
(e)(2) generally parallels the provisions
that we and the Service agreed to as a
result of a formal section 7(a)(2)
Endangered Species Act consultation
pertaining to the approval and conduct
of surface coal mining and reclamation
operations under a SMCRA regulatory
program. Specifically, proposed
paragraphs (e)(2)(i) through (iii) would
provide that if the regulatory authority
does not agree with a Service
recommendation that pertains to fish
and wildlife or plants listed as
threatened or endangered under the
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Endangered Species Act or to critical
habitat designated under that law, the
regulatory authority must explain the
rationale for that decision in a comment
disposition document and must provide
a copy of that document to the pertinent
Service field office. The proposed rule
also would require that the regulatory
authority provide a copy of that
document to the appropriate OSMRE
field office for informational purposes
and to allow the OSMRE field office to
monitor resolution of the disagreement.
If the Service field office does not
concur with the regulatory authority’s
decision and the regulatory authority
and the Service field office are
subsequently unable to conclude an
agreement at that level, the proposed
rule allows either the regulatory
authority or the Service to elevate the
issue through the chain of command of
the regulatory authority, the Service,
and OSMRE for resolution.
Proposed paragraph (e)(2)(iv) would
provide that the regulatory authority
may not approve the permit application
until all issues are resolved in
accordance with this process and the
regulatory authority receives written
documentation from the Service that all
issues have been resolved. Like all
provisions of proposed paragraph (e)(2),
this provision is intended to ensure the
protection of threatened and endangered
species in accordance with the
Endangered Species Act.
7. Section 780.19: What baseline
information on hydrology, geology, and
aquatic biology must I provide?
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Proposed paragraph (a): General
Requirements
Proposed paragraph (a) would require
that each permit application contain
information on the hydrology, geology,
and aquatic biology of the proposed
permit and adjacent areas in sufficient
detail to assist in preparing the
determination of the probable
hydrologic consequences of mining
under 30 CFR 780.20, preparing the
hydrologic reclamation plan under 30
CFR 780.22, preparing the surface-water
and groundwater monitoring plans
under 30 CFR 780.23, preparing the
plans for monitoring the biological
condition of streams under 30 CFR
780.23, demonstrating that all
reclamation required by the regulatory
program can be accomplished as
required by 30 CFR 773.15(b), preparing
the cumulative hydrologic impact
assessment under 30 CFR 780.21, and
determining whether the proposed
operation has been designed to prevent
material damage to the hydrologic
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balance outside the permit area as
required by 30 CFR 773.15(e).
Section 510(b)(3) of SMCRA 329
specifies that the regulatory authority
may not approve a permit application
unless the regulatory authority has
‘‘made an assessment of the probable
cumulative impact of all anticipated
mining in the area on the hydrologic
balance specified in section 507(b).’’
This assessment is commonly referred
to as the CHIA. Section 507(b)(11) of
SMCRA,330 the pertinent part of the
SMCRA section referenced in the quote
above, requires that each permit
application include—
a determination of the probable hydrologic
consequences of the mining and reclamation
operations, both on and off the mine site,
with respect to the hydrologic regime,
quantity and quality of water in surface and
ground water systems including the
dissolved and suspended solids under
seasonal flow conditions and the collection
of sufficient data for the mine site and
surrounding areas so that an assessment can
be made by the regulatory authority of the
probable cumulative impact of all anticipated
mining in the area upon the hydrology of the
area and particularly upon water availability.
Section 510(b)(3) also specifies that
the regulatory authority may not
approve a permit unless the application
affirmatively demonstrates and the
regulatory authority finds in writing that
the proposed operation ‘‘has been
designed to prevent material damage to
the hydrologic balance outside the
permit area.’’ In addition, section
510(b)(2) of SMCRA 331 specifies that
the regulatory authority may not
approve a permit unless the application
affirmatively demonstrates and the
regulatory authority finds in writing that
the ‘‘applicant has demonstrated that
reclamation as required by this Act and
the State or Federal program can be
accomplished under the reclamation
plan contained in the permit
application.’’
Without sound baseline information
on surface-water and groundwater
quality and quantity and the biological
communities in streams, the regulatory
authority cannot prepare an adequate
CHIA or determine whether the
proposed mining operation has been
designed to prevent material damage to
the hydrologic balance outside the
permit area. A lack of adequate baseline
data and accurate mining impact
analyses based on that data likewise
would impair the ability of the
regulatory authority to make the finding
required by 30 CFR 773.15(b) and
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U.S.C. 1260(b)(3).
U.S.C. 1257(b)(11).
331 30 U.S.C. 1260(b)(2).
section 510(b)(2) of SMCRA 332
concerning the feasibility of
reclamation. Proposed 30 CFR 780.19
would refine and expand baseline data
requirements for permit applications to
promote more effective implementation
of sections 507(b)(11) and 510(b)(3) of
SMCRA 333 and better protect streams,
groundwater, and related environmental
values.
Proposed Paragraph (b): Information on
Groundwater
Proposed paragraph (b)(1) would
require that each permit application
include information sufficient to
document seasonal variations in the
quality, quantity, and usage of
groundwater, including all surface
discharges, within the proposed permit
and adjacent areas. Currently, this
provision is part of existing 30 CFR
780.21(b)(1).
Proposed paragraph (b)(2) would
require that the permit application
include an assessment of the seasonal
characteristics of any underground mine
pool that is present within the proposed
permit or adjacent areas unless the
applicant demonstrates, and the
regulatory authority finds, that the mine
pool is not hydrologically connected to
the proposed permit area. Proposed
paragraph (b)(2) also would require that
the determination of the probable
hydrologic consequences of the
proposed operation include a discussion
of the effect of the proposed mining
operation on any underground mine
pools within the proposed permit and
adjacent areas. In our experience, the
mine pools associated with
underground mines adjacent to,
underlying, or overlying the proposed
operation are not always properly or
completely described, including the
current or potential degree of hydrologic
connection between the mine pool and
the proposed operation. The level of
detail and data collection needs to be
sufficient for the reviewer to understand
the complex interaction between the
mine pools and the hydrology of the
proposed permit and adjacent areas.
Proposed paragraph (b)(3) would
allow the regulatory authority to require
the installation of properly-screened
monitoring wells when necessary to
obtain groundwater quality and quantity
information sufficient to characterize
seasonal variations. Properly-designed
and constructed monitoring wells are
essential to collection of reliable and
scientifically-valid data, which section
517(b)(2) of SMCRA requires.
329 30
330 30
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332 Id.
333 30
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Proposed paragraph (b)(4) would
expand the list of parameters in existing
30 CFR 780.21(b)(1) that must be
included in the description of
groundwater quality. Proposed new
parameters include major anions, major
cations, the cation-anion balance, hot
acidity,334 total alkalinity, pH,
ammonia, arsenic, cadmium, copper,
nitrogen, selenium, and zinc. Our
rationale for adding these parameters is
that a complete characterization of the
prevailing premining hydrologic
balance, including water chemistry, is
necessary to fully assess the impacts of
the proposed operations. The additional
data also would facilitate quality
assurance and quality control
procedures. Finally, the additional
baseline data may document existing
water quality or other problems and
thus provide the permittee with a
defense against later assertions that it
has caused adverse impacts to a stream
with respect to those parameters.
The proposed addition of selenium
and a requirement for both total
dissolved solids and specific
conductance (rather than either total
dissolved solids or specific
conductance, as in the existing
regulations) reflect concerns identified
in scientific studies documenting the
adverse impacts that elevated
concentrations of those parameters have
had on aquatic life in streams in the
central Appalachian coalfields. Part II of
this preamble summarizes some of those
studies.
Proposed paragraph (b)(5) is
substantively identical to the
groundwater quantity information
requirements in the last sentence of
existing 30 CFR 780.21(b)(1).
Proposed paragraph (b)(6)(i) would
require that the permit applicant
establish monitoring wells (or
equivalent monitoring points like
springs and other direct surface
discharges of groundwater) at a
sufficient number of locations within
the proposed permit and adjacent areas
to determine groundwater quality,
quantity, and movement in each aquifer
above or immediately below the lowest
coal seam to be mined. At a minimum,
for each aquifer, we propose to require
monitoring points upgradient and
downgradient of the proposed permit
area and within the proposed permit
area to ensure collection of data
sufficient to fully describe baseline
groundwater conditions.
Proposed paragraph (b)(6)(ii) would
require that the permit applicant collect
334 Hot
acidity refers to the hot peroxide
treatment titration method for determination of
acidity.
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water samples from the locations
identified in proposed paragraph
(b)(6)(i) at equally-spaced monthly
intervals for a minimum of 12
consecutive months to document
seasonal variations in the quality of
groundwater through a complete
hydrologic cycle. Proposed paragraph
(b)(6)(ii) also would require that the
permit applicant analyze those samples
for all parameters listed in proposed
paragraph (b)(4) at the same frequency.
Analysis of all listed parameters would
establish a comprehensive baseline for
groundwater quality.
Proposed paragraph (b)(6)(iii) would
require that the permit applicant take
the measurements listed in proposed
paragraph (b)(5) at each location
identified in proposed paragraph
(b)(6)(i) at equally spaced monthly
intervals for a minimum of 12
consecutive months to document
seasonal variations in groundwater
levels and to establish a comprehensive
baseline for groundwater availability.
Currently, regulatory authorities
require anywhere from as few as three
samples (high, mean, and low base flow)
to multiple years of sampling. Requiring
a minimum of 12 consecutive, equallyspaced monthly samples would ensure
that the baseline data collected would
cover the entire water year.335 Under
both our existing rules and the 1979
rules, the regulatory authority could
accept fewer than 12 months of data,
provided that, as explained in the
preamble to the 1979 rules, the
maximum seasonal variation could be
established by extrapolation from
existing data collected within the same
watershed or in a similar watershed
through the use of modeling or other
reasonable predictive tools.336 However,
our past experience indicates that
extrapolation is not a reliably accurate
method to document and describe
seasonal variation. Therefore, we now
propose to require collection of actual
data for the complete water year.
Proposed paragraph (b)(6)(iv) would
require that the regulatory authority
extend the minimum baseline data
collection period whenever data
available from the National Oceanic and
Atmospheric Administration or similar
databases indicate that the region in
which the proposed operation is located
experienced severe drought (¥3.0 or
lower on the Palmer Drought Severity
Index 337) or abnormally high
335 The water year runs from October 1 through
September 30.
336 44 FR 15034 (Mar. 13, 1979).
337 See https://www.drought.gov/drought/content/
products-current-drought-and-monitoring-droughtindicators/palmer-drought-severity-index (last
accessed August 25, 2014).
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precipitation (3.0 or higher on the
Palmer Drought Severity Index) during
the initial baseline data collection
period. The Palmer Drought Severity
Index is a national index used to
characterize climatic conditions across
the country on a weekly frequency.
During excessively wet periods, the
seasonal concentrations of chemical
constituents might be lower than normal
because flows and water levels are
higher. During severe drought periods,
the concentrations of chemical
constituents might be higher than
normal because flows and water levels
are lower. We propose to require that
baseline data collection continue until
the dataset includes 12 consecutive
months without severe drought or
abnormally high precipitation. Without
this provision, the baseline data in the
permit application would not be an
accurate description of normal
premining conditions.
Proposed Paragraph (c): Information on
Surface Water
Proposed paragraph (c)(1) would
require that each permit application
include information sufficient to
document seasonal variation in surfacewater quality, quantity, and usage
within the proposed permit and
adjacent areas. Currently, this provision
is part of existing 30 CFR 780.21(b)(2).
Proposed paragraph (c)(2) would
expand the list of parameters in existing
30 CFR 780.21(b)(2) that must be
included in the descriptions of surface
water quality. Proposed new parameters
include major anions, major cations, the
cation-anion balance, hot acidity,338
total alkalinity, pH, ammonia, arsenic,
cadmium, copper, nitrogen, selenium,
and zinc. We also propose to require
that the applicant include any
additional parameters required by the
agency implementing the NPDES
program under section 402 of the Clean
Water Act.339 Our rationale for adding
these parameters is that a complete
characterization of the prevailing
premining hydrologic balance,
including water chemistry, is necessary
to fully assess the impacts of the
proposed operations. The additional
data also would facilitate quality
assurance and quality control
procedures. Finally, the additional
baseline data may document existing
water quality or other problems and
thus provide the permittee with a
defense against later assertions that it
338 Hot acidity refers to the hot peroxide
treatment titration method for determination of
acidity.
339 33 U.S.C. 1342.
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has caused adverse impacts to a stream
with respect to those parameters.
The proposed addition of selenium
and a requirement for both total
dissolved solids and specific
conductance (rather than just one or the
other, as in the existing regulations)
reflect concerns identified in scientific
studies documenting the adverse
impacts that elevated concentrations of
those parameters have had on aquatic
life in streams in the central
Appalachian coalfields. Part II of this
preamble summarizes some of those
studies.
Proposed paragraph (c)(3)(i) would
require that the applicant provide
baseline information on seasonal flow
variations and peak-flow magnitude and
frequency for all perennial, intermittent,
and ephemeral streams and other
surface-water discharges within the
proposed permit and adjacent areas.
This information is needed to prepare
the determination of the probable
hydrologic consequences of mining
under proposed 30 CFR 780.20 and to
prepare the surface-water runoff control
plan that we propose to require under
30 CFR 780.29. Proposed paragraph
(c)(3)(i) also would require that the
applicant provide information on the
extent of existing usage for existing uses
and anticipated usage for all reasonably
foreseeable uses. This information is
needed to prepare the determination of
the probable hydrologic consequences
of mining and the CHIA and to establish
permit-specific criteria for material
damage to the hydrologic balance
outside the permit area, consistent with
our proposed definition of that term in
30 CFR 701.5.
Proposed paragraph (c)(3)(ii) would
require the use of generally-accepted
professional flow measurement
techniques to ensure the accuracy of
baseline flow data. The proposed rule
would prohibit the use of subjective
visual flow observations because of the
inherent lack of precision in those
observations and variations among
observers.
Proposed paragraph (c)(4)(i) would
require that the permit applicant
establish monitoring points at a
sufficient number of locations within
the proposed permit and adjacent areas
to determine the quality and quantity of
water in each stream within those areas.
At a minimum, we propose to require
monitoring points upgradient and
downgradient of the proposed permit
area in each perennial and intermittent
stream within the proposed permit and
adjacent areas, as well as in a
representative number of ephemeral
streams within the proposed permit
area, to ensure collection of data
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sufficient to fully describe baseline
surface water conditions. Ephemeral
streams in the adjacent area are unlikely
to be affected by mining, so we do not
propose to require monitoring of those
streams.
Proposed paragraph (c)(4)(ii) would
require that the permit applicant collect
water samples from the locations
identified in proposed paragraph
(c)(4)(i) at equally-spaced monthly
intervals for a minimum of 12
consecutive months to document
seasonal variations in surface water
quality through a complete hydrologic
cycle. Proposed paragraph (c)(4)(ii) also
would require that the permit applicant
analyze those samples for all parameters
listed in proposed paragraph (c)(2) at
the same frequency. Analysis of all
listed parameters would establish a
comprehensive baseline for surface
water quality.
Proposed paragraph (c)(4)(iii) would
require that the permit applicant take
the measurements listed in proposed
paragraph (c)(3) at each location
identified in proposed paragraph
(c)(4)(i) at equally spaced monthly
intervals for a minimum of 12
consecutive months to document
seasonal variations in streamflow and to
establish a comprehensive baseline for
streamflow and surface water
availability.
Currently, regulatory authorities
require anywhere from as few as three
samples (high, mean, and low base flow)
to multiple years of sampling. Requiring
a minimum of 12 consecutive, equallyspaced monthly samples would ensure
that the baseline data collected would
cover the entire water year.340 Under
both our existing rules and the 1979
rules, the regulatory authority could
accept fewer than 12 months of data,
provided that, as explained in the
preamble to the 1979 rules, the
maximum seasonal variation could be
established by extrapolation from
existing data collected within the same
watershed or in a similar watershed
through the use of modeling or other
reasonable predictive tools.341 However,
our past experience indicates that
extrapolation is not a reliably accurate
method to document and describe
seasonal variation. Therefore, we now
propose to require collection of actual
data for the complete water year. In
addition, our proposal is consistent with
the approach now being taken by
agencies responsible for implementing
the Clean Water Act.
340 The water year runs from October 1 through
September 30.
341 44 FR 15034 (Mar. 13, 1979).
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Proposed paragraph (c)(4)(iv) would
require that the regulatory authority
extend the minimum baseline data
collection period whenever data
available from the National Oceanic and
Atmospheric Administration or similar
databases indicate that the region in
which the proposed operation is located
experienced severe drought (¥3.0 or
lower on the Palmer Drought Severity
Index 342) or abnormally high
precipitation (3.0 or higher on the
Palmer Drought Severity Index) during
the initial baseline data collection
period. The Palmer Drought Severity
Index is a national index used to
characterize climatic conditions across
the country on a weekly frequency.
During excessively wet periods, the
seasonal concentrations of chemical
constituents might be lower than normal
because flows and water levels are
higher. During severe drought periods,
the concentrations of chemical
constituents might be higher than
normal because flows and water levels
are lower. We propose to require that
baseline data collection continue until
the dataset includes 12 consecutive
months without severe drought or
abnormally high precipitation. Without
this provision, the baseline data in the
permit application would not be an
accurate description of normal
premining conditions.
Proposed paragraph (c)(5) would
require that the applicant provide
records of precipitation amounts for the
proposed permit area, using on-site selfrecording devices. Precipitation records
must be adequate to generate and
calibrate a hydrologic model of the site,
should the regulatory authority require
such a model. This information is
needed to prepare the PHC
determination under proposed 30 CFR
780.20 and the surface-water runoff
control plan required under proposed
30 CFR 780.29.
Proposed paragraph (c)(6) would
require that the applicant identify and
assess all perennial, intermittent, and
ephemeral streams within the permit
and adjacent areas. The assessment
would include a description of the
physical and hydraulic characteristics of
the stream channel, as well as the
biological condition of each stream, and
the nature of vegetation within the
riparian zone. For streams that appear
on the list of impaired surface waters
prepared under section 303(d) of the
Clean Water Act,343 it also would
342 See https://www.drought.gov/drought/content/
products-current-drought-and-monitoring-droughtindicators/palmer-drought-severity-index (last
accessed August 25, 2014).
343 33 U.S.C. 1313(d).
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require identification of the stressors
and associated total maximum daily
loads, if applicable. Proposed paragraph
(c)(6) would result in documentation of
the premining physical and biological
conditions of streams for purposes of
evaluating the impacts of mining,
establishing stream restoration
standards, and establishing revegetation
requirements for riparian corridors.
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Proposed Paragraph (d): Additional
Information for Discharges From
Previous Coal Mining Operations
Proposed paragraph (d) would require
that the applicant collect and analyze a
one-time sample of all existing
discharges from previous mining
operations within the proposed permit
and adjacent areas during the low
baseflow season. Both the applicant and
the regulatory authority would use the
results of these analyses to identify any
additional parameters of concern. Data
from previous mining operations also
can be helpful in preparing the
determination of the probable
hydrologic consequences of mining and
the CHIA. Hydrologic data from both
reclaimed and unreclaimed minesites
can be extremely valuable in predicting
the impacts of future mining.
Proposed Paragraph (e): Biological
Condition Information for Streams
Proposed paragraph (e)(1) would
require that each permit application
include an assessment of the biological
condition of each perennial and
intermittent stream within the proposed
permit and adjacent areas as well as an
assessment of the biological condition of
a representative sample of ephemeral
streams within those areas. This
requirement would not apply to a
permit application for which the
regulatory authority grants an
exemption under proposed paragraph
(h).
Proposed paragraph (e)(2) would
require that persons conducting the
assessment use a multimetric
bioassessment protocol approved by the
state or tribal agency responsible for
preparing the water quality inventory
report required under section 305(b) of
the Clean Water Act 344 or other
scientifically-valid multimetric
bioassessment protocols used by
agencies responsible for implementing
the Clean Water Act. Multimetric
indices include metrics such as species
richness, complexity, and tolerance as
well as trophic measures. They provide
a quantitative comparison (often
referred to as an index of biological or
biotic integrity) of the ecological
344 33
U.S.C. 1315(b).
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complexity of biological assemblages
relative to a regionally-defined reference
condition. However, we also propose to
establish minimum standards that those
protocols must meet. First, the
bioassessment protocol must be based
upon the measurement of an
appropriate array of aquatic organisms,
including benthic macroinvertebrates.
Benthic macroinvertebrates are
particularly useful for assessing the
biological condition of the stream
because certain species are highly
sensitive to the presence of pollutants.
Furthermore, we propose to require
identification of benthic
macroinvertebrates to the genus level
because a bioassessment protocol that
identifies macroinvertebrates only to the
family level may not be capable of
differentiating between pollutiontolerant and pollution-intolerant genera
within the same family. On the other
hand, a bioassessment protocol that
identifies organisms to the species level
may not be consistent with available
indices of biological integrity.
Finally, proposed paragraph (e)(2)
would require that the bioassessment
protocol result in the calculation of
index values for both habitat and
macroinvertebrates and provide a
correlation of index values to the
capability of the stream to support
designated uses under section 101(a) or
303(c) of the Clean Water Act, as well
as any other existing or reasonably
foreseeable uses. We seek comment on
the effectiveness of using index scores
from bioassessment protocols to
ascertain impacts on existing,
reasonably foreseeable, or designated
uses. We also invite commenters to
suggest other approaches that may be
equally or more effective.
Proposed Paragraph (f): Geologic
Information
Proposed paragraph (f) is
substantively identical to the existing
rules at 30 CFR 780.22(b) through (d),
except as discussed below. We propose
to eliminate the provision in existing 30
CFR 780.22(b)(2)(ii) that allows the
regulatory authority to waive the
requirement that the permit application
include analyses of each stratum in the
geological column for alkalinityproducing materials. We also propose to
eliminate the provision in existing 30
CFR 780.22(b)(2)(iii) that allows the
regulatory authority to waive the
requirement that the permit application
include an analysis of the coal seam for
pyritic sulfur. Both analyses are
necessary for a complete acid-base
accounting, assessment of the potential
for acid mine drainage, and prediction
of the total dissolved solids content of
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postmining discharges. In addition, this
information is necessary to prepare an
accurate determination of the probable
hydrologic consequences of mining
under proposed 30 CFR 780.20 and the
cumulative hydrologic impact
assessment under proposed 30 CFR
780.21. Finally, the information is
necessary to assist the regulatory
authority in determining whether
reclamation is possible and whether the
proposed operation will create a longterm postmining discharge requiring
treatment.
We invite comment on whether we
should adopt provisions similar to
proposed 30 CFR 777.13(b) to prescribe
acceptable methodologies for the
geochemical analyses required by
proposed 30 CFR 780.19(f)(3)(ii) and
(iii).
Proposed Paragraph (g): Cumulative
Impact Area Information
Proposed paragraph (g) is
substantively identical to existing 30
CFR 780.21(c), with the exception that
we propose to clarify that the permit
applicant may submit data and analyses
from nearby mining operations if the
site of those operations is representative
of the proposed operations in terms of
topography, hydrology, geology,
geochemistry, and method of mining.
Proposed Paragraph (h): Exception for
Operations That Avoid Streams
Proposed paragraph (h) would allow a
permit applicant to request that the
regulatory authority waive the biological
condition information requirements of
proposed 30 CFR 780.19(e). The
regulatory authority may approve the
request only if it determines that the
applicant has demonstrated that the
proposed operation will not mine
through or bury a perennial or
intermittent stream; create a pointsource discharge to any perennial,
intermittent, or ephemeral stream; or
modify the baseflow of any perennial or
intermittent stream.
Proposed Paragraph (i): Coordination
With Clean Water Act Agencies
Proposed paragraph (i) would require
that SMCRA regulatory authorities
consult with the agencies responsible
for issuing permits, authorizations, and
certifications under the Clean Water Act
and make best efforts to minimize
differences in baseline data collection
points and parameters to the extent
practicable and consistent with each
agency’s mission, statutory
requirements, and implementing
regulations. Coordination could reduce
the overall regulatory impact to the
industry, reduce the workload of
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regulatory authorities, and expedite the
permitting process. Applicants and
permittees may use data already
provided to or collected by a Clean
Water Act agency to satisfy SMCRA
requirements, provided that the data is
reasonably current and of the type,
scope, and quantity required for SMCRA
purposes. Proposed paragraph (i) is
consistent with the intent of section 713
of SMCRA,345 which, among other
things, promotes coordination of
regulatory activities under SMCRA and
the Clean Water Act.
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Proposed Paragraph (j): Corroboration of
Baseline Data
Proposed paragraph (j) would require
that the regulatory authority either
corroborate a sample of the baseline
information in each permit application
or arrange for a third party to conduct
the corroboration at the applicant’s
expense. Corroboration may include,
but is not limited to, simultaneous
sample collection and analysis, use of
field verification measurements, or
comparison of application data with
application or monitoring data from
adjacent operations. The existing
regulations at 30 CFR 777.13 already
require that the permit applicant
document and describe the methods and
persons collecting and analyzing
technical data. We interpret the existing
regulations as meaning that the
regulatory authority has an obligation to
monitor the accuracy and completeness
of data collection and analyses for
permit applications. Proposed
paragraph (j) would make this
responsibility explicit.
Proposed Paragraph (k): Permit
Nullification for Inaccurate Information
Proposed paragraph (k) specifies that
a permit will be void from the date of
issuance and have no legal effect if the
permit issuance was based on
substantially inaccurate baseline
information. Under those
circumstances, the proposed rule
provides that the permittee must cease
mining-related activities and
immediately begin to reclaim the site.
This measure would avoid or minimize
the environmental harm that could
result from initiation or continuation of
an operation approved on the basis of
substantially inaccurate data. We do not
intend for this provision to apply in
situations in which the application
contains only minor omissions or errors.
By ‘‘substantially inaccurate,’’ we mean
situations such as missing or false
chemical analyses of geologic strata or
misrepresentation of data from another
345 30
permit application as being collected
from the proposed permit and adjacent
areas. Adoption of proposed paragraph
(k) would be in furtherance of section
102(a) of SMCRA,346 which provides
that one of the purposes of the Act is to
establish a nationwide program to
protect society and the environment
from the adverse effects of surface coal
mining operations.
8. Section 780.20: How must I prepare
the determination of the probable
hydrologic consequences of my
proposed operation (PHC
determination)?
Proposed paragraph (a) would revise
the requirements concerning
preparation of the determination of the
probable hydrologic consequences of
mining in existing 30 CFR 780.21(f)(1)
through (f)(3) by adding a requirement
to consider the impacts of the proposed
operation on the biological condition of
perennial, intermittent, and ephemeral
streams located within the proposed
permit and adjacent areas, not just on
the quantity and quality of surface water
and groundwater as in the existing rule.
Proposed paragraph (a)(1) would replace
the requirement in existing 30 CFR
780.21(f)(3)(i) for a finding on whether
the proposed operation may cause
adverse impacts to the hydrologic
balance with a requirement for a finding
on whether the proposed operation may
cause material damage to the hydrologic
balance outside the permit area. These
proposed changes would more closely
tailor the PHC determination to both the
definition of ‘‘material damage to the
hydrologic balance outside the permit
area’’ that we propose to add to 30 CFR
701.5 and the existing finding that the
regulatory authority must make before
approving a permit application under 30
CFR 773.15(e), which, in relevant part,
requires a determination that the
proposed operation has been designed
to prevent material damage to the
hydrologic balance outside the permit
area.
Proposed paragraph (a)(4) would
require a finding on whether the
proposed operation would either
intercept or create aquifers in surface
mine spoil or underground mine voids.
Surface mining frequently results in the
formation of a new aquifer in spoil that
is placed in either the backfill or an
excess spoil fill. This aquifer may have
substantially different quality and
quantity characteristics than water
found in undisturbed overburden strata.
Underground mine voids can store large
volumes of water in what are commonly
known as mine pools. The storage
U.S.C. 1303.
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volume and discharge rates of these
pools may be orders of magnitude larger
than those associated with aquifers in
surface mine spoil because mine pools
typically collect water from a much
larger area than do surface mine spoil
aquifers. Discharges from underground
mine pools are frequently of relatively
high volume because their recharge rate
averages 0.47 gallons per minute per
acre of mine voids.347
The quantity and quality of the
groundwater that recharges the mine
pool from overlying and underlying
rock strata can significantly influence
postmining water quality.348 These
mine pool aquifers may discharge
directly to the land surface or to
groundwater systems downgradient of
the aquifer. The PHC determination
must consider the timing, quality,
quantity, and location of these
discharges to adequately assess the
probable impacts of the proposed
operation on the hydrologic balance.
The new finding also would require
evaluation of the impacts of any
temporary or permanent dewatering of
aquifers, including underground mine
pools, on the hydrologic balance.
Proposed paragraph (a)(5) would
expand the finding in existing 30 CFR
780.21(f)(3)(iv) concerning what impact
the proposed operation would have on
specific water quality parameters to
include the parameters for which
baseline information would be required
under proposed 30 CFR 780.19(b) and
(c). Furthermore, we propose to add
requirements in paragraph (a)(5) for
findings on what impact the proposed
operation would have on precipitation
runoff patterns and characteristics;
seasonal variations in streamflow; the
magnitude and frequency of peak flows
in perennial, intermittent, and
ephemeral streams within the proposed
permit and adjacent areas; and the
biological condition of those streams.
Finally, we propose to add a
requirement in paragraph (a)(5)(iv) for a
finding about the impact that any
diversion of surface or subsurface flows
to underground mine workings or any
changes in watershed size as a result of
the postmining surface configuration
would have on the availability of
surface water and groundwater. The
changes in proposed paragraph (a)(5)
347 Parizek, R.R., 1971. Prevention of Coal Mine
Drainage Formation by Well Dewatering. Special
Report of Research, The Pennsylvania State
University, 73 p.
348 See, e.g., McDonald, L. M., J. Skousen, and J.
Demchak, 2003, Longevity of Mine Discharges from
Above-Drainage Underground Mines, in the
Proceedings of the Twenty-Fourth West Virginia
Surface Mine Drainage Task Force Symposium,
Morgantown, WV, 54 pp.
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would improve the comprehensiveness
and predictive accuracy of the PHC
determination. They also would provide
a more scientifically sound basis for
development of the CHIA required by
proposed 30 CFR 780.21 and the
hydrologic reclamation plan required by
proposed 30 CFR 780.22.
Proposed paragraph (b) is
substantively identical to existing 30
CFR 780.21(b)(3), with the exception
that we propose to expand the
conditions under which the regulatory
authority may request that the applicant
submit supplemental information to
include those situations in which the
PHC determination indicates that the
proposed operation may result in
adverse impacts to the biological
condition of perennial or intermittent
streams within the proposed permit area
or the adjacent area. We also propose to
clarify that the regulatory authority may
request additional geochemical analyses
of overburden materials and information
concerning underground mine pools
and their impacts. The new provisions
are necessary to ensure that the PHC
determination is sufficiently
comprehensive to support development
of the hydrologic reclamation plan
required by 30 CFR 780.22 and the
CHIA required by 30 CFR 780.21.
Proposed paragraph (c)(1) is
substantively identical to existing 30
CFR 780.21(f)(4), which requires that
the regulatory authority determine
whether a new or updated PHC
determination is needed as part of the
process of evaluating permit revision
applications. We propose to add
paragraph (c)(2) to clarify that the
applicant must prepare a new or
updated PHC determination whenever a
regulatory authority review finds that
one is needed.
9. Section 780.21: What requirements
apply to preparation and review of the
cumulative hydrologic impact
assessment (CHIA)?
Our existing regulations contain very
few standards or criteria for preparation
of the CHIA. Those regulations, which
are located at 30 CFR 780.21(g)(1),
provide that the regulatory authority
must prepare an assessment of the
probable cumulative hydrologic impacts
of the proposed operation and all
anticipated mining upon surface-water
and groundwater systems in the
cumulative impact area. The regulations
further state that the assessment must be
sufficient to determine, for purposes of
permit approval, whether the proposed
operation has been designed to prevent
material damage to the hydrologic
balance outside the permit area. The
lack of standards or content
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requirements for the CHIA, coupled
with the lack of a definition of material
damage to the hydrologic balance, is an
impediment to stream protection under
SMCRA because there are no objective
criteria to apply.
We propose to remedy that problem,
in part, by establishing more detailed
content requirements for the CHIA,
based on our experience as the
regulatory authority in Tennessee and
on Indian lands and on our experience
in evaluating the implementation of
state regulatory programs. Our proposed
requirements would improve
implementation of sections 507(b)(11)
and 510(b)(3) of SMCRA,349 which
require that the regulatory authority
prepare a CHIA and provide that the
regulatory authority may not approve a
permit application unless the
application affirmatively demonstrates,
and the regulatory authority finds in
writing, that the proposed operation has
been designed to prevent material
damage to the hydrologic balance
outside the permit area. Section
201(c)(2) of SMCRA 350 directs the
Secretary, acting through OSMRE, to
‘‘publish such rules and regulations as
may be necessary to carry out the
purposes and provisions of the Act.’’
This provision establishes statutory
authority for the enhanced CHIA
regulations in this proposed rule. The
more detailed CHIA content
requirements that we propose to adopt
are prudent measures to ensure that the
CHIA is adequate to prevent the
approval or renewal of permits that
would result in material damage to the
hydrologic balance outside the permit
area.
Proposed paragraph (a)(1) is
substantively identical to existing 30
CFR 780.21(g)(1), with the exception
that we propose to clarify that the CHIA
must be in writing. We also propose to
remove the sentence stating that the
regulatory authority may allow the
permit applicant to submit data and
analyses relevant to the CHIA with the
application. This sentence that we
propose to delete is unnecessary
because it is inherently true, whether
stated or not. In addition, proposed
paragraph (a)(3) effectively replaces this
sentence.
Proposed paragraph (a)(2) would
provide that, in preparing the CHIA, the
regulatory authority must consider
relevant information on file for other
mining operations located within the
cumulative impact area or in similar
watersheds. This provision is intended
to ensure that the regulatory authority
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350 30
U.S.C. 1257(b)(11) and 1260(b)(3).
U.S.C. 1211(c)(2).
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44501
considers all available information
when preparing the CHIA.
Proposed paragraph (a)(3) would
provide that the regulatory authority
may not approve a permit application
until it receives the hydrologic,
geologic, and biological information
needed to prepare the CHIA, either from
other federal and state agencies or from
the applicant. This provision is
consistent with similar language in the
provisos at the end of section 507(b)(11)
of SMCRA.351
Proposed paragraph (b) would
establish detailed content requirements
for the CHIA to ensure that the
assessment is sufficiently
comprehensive to support the finding
that the regulatory authority must make
under section 510(b)(3) of SMCRA 352
and 30 CFR 773.15(e) regarding whether
the operation has been designed to
prevent material damage to the
hydrologic balance outside the permit
area. The new requirements correspond
to elements of the proposed definition
of ‘‘material damage to the hydrologic
balance outside the permit area’’ in 30
CFR 701.5. By requiring the
development of permit-specific,
numerical material damage criteria, they
also would facilitate implementation of
the prohibition in section 510(b)(3) of
SMCRA and 30 CFR 773.15(e) on
approval of a permit application unless
the CHIA demonstrates that the
proposed operation has been designed
to prevent material damage to the
hydrologic balance outside the permit
area.
Proposed paragraph (b)(1) would
require that the CHIA contain a map of
the cumulative impact area. The
boundaries of this area may differ for
surface water and groundwater, in
which case proposed paragraph (b)(1)(i)
would require that the map identify and
display those differences. Proposed
paragraphs (b)(1)(ii) through (iv) would
require that the map identify the
locations of all previous, current, and
anticipated surface and underground
mining, the locations of all baseline data
collection sites under proposed 30 CFR
780.19, and designated uses of surface
water under section 101(a) or 303(c) of
the Clean Water Act.
Proposed paragraph (b)(2) would
require that the CHIA contain a
description of all previous, existing, and
anticipated mining within the
cumulative impact area, including, at a
minimum, the coal seam or seams
mined, the extent of mining, and the
reclamation status of each operation.
351 30
352 30
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U.S.C. 1260(b)(3).
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Proposed paragraph (b)(3) would
require that the CHIA contain a
description of the baseline hydrologic
information collected from the proposed
permit and adjacent areas under
proposed 30 CFR 780.19. This
description would include the quality
and quantity of surface water and
groundwater and seasonal variations
therein; quantitative information about
existing usage of surface water and
groundwater, as well as information
defining the quality of water required
for each existing and reasonably
foreseeable use of groundwater and
surface water and each designated use
of surface water under section 101(a) or
303(c) of the Clean Water Act; a
description and map of the local and
regional groundwater systems; and the
biological condition of perennial,
intermittent, and ephemeral streams
within the proposed permit and
adjacent areas. The requirements of
proposed paragraph (b)(3) would not
apply to the entire cumulative impact
area.
Proposed paragraph (b)(4) would
require that the CHIA contain a
discussion of any potential concerns
identified in the PHC determination
prepared under proposed 30 CFR 780.20
and how those concerns have been or
will be resolved.
Proposed paragraph (b)(5) would
require that the CHIA contain a
qualitative and quantitative assessment
of how all anticipated surface and
underground mining may impact water
quality in surface water and
groundwater in the cumulative impact
area, expressed in terms of each baseline
parameter identified under 30 CFR
780.19.
Proposed paragraph (b)(6) would
require that the CHIA contain criteria
defining material damage to the
hydrologic balance outside the permit
area on a site-specific basis and that
these numerical criteria be incorporated
into the permit to ensure that they are
enforceable. Proposed paragraphs
(b)(6)(i) through (iii) would require that
the criteria be expressed in numerical
terms for each parameter of concern,
that they take into consideration the
biological requirements of any species
listed as threatened or endangered
under the Endangered Species Act when
those species or designated critical
habitat are present within the
cumulative impact area, and that they
identify the portion of the cumulative
impact area to which the criteria apply
and the locations at which impacts will
be monitored. The regulatory authority
may establish different criteria for
subareas within the cumulative impact
area when appropriate. Water quality
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standards established under the Clean
Water Act or in the NPDES permit for
the operation might suffice for some
parameters of concern, but NPDES
permits do not address cumulative
impacts and are not necessarily
structured to prevent material damage to
the hydrologic balance outside the
permit area.
We invite comment on whether the
rule also should require that the
regulatory authority establish lower
corrective action thresholds to identify
the point at which the permittee must
take action to minimize the potential
that adverse trends will continue and
ultimately cause material damage to the
hydrologic balance outside the permit
area. In particular, we are interested in
whether corrective action thresholds
would be both more effective and more
efficient in preventing material damage
to the hydrologic balance outside the
permit area, as required by SMCRA, and
in avoiding designation of streams as
impaired under section 303(d) of the
Clean Water Act.353
Proposed paragraph (b)(7) would
require an assessment of how all
anticipated surface and underground
mining may affect groundwater
movement and availability within the
cumulative impact area. This
information is important in the
determination of whether adverse
impacts on groundwater would be
severe enough to result in material
damage to the hydrologic balance
outside the permit area.
Proposed paragraph (b)(8) would
require an evaluation of whether the
CHIA will support a finding that the
operation has been designed to prevent
material damage to the hydrologic
balance outside the permit area, as
required by 30 CFR 773.15(e) and
section 510(b)(3) of SMCRA.354 This
evaluation would have to contain
supporting data and analyses. Proposed
paragraph (b)(8) also would require that
the CHIA include certain documented
determinations as a prerequisite for a
finding that the operation has been
designed to prevent material damage to
the hydrologic balance outside the
permit area.
Proposed paragraph (b)(8)(i) would
require a determination that, during all
phases of mining and reclamation and at
all times of the year, variations in
streamflow and groundwater availability
resulting from the operation, as well as
variations in the amount and
concentration of parameters of concern
in discharges from the operation to
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U.S.C. 1313(d).
U.S.C. 1260(b)(3).
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groundwater and surface water, would
not—
• Result in conversion of a perennial
or intermittent stream to an ephemeral
stream or conversion of a perennial
stream to an intermittent stream.
Conversion of an intermittent stream to
a perennial stream or conversion of an
ephemeral stream to an intermittent or
perennial stream may be acceptable,
provided the conversion would not
disrupt or preclude any existing,
reasonably foreseeable, or designated
use of the stream under section 101(a)
or 303(c) of the Clean Water Act and
would not adversely impact threatened
or endangered species or designated
critical habitat in violation of the
Endangered Species Act. We also are
considering replacement of ‘‘would not
adversely impact threatened or
endangered species or designated
critical habitat in violation of the
Endangered Species Act’’ with ‘‘would
not jeopardize the continued existence
of threatened or endangered species or
result in the destruction or adverse
modification of designated critical
habitat in violation of the Endangered
Species Act.’’ The second alternative
would parallel the language of existing
and proposed 30 CFR 816.97(b) and
817.97(b).
• Result in an exceedance of
applicable water quality standards in
any stream located outside the permit
area.
• Disrupt or preclude any existing or
reasonably foreseeable use of surface
water outside the permit area or any
designated use of surface water under
section 101(a) or 303(c) of the Clean
Water Act 355 outside the permit area,
except as provided in water supply
replacement provisions of proposed 30
CFR 780.22(b) and 816.40.
Proposed paragraph (b)(8)(ii) would
require a determination that the
operation has been designed to ensure
that neither the mining operation nor
the final configuration of the reclaimed
area will result in changes in the size or
frequency of peak flows from
precipitation events or thaws that would
cause an increase in damage from
flooding, when compared with
premining conditions.
Proposed paragraph (b)(8)(iii) would
require a determination that perennial
and intermittent streams located outside
the permit area but within the
cumulative impact area would continue
to have sufficient baseflow and recharge
capacity to maintain their premining
flow regime both during and after
mining and reclamation. In other words,
the regulatory authority must find that
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perennial stream segments will retain
perennial flows and intermittent stream
segments will retain intermittent flows
during and after mining and
reclamation. Conversion of an
intermittent stream to a perennial
stream or conversion of an ephemeral
stream to an intermittent or perennial
stream may be acceptable, provided the
conversion would not disrupt or
preclude any existing, reasonably
foreseeable, or designated use of the
stream under section 101(a) or 303(c) of
the Clean Water Act and would not
adversely impact threatened or
endangered species or designated
critical habitat in violation of the
Endangered Species Act. We also are
considering replacement of ‘‘would not
adversely impact threatened or
endangered species or designated
critical habitat in violation of the
Endangered Species Act’’ with ‘‘would
not jeopardize the continued existence
of threatened or endangered species or
result in the destruction or adverse
modification of designated critical
habitat in violation of the Endangered
Species Act.’’ The second alternative
would parallel the language of existing
and proposed 30 CFR 816.97(b) and
817.97(b).
Proposed paragraph (b)(8)(iv) would
require a determination that the
operation has been designed to protect
the quantity and quality of water in any
aquifer that significantly ensures the
prevailing hydrologic balance.
Proposed paragraph (c)(1) would
require that the regulatory authority
review each application for a significant
permit revision to determine whether a
new or updated CHIA is needed. This
paragraph is similar to existing 30 CFR
780.21(g)(2), except that we propose to
add a requirement that the regulatory
authority document the review,
including the analysis and conclusions,
together with the rationale for the
conclusions, in writing. In addition, we
propose to require this review only for
applications for significant permit
revisions, not for all applications for any
type of permit revisions as under the
existing rule. We are not aware of any
situation in which a non-significant
permit revision application has required
an update of the CHIA under the
existing rules. Therefore, conducting
this review of non-significant permit
revision applications is not a
meaningful or productive use of
regulatory authority resources.
Proposed paragraph (c)(2) would add
a requirement that the regulatory
authority reevaluate the CHIA during
the permit renewal process or every 5
years, whichever is more frequent, to
determine whether the CHIA remains
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accurate and whether the material
damage criteria in the CHIA and the
permit are adequate to ensure that
material damage to the hydrologic
balance outside the permit area will not
occur. This evaluation must include a
review of all water monitoring data from
both the operation in question and all
coal mining operations within the
cumulative impact area. We invite
comment on whether this 5-year review
frequency for water monitoring data is
adequate to detect adverse trends in a
timely manner or whether more
frequent reviews, such as during
midterm permit review, should be
required. In addition, we invite
comment on whether the permittee also
should be required to conduct this
review.
Proposed paragraph (c)(3) would
require preparation of a new or updated
CHIA whenever the regulatory authority
finds that one is needed based on the
evaluation required by proposed
paragraph (c)(2). Proposed paragraphs
(c)(2) and (c)(3) are logical extensions of
the finding that the regulatory authority
must make under section 510(b)(3) of
SMCRA 356 and 30 CFR 773.15(e)
regarding whether the operation has
been designed to prevent material
damage to the hydrologic balance
outside the permit area.
10. Section 780.22: What information
must I include in the hydrologic
reclamation plan and what information
must I provide on alternative water
resources?
Proposed paragraph (a) would be
substantively identical to the hydrologic
reclamation plan requirements in
existing 30 CFR 780.21(h), except as
discussed below. Proposed paragraph
(a)(2)(v) would replace the existing
requirement for measures to avoid acid
or toxic drainage with a requirement for
preventive and remedial measures to
avoid acid or toxic discharges to surface
water and to avoid (or, if avoidance is
not possible, minimize) degradation of
groundwater. The new language reflects
the nature of the surface mining process,
which typically converts solid rock to
highly-fragmented spoil, thus altering
groundwater composition and quality.
Proposed paragraph (a)(3) would
require that the hydrologic reclamation
plan address the impacts of any
transfers of water among active and
abandoned mines within the proposed
permit and adjacent areas. The transfer
of water between mines, whether
intentional through direct connections
or unintentional through leakage, can
have substantial impacts on the
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availability, quality, and distribution of
groundwater and surface water in the
permit and adjacent areas, which in turn
may have a substantial impact on users
of groundwater and surface water. For
example, a reduction in baseflow of a
stream would reduce the assimilative
capacity of the stream. In addition,
increases in the hydrostatic head
elevations of underground mine pools
might cause blowouts or landslides or
have other adverse impacts on land and
water resources.
Proposed paragraph (a)(4) would add
a requirement for a description of the
steps that the permittee will take during
mining and reclamation through final
bond release to protect and enhance
aquatic life and related environmental
values to the extent possible using the
best technology currently available. This
requirement would more completely
implement section 515(b)(24) of
SMCRA,357 which provides that surface
coal mining and reclamation operations
must use the best technology currently
available to minimize disturbances and
adverse impacts to fish, wildlife, and
related environmental values to the
extent possible and enhance those
resources where practicable.
Proposed paragraph (b) would replace
and expand the alternative water source
information required by existing 30 CFR
780.21(e) if the proposed operation may
result in contamination, diminution, or
interruption of a protected water
supply. Proposed paragraph (b)(1)
would require that the applicant
identify alternative water sources that
are available, feasible to develop, and
suitable in quality and sufficient in
quantity to support premining uses and
approved postmining land uses.
Proposed paragraph (b)(2) would
prohibit any mining that would
contaminate, diminish, or interrupt a
protected water supply if the applicant
is unable to identify any suitable
alternative water sources. These
provisions are intended to prevent
situations in which high-quality water
from a spring is replaced with well
water that requires substantial
treatment.
When a suitable alternative water
source is available, proposed paragraph
(b)(3) would require that the permittee
develop and install the alternative water
supply on a permanent basis before
adversely affecting an existing water
supply protected under proposed 30
CFR 816.40. This provision would not
apply if the permittee demonstrates, and
the regulatory authority finds, that the
proposed operation also would
adversely affect the replacement supply.
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In that case, the proposed rule would
require that the permittee provide a
temporary replacement water supply
until it is safe to install the permanent
replacement water supply.
Finally, proposed paragraph (b)(4)
would require a description of how the
applicant would provide both
temporary and permanent replacements
for any unexpected losses of protected
water supplies in accordance with the
timeframes and other requirements of
proposed 30 CFR 816.40.
Proposed paragraph (b) is intended to
more completely implement the water
supply replacement requirements of
sections 717(b) and 720(a)(2) of
SMCRA.358
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11. Section 780.23: What information
must I include in plans for the
monitoring of groundwater, surface
water, and the biological condition of
streams during and after mining?
Paragraphs (b)(1) and (2) of section
517 of SMCRA 359 provide authority for
the adoption of regulations establishing
monitoring requirements for surface
coal mining and reclamation operations.
Among other things, paragraph (b)(1)
provides that ‘‘the regulatory authority
shall require any permittee to . . .
install, use, and maintain any necessary
monitoring equipment or methods [and]
evaluate results in accordance with such
methods, at such locations, intervals,
and in such manner as a regulatory
authority shall prescribe.’’ Paragraph
(b)(2) includes the following additional
provisions:
[F]or those surface coal mining and
reclamation operations which remove or
disturb strata that serve as aquifers which
significantly insure the hydrologic balance of
water use either on or off the mining site, the
regulatory authority shall specify those—
(A) monitoring sites to record the quantity
and quality of surface drainage above and
below the minesite as well as in the potential
zone of influence;
(B) monitoring sites to record level,
amount, and samples of ground water and
aquifers potentially affected by the mining
and also directly below the lowermost
(deepest) coal seam to be mined;
(C) records of well logs and borehole data
to be maintained; and
(D) monitoring sites to record precipitation.
The monitoring data collection and
analysis required by this section shall be
conducted according to standards and
procedures set forth by the regulatory
authority in order to assure their reliability
and validity.
Proposed 30 CFR 780.23 would
establish more detailed requirements for
groundwater and surface-water
monitoring plans than those that appear
358 30
359 30
in existing 30 CFR 780.21(i) and (j).
Thus, they would more completely
implement the statutory provisions
described and quoted above.
Furthermore, our proposed enhanced
monitoring requirements are intended to
ensure that, as required by section
515(b)(24) of SMCRA,360 surface coal
mining and reclamation operations are
conducted so as to minimize
disturbances to and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible using the
best technology currently available.
Finally, our proposed enhanced
monitoring requirements would be
consistent with both the more
comprehensive baseline information
that we propose to require in 30 CFR
780.19 and the definition of ‘‘material
damage to the hydrologic balance
outside the permit area’’ that we
propose to adopt in 30 CFR 701.5.
Comprehensive baseline information
and monitoring are critical to evaluating
the impact of the mining operation on
the hydrologic balance, which in turn is
essential to preventing the occurrence of
material damage to the hydrologic
balance outside the permit area,
consistent with section 510(b)(3) of
SMCRA.361
Proposed Paragraphs (a): Groundwater
Monitoring Plan
Proposed paragraph (a) would include
the groundwater monitoring plan
requirements in existing 30 CFR
780.21(i). We propose to revise those
requirements by adding more specific
minimum requirements for the
groundwater monitoring plan to ensure
that the plan is adequate to evaluate the
impacts of the mining operation on
groundwater in the proposed permit and
adjacent areas and to identify adverse
trends in sufficient time to initiate
corrective action to prevent the
operation from causing material damage
to the hydrologic balance outside the
permit area. The following discussion
highlights the more significant elements
of proposed paragraph (a).
Proposed paragraph (a)(1)(iii)(A)
would require that each groundwater
monitoring plan include monitoring
wells (or equivalent monitoring points
with direct groundwater discharges,
such as springs) located upgradient and
downgradient of the proposed operation
to facilitate identification of potential
mining-related changes in groundwater
quantity or quality and to assist in an
evaluation of whether any downgradient
changes are the result of the mining and
reclamation activities. The proposed
U.S.C. 1307(b) and 1309a(a)(2).
U.S.C. 1267(b)(1) and (2).
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360 30
361 30
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U.S.C. 1260(b)(3).
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rule would require separate wells for
each aquifer above or immediately
below the lowest coal seam to be mined.
This provision would ensure
identification of impacts on each
aquifer, consistent with section
517(b)(2)(B) of SMCRA, which requires
monitoring of ‘‘aquifers potentially
affected by the mining and also directly
below the lowermost (deepest) coal
seam to be mined.’’
Proposed paragraph (a)(1)(iii)(B)
would require placement of monitoring
wells in backfilled portions of the
permit area after backfilling and grading
of all or a portion of the permit area is
completed. The purpose of these wells
is to identify how infiltration through
the spoil may alter groundwater levels
and quality. The proposed rule would
allow the regulatory authority to waive
placement of monitoring wells in the
backfilled area if it finds that wells in
the backfilled area are not necessary to
determine or predict the future impact
of the mining operation on groundwater
quality.
Finally, to monitor impacts on
underground mine pools, proposed
paragraph (a)(1)(iii)(C) would require
placement of monitoring wells in any
existing underground mine workings
that would have a direct hydrological
connection to the proposed operation.
These mine pools may serve as
municipal, industrial, or residential
water supplies. In addition, sudden,
unplanned releases of the water in those
mine pools can result in flooding
damage or adverse impacts on receiving
streams.
Proposed paragraph (a)(1)(iv) would
require that the plan describe how the
monitoring data will be used to
determine the impacts of the operation
upon the hydrologic balance and the
biological condition of perennial and
intermittent streams within the permit
and adjacent areas, as well as to prevent
material damage to the hydrologic
balance outside the permit area.
Proposed paragraph (a)(1)(v) would
require that the plan describe how
monitoring practices will comply with
the sampling, analysis, and reporting
requirements of proposed 30 CFR
777.13(a) and (b) to ensure that samples
are collected and analyzed in a legally
and scientifically valid manner.
Proposed paragraph (a)(1)(v) is
consistent with the requirement in the
text after section 517(b)(2)(D) of
SMCRA 362 that the regulatory authority
set forth standards and procedures for
monitoring data collection and analysis
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to assure the reliability and validity of
the data.
Proposed paragraph (a)(2)(i) would
require that the groundwater monitoring
plan provide for the monitoring of
parameters that could be affected by the
proposed operation if those parameters
relate to the findings and predictions in
the PHC determination prepared under
30 CFR 780.20, the biological condition
of perennial and intermittent streams
and other surface-water bodies that
receive discharges from groundwater
within the proposed permit and
adjacent areas, the suitability of the
groundwater for existing and reasonably
foreseeable uses, and the suitability of
the groundwater to support the
premining and postmining land uses.
Monitoring of these parameters would
assist the permittee and regulatory
authority in preventing material damage
to the hydrologic balance outside the
permit area and in determining
compliance with the water supply
protection and postmining land use
requirements of SMCRA and its
implementing regulations.
Proposed paragraph (a)(2)(ii) would
require quarterly monitoring of 14
specific parameters, including, among
others, selenium and the minimum
water-quality parameters required by
existing 30 CFR 780.21(i)(1) (pH, total
iron, total manganese, and total
dissolved solids or specific
conductance). As summarized in Part II
of this preamble, selenium can have
deleterious effects upon fish and human
health. In addition, this proposed
paragraph would require quarterly
monitoring of major anions (including,
at a minimum, bicarbonate, chloride,
and sulfate), major cations (including, at
a minimum, calcium, magnesium,
potassium, and sodium), and the cationanion balance. As summarized in Part II
of this preamble, these anions and
cations form salts that can alter water
chemistry in a manner that sometimes
has a substantial adverse impact on
aquatic life. With respect to water
quantity, proposed paragraph (a)(2)(ii)
would require quarterly measurement of
water levels, discharge rates, or yield
rates. Existing 30 CFR 780.21(i) only
requires monitoring of water levels,
which may not be sufficient to fully
evaluate groundwater quantity and
availability in all cases. Finally,
proposed paragraph (a)(2)(ii) would
require quarterly monitoring of certain
metals (if present in discharges from
prior underground mines) and any other
parameters of local significance, as
determined by the regulatory authority
based upon the information collected
and the analyses conducted under
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proposed 30 CFR 780.19 through
780.21.
Proposed paragraph (a)(3) would
require that the regulatory authority
reconsider the adequacy of the
groundwater monitoring plan at two
points during the permit application
review process. The first
reconsideration would occur after the
regulatory authority completes the
technical review of the application. At
that point, the regulatory authority may
require that the permit applicant revise
the plan to increase the frequency of
monitoring, to require monitoring of
additional parameters, or to require
monitoring at additional locations, if the
additional requirements would
contribute to protection of the
hydrologic balance. The second
reconsideration would occur after
preparation of the CHIA under proposed
30 CFR 780.21. At that point, the
regulatory authority would be
responsible for ensuring that the
groundwater monitoring plan requires
monitoring of all parameters for which
the CHIA establishes material damage
criteria; i.e., all parameters of concern.
These reconsiderations are intended to
ensure that the monitoring plans are
designed to provide sufficiently
comprehensive monitoring data to
enable both the permittee and the
regulatory authority to identify any
adverse impacts on groundwater in time
to take corrective action to prevent
material damage to the hydrologic
balance outside the permit area.
Finally, proposed paragraph (a)(4)
would modify the provision in existing
30 CFR 780.21(i)(2) that authorizes a
groundwater-monitoring exception for
any water-bearing stratum that does not
serve as an aquifer that significantly
ensures the hydrologic balance within
the cumulative impact area.
Specifically, proposed paragraph (a)(4)
would allow a groundwater-monitoring
exception for a water-bearing stratum
that does not serve as an aquifer that
significantly ensures the hydrologic
balance within the cumulative impact
area only if that stratum has no existing
or foreseeable use for agricultural or
other human purposes or for fish and
wildlife purposes. The addition of this
requirement would more fully
implement the environmental
protection purposes set forth in sections
102(a) and (d) of SMCRA.363 We
recognize that the proposed new
criterion does not appear in section
517(b)(2) of SMCRA.364 However,
addition of the new criterion is
appropriate because use of water for
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agricultural or fish and wildlife
purposes impacts land use capability
and productivity and would assist in the
implementation of the postmining land
use requirements of section 515(b)(2) of
SMCRA 365 and the fish and wildlife
protection and enhancement
requirements of section 515(b)(24) of
SMCRA.366
Proposed Paragraph (b): Surface-Water
Monitoring Plan
Proposed paragraph (b) would include
the surface-water monitoring plan
requirements in existing 30 CFR
780.21(j). We propose to revise those
requirements by adding more specific
minimum requirements for the surfacewater monitoring plan to ensure that the
plan is adequate to evaluate the impacts
of the mining operation on streams and
other surface-water bodies in the
proposed permit and adjacent areas and
to identify adverse trends in sufficient
time to initiate corrective action to
prevent the operation from causing
material damage to the hydrologic
balance outside the permit area. The
following discussion highlights the
more significant elements of proposed
paragraph (b).
Proposed paragraph (b)(1)(ii) would
require on-site measurement of
precipitation amounts at specified
locations within the permit area, using
self-recording devices. Measurement of
precipitation amounts at the minesite is
an important component of the surface
water runoff control plan required
under proposed 30 CFR 780.29. We
propose to require that precipitation
measurements continue through Phase
II bond release under proposed 30 CFR
800.42(c) or for any longer period
specified by the regulatory authority.
Phase II bond release is the point at
which revegetation has been
established.
Proposed paragraph (b)(1)(iv) would
require that, at a minimum, each
surface-water monitoring plan include
monitoring of point-source discharges
from the proposed operation as well as
monitoring points located upgradient
and downgradient of the proposed
permit area in each perennial and
intermittent stream within the proposed
permit and adjacent areas to facilitate
identification of potential miningrelated changes in surface-water
quantity or quality and to assist in an
evaluation of whether any downgradient
changes are the result of the mining and
reclamation activities. This provision
would be consistent with section
517(b)(2)(A) of SMCRA, which requires
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U.S.C. 1265(b)(24).
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that the regulatory authority specify
‘‘monitoring sites to record the quantity
and quality of surface drainage above
and below the minesite as well as in the
potential zone of influence.’’ Pointsource discharges would be located
within the potential zone of influence.
Proposed paragraph (b)(1)(v) would
require that the plan describe how the
monitoring data will be used to
determine the impacts of the operation
upon the hydrologic balance and the
biological condition of perennial and
intermittent streams within the permit
and adjacent areas, as well as to prevent
material damage to the hydrologic
balance outside the permit area.
Proposed paragraph (b)(1)(vi) would
require that the plan describe how
surface-water monitoring practices will
comply with the sampling, analysis, and
reporting requirements of proposed 30
CFR 777.13(a) and (b) to ensure that
samples are collected and analyzed in a
legally and scientifically valid manner.
Proposed paragraph (b)(1)(vi) is
consistent with the requirement in the
text after section 517(b)(2)(D) of SMCRA
that the regulatory authority set forth
standards and procedures for
monitoring data collection and analysis
to assure the reliability and validity of
the data.
Proposed paragraph (b)(2)(i) would
require that the surface-water
monitoring plan provide for the
monitoring of parameters that could be
affected by the proposed operation if
those parameters relate to applicable
effluent limitation guidelines under 40
CFR part 434, the findings and
predictions in the PHC determination
prepared under 30 CFR 780.20, the
surface-water runoff control plan
prepared under proposed 30 CFR
780.29, the biological condition of
perennial and intermittent streams and
other surface-water bodies within the
proposed permit and adjacent areas, the
suitability of the surface water for
existing and reasonably foreseeable uses
as well as designated uses under section
101(a) or 303(c) of the Clean Water Act,
and the suitability of the surface water
to support the premining and
postmining land uses. Monitoring of
these parameters would assist the
permittee and regulatory authority in
preventing material damage to the
hydrologic balance outside the permit
area and in determining compliance
with the water supply protection and
postmining land use requirements of
SMCRA and its implementing
regulations.
Proposed paragraph (b)(2)(ii) would
require quarterly monitoring of 15
specific parameters, including, among
others, selenium and the minimum
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water-quality parameters required by
existing 30 CFR 780.21(j)(2)(i) (pH, total
iron, total manganese, total suspended
solids, and total dissolved solids or
specific conductance). As summarized
in Part II of this preamble, selenium can
have deleterious effects upon fish and
human health. In addition, this
proposed paragraph would require
quarterly monitoring of major anions
(including, at a minimum, bicarbonate,
chloride, and sulfate), major cations
(including, at a minimum, calcium,
magnesium, potassium, and sodium),
and the cation-anion balance. As
summarized in Part II of this preamble,
these anions and cations form salts that
can alter water chemistry in a manner
that sometimes has a significant adverse
impact on aquatic life. With respect to
water quantity, proposed paragraphs
(b)(2)(ii)(A) and (iii)(B), like existing 30
CFR 780.21(j)(2)(i), would require
quarterly measurement of flow rates. We
propose to require use of generallyaccepted professional flow
measurement techniques, rather than
subjective visual observations that
involve no actual measurements and
that will vary from observer to observer.
Finally, proposed paragraph (b)(2)(ii)
would require quarterly monitoring of
certain metals (if present in discharges
from prior underground mines) and any
other parameters of local significance, as
determined by the regulatory authority
based upon the information collected
and the analyses conducted under
proposed 30 CFR 780.19 through
780.21.
Proposed paragraph (b)(2)(iii) would
not require that point-source discharges
be monitored for the parameters listed
in proposed paragraph (b)(2)(ii). Instead,
as in existing 30 CFR 780.21(j)(2)(ii), the
proposed rule would defer to the
National Pollutant Discharge
Elimination System permitting
authority’s determinations of which
parameters must be monitored. We
invite comment on whether, in the final
rule, we should require monitoring of
some or all of the parameters listed in
proposed paragraph (b)(2)(ii) in pointsource discharges to establish a more
definitive connection between
discharges from the minesite and trends
observed at downgradient monitoring
locations.
To promote coordination of
permitting and monitoring requirements
under SMCRA and the Clean Water Act,
proposed paragraph (b)(2)(iv) would
require that the surface-water
monitoring plan be revised to include
any site-specific monitoring
requirements imposed by the National
Pollutant Discharge Elimination System
permitting authority or the agency
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responsible for administration of section
404 of the Clean Water Act.367 This
provision recognizes that this
information may not be available at the
time of application for the SMCRA
permit and, thus, may need to be added
later via a permit revision.
Proposed paragraph (b)(3) would
require that the regulatory authority
reconsider the adequacy of the surfacewater monitoring plan at two points
during the permit application review
process. The first reconsideration would
occur after the regulatory authority
completes the technical review of the
application. At that point, the regulatory
authority may require that the permit
applicant revise the plan to increase the
frequency of monitoring, to require
monitoring of additional parameters, or
to require monitoring at additional
locations, if the additional requirements
would contribute to protection of the
hydrologic balance. The second
reconsideration would occur after
preparation of the CHIA under proposed
30 CFR 780.21. At that point, the
regulatory authority would be
responsible for ensuring that the
surface-water monitoring plan requires
monitoring of all parameters for which
the CHIA establishes material damage
criteria; i.e., all parameters of concern.
These reconsiderations are intended to
ensure that the monitoring plans are
designed to provide sufficiently
comprehensive monitoring data to
enable both the permittee and the
regulatory authority to identify any
adverse impacts on surface water in
time to take corrective action to prevent
material damage to the hydrologic
balance outside the permit area.
Proposed Paragraph (c): Biological
Condition Monitoring Plan
Proposed paragraph (c)(1) would
require that each permit application
include a plan for monitoring the
biological condition of perennial and
intermittent streams within the
proposed permit area and the adjacent
area. The proposed rule would require
that the plan be adequate to evaluate the
impacts of the mining operation on the
biological condition of those streams
and to determine in a timely manner
whether corrective action is needed to
prevent the operation from causing
material damage to the hydrologic
balance outside the permit area.
Proposed paragraph (c)(2)(i) would
specify that the plan must require use of
a multimetric bioassessment protocol
that meets the requirements of proposed
30 CFR 780.19(e)(2). In essence, this
provision requires use of a multimetric
367 33
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bioassessment protocol approved by the
state or tribal agency responsible for
preparing the water quality inventory
report required under section 305(b) of
the Clean Water Act 368 or other
scientifically-valid, multimetric
bioassessment protocols used by
agencies responsible for implementing
the Clean Water Act. The bioassessment
protocol must be based upon the
presence or absence, population levels,
and biomass of an appropriate array of
aquatic organisms, including benthic
macroinvertebrates. It must require
identification of macroinvertebrates to
the genus level because a bioassessment
protocol that requires identification of
aquatic organisms only to the family
level may not be capable of
differentiating between pollutiontolerant and pollution-intolerant genera
within the same family, while a
bioassessment protocol that identifies
organisms to the species level may not
be consistent with available indices of
biological integrity. Finally, the protocol
must result in the calculation of index
values for both habitat and
macroinvertebrates and provide a
correlation of index values to the
capability of the stream to support
designated uses under section 101(a) or
303(c) of the Clean Water Act.
Proposed paragraph (c)(2)(ii) would
require that the plan identify biological
condition monitoring locations in each
perennial and intermittent stream
within the proposed permit and
adjacent areas. Proposed paragraph
(c)(2)(iii) would require that the plan
establish a sampling frequency that
must be no less than annual, but not so
frequent as to unnecessarily deplete the
populations of the species being
monitored. Proposed paragraph
(c)(2)(iv) would provide that the plan
must require submission of biological
condition monitoring data to the
regulatory authority on an annual basis.
Proposed paragraph (c)(3) would
require that the regulatory authority
reconsider the adequacy of the
biological condition monitoring plan
after completing preparation of the
CHIA under proposed 30 CFR 780.21.
The proposed rule would require that, if
necessary, the regulatory authority issue
an order to the applicant to revise the
plan to correct any deficiencies.
The monitoring requirements in
proposed paragraph (c) would assist in
more completely implementing section
515(b)(24) of SMCRA,369 which requires
that surface coal mining and
reclamation operations be conducted so
as to minimize disturbances to and
368 33
U.S.C. 1315(b).
369 30 U.S.C. 1265(b)(24).
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adverse impacts on fish, wildlife, and
related environmental values to the
extent possible using the best
technology currently available.
Proposed paragraph (c) also would
provide a means of implementing the
definition of ‘‘material damage to the
hydrologic balance outside the permit
area’’ that we propose to adopt in 30
CFR 701.5, which relies in part upon
designated uses of surface water under
section 101(a) or section 303(c) of the
Clean Water Act. The biological
condition of perennial and intermittent
streams and other surface waters
determines whether those waters are
capable of attaining their designated
uses.
Proposed Paragraph (d): Exceptions
Proposed paragraph (d)(1) would
allow potential permit applicants to
request that the regulatory authority
modify the groundwater and surfacewater monitoring plan requirements of
proposed paragraphs (b) and (c) and
modify or waive the biological
condition monitoring plan requirements
of proposed paragraph (c) if the
proposed permit area includes only
lands eligible for remining. The
proposed rule would allow the
regulatory authority to approve the
request if it determines that an
alternative monitoring plan will be
adequate to monitor the impacts of the
proposed operation on groundwater and
surface water, based upon an evaluation
of the quality of groundwater and
surface water and the biological
condition of the receiving stream at the
time of application. The exception for
remining operations would provide an
incentive to mine and reclaim
previously mined areas without the use
of public funds. Streams in the vicinity
of previously mined areas also are likely
to be of lower quality than streams in
unmined watersheds because of the
adverse impacts of previous mining.
Proposed paragraph (d)(2) would
allow permit applicants to request that
the regulatory authority waive the
biological condition monitoring plan
requirements of proposed paragraph (c)
if the applicant demonstrates, and the
regulatory authority finds in writing,
that the proposed operation will not
mine through or bury a perennial or
intermittent stream; create a pointsource discharge to any perennial,
intermittent, or ephemeral stream; or
modify the baseflow of any perennial or
intermittent stream. If the applicant
meets all requirements except the one
concerning a point-source discharge, the
proposed rule would allow the
regulatory authority to approve limiting
the biological condition monitoring plan
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44507
requirements to only the stream that
will receive the point-source discharge.
Proposed Paragraph (e): Coordination
With Clean Water Act Agencies
Proposed paragraph (e) would require
that SMCRA regulatory authorities
consult with the agencies responsible
for issuing permits, authorizations, and
certifications under the Clean Water Act
and make best efforts to minimize
differences in monitoring locations and
reporting requirements and to share data
to the extent practicable and consistent
with each agency’s mission, statutory
requirements, and implementing
regulations. Coordination could reduce
both costs and the overall regulatory
impact to the industry, as well as
improving regulatory efficiency. In
addition, the proposed requirement
would be consistent with the intent of
the regulatory coordination provisions
of section 713 of SMCRA.370
12. Section 780.24: What requirements
apply to the postmining land use?
Proposed 30 CFR 780.24 would
consolidate the requirements for
approval of postmining land uses that
appear in existing 30 CFR 780.23(b),
816.133(b), and 816.133(c). We also
propose to add a surface mining
counterpart to the interpretive rules
concerning postmining land use
changes in existing 30 CFR 784.200(a)
and 817.200(d)(1). In addition, we
propose to revise existing 30 CFR 780.24
to improve consistency with SMCRA
and its legislative history and to more
completely implement the
environmental protection purposes of
SMCRA, including the fish and wildlife
protection and enhancement
requirements of section 515(b)(24) of
SMCRA,371 while remaining mindful of
the requirement in section 508(a)(3) of
SMCRA 372 to consider the comments of
the surface owner and state and local
governments and agencies. Our
proposed revisions to the existing
requirements also are consistent with
section 515(b)(23) of SMCRA,373 which
provides that surface coal mining and
reclamation operations must ‘‘meet such
other criteria as are necessary to achieve
reclamation in accordance with the
purposes of this Act, taking into
consideration the physical,
climatological, and other characteristics
of the site.’’
370 30
371 30
U.S.C. 1303.
U.S.C. 1265(b)(24).
.
372 30
373 30
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Proposed Paragraph (a): What
postmining land use information must
my application contain?
Section 515(b)(2) of SMCRA 374
requires that surface coal mining and
reclamation operations ‘‘restore the land
affected to a condition capable of
supporting the uses which it was
capable of supporting prior to any
mining, or higher or better uses of
which there is a reasonable likelihood.’’
Section 508(a)(3) of SMCRA 375 requires
that each reclamation plan include a
statement of ‘‘the use which is proposed
to be made of the land following
reclamation, including a discussion of
the utility and capacity of the reclaimed
land to support a variety of alternative
uses.’’ Combining these two statutory
provisions, proposed paragraph (a)(1)
would require that each permit
application include both a description
and a map of the proposed postmining
land use or uses and a discussion of the
utility and capability of the reclaimed
land to support a variety of other uses,
including the uses that the land was
capable of supporting before any
mining, as identified in the narrative
analysis required under 30 CFR 779.22.
Proposed paragraph (a)(2) would
require that the land use or uses be
described in terms of the categories
listed in our definition of ‘‘land use’’ in
30 CFR 701.5, which would assist the
regulatory authority in determining
compliance with provisions of our
regulations that are tied to land use; e.g.,
alternative postmining land uses,
revegetation standards, and exceptions
from approximate original contour
restoration requirements, and provide a
baseline for application of these
provisions on a national basis.
Proposed paragraph (a)(3) would
require that the application explain how
the proposed postmining land use is
consistent with existing state and local
land use policies and plans. Addition of
this requirement would be consistent
with section 508(a)(3) of SMCRA,376
which requires that the reclamation
plan include an explanation of the
relationship of the proposed postmining
land use to existing land use policies
and plans. That section of SMCRA also
requires that the application include
comments from state and local
governments or agencies that would
have to approve or authorize the
proposed land use. Furthermore, section
515(b)(2) of SMCRA 377 prohibits the
approval of alternative postmining land
uses that are ‘‘inconsistent with
restore the land affected to a condition
capable of supporting the uses which it was
capable of supporting prior to any mining, or
higher or better uses of which there is
374 30
U.S.C. 1265(b)(2).
U.S.C. 1258(a)(3).
376 30 U.S.C. 1258(a)(3).
377 30 U.S.C. 1265(b)(2).
375 30
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applicable land use policies and plans.’’
Therefore, it would be reasonable to
conclude that Congress intended for all
postmining land uses to be consistent
with state and local land use policies
and plans, especially since regulation of
land use has traditionally been the
province of state and local governments.
Proposed paragraph (a)(4) is
substantively identical to the
corresponding existing rule at 30 CFR
780.23(c). Proposed paragraph (a)(5) is
substantively identical to the
corresponding existing rule at 30 CFR
780.23(b)(1) with the exception that the
proposed rule clarifies that the permit
applicant must identify any support
facilities (not just activities as in the
existing rule) needed to achieve the
postmining land use. (Support facilities
are equipment repair areas, mine offices,
parking lots, and other surface areas
upon which are sited structures,
facilities, or other property or material
resulting from or incident to the
activities listed in paragraph (a) of the
definition of ‘‘surface coal mining
operations’’ in 30 CFR 700.5.) The
regulatory authority needs this
information when evaluating whether
the proposed postmining land use can
be achieved and in deciding whether to
allow mining-related structures to be
retained as part of the postmining land
use.
Proposed paragraph (a)(6)(i) would
specify that the application must
provide the demonstration required
under proposed paragraph (b)(1) if the
applicant proposes to restore the
proposed permit area or a portion
thereof to a condition capable of
supporting a higher or better use or uses
rather than to a condition capable of
supporting the use or uses that the land
supported before any mining. This
provision is substantively identical to
existing 30 CFR 780.23(b)(2) except as
discussed in the preamble to proposed
paragraph (b) below.
Proposed paragraph (a)(6)(ii) would
require that an applicant requesting
approval of a higher or better alternative
postmining land use disclose any
monetary compensation, item of value,
or other consideration offered to the
landowner by the applicant or the
applicant’s agent in exchange for the
landowner’s agreement to a postmining
land use that differs from the premining
use. Adoption of this provision is
supported by section 515(b)(2) of
SMCRA, which requires that surface
coal mining and reclamation
operations—
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reasonable likelihood, so long as such use or
uses do not present any actual or probably
hazard to public health or safety or pose any
actual or probable threat of water diminution
or pollution, and the permit applicants’
declared proposed land use following
reclamation is not deemed to be impractical
or unreasonable, inconsistent with applicable
land use policies and plans, involves
unreasonable delay in implementation, or is
violative of Federal, State, or local law.
Disclosure of whether a landowner
has been provided with or is reasonably
expected to be provided with
compensation or other consideration for
any postmining land use changes would
allow the regulatory authority to better
understand whether the proposed
postmining land use change is one that
the landowner genuinely desires on its
own merits and is reasonably likely to
be achieved, or whether the landowner
agreed to the land use change for shortterm financial gain or other reasons.
This type of short-term land use
decision-making is contrary to the
broader purposes identified in SMCRA,
such as ‘‘protect[ing] society and the
environment from the adverse effects of
surface mining coal operations’’ in
section 102(a) and assuring that
‘‘operations are conducted as to protect
the environment’’ in section 102(d).
Proposed Paragraph (b): What
requirements apply to the approval of
alternative postmining land uses?
Existing 30 CFR 780.23(b)(2) provides
that the application must include all
materials needed for approval of an
alternative postmining land use under
30 CFR 816.133 if the proposed
postmining land use differs from the
premining use. Existing 30 CFR
816.133(b) further provides that the
‘‘premining uses of land to which the
postmining land use is compared shall
be those uses which the land previously
supported, if the land has not been
previously mined and has been properly
managed.’’ In new section 780.24, we
propose to require compliance with the
alternative postmining land use
approval requirements only when the
applicant or permittee proposes to
restore the land to a condition capable
of supporting higher or better uses (a
term that we define in 30 CFR 701.5)
rather than to a condition capable of
supporting the uses that it could
support before any mining. The
proposed language better tracks the
underlying statutory provision in
section 515(b)(2) of SMCRA,378 as
quoted above. In addition, it is
consistent with the legislative history of
section 508(a) of SMCRA: 379
378 30
379 30
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The description [of premining land use
capability] is to serve as a benchmark against
which the adequacy of reclamation and the
degradation resulting from the proposed
mining may be measured. It is important that
the potential utility which the land had for
a variety of uses be the benchmark rather
than any single, possibly low value, use
which by circumstances may have existed at
the time mining began.380
By requiring approval only when the
change is to a higher or better use, our
proposed rule also would avoid
unnecessary paperwork on the part of
permit applicants and conserve oftenscarce regulatory authority resources.
We propose to delete the provision in
existing 30 CFR 816.133(b) requiring
that the land be properly managed
before the premining land use may be
compared with the proposed alternative
postmining land use. There is no
statutory counterpart to this provision of
the existing rule, nor is it supported by
the legislative history of SMCRA.
Furthermore, the criteria for approval of
proposed alternative postmining land
uses in existing 30 CFR 816.133(c) bear
no relationship to whether the land was
properly managed before mining. In
addition, proper management is a
subjective determination. To the extent
that this provision could be construed
as requiring that the regulatory authority
reject a proposed higher or better
postmining land use that involves less
intensive management than the
premining use, the existing rule is
inconsistent with the preamble to our
definition of ‘‘land use’’ in 30 CFR
701.5, which states that the land use
categories in the definition are not
hierarchical.381 Consistent with that
statement, the same rulemaking defined
‘‘higher or better uses’’ as meaning
‘‘postmining land uses that have a
higher economic value or nonmonetary
benefit to the landowner or the
community than the premining land
uses.’’ We are not proposing any
changes to that definition. Therefore,
the provision in existing 30 CFR
816.133(b) requiring that the land be
properly managed before the premining
land use may be compared with the
proposed alternative postmining land
use has no statutory basis and, in any
case, is not feasible.
Proposed paragraph (b) combines
existing 30 CFR 780.23(b)(2), which
requires that the permit application
include all materials needed for
approval of an alternative postmining
land use under 30 CFR 816.133, with
the alternative postmining land use
approval criteria of 30 CFR 816.133(c).
Proposed paragraph (b)(1) sets forth
permit application requirements, while
proposed paragraph (b)(2) contains
requirements applicable to the
regulatory authority’s decision-making
process. In essence, proposed paragraph
(b)(1), like existing 30 CFR 780.23(b)(2),
requires that the permit applicant
submit a demonstration that the request
for an alternative postmining land use
meets the criteria for approval, while
proposed paragraph (b)(2), like existing
30 CFR 816.133(c), specifies when the
regulatory authority may approve a
request for an alternative postmining
land use.
Proposed paragraph (b)(1) would
retain the criteria in the corresponding
existing rules at 30 CFR 816.133(c) for
approving alternative postmining land
uses, while requiring that the permit
applicant demonstrate compliance with
both those criteria and several new
criteria intended to promote
environmental protection and
restoration of fish and wildlife habitat
consistent with section 515(b)(24) of
SMCRA 382 and the purposes in
paragraphs (a), (d), and (f) of section 102
of SMCRA.383 Addition of the new
criteria also would be consistent with
section 515(b)(23) of SMCRA,384 which
requires that surface coal mining and
reclamation operations ‘‘meet such
other criteria as are necessary to achieve
reclamation in accordance with the
purposes of this Act, taking into
consideration the physical,
climatological, and other characteristics
of the site.’’
As previously stated, proposed
paragraph (b)(1)(i) would retain the
provision in the corresponding existing
rules at 30 CFR 816.133(c)(1) that there
must be a reasonable likelihood of
achievement of the proposed higher or
better alternative postmining land use.
However, we propose to expand upon
this requirement by adding language
that would require the applicant to
document that a reasonable likelihood
of achieving the higher or better use
exists through submission of, for
example, real estate and construction
contracts, plans for installation of any
necessary infrastructure, procurement of
any necessary zoning approvals,
landowner commitments, economic
forecasts, and studies by land use
planning agencies, as applicable. The
additional language would flesh out the
requirement in section 515(b)(2) of
SMCRA 385 that there be a reasonable
likelihood of achievement of the
380 S.
Rept. 95–128, 95th Cong., 1st Sess. 76–77
(1977).
381 48 FR 39893 (Sept. 1, 1983).
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proposed land use. In the past,
approved alternative postmining land
uses have not been implemented on
some reclaimed minesites, including
some sites for which the regulatory
authority approved a variance from
approximate original contour restoration
requirements for the purpose of
achieving a particular alternative
postmining land use. Our proposed rule
changes concerning the reasonable
likelihood of achievement of the
alternative postmining land use are
intended to prevent recurrences of
situations in which the regulatory
authority approves an alternative
postmining land use that has little
chance of being implemented in the
reasonably foreseeable future. The
proposed rule changes thus would
improve compliance with the
conditions for approval of higher or
better uses under section 515(b)(2) of
SMCRA 386 and the approximate
original contour restoration
requirements of section 515(b)(3) of
SMCRA.387
We propose to add paragraphs
(b)(1)(iii)(E) through (G) to better
implement the environmental
protection purposes in paragraphs (a),
(d), and (f) of section 102 of SMCRA 388
and the prohibition in section 510(b)(3)
of SMCRA 389 on the approval of any
permit application unless the regulatory
authority finds that the operation has
been designed to prevent material
damage to the hydrologic balance
outside the permit area. Specifically,
these proposed paragraphs would
require that the applicant for an
alternative postmining land use
demonstrate that the proposed use
would not—
• Result in changes in the size or
frequency of peak flows from the
reclaimed area to the extent that the
changes would cause an increase in
damage from flooding compared to the
conditions that would exist if the land
were restored to a condition capable of
supporting the uses that it was capable
of supporting before any mining.
• Cause the total volume of flow from
the reclaimed area, during every season
of the year, to vary in a way that would
preclude any existing or reasonably
foreseeable use of surface water or
groundwater or any designated use of
surface water under section 101(a) or
303(c) of the Clean Water Act.390
• Cause a change in the temperature
or chemical composition of the water
386 Id.
382 30
U.S.C. 1265(b)(24).
383 30 U.S.C. 1202(a), (d), and (f).
384 30 U.S.C. 1265(b)(23).
385 30 U.S.C. 1265(b)(2).
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44509
387 30
U.S.C. 1265(b)(3).
U.S.C. 1202(a), (d), and (f).
389 30 U.S.C. 1260(b)(3).
390 33 U.S.C. 1251(a) and 1313(c).
388 30
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that would preclude any existing or
reasonably foreseeable use of surface
water or any designated use of surface
water under section 101(a) or 303(c) of
the Clean Water Act.391
Proposed paragraph (b)(2) would
allow the regulatory authority to
approve a request for an alternative
postmining land use if it first consults
with the landowner or the land
management agency having jurisdiction
over the lands to which the use would
apply and finds in writing that the
applicant has made the demonstration
required under proposed paragraph
(b)(1). These proposed provisions are
substantively identical to the
corresponding existing rules at 30 CFR
816.133(c), with the exception of the
proposed requirement that the finding
be in writing and the addition of the
new and modified criteria in paragraph
(b)(1) as discussed above.
Proposed Paragraph (c): What
requirements apply to permit revision
applications that propose to change the
postmining land use?
Proposed paragraph (c) would provide
that, consistent with the decision in
PSMRL I, Round II,392 permittees may
use the permit revision process to
change the postmining land use after
permit issuance. The proposed rule
would specify that the application for a
permit revision must be processed as a
significant revision if the permittee
proposes to restore the land to a
condition capable of supporting higher
or better uses rather than to a condition
capable of supporting the uses that it
was capable of supporting before any
mining.
Proposed paragraph (c) would provide
a surface mining counterpart to the
interpretive rules for underground
mines at 30 CFR 784.200 and
817.200(d)(1), which specify that the
requirements for approval of an
alternative postmining land use may be
met via the permit revision process
rather than as part of the original permit
application. We do not now interpret
our existing surface mining rules as
prohibiting permittees from submitting
permit revision applications to change
the postmining land use after permit
issuance, nor have we interpreted those
rules as doing so in the past. Therefore,
the only effect of proposed paragraph (c)
would be to require that a proposed
change to a higher or better postmining
land use be processed as a significant
revision. As provided in 30 CFR
391 Id.
392 PSMRL I, Round II, 1980 U.S. Dist. LEXIS
17660 at *20 (D.D.C. 1980), 19 Env’t Rep. Cas.
(BNA) 1477.
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774.13(a)(2), an application for a
significant permit revision must comply
with the public notice and public
participation requirements that apply to
an application for a new permit.
Unlike existing 30 CFR 784.200 and
817.200(d)(1), which classify any
change in postmining land use as a
significant permit revision, we propose
to apply this requirement only to a
proposed change to a higher or better
use. A change from one postmining land
use that the land was capable of
supporting prior to mining to another
postmining land use that the land was
capable of supporting prior to mining
would no longer require approval as an
alternative postmining land use, nor
would a request for such a change need
to be processed as a significant permit
revision.
Our proposed rule would improve
consistency with section 515(b)(2) of
SMCRA,393 which requires that surface
coal mining and reclamation operations
‘‘restore the land affected to a condition
capable of supporting the uses which it
was capable of supporting prior to any
mining, or higher or better uses of
which there is a reasonable likelihood.’’
The statutory provision distinguishes
only between uses that the land was
capable of supporting before mining and
higher or better uses; i.e., it establishes
criteria for approval of higher or better
uses, but no criteria for approval of any
of the uses that the land was capable of
supporting before mining.
Proposed Paragraph (d): What
restrictions apply to the retention of
mining-related structures?
Proposed paragraph (d) would
establish new requirements pertinent to
the retention of mining-related
structures in support of the postmining
land use. First, the applicant or
permittee would have to demonstrate,
and the regulatory authority would have
to find in writing, that the size and
characteristics of mining-related
structures (other than roads and
impoundments) proposed for retention
for potential use as part of the
postmining land use are consistent with
and proportional to the needs of the
postmining land use. For example,
retention of an entire coal preparation
plant building as a storage facility for an
agriculture or silvicultural postmining
land use would be disproportionate to
the needs for the postmining land use.
Second, the amount of bond required for
the permit must include the cost of
removing the structure and reclaiming
the land to a condition capable of
supporting the premining uses. Third,
the reclamation plan must specify that
the permittee will remove any structure
not in use as part of the approved
postmining land use by the end of the
revegetation responsibility period and
reclaim the land upon which it was
located.
These measures are intended to
ensure that only mining-related
structures with a bona fide role in
supporting the postmining land use are
retained. These provisions should
minimize the number of mining-related
structures that are retained, ostensibly
to support the postmining land use, but
that are abandoned after final bond
release and become safety hazards,
attractive nuisances, or a visual blight
on the landscape. Thus, proposed
paragraph (d) would more fully
implement section 102(a) of SMCRA,394
which provides that one of the purposes
of SMCRA is to protect society and the
environment from the adverse effects of
surface coal mining operations. In
addition, section 515(b)(2) of SMCRA 395
allows the approval of higher or better
postmining land uses only if they do not
present any actual of probable hazard to
public health or safety. Logically, the
same requirement should apply to
retention of mining-related structures
that did not exist prior to mining.
Proposed Paragraph (e): What special
provisions apply to previously mined
areas?
Proposed paragraph (e) would contain
the postmining land use requirements
for previously mined areas, as that term
is defined in 30 CFR 701.5. They do not
differ substantively from the
corresponding requirements in the last
sentence of the existing rules at 30 CFR
816.133(b) except for the proposed
addition of a requirement that the
revegetation plan require the use of
native tree and shrub species for
revegetation of all portions of the
proposed permit area that were forested
at the time of application or that would
revert to forest under conditions of
natural succession, provided that the
planting of trees and shrubs on those
lands would not be inconsistent with
achievement of the proposed
postmining land use. The added
requirement would more fully
implement section 515(b)(19) of
SMCRA,396 which requires
establishment of a diverse, effective,
permanent vegetative cover of the same
seasonal variety native to the area, and
the fish and wildlife protection and
394 30
U.S.C. 1202(a).
U.S.C. 1265(b)(2).
396 30 U.S.C. 1265(b)(19).
395 30
393 30
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enhancement requirements of section
515(b)(24) of SMCRA.397
13. Section 780.25: What information
must I provide for siltation structures,
impoundments, and refuse piles?
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Changes To Conform With the 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, ‘‘[i]t is
undesirable to have two regulatory
programs for the same subject that
contain conflicting standards or which
use fundamentally different
terminology.’’
Among other things, we adopted
definitions of three new terms in 30 CFR
701.5. Coal mine waste is defined as
‘‘coal processing waste and
underground development waste.’’
Impounding structure is defined as ‘‘a
dam, embankment, or other structure
used to impound water, slurry, or other
liquid or semi-liquid material.’’ Refuse
pile is defined as ‘‘a surface deposit of
coal mine waste that does not impound
water, slurry, or other liquid or semiliquid material.’’ The latter two terms
are consistent with the terminology of
MSHA’s regulations. ‘‘Refuse pile’’
replaces the term ‘‘coal processing waste
bank’’ that we used in our previous
regulations, while the term
‘‘impounding structure’’ includes, 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
through 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 regulations to specify that
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
old rules.
However, we did not revise our
permitting requirements in a similar
fashion at that time. Therefore, we now
propose to modify 30 CFR parts 780 and
397 30
U.S.C. 1265(b)(24).
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784 to harmonize the terminology in
those rules with our 1983 changes to the
definitions and performance standards
concerning coal mine waste. In essence,
we propose to (1) replace the term ‘‘coal
processing waste banks’’ with ‘‘refuse
piles’’ and (2) replace the term ‘‘coal
processing waste dams and
embankments’’ with references to coal
mine waste impounding structures.
Proposed Paragraph (a): General
Requirements
In addition to the changes in
terminology, we propose to revise
existing paragraph (a)(1)(iii) to require
that the general plan for each proposed
siltation structure, impoundment, or
refuse pile include the hydrologic and
geologic information needed to assess
the hydrologic impact of the structure.
The existing rule requires submission of
only ‘‘preliminary’’ hydrologic and
geologic information. We propose to
remove the word ‘‘preliminary’’ because
preliminary information typically
would not be sufficient to assess the
hydrologic impact of a proposed
structure.
We propose to revise existing
paragraph (a)(1)(iv) to require that the
general plan for each proposed siltation
structure, impoundment, or refuse pile
contain a report describing the results of
a geotechnical investigation of the
potential effect on the structure if
subsurface strata should subside as a
result of past, current, or future
underground mining operations beneath
or within the proposed permit and
adjacent areas. Geotechnical
investigations may include site
reconnaissance, drilling, or some
combination of these with geophysical
investigations (ground-penetrating
radar, seismic investigations, etc.). The
existing rule requires only a survey
describing the potential effect of
subsidence resulting from past
underground mining operations. A
survey alone would provide insufficient
information to evaluate the potential
effects of subsidence.
Therefore, to promote long-term
structural stability, we propose to
require a geotechnical investigation
instead of a survey and we propose to
require consideration of the potential
effects of subsidence from past, existing,
and future underground mining
operations, beneath or within the
proposed permit and adjacent areas, not
just the potential effects of past
underground mining operations within
an unspecified area. The design needs to
ensure that the structure will be capable
of withstanding all potential impacts of
any subsidence that may occur during
the life of the proposed structure. We
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44511
propose to add the reference to the
proposed permit and adjacent areas to
ensure that the investigation includes
all underground mining operations that
have the potential to cause subsidence
that may affect the proposed structure,
not just operations within the proposed
permit area.
Finally, we propose to specify that the
investigation report must identify
design and construction measures that
would prevent adverse subsidencerelated impacts on the structure
whenever impacts of that nature are a
possibility. In short, proposed paragraph
(a)(1)(iv) is intended to protect against
failure of the impoundment
embankment or other impoundment
failures as a result of subsidence.
Impoundment stability, especially for
large impoundments, is important to
protect the public, private and public
property, and the environment from the
adverse effects of flooding and other
consequences of impoundment failure,
consistent with the purposes of SMCRA
in paragraphs (a) and (d) of section 102
of the Act.398
We propose to redesignate existing
paragraph (a)(1)(v) as paragraph
(a)(1)(vi) and add a new paragraph
(a)(1)(v) to require that the general plan
for each impoundment include an
analysis of the potential for the
impoundment to drain into subjacent
underground mine workings, together
with an analysis of the impacts of such
drainage. The Martin County Slurry
Spill incident in Martin County,
Kentucky on October 11, 2000,
illustrates the magnitude of
environmental damage that can result
when impounded coal refuse slurry
breaks through into adjacent
underground mine workings that open
to the surface. In this case, the mine
openings discharged 306 million gallons
of slurry into two tributaries of the Tug
Fork River (Coldwater Fork and Wolf
Creek). The slurry covered nearby
residents’ yards to a depth of as much
as 5 feet, visibly polluted more than 100
miles of waterways, including the Big
Sandy and Ohio Rivers, and devastated
aquatic life in 70 miles of stream. Six
public water intakes were adversely
affected and alternative water supplies
had to be arranged for 27,000 residents.
Cleanup costs were approximately $59
million.399
Proposed paragraph (a)(1)(v) is
intended to ensure that all types of
398 30
U.S.C. 1202(a) and (d).
https://www.sourcewatch.org/
index.php?title=Martin_County_sludge_spill (last
accessed February 4, 2015) and https://
www.jackspadaro.com/news_articles/2003/10_12_
03/herald-leader10_12_03.html (last accessed
February 4, 2015).
399 See
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impoundments constructed for coal
mining purposes are designed to
prevent similar breakthroughs. This
design requirement would reduce the
probability of breakthroughs into
underground mine workings, thus
benefiting the public, the environment,
and mine operators by avoiding the
environmental and property damage
and cleanup expenses that may result
from those breakthroughs, consistent
with the purposes of SMCRA in
paragraphs (a) and (d) of section 102 of
the Act.400
Paragraph (a)(2) sets forth design
requirements for all impoundments
other than low-hazard impoundments.
We propose to revise the introductory
text of existing paragraph (a)(2) for
clarity and redesignate that text as
paragraph (a)(2)(i). Proposed paragraph
(a)(2)(i) would specify that the detailed
design plan requirements of proposed
paragraph (a)2)(ii) would apply to all
structures meeting the MSHA criteria of
30 CFR 77.216(a), as well as to all
structures that meet the Significant
Hazard Class or High Hazard Class
criteria for dams in NRCS publication
Technical Release No. 60, ‘‘Earth Dams
and Reservoirs,’’ regardless of whether
those structures meet the MSHA criteria
of 30 CFR 77.216(a).
We propose to revise redesignated
paragraph (a)(2)(i) 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 propose to replace
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 NRCS (the
successor to the Soil Conservation
Service). Consequently, we propose to
delete the ordering information
pertinent to the National Technical
Information Service and replace it with
the Internet address at which the
publication may be reviewed and from
which it may be downloaded without
charge. We also propose to update the
address and location of our
administrative record room and the
Internet address information for the
National Archives and Records
Administration.
400 30
In addition, we propose to redesignate
existing paragraphs (a)(2)(i) through (iv)
as paragraphs (a)(2)(ii)(A) through (D)
and add introductory text to proposed
paragraph (a)(2)(ii). The introductory
text is a revised version of the last
sentence of the introductory text of
existing paragraph (a)(2), modified to be
consistent with proposed paragraph
(a)(2)(i). As it currently exists,
redesignated paragraph (a)(2)(ii)(B)
requires that the detailed design plan
include any geotechnical investigation,
design, and construction requirements.
This language is ambiguous because it
does not identify the geotechnical
investigation, design, and construction
requirements to which it refers.
Therefore, we propose to revise
redesignated paragraph (a)(2)(ii)(B) to
require that the detailed design plan for
any structure that meets the
applicability provisions of proposed
paragraph (a)(2)(i) incorporate any
design and construction measures
identified in the geotechnical
investigation report prepared under 30
CFR 780.25(a)(1)(iv) as necessary to
protect against potential adverse
impacts from subsidence resulting from
underground mine workings underlying
or adjacent to the structure. These
measures might include grouting or
backstowing of mine voids or surface
mining of seams within the
impoundment safety zone. In short,
proposed paragraph (a)(2)(ii)(B) would
operate in conjunction with proposed
paragraph (a)(1)(iv) to protect against
failure of the impoundment
embankment or other impoundment
failures as a result of subsidence.
Impoundment stability, especially for
large impoundments, is important to
protect the public, private and public
property, and the environment from the
adverse effects of flooding and other
consequences of impoundment failure,
consistent with the purposes of SMCRA
in paragraphs (a) and (d) of section 102
of the Act.401
We propose to reinstate former
paragraph (a)(3), which was erroneously
removed as part of the codification
process for a rule published December
12, 2008 (73 FR 75814). This paragraph
contains detailed design plan
requirements for structures not covered
under paragraph (a)(2).
Proposed Paragraph (c): Permanent and
Temporary Impoundments
Both the existing and proposed
versions of paragraph (c) contain design
requirements that apply to all
impoundments. To improve clarity and
consistency with other regulations, we
U.S.C. 1202(a) and (d).
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propose to revise existing paragraph
(c)(2) 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.
As revised, proposed paragraph (c)(2)
would require that plans for
impoundments meeting MSHA criteria
comply with MSHA’s impoundment
design requirements at 30 CFR 77.216–
2. We propose to delete the requirement
that those plans also comply with 30
CFR 77.216–1. The requirement that we
propose to delete 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.
In the second sentence, we propose to
delete an obsolete cross-reference to
paragraph (a).
We also propose to revise paragraph
(c)(2) to clarify that the requirement that
the permit application include the plan
submitted to MSHA applies only to
those portions of the plan that are
complete at the time of submission of
the SMCRA permit application.
Impoundment plans normally are
submitted to MSHA in stages; they may
not be complete or even started at the
time that the applicant submits an
application for the SMCRA permit.
SMCRA-related permit application
information requirements are
sufficiently comprehensive that the
regulatory authority does not need the
MSHA plan to process the SMCRA
permit application or to ensure the
stability of proposed structures.
We propose to redesignate existing
paragraph (f) as paragraph (c)(4). That
paragraph applies only to
impoundments that meet certain criteria
in Technical Release No. 60 or the
MSHA criteria of 30 CFR 77.216(a). It
has no relevance to the other structures
to which 30 CFR 780.25 applies (lowhazard impoundments and refuse piles).
Therefore, it is more appropriate to
include the stability analysis
requirements of existing paragraph (f) as
part of proposed paragraph (c), which
applies only to impoundments,
including coal mine waste
impoundments. We also propose to
revise this paragraph to be consistent
with the terminology in the July 2005
edition of 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 would change; the actual
criteria would remain the same as
before. Finally, we propose to revise this
paragraph to clarify that the stability
analyses that it requires must address
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static, seismic, and post-earthquake
(liquefaction) conditions because those
conditions are all part of a
comprehensive stability analysis.
Proposed Paragraph (d): Coal Mine
Waste Impoundments and Refuse Piles
As discussed in the introductory
portion of the preamble to this section,
we propose to modify 30 CFR parts 780
and 784 to harmonize the terminology
in those rules with our 1983 changes to
the definitions and performance
standards concerning coal mine waste.
In essence, ‘‘refuse pile’’ would replace
the term ‘‘coal processing waste bank’’
as used in existing parts 780 and 784,
while the term ‘‘impounding structure’’
would include all structures that
existing parts 780 and 784 refer to as
coal processing waste dams or
embankments. We also use the term
‘‘coal mine waste impoundment’’ to
refer to the impounding structure in
combination with the basin behind the
impounding structure. We propose to
combine existing paragraph (d), which
contains design requirements for coal
processing waste banks, and existing
paragraph (e), which contains design
requirements for coal processing waste
dams and embankments, into a revised
paragraph (d) that uses the newer
terminology. Proposed paragraph (d)
would apply to any application that
proposes to place coal mine waste in a
refuse pile or impoundment or use coal
mine waste to construct an impounding
structure. We are adding the language
concerning use of coal mine waste to
construct an impounding structure
because proposed paragraph (d) is the
permitting counterpart of the
performance standards for coal mine
waste disposal in 30 CFR 816.81
through 816.84. Section 816.84 applies
to both impounding structures
constructed of coal mine waste and
impounding structures intended to
impound coal mine waste. Our
proposed revision would expand the
scope of proposed paragraph (d) to
coincide with the scope of the
corresponding performance standards.
Proposed paragraph (d)(1)
corresponds to existing paragraph (d),
which requires that coal processing
waste banks be designed to comply with
the requirements of 30 CFR 816.81
through 816.84. Proposed paragraph
(d)(1) would require that refuse piles
(the successor term to ‘‘coal processing
waste banks’’) be designed to comply
with the requirements of 30 CFR 780.28,
816.81, and 816.83. We propose to
delete the cross-reference to 30 CFR
816.84 found in existing paragraph (d)
because proposed paragraph (d)(1)
would pertain only to refuse piles, not
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to the impounding structures to which
30 CFR 816.84 applies. The proposed
deletion is not a substantive change
because the corresponding provision of
the existing rules does not pertain to
impounding structures either, despite
the cross-reference. We propose to add
the cross-reference to 30 CFR 780.28 to
emphasize the need for compliance with
that section whenever a refuse pile
would be located in or within 100 feet
of a perennial or intermittent stream.
Proposed paragraph (d)(2)
corresponds to existing paragraph (e),
which requires that coal processing
waste dams and embankments be
designed to comply with the
requirements of 30 CFR 816.81 through
816.84, among other things. Proposed
paragraph (d)(2)(i) would require that
impounding structures constructed of or
intended to impound coal mine waste
(the successor terminology to ‘‘coal
processing waste dams and
embankments’’) be designed to comply
with the requirements of 30 CFR 780.28,
816.81, and 816.84. We propose to
delete the cross-reference to 30 CFR
816.83 found in existing paragraph (e)
because proposed paragraph (d)(2)
would pertain only to impounding
structures, not to the refuse piles to
which 30 CFR 816.83 applies. The
proposed deletion is not a substantive
change because the corresponding
provision of the existing rules does not
pertain to refuse piles either, despite the
cross-reference. We also propose to add
a cross-reference to the impoundment
requirements of 30 CFR 816.49(a) and
(c). This proposed addition likewise is
not a substantive change because 30
CFR 816.84(b)(1) already includes an
identical cross-reference to 30 CFR
816.49(a) and (c), which would apply by
operation of the cross-reference to 30
CFR 816.84 in proposed paragraph
(d)(2)(i). We propose to add this crossreference only as a matter of clarity and
ease of use.
Finally, we propose to add the crossreference to 30 CFR 780.28 to emphasize
the need for compliance with that
section whenever an impounding
structure constructed of or intended to
impound coal mine waste would be
located in or within 100 feet of a
perennial or intermittent stream. While
coal mine waste impoundments may not
be retained as permanent
impoundments, they typically are
converted to refuse piles and retained as
permanent features, which means that
the stream segment that they cover is
not restored. Hence, proposed paragraph
(d)(2)(i) and proposed 30 CFR 780.28
would apply the same requirements to
coal mine waste impoundments as
would apply to refuse piles with respect
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44513
to the approval of such structures in
perennial or intermittent streams.
Proposed paragraph (d)(2)(ii) would
require that the design plan for any
impounding structure constructed of or
intended to impound coal mine waste
comply with the MSHA requirements of
30 CFR 77.216–2 if the structure meets
the criteria of 30 CFR 77.216(a). The
corresponding provision of existing
paragraph (e) also required compliance
with 30 CFR 77.216–1. We propose to
delete this cross-reference 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.
Those requirements are not relevant to
preparation of plans or permit
applications for proposed
impoundments or impounding
structures. Proposed paragraph (d)(2)(ii)
would retain the requirement that each
plan for an impounding structure
comply with 30 CFR 77.216–2, which
contains MSHA design requirements for
impoundments and impounding
structures.
Proposed paragraph (d)(2)(iii) is
substantively identical to the
corresponding portion of existing
paragraph (e), which requires that the
application include a geotechnical
investigation of the foundation area and
that the investigation be planned and
supervised by an engineer or
engineering geologist. We propose to
redesignate existing paragraphs (e)(1)
through (4), which establish minimum
requirements for that investigation, as
paragraphs (d)(2)(iii)(A) through (D).
Proposed paragraph (d)(2)(iv) would
require that the design ensure that at
least 90 percent of the water stored in
the impoundment during the design
precipitation event will be removed
within a 10-day period. This
requirement is substantively identical to
existing 30 CFR 816.84(e). We propose
to move it to 30 CFR 780.25(d)(2)(iv) as
part of our ongoing efforts to move
permitting requirements currently
located in subchapter K to subchapter G.
14. Section 780.28: What additional
requirements apply to proposed
activities in, through, or adjacent to
streams?
Proposed 780.28 would establish
standards for the review and approval of
permit applications that propose to
conduct surface mining activities in or
through a perennial, intermittent, or
ephemeral stream or that would disturb
the surface of lands within 100 feet of
a perennial, intermittent, or ephemeral
stream. Consequently, we propose to
move the permitting aspects of the
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stream buffer zone rule, which is
currently codified at 30 CFR 816.57(a)
as part of the performance standards in
subchapter K, to 30 CFR 780.28, which
would be part of the permitting
requirements of subchapter G. Existing
30 CFR 816.57(a) provides 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 (1) 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, and (2) if there
will be a temporary or permanent
stream-channel diversion, it will
comply with 30 CFR 816.43.
Part II of this preamble summarizes
the impacts of surface coal mining
operations on streams, as documented
by scientific studies. Our proposed rule
is intended to prevent or minimize the
adverse impacts documented in those
studies.
The permitting requirements and
performance standards in SMCRA
contain limited direct references to
streams, but SMCRA is replete with
requirements to minimize or prevent
adverse impacts on fish, wildlife,
related environmental values, the
quantity and quality of surface water
and groundwater, and the hydrologic
balance. See sections 507(b)(10), (11)
and (14); 508(a)(9) and (13); 510(b);
515(b)(2), (4), (9), (10), (14), (17), and
(24); 515(c)(4); 515(e)(3); 516(b)(4); and
516(b)(9) through (12).402 To the extent
that proposed 30 CFR 780.28 pertains to
the impact of surface coal mining and
reclamation operations on streams
outside the permit area, section
510(b)(3) of SMCRA,403 which prohibits
issuance of a permit unless the
applicant demonstrates, and the
regulatory authority finds, that the
proposed operation has been designed
to prevent material damage to the
hydrologic balance outside the permit
area, provides authority for this
proposed rule.
In addition, section 102 of SMCRA 404
repeatedly identifies environmental
protection as one of the purposes of
SMCRA. In particular, section 102(a) 405
states that one of the purposes of
SMCRA is to ‘‘establish a nationwide
program to protect society and the
environment from the adverse effects of
402 30 U.S.C. 1257(b)(10), (11), and (14);
1258(a)(9) and (13); 1260(b); 1265(b)(2), (4), (9),
(10), (14), (17), and (24); 1265(c)(4) and (e)(3);
1266(b)(4) and (b)(9) through (12).
403 30 U.S.C. 1260(b)(3).
404 30 U.S.C. 1202.
405 30 U.S.C. 1202(a).
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surface coal mining operations.’’
Paragraph (c) 406 provides that another
purpose is to ‘‘assure that surface
mining operations are not conducted
where reclamation as required by this
Act is not feasible.’’ Paragraph (d) 407
provides that still another purpose is to
‘‘assure that surface coal mining
operations are so conducted as to
protect the environment.’’ Paragraph
(f) 408 states that one of the Act’s
purposes 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.’’ Together with section
201(c)(2) of SMCRA 409 and the
provisions of title V of SMCRA
discussed below, these statutory
provisions provide adequate authority
for the stream protection measures that
we propose to adopt in 30 CFR 780.28
to remedy the environmental problems
identified in Part II of this preamble.
Section 201(c)(2) of SMCRA 410 provides
that the Secretary of the Interior, acting
through OSMRE, shall ‘‘publish and
promulgate such rules and regulations
as may be necessary to carry out the
purposes and provisions of the Act.’’
In an en banc ruling, the U.S. Court
of Appeals for the District of Columbia
Circuit upheld the Secretary’s authority
to promulgate rules under the authority
of section 201(c) of SMCRA 411 that
impose permitting requirements in
addition to those set forth in sections
507 and 508 of SMCRA: 412 ‘‘We hold
that the Act’s explicit listings of
information required of permit
applicants are not exhaustive, and do
not preclude the Secretary from
requiring the states to secure additional
information needed to ensure
compliance with the Act.’’ 413 The court
found that the Secretary’s conclusion
that additional information beyond that
explicitly required in the Act was
needed to effectively implement the Act
was entitled to some deference.414
Furthermore, the U.S. District Court for
the District of Columbia has held that
‘‘[a] court should sustain regulations
when they reasonably relate to the
purpose of the legislation.’’ 415 The
U.S.C. 1202(c).
U.S.C. 1202(d).
408 30 U.S.C. 1202(f).
409 30 U.S.C. 1211(c)(2).
410 Id.
411 30 U.S.C. 1211(c).
412 30 U.S.C. 1257 and 1258.
413 In re Permanent Surface Mining Regulation
Litig., 653 F.2d 514, 527 (D.C. Cir. 1981) (en banc).
414 Id. at 522.
415 PSMRL I, Round I, 1980 U.S. Dist. LEXIS
17722 at *85 (D.D.C. 1980), 14 Env’t Rep. Cas.
(BNA) 1083, 10 Envtl. L. Rep. (Envtl. Law Inst.)
20208 (citing to Mourning v. Family Publ’n Serv.,
411 U.S. 356, 372 (1973)).
PO 00000
406 30
407 30
Frm 00080
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regulations that we propose in 30 CFR
780.28 clearly relate to and promote
attainment of the environmental
protection purposes of the Act, as well
as the other provisions of SMCRA cited
above that pertain to protection of fish,
wildlife, related environmental values,
the quantity and quality of surface water
and groundwater, and the hydrologic
balance. The proposed regulations also
would implement section 515(b)(23) of
SMCRA,416 which provides that surface
coal mining and reclamation operations
must ‘‘meet such other criteria as are
necessary to achieve reclamation in
accordance with the purposes of this
Act, taking into consideration the
physical, climatological, and other
characteristics of the site.’’
In addition, the measures that we
propose to adopt in 30 CFR 780.28
receive support from section 515(b)(2) of
SMCRA,417 which requires that surface
coal mining and reclamation operations
‘‘restore the land affected to a condition
capable of supporting the uses which it
was capable of supporting prior to any
mining, or higher or better uses of
which there is a reasonable likelihood.’’
Perennial and intermittent streams
provide important fish and wildlife
habitat, which almost always is one of
the uses that the land was capable of
supporting before mining. Section
515(b)(10) of SMCRA 418 also provides
statutory authority for proposed 30 CFR
780.28. In relevant part, section
515(b)(10) of SMCRA requires that
surface coal mining and reclamation
operations ‘‘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 . . . (G) such other
actions as the regulatory authority may
prescribe.’’
Paragraphs (b)(10)(B)(i) and (b)(24) of
section 515 of SMCRA 419 provide
support for the buffer zone protections
that proposed 30 CFR 780.28 would
afford to perennial and intermittent
streams. Section 515(b)(10)(B)(i) of
SMCRA,420 which, in relevant part,
requires that surface coal mining
operations be conducted ‘‘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,’’ provides the primary
416 30
U.S.C. 1265(b)(23).
U.S.C. 1265(b)(2).
418 30 U.S.C. 1260(b)(10).
419 30 U.S.C. 1265(b)(10)(B)(i) and (b)(24).
420 30 U.S.C. 1265(b)(10)(B)(i).
417 30
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statutory authority for that minimum
buffer width. The prohibition on
disturbing the buffer zone also would
implement section 515(b)(24) of
SMCRA,421 which provides 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.
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Proposed Paragraph (a): Clean Water Act
Requirements
Proposed paragraph (a) would specify
that a person may conduct surface
mining activities in waters of the United
States only if that person first obtains all
necessary authorizations, certifications,
and permits under the Clean Water Act,
33 U.S.C. 1251 et seq. This proposed
paragraph is an informational provision
that would be consistent with section
702(a) of SMCRA,422 which provides
that ‘‘[n]othing in this Act shall be
construed as superseding, amending,
modifying, or repealing’’ the Clean
Water Act, any rule or regulation
adopted under the Clean Water Act, or
any state laws enacted pursuant to the
Clean Water Act. Proposed paragraph (a)
would operate in tandem with proposed
30 CFR 773.17(h), which would add a
new permit condition requiring that the
permittee obtain all necessary
authorizations, certifications, and
permits in accordance with Clean Water
Act requirements before conducting any
activities that require approval,
authorization, or certification under the
Clean Water Act. Permit conditions are
directly enforceable under SMCRA.
Therefore, addition of the permit
condition in proposed 30 CFR 773.17(h)
would mean that the SMCRA regulatory
authority must take enforcement action
if the permittee does not obtain all
necessary Clean Water Act
authorizations, certifications, and
permits before beginning any activity
under the SMCRA permit that also
requires approval or authorization
under the Clean Water Act.
Proposed Paragraph (b): When must I
comply with this section?
Proposed paragraph (b)(1) would
apply 30 CFR 780.28 to permit
applications to conduct surface mining
activities in or through a perennial,
intermittent, or ephemeral stream or on
the surface of lands within 100 feet,
measured horizontally, of perennial or
intermittent streams.423 The 100-foot
421 30
U.S.C. 1265(b)(24).
U.S.C. 1292(a).
423 See the discussion of proposed 30 CFR
780.16(c) in this preamble for an explanation of
how this distance must be measured.
422 30
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distance reflects the 100-foot buffer zone
that 30 CFR 816.57(a) establishes for
perennial and intermittent streams. The
preamble to proposed 30 CFR 816.57(a)
explains the rationale for the 100-foot
buffer zone width. Activities include,
but are not limited to, mining through
or diverting streams; constructing
sedimentation ponds, excess spoil fills,
and coal mine waste disposal facilities
in or near streams; and constructing
stream crossings for roads and utilities,
as well as the full range of mining and
reclamation activities that the
application may propose to take place
outside the stream channel but on the
surface of lands within 100 feet of the
stream.
Proposed paragraph (b)(2), in
combination with proposed paragraph
(e)(2) and 30 CFR 816.57, would
prohibit mining-related activities in or
within 100 feet of perennial and
intermittent streams unless the
applicant demonstrates, and the
regulatory authority finds in writing,
that the proposed activity would not (i)
preclude any premining use or any
designated use under the Clean Water
Act of the affected stream segment
following the completion of mining and
reclamation; (ii) result in the conversion
of the affected stream segment from
intermittent to ephemeral, from
perennial to intermittent, or from
perennial to ephemeral; (iii) cause or
contribute to a violation of water quality
standards under the Clean Water Act; or
(iv) cause material damage to the
hydrologic balance outside the permit
area. Proposed paragraph (b)(2)(iv)
would duplicate the finding required by
30 CFR 773.15(e). Proposed paragraphs
(b)(2)(i) through (iii) are similar to
subsets of the definition of material
damage to the hydrologic balance
outside the permit area, but they differ
from the definition of that term and 30
CFR 773.15(e) in that they would apply
within the permit area as well as outside
it. Proposed paragraphs (b)(2)(i) and (ii)
would apply to stream segments within
the permit area only after the
completion of mining and reclamation,
consistent with section 515(b)(10) of
SMCRA,424 which provides for
minimization, not prevention, of
disturbances to the prevailing
hydrologic balance at the minesite.
To enhance fish and wildlife habitat,
as required by section 515(b)(24) of
SMCRA,425 proposed paragraph (b)(3)(i)
would require that the permit
application include plans for
establishment of a riparian corridor at
least 100 feet wide on each side of a
424 30
425 30
PO 00000
U.S.C. 1265(b)(10).
U.S.C. 1265(b)(24).
Frm 00081
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perennial, intermittent, or ephemeral
stream segment 426 that remains after
mining or that is restored as part of the
reclamation process. The preamble to
proposed 30 CFR 780.16 explains why
we selected the minimum 100-foot
width for the riparian corridor.
Proposed paragraph (b)(3)(ii) would
require that disturbed areas within the
corridor be planted with native species,
including species adapted to and
suitable for planting in riparian zones
within that corridor. It also would
require use of native trees and shrubs in
previously forested areas or in areas that
would revert to forest under conditions
of natural succession. Creation of a
riparian corridor populated with native
species is part of the best technology
currently available to minimize adverse
impacts on fish, wildlife, and related
environmental values and to achieve
enhancement of those resources, as
required by section 515(b)(24) of
SMCRA.427 Nothing in proposed
paragraph (b)(3) would require planting
of hydrophilic species in riparian
corridors or portions of riparian
corridors that are incapable of providing
the necessary moisture or other growing
conditions. In those situations,
proposed paragraph (b)(3)(ii) would
require that the riparian corridor be
planted with native species appropriate
to the conditions.
Proposed paragraph (b)(3)(iii) would
provide that the proposed riparian
corridor requirement would not apply to
prime farmland historically used for
cropland because 30 CFR 785.17(e)(1)
provides that the postmining land use of
prime farmland historically used for
cropland must be cropland. The
proposed riparian corridor requirement
also would not apply to situations in
which revegetation would be
incompatible with an approved
postmining land use that is
implemented during the revegetation
responsibility period before final bond
release. Finally, the riparian corridor
requirement would not apply to stream
segments buried beneath an excess spoil
fill or a coal mine waste disposal facility
pursuant to proposed paragraph (d).
Proposed Paragraph (c): What additional
requirements apply to an application
that proposed to mine through or divert
a perennial, intermittent, or ephemeral
stream?
Proposed paragraph (c)(1) would
require that the proposed postmining
drainage pattern of perennial,
426 See the discussion of proposed 30 CFR
780.16(c) in this preamble for an explanation of
how this distance must be measured.
427 30 U.S.C. 1265(b)(24).
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intermittent, and ephemeral stream
channels to be restored after the
completion of mining be similar to the
premining drainage pattern. In addition
to its ecological benefits, this
requirement would better implement
the requirement in section 515(b)(3) of
SMCRA 428 that the permittee ‘‘restore
the approximate original contour of the
land.’’ The proposed rule would allow
the regulatory authority to approve
deviations from the premining drainage
pattern when necessary to ensure
stability, to promote enhancement of
fish and wildlife habitat consistent with
sections 515(b)(24) and 516(b)(11) of
SMCRA,429 or to prevent or minimize
excessive downcutting (deepening) of
reconstructed stream channels. For
example, additional meanders may be
needed to minimize channel erosion
and downcutting when restoring
streams in areas with a badlands-type
topography that existed prior to mining.
Proposed paragraph (c)(2) would
establish additional requirements for
permit applications that propose to
mine through or permanently or
temporarily divert a perennial or
intermittent stream. Proposed paragraph
(c)(2)(i) would reiterate that the
applicant must meet the requirements of
proposed paragraphs (a) through (c)(1).
Proposed paragraph (c)(2)(ii) would
require that the applicant demonstrate
that there is no reasonable alternative
that would avoid mining through or
diverting the stream. Proposed
paragraph (c)(2)(iii) would require that
the operation be designed to minimize
the extent to which the stream will be
mined through or diverted. Proposed
paragraph (c)(2)(iv) would require that
the applicant demonstrate that the
techniques in the reclamation plan will
restore the form and ecological function
of the affected stream segment, as
required by 30 CFR 816.57(b).
Proposed paragraph (c)(2)(iv)(A)
would require the selective placement
of aquitards (barriers to groundwater
infiltration) within the backfill or fill
when necessary to restore perennial and
intermittent streams. Placement of a
layer of lower-permeability spoil or
other material near the surface but
below the root zone for trees and shrubs
could provide the subsurface flow
needed to restore flow in perennial and
intermittent stream segments.
Construction of aquitards would have
the additional benefit of quickly
removing water that otherwise would
have infiltrated the fill and could have
emerged as leachate with undesirable
concentrations of total dissolved solids
428 30
429 30
or other parameters that could degrade
downstream waters.
Proposed paragraph (c)(2)(iv)(B)
would require that the permit
application include a separate bond
calculation for the costs of restoring the
ecological function of the stream. It also
would require that, before permit
issuance, the permit applicant post a
surety bond, a collateral bond, or a
combination of surety and collateral
bonds to cover that cost. A self-bond is
not appropriate to guarantee restoration
of a stream’s ecological function because
of the risk that the company may cease
to exist during the time required to
accomplish that restoration. In addition,
a self-bond does not require that the
permittee file financial instruments or
collateral with the regulatory authority,
nor is there any third party obligated to
complete the reclamation or pay the
amount of the bond if the permittee
defaults on reclamation obligations.
Proposed paragraph (c)(2)(v) would
require that the applicant comply with
the stream restoration and streamchannel diversion design requirements
in existing 30 CFR 816.43. As part of our
effort to consolidate permitting
requirements in subchapter G of our
regulations, we propose to move the
stream-channel diversion design
provisions in the last sentence of
existing 30 CFR 816.43(a)(3) and in
paragraphs (b)(2) through (b)(4) of
existing 30 CFR 816.43 to 30 CFR
780.28(c)(2)(v) and (vi).
We also propose to extend the design
requirements of proposed paragraph
(c)(2)(v)(A) and the design certification
requirements of proposed paragraph
(c)(2)(vi) to perennial and intermittent
stream channels to be restored after the
completion of mining. Our existing
rules do not address restored stream
channels, an oversight that we propose
to correct because there is no legal or
scientific basis for the absence of
standards for the restoration of stream
channels. Restored stream channels and
permanent stream-channel diversions
are equally important in terms of their
value to the fish, wildlife, and related
environmental values protected by
section 515(b)(24) of SMCRA.430 In
addition, there is no legal, technical, or
scientific reason why designs for
restored stream channels should be
subject to less rigorous certification
standards than designs for streamchannel diversions.
Proposed paragraph (c)(2)(v)(A)
would require that designs for
permanent stream-channel diversions,
temporary stream-channel diversions
that will be in use for 2 or more years,
U.S.C. 1265(b)(3).
U.S.C. 1265(b)(24) and 1266(b)(11).
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and stream channels that are to be
restored after the completion of mining
replicate or approximate the premining
characteristics of the original stream
channel 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. This
provision is similar to the last sentence
of existing 30 CFR 816.43(a)(3), with a
few exceptions.
First, the existing rule applies only to
permanent stream-channel diversions.
Applying the design requirements of
proposed paragraph (c)(2)(v)(A) to
temporary stream-channel diversions
that will be in use for 2 or more years
would reduce the damage to aquatic
resources caused by temporary
diversions that remain in use for
extended periods, consistent with the
requirement in section 515(b)(24) of
SMCRA 431 to minimize adverse impacts
on fish, wildlife, and related
environmental values to the extent
possible, using the best technology
currently available. In recognition of the
shorter lifespan of temporary diversions,
we propose to specify that, for
temporary stream-channel diversions
that will remain in use for 2 or more
years, the vegetation proposed for
planting in the riparian zone need not
include species that would not reach
maturity until after the diversion is
removed. In other words, faster-growing
species like willows, alders, and poplars
or early successional natural riparian
vegetation would be acceptable.
Second, proposed paragraph
(c)(2)(v)(A) would specify that the
premining characteristics of the original
stream channel include, but are not
limited to, the baseline stream pattern,
profile, dimensions, substrate, habitat,
and natural vegetation growing in the
riparian zone. The addition of this
clarification is intended to make our
regulations more consistent with similar
requirements under section 404 of the
Clean Water Act and its implementing
regulations. It also would minimize
adverse impacts on fish, wildlife, and
related environmental values to the
extent possible, using the best
technology currently available, as
required by section 515(b)(24) of
SMCRA.432
Third, proposed paragraph (c)(2)(v)(A)
would specify that the design must
minimize adverse alteration of stream
channels on and off the site, including
channel deepening or enlargement. This
provision would minimize adverse
impacts on fish, wildlife, and related
431 Id.
430 30
PO 00000
U.S.C. 1265(b)(24).
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432 Id.
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environmental values to the extent
possible, using the best technology
currently available, as required by
section 515(b)(24) of SMCRA,433
because channel deepening or
enlargement can reduce the frequency
and volume of flows over the floodplain and contribute sediment to
streamflow and streambeds through
streambank erosion.
Proposed paragraph (c)(2)(v)(B) would
require that the stream-channel design
ensure that the hydraulic capacity of all
temporary and permanent streamchannel diversions is at least equal to
the hydraulic capacity of the
unmodified stream channel
immediately upstream from the
diversion and no greater than the
hydraulic capacity of the unmodified
stream channel immediately
downstream from the diversion.
Existing 30 CFR 816.43(b)(2) applies the
same standard for the hydraulic
capacity of the diversion both upstream
and downstream of the diversion; i.e.,
the designed hydraulic capacity of the
diversion must be at least equal to the
hydraulic capacity of the unmodified
stream channel immediately upstream
and downstream from the diversion.
Our proposal to require that the
designed hydraulic capacity of the
diversion be no greater than (rather than
at least equal to) the hydraulic capacity
of the unmodified stream channel
immediately downstream from the
diversion would protect against the
scouring and other adverse impacts that
could result from a sudden constriction
in channel capacity if the diversion was
allowed to exceed the capacity of the
unmodified stream channel downstream
of the diversion. Therefore, proposed
paragraph (c)(2)(v)(B) would be
consistent with the requirement in
section 515(b)(24) of SMCRA 434 to
minimize adverse impacts on fish,
wildlife, and related environmental
values to the extent possible, using the
best technology currently available.
Proposed paragraph (c)(2)(v)(C) would
require that all temporary and
permanent stream-channel diversions be
designed so that the combination of
channel, bank, and flood-plain
configuration is adequate to pass safely
the peak runoff of a 10-year, 6-hour
precipitation event for a temporary
diversion and a 100-year, 6-hour
precipitation event for a permanent
diversion. Proposed paragraph
(c)(2)(v)(C) is substantively identical to
existing 30 CFR 816.43(b)(3). We invite
comment on whether the design event
for a temporary diversion should be
433 Id.
434 Id.
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raised to the 25-year, 6-hour event to
provide added safety and protection
against overtopping.
Proposed paragraph (c)(2)(vi) would
require submission of a certification
from a qualified registered professional
engineer that the designs for all streamchannel diversions and all stream
channels to be restored after the
completion of mining meet the design
requirements of 30 CFR 780.28 and any
additional design criteria established by
the regulatory authority. Our proposed
rule differs from the design certification
elements of existing 30 CFR 816.43(b)(4)
in that we propose to expand the design
certification requirement to apply to all
stream channels to be restored after the
completion of mining, not just to
stream-channel diversions as in the
existing rule. As discussed above, there
is no legal, technical, or scientific
reason to apply less rigorous design and
certification requirements to restored
stream channels than to permanent
stream-channel diversions. In addition,
we propose to require that the engineer
certify that the design meets the design
requirements of 30 CFR 780.28, not the
performance standards as in the existing
rule, because performance standards do
not apply directly to designs. Finally,
we propose to specify that the
certification may be limited to the
location, dimensions, and physical
characteristics of the stream channel; it
need not include restoration of
ecological function, which may be
beyond the professional competency of
an engineer.
Proposed Paragraph (d): What
requirements apply to an application to
construct an excess spoil fill or coal
mine waste disposal facility in a
perennial or intermittent streams?
Proposed paragraph (d)(1) would
apply the requirements of proposed
paragraph (d)(2) in place of the
requirements of proposed paragraph
(b)(2) if the applicant proposes to
construct an excess spoil fill or coal
mine waste disposal facility that would
encroach upon any part of a perennial
or intermittent stream. We are proposing
paragraph (d) because we recognize that
some of the requirements of proposed
paragraph (b)(2) that would apply to
activities in streams cannot be met with
respect to a stream segment that is
buried underneath an excess spoil fill or
a coal mine waste disposal facility.
A permit application that contains a
proposal to construct an excess spoil fill
or a coal mine waste disposal facility
that would not encroach upon any part
of a perennial or intermittent stream
would not be subject to the
requirements of proposed paragraph
PO 00000
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44517
(d)(2). However, if the proposed fill or
disposal facility would disturb the
surface of land within 100 feet of a
perennial or intermittent stream,435 the
application would have to comply with
the requirements of proposed paragraph
(b)(2).
Proposed paragraph (d)(2) would
identify the demonstrations that a
permit application must include if the
applicant proposes to construct an
excess spoil fill or coal mine waste
disposal facility in a perennial or
intermittent stream. The legal authority
for the proposed demonstration
requirements is set forth in detail in the
introductory paragraphs of the
discussion of proposed 30 CFR 780.28
in this preamble and will not be
repeated here. The demonstrations that
we propose to require are a combination
of other regulatory program and Clean
Water Act requirements; measures that
constitute the best technology currently
available to minimize any adverse
impacts on fish, wildlife, and related
environmental values, as required by
section 515(b)(24) of SMCRA; 436 and
fish and wildlife enhancement measures
intended to offset any unavoidable longterm damage to fish, wildlife, and
related environmental values.
Proposed paragraph (d)(2)(i) would
require that the applicant demonstrate
that the operation has been designed to
minimize the amount of excess spoil or
coal mine waste generated, which
would have the effect of minimizing the
need for or the size of the excess spoil
fill or coal mine waste disposal facility.
This finding corresponds to proposed 30
CFR 780.35(b) for excess spoil. For coal
mine waste, this finding in essence
would require a description of the steps
taken to minimize the amount of coal
mine waste generated by the coal
preparation process, such as the use of
filter presses, or an explanation of why
minimization measures are not
practicable.
Proposed paragraph (d)(2)(ii) would
require that the applicant demonstrate
that, after evaluating all potential
upland locations in the vicinity of the
proposed operation, there is no
practicable alternative that would avoid
placement of excess spoil or coal mine
waste in a perennial or intermittent
stream. Potential upland locations that
must be considered include, but are not
limited to, abandoned mine lands and
existing fills with excess capacity. The
application must identify potential
locations such as the examples
435 See the discussion of proposed 30 CFR
780.16(c) in this preamble for an explanation of
how this distance must be measured.
436 Id.
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mentioned above and explain why those
locations are not suitable or practicable.
We anticipate that, for excess spoil, the
permit applicant and regulatory
authority would conduct this analysis in
a manner similar to that described in
Kentucky Reclamation Advisory
Memorandum (RAM) 145, which
establishes a fill placement optimization
process for steep-slope mining in
Kentucky.437 For coal mine waste, the
application would have to explain why
an alternative configuration, location, or
coal mine waste disposal method is not
practicable.
Proposed paragraph (d)(2)(iii) would
require that the applicant demonstrate
that, to the extent possible using the
best technology currently available, the
proposed excess spoil fill or coal mine
waste disposal facility has been
designed to minimize both placement of
excess spoil or coal mine waste in a
perennial or intermittent stream and
adverse impacts on fish, wildlife, and
related environmental values. This
provision corresponds in part to the fill
optimization requirements of proposed
30 CFR 780.35(c). We anticipate that the
RAM 145 process mentioned above may
assist in meeting this requirement.
Proposed paragraph (d)(2)(iii) would
implement, in part, section 515(b)(24) of
SMCRA,438 which provides 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.
Proposed paragraph (d)(2)(iv) would
require that the applicant demonstrate
that the fish and wildlife enhancement
plan for the proposed operation
includes measures that would fully and
permanently offset any long-term
adverse impacts that the fill, refuse pile,
or coal mine waste impoundment would
have on fish, wildlife, and related
environmental values within the
footprint of the fill, refuse pile, or coal
mine waste impoundment. The
regulatory authority would determine
the meaning of ‘‘fully and permanently
offset’’ on a case-by-case basis. At a
minimum, riparian corridors must be
protected by conservation easements
(dedicated to an appropriate agency or
organization) or deed restrictions so that
the newly planted vegetation is not
destroyed after bond release. We invite
comment on whether the final rule
could or should include more specific
437 Kentucky Energy and Environment Cabinet,
Department for Natural Resources, Reclamation
Advisory Memorandum # 145 (December 16, 2009).
Available at https://minepermits.ky.gov/RAMS/
RAM145.pdf (last accessed June 25, 2015).
438 30 U.S.C. 1265(b)(24).
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standards or criteria for determining the
meaning of ‘‘fully and permanently
offset.’’ We also invite comment on
whether mitigation required pursuant to
section 404 of the Clean Water Act 439
may satisfy this requirement and
whether past Clean Water Act
mitigation measures have been
successful. We encourage submission of
data to document the success or failure
of those measures.
Proposed paragraph (d)(2)(v) would
require that the applicant demonstrate
that the excess spoil fill or coal mine
waste disposal facility has been
designed in a manner that will not cause
or contribute to a violation of water
quality standards or result in the
formation of toxic mine drainage. The
demonstration that this paragraph
would require is intended to ensure the
proposed operation will not cause
material damage to the hydrologic
balance outside the permit area. In
particular, it is intended to ensure that
discharges to surface water or
groundwater from the excess spoil fill or
coal mine waste disposal facility would
not have a substantial adverse impact on
water quality or aquatic biota in
receiving streams. As defined in 30 CFR
701.5, toxic mine drainage means any
discharge that ‘‘contains a substance
that through chemical or physical
effects is likely to kill, injure, or impair
biota commonly present in that area that
might be exposed to it.’’
Proposed paragraph (d)(2)(vi) would
require that the applicant demonstrate
that the revegetation plan submitted
under proposed 30 CFR 780.12(g)
requires reforestation of a completed
excess spoil fill if the land is forested at
the time of application or if it would
revert to forest under conditions of
natural succession. This measure is
intended to minimize the adverse
impacts of the fill on watershed
hydrology, especially the quantity and
quality of surface runoff, and aquatic
life in the stream.
Proposed Paragraph (e): What are the
regulatory authority’s responsibilities?
Proposed paragraph (e)(1)(i) would
require that the regulatory authority
establish objective standards for
determining when the ecological
function of a restored or permanentlydiverted perennial or intermittent
stream has been restored. Objective
standards are essential to fair
enforcement of the requirement for
restoration of the ecological function of
streams and to enable permit applicants
to develop appropriate and
comprehensive reclamation plans.
Proposed paragraph (e)(1)(ii) would
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U.S.C. 1344.
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require that, in establishing these
standards, the regulatory authority
coordinate with the Clean Water Act
permitting authority to ensure
compliance with all Clean Water Act
requirements.
Proposed paragraph (e)(1)(iii) would
specify that the standards established by
the regulatory authority must comply
with the functional restoration
requirements of proposed 30 CFR
816.57(b)(2). In relevant part, proposed
30 CFR 816.57(b)(2) would require that
a stream flowing through a restored
stream channel or stream-channel
diversion have a biological condition
adequate to support the designated uses
of the original stream segment under
section 101(a) or 303(c) of the Clean
Water Act 440 before mining. This
provision may allow limited changes in
the species composition of the array of
insects, fish, and other aquatic
organisms found in a stream flowing
through a restored stream channel or
stream-channel diversion, as long as the
changes do not preclude existing uses or
attainment of designated uses. Proposed
30 CFR 816.57(b)(2) also would require
that the biological condition of the
restored stream be determined using a
protocol that meets the requirements of
proposed 30 CFR 780.19(e)(2) and that
populations of organisms used to
determine the postmining biological
condition of the stream segment be selfsustaining within that segment. We
propose to include this provision
because the presence of individual
organisms that happen to drift into the
reconstructed channel from other areas
is not an indicator of restoration of the
ecological function of the restored
stream segment.
Proposed paragraph (e)(2) specifies
that the regulatory authority may not
approve an application that includes
any activities included in proposed
paragraph (a)(1) unless the regulatory
authority first makes a written finding
that the applicant has fully satisfied all
applicable requirements of 30 CFR
780.28. It also would require that the
finding be accompanied by a detailed
explanation and rationale for the
finding. These requirements are
appropriate, given the purposes and
provisions of SMCRA discussed in the
introductory paragraphs of the preamble
to 30 CFR 816.57 and the typically high
value of perennial and intermittent
streams to fish and wildlife.
440 33
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15. Section 780.29: What information
must I include in the surface-water
runoff control plan?
We propose to revise this section to
require that each application include a
surface-water runoff control plan. We
propose to require this plan because
uncontrolled surface-water runoff can
and has been known to cause flooding
downgradient of the operation, which in
turn can result in material damage to the
hydrologic balance outside the permit
area, property damage, and loss of
human life, as well as adverse impacts
on fish, wildlife, and related
environmental values. Section 510(b)(3)
of SMCRA 441 provides that the
regulatory authority may not approve a
permit application unless the
application affirmatively demonstrates
and the regulatory authority finds in
writing that the proposed operation has
been designed to prevent material
damage to the hydrologic balance
outside the permit area. Section
515(b)(24) of SMCRA 442 requires that
surface coal mining and reclamation
operations minimize adverse impacts on
fish, wildlife, and related environmental
values.
Proposed paragraph (a)(1) specifies
that the plan must explain how surfacewater runoff will be handled in a
manner that will prevent peak
discharges from the proposed permit
area, both during and after mining and
reclamation, from exceeding premining
peak discharges from the same area for
the same-size precipitation event.
Proposed paragraph (a)(1) also requires
use of the appropriate regional NRCS
synthetic storm distribution to estimate
peak discharges. Design criteria for
hydraulic structures intended to handle
overland flow from precipitation events
are based in part on the peak runoff rate
and/or runoff volume from the area
draining to the structure. Actual
precipitation records for small drainage
areas generally are not available, so
engineers typically rely upon
mathematical models instead. The
distribution of rainfall intensities is one
of the primary inputs to those models.
We propose to require use of the
appropriate regional NRCS synthetic
storm distribution to determine runoff
intensities and peak flows because it is
a widely accepted, prudent engineering
design methodology.
Maximum runoff from a drainage area
occurs when the peak intensity of the
rainfall event coincides with the time of
concentration (the length of time
between the beginning of the rainfall
441 30
U.S.C. 1260(b)(3).
442 30 U.S.C. 1265(b)(24).
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event and the time when runoff from the
entire drainage area first arrives at the
outlet for the drainage area). Typically,
for precipitation events with the same
return interval (2 years, 10 years, 100
years, etc.), peak intensity is much
greater for storms of short duration—the
shorter the duration, the greater the
maximum intensity and the greater the
amount of peak flow from surface
runoff. Traditionally, peak stormwater
runoff from a drainage area was
determined using a storm duration
approximately 1.7 times greater than the
time of concentration. Use of the NRCS
synthetic storm distribution
accomplishes this determination
automatically. For example,
precipitation intensity during the 1-hour
or 6-hour increment with the highest
rainfall amount within the 24-hour 10year synthetic distribution (theoretical
storm event) is identical to precipitation
intensity and total rainfall during
traditional 1-hour and 6-hour 10-year
events. Therefore, it is not necessary to
select a storm duration related to the
time of concentration to capture the
greater intensities of events of shorter
duration.
Proposed paragraph (a)(2) specifies
that the explanation in paragraph (a)(1)
must consider the findings in the PHC
determination prepared under § 780.20.
Proposed paragraph (b) would require
that the plan include a surface-water
runoff monitoring and inspection
program that would provide sufficient
precipitation and stormwater discharge
data for the proposed permit area to
evaluate the effectiveness of surfacewater runoff control practices. The
surface-water runoff monitoring and
inspection program must specify criteria
for monitoring, inspection, and
reporting consistent with 30 CFR
816.34(d), which contains the
corresponding performance standards.
The program must contain a monitoring
point density that adequately represents
the drainage pattern and drainage
distribution across the entire proposed
permit area, with a minimum of one
monitoring point for each watershed
discharge point. We invite comment on
whether the proposed minimum
monitoring point density standard is too
high or too low.
Proposed paragraph (c) would require
that the permit application include
descriptions, maps, and cross-sections
of all runoff control structures,
including diversions and other channels
used to collect and convey surface-water
runoff. Existing 30 CFR 780.29 applies
this requirement only to diversions,
which, under 30 CFR 816.43, could be
construed as excluding channels
constructed to collect and convey
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surface runoff from the area to be
disturbed by the mining operations.
Under proposed paragraph (c), all such
channels would have to be designed in
accordance with the standards in 30
CFR 816.43. Proposed paragraph (c) is
intended to ensure that these channels
are safe, stable, and of adequate
capacity.
16. Section 780.35: What information
must I provide concerning the
minimization and disposal of excess
spoil?
We propose to revise, reorganize, and
expand our existing rules governing
permitting requirements for the disposal
of excess spoil.
Background and Rationale for the
Proposed Rule Changes
Disposal of excess spoil and coal mine
waste often involves the filling of
substantial portions of stream valleys,
especially in central Appalachia. Based
upon our regulatory experience,
updated science, and modern
engineering practices, we propose to
revise our regulations to minimize the
creation of excess spoil and to ensure
that excess spoil fills 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.443
Our existing regulations pertaining to
the disposal of excess spoil primarily
focus on ensuring that fills are safe and
stable. We propose to add several
requirements intended to promote
environmental protection, including
minimization of the adverse
environmental impacts of fill
construction in perennial and
intermittent streams. We recognize that
section 515(b)(22) of SMCRA,444 which
establishes standards for the disposal of
excess spoil, does not include any
requirements specifically oriented
toward environmental protection, but
instead focuses on engineering
standards intended to promote stability,
prevent mass movement, and control
infiltration of water. However, section
515(b)(24) of SMCRA 445 does require
that surface coal mining and
reclamation operations be conducted in
a manner that minimizes disturbances
to, and adverse impacts on, fish,
wildlife, and related environmental
values to the extent possible, using the
443 30
U.S.C. 1265(b)(24) and 1266(b)(11).
U.S.C. 1265(b)(22).
445 30 U.S.C. 1265(b)(24).
444 30
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best technology currently available.
Section 515(b)(24) 446 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),447 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
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) 448 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.
The goal of the excess spoil
minimization and fill size optimization
requirements of proposed paragraphs (b)
and (c) 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 449 to minimize
disturbances and adverse impacts on
fish, wildlife, and related environmental
values to the extent possible using the
best technology currently available.
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’’ (OSMRE, September 1999);
‘‘An Evaluation of Approximate
Original Contour Variances and
Postmining Land Uses in Virginia’’
(OSMRE, September 1999); and ‘‘Final
Report: An Evaluation of Approximate
Original Contour and Postmining Land
Use in West Virginia’’ (OSMRE, May
1999).
In many instances, we found that the
permit application overestimated the
anticipated volume of excess spoil that
the operation would produce. In
446 Id.
447 30
U.S.C. 1265(b)(22)(I).
U.S.C. 1265(b)(22).
449 30 U.S.C. 1265(b)(24) and 1266(b)(11).
448 30
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addition, fills were designed and
constructed larger than necessary to
accommodate the anticipated excess
spoil, which resulted in the unnecessary
disturbance of additional land.
Kentucky, Virginia, and West Virginia
worked with us to develop enhanced
guidance on material balance
determinations, spoil management, and
approximate original contour
determinations to correct these
problems to the extent feasible under
the existing regulations. The regulatory
authorities in those states have adopted
policies based on that guidance for use
in reviewing permit applications.450 We
also developed guidance for use under
the Tennessee federal regulatory
program.451
If adopted, the rule that we are
proposing today would provide further
authority for the policies in place in
Kentucky, Tennessee, Virginia, and
West Virginia. It would 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 such policies. 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.
Proposed Paragraph (a): Applicability.
This proposed paragraph would
clarify that the provisions of 30 CFR
780.35 apply only to permit
applications that propose to generate
excess spoil.
Proposed Paragraph (b): Demonstration
of Minimization of Excess Spoil
Proposed paragraph (b)(1) would
require a demonstration, with
supporting calculations and other
documentation, that the operation has
been designed to minimize, to the extent
possible, the volume of excess spoil that
the operation will generate. Designing
the operation in this fashion should
ensure that the maximum amount of
overburden is returned to the mined-out
area. Our goal is to ensure that the
volume of overburden placed in excess
spoil fills is minimized to the maximum
extent possible. Minimizing the volume
of overburden placed in excess spoil
450 Kentucky Department of Natural Resources
Reclamation Advisory Memorandum No. 145
(2009), Virginia Department of Mines, Minerals and
Energy Guidance Memorandum 4–02 (2002), West
Virginia Department of Environmental Protection
Final Approximate Original Contour Document
Guidance Policy (‘‘AOC+’’) (1999).
451 OSMRE Knoxville Field Office Engineering
Procedure 2.1: Steep Slope Mining: AOC and
Excess Spoil Determination (2001).
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fills is critical to minimizing the amount
of undisturbed land affected by fill
construction and to ensuring that those
fills bury or otherwise impact the
shortest length of stream possible.
Proposed paragraph (b)(2) would
specify the factors that the permit
applicant and the regulatory authority
must consider in determining whether
the proposed operation has been
designed to minimize the creation of
excess spoil to the extent possible. It
requires consideration of safety and
stability needs and requirements;
revegetation and postmining land use
needs and requirements; the need for
drainage structures, access roads, and
berms; applicable regulations
concerning backfilling, compaction,
grading, and restoration of the
approximate original contour; and other
relevant regulatory requirements, in
particular those pertaining to protection
of water quality and fish, wildlife, and
related environmental values. Some or
all of those factors may limit the amount
of spoil that can be returned to the
mined-out area, especially the
requirements related to safety, stability,
and postmining land use. Also, if the
regulatory authority does not approve
the proposed postmining land use, the
applicant and the regulatory authority
would 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.
In addition, proposed paragraph
(b)(2)(iii) would specify that drainage
structures, access roads, and berms on
the perimeter of the backfilled area must
not exceed a total width of 20 feet
unless the permit applicant can
demonstrate a need for a greater width.
This restriction would maximize
placement of overburden material on
the mined-out area and minimize the
generation and placement of excess
spoil. In many cases, construction of
access roads or drainage controls wider
or larger than necessary prevents
maximum spoil placement within the
mined-out area, thus creating larger
excess spoil fills and burial of a greater
length of perennial or intermittent
stream segments than absolutely
necessary. We propose to select 20 feet
as the maximum width because that is
the typical width of a drainage bench on
the face of a fill or embankment. Twenty
feet should provide adequate room for
drainage and sediment controls during
the period between final grading and
establishment of vegetation. Twenty feet
also would afford adequate access for
equipment in the event that
maintenance is required before final
bond release. We seek comment on
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whether the maximum width should be
larger or smaller than 20 feet.
To attain the goal of minimizing both
the amount of land disturbed and the
length of perennial and intermittent
stream segments buried or otherwise
adversely affected, proposed paragraph
(b)(3) would clarify that premining
elevations do not operate as a cap on the
elevation of backfilled areas. Instead,
the final elevation would be determined
on the basis of the factors listed in
proposed 30 CFR 780.35(b)(2), together
with the requirement that the final
surface configuration be compatible
with the surrounding terrain and be
consistent with natural premining
landforms. For the same reason,
proposed paragraph (b)(4) would
prohibit the creation of a final-cut
impoundment under 30 CFR 816.49(b)
or the placement of coal combustion
residues or noncoal materials in the
mine excavation if doing so would
displace spoil removed from the
excavation to the extent that the
displaced mine spoil would have to be
placed in an excess spoil fill.
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Proposed Paragraph (c): Fill Capacity
Demonstration
Proposed paragraph (c) would require
that the application include a
demonstration, with supporting
calculations and other documentation,
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 calculated under paragraph
(b). This requirement is intended to
prohibit the practice of designing an
operation with a larger number and
greater size of excess spoil fills than
necessary and then constructing only
part of each fill. This practice results in
the filling of a greater length of stream
than would be necessary if each fill was
used to its maximum capacity,
especially when using a bottom-up
method of fill construction in which the
entire footprint of the fill is disturbed
either before or shortly after initial
placement of excess spoil in the fill.
Adoption of proposed paragraph (c)
would minimize the adverse impacts of
the operation on fish, wildlife, and
related environmental values, as
required by section 515(b)(24) of
SMCRA,452 by minimizing the amount
of land and water disturbed to construct
excess spoil fills.
452 30
U.S.C. 1265(b)(24).
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Proposed Paragraph (d): Requirements
Related to Perennial and Intermittent
Streams
Proposed paragraph (d) would specify
that a permit applicant proposing to
construct an excess spoil fill in or
within 100 feet of a perennial or
intermittent stream 453 must comply
with the requirements of proposed 30
CFR 780.28 concerning activities in or
near perennial or intermittent streams.
Proposed Paragraph (e): Location
Proposed paragraph (e)(1) would
require that a permit applicant submit
maps and cross-section drawings or
models showing the location and profile
of all proposed excess spoil fills. This
requirement corresponds to the first
sentence of existing paragraph (a),
which we propose to modernize to
allow the use of models at the discretion
of the permit applicant and the
regulatory authority. Models can be
more detailed than either maps or crosssections. We also propose to require that
the application include a profile of each
excess spoil fill so that the regulatory
authority is able to determine whether
the completed fill would meet all
applicable surface configuration
requirements.
Proposed paragraph (e)(2) would
specify that fills must be located on the
most moderately sloping and naturally
stable areas available. It also would
specify that the regulatory authority will
determine which areas are available for
excess spoil fill construction after
considering other requirements of the
Act and the regulatory program. This
paragraph corresponds to part of
existing 30 CFR 816.71(c), which we
propose to move to 30 CFR 780.35
because it is a permitting requirement,
not a performance standard. We propose
to add the provision specifying that the
regulatory authority will determine
which areas are available for excess
spoil fill construction to improve
consistency with section 515(b)(22)(E)
of SMCRA,454 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.’’ Because one of the
requirements of the Act is the provision
in section 515(b)(24) 455 specifying that
surface coal mining and reclamation
operations must be conducted so as to
minimize disturbances and adverse
453 See the discussion of proposed 30 CFR
780.16(c) in this preamble for an explanation of
how this distance must be measured.
454 30 U.S.C. 1265(b)(22)(E).
455 30 U.S.C. 1265(b)(24).
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44521
impacts on fish, wildlife, and related
environmental values to the extent
possible, using the best technology
currently available, the location with
the most moderate slopes in the vicinity
of the proposed operation may not be
available if construction of the fill at
that location would have greater adverse
impact on fish, wildlife, and related
environmental values than would
construction of the fill at a different
location with steeper slopes. In other
words, the requirement to place excess
spoil on the most moderate slope is
subordinate to compliance with other
requirements of the Act and regulatory
program.
Proposed paragraph (e)(3) provides
that, whenever possible, the permit
applicant must place fills on or above a
natural terrace, bench, or berm if that
location would provide additional
stability and prevent mass movement.
This paragraph corresponds to the
remainder of existing 30 CFR 816.71(c),
which we propose to move to 30 CFR
780.35 because it is a permitting
requirement, not a performance
standard. Proposed paragraph (e)(3) is
consistent with section 515(b)(22)(E) of
SMCRA,456 which requires that excess
spoil be placed ‘‘where possible, upon,
or above, a natural terrace, bench, or
berm, if such placement provides
additional stability and prevents mass
movement.’’ However, spoil placement
upon or above a natural terrace, bench,
or berm may not always be possible
because section 515(b)(24) of SMCRA 457
provides that surface coal mining and
reclamation operations must 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 in a location
other than on or above a natural terrace,
bench, or berm, provided the alternative
location is stable and would have lesser
overall adverse impacts on fish,
wildlife, and related environmental
values.
Proposed Paragraph (f): Design Plans
Proposed paragraph (f) requires that
an application for an operation that
would generate excess spoil include
detailed design plans for each excess
spoil fill, prepared in accordance with
the requirements of proposed 30 CFR
780.35 and 816.71 through 816.74.
Proposed paragraph (f) corresponds to
the portion of existing 30 CFR 780.35(a)
that requires that the design comply
with 30 CFR 816.71 through 816.74. For
456 30
457 30
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clarity and completeness, we propose to
add language also requiring compliance
with the requirements of 30 CFR 780.35,
although those design requirements
would apply anyway in the absence of
this provision. Proposed paragraph (f)
also would require that the applicant
design the fill and appurtenant
structures using current prudent
engineering practices and any
additional design criteria established by
the regulatory authority. That
requirement appears in the first
sentence of existing 30 CFR
816.71(b)(1), which we propose to move
to 30 CFR 780.35 because it is a design
requirement, not a performance
standard.
Proposed Paragraph (g): Geotechnical
Investigation
Proposed paragraph (g) would require
that the application include the results
of a geotechnical investigation, with
supporting calculations and analyses, of
the site of each proposed excess spoil
fill, with the exception of those sites at
which spoil will be placed only on a
preexisting bench under 30 CFR 816.74.
This provision corresponds to existing
paragraph (b). We propose to add a
requirement that the applicant submit
supporting calculations and analyses
with the geotechnical investigation of
the site of each proposed excess spoil
fill. The additional data is essential for
the permit application reviewer to
determine the stability of the proposed
design.
Proposed paragraphs (g)(1) through (6)
identify information that would have to
be submitted with the application to
document the geotechnical investigation
and its results.
Proposed paragraph (g)(1) would
require sufficient foundation
investigations, as well as any necessary
laboratory testing of foundation
material, to determine the design
requirements for foundation stability for
the site of each fill. This requirement
currently appears in existing 30 CFR
816.71(d)(1). We propose to move it to
30 CFR 780.35(g) 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.
Proposed paragraphs (g)(2) through (6)
correspond to, and are substantively
identical to, existing paragraphs (b)(1)
through (5), except as discussed below.
We propose to revise paragraph (g)(3)
to require that the applicant provide the
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geographic coordinates and a narrative
description, rather than just a survey, of
all springs, seepage, mine discharges,
and groundwater flow observed or
anticipated during wet periods in the
area of the proposed fill. The added
precision will assist the regulatory
authority in evaluating the adequacy of
the excess spoil fill design.
Proposed paragraph (g)(4) would
require that the applicant provide an
analysis of the potential effects of any
underground mine workings within the
proposed permit and adjacent areas,
including the effects of any subsidence
that may occur as a result of previous,
existing, and future underground
mining operations. The proposed
requirement is similar to the portion of
existing 30 CFR 816.71(d)(1) that
requires that the analyses of foundation
conditions take into consideration the
effect of underground mine workings, if
any, upon the stability of the fill and
appurtenant structures. Existing 30 CFR
780.35(b)(3) also requires a survey of the
potential effects of subsidence that may
occur as a result of past and future
underground mining operations. Our
proposed revisions would require that
the analysis also consider the potential
effects of subsidence from existing
underground mining operations, not just
past and future operations. The design
needs to be capable of withstanding all
potential impacts of any subsidence that
may occur during the life of the
proposed structure. We propose to add
the reference to the proposed permit
and adjacent areas to ensure that the
analysis includes all operations that
have the potential to cause subsidence
that may affect the proposed fill, not just
operations within the proposed permit
area.
Proposed paragraph (g)(6) is
substantively identical to existing
paragraph (b)(5), with the exception that
we propose to revise this paragraph to
clarify that the stability analyses that it
requires must address static, seismic,
and post-earthquake (liquefaction)
conditions because those conditions are
all part of a comprehensive stability
analysis.
Proposed Paragraph (h): Operation and
Reclamation Plans
Proposed paragraph (h) would require
that the permit applicant submit plans
for the construction, operation,
maintenance, and reclamation of all
excess spoil fills in accordance with the
requirements of §§ 816.71 through
816.74. This requirement corresponds to
a similar provision in existing paragraph
(a). However, that provision includes a
requirement for plans for the ‘‘removal,
if appropriate, of the site and
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structures.’’ Because excess spoil fills
are permanent, it is not appropriate to
include plans for their removal in the
application. Consequently, we propose
to replace 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.
Proposed Paragraph (i): Additional
Requirements for Bench Cuts or RockToe Buttresses
Proposed paragraph (i) combines
overlapping requirements in existing
paragraph (c) and 30 CFR 816.71(d)(2)
concerning application and design
requirements for bench cuts or rock-toe
buttresses. We propose to revise the
existing requirements by replacing the
term ‘‘keyway cuts’’ with ‘‘bench cuts.’’
The term ‘‘keyway cut’’ is technically a
cut beneath a dam that is used to extend
low-permeability fill material to, but not
into, bedrock. The term ‘‘bench cut’’ is
more appropriate here because it refers
to cuts into bedrock, not just down to
bedrock, which is essential in the
context of fill construction under steepslope conditions.
Proposed Paragraph (j): Design
Certification
Proposed paragraph (j) would require
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 30
CFR 780.35. This requirement currently
appears in the second sentence of
existing 30 CFR 816.71(b)(1), which we
propose to move to 30 CFR 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 propose no
substantive changes to this provision.
17. Section 780.37: What information
must I provide concerning access and
haul roads?
We propose to revise and reorganize
existing paragraphs (a)(1), (2), (3), and
(5) into proposed paragraphs (a)(1) and
(2) to improve clarity and to eliminate
redundancies and unnecessary crossreferences. Proposed paragraph (a)(3)
would require that the applicant
demonstrate how all proposed roads
will comply with the applicable
requirements of 30 CFR 780.28
(activities in, through, or near streams),
816.150 (general performance standards
for roads), and 816.151 (performance
standards for primary roads). Section
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mining regulations with references to
the corresponding underground mining
regulations, and changes of a similar
nature. Our proposed revisions to part
783 are similarly substantively identical
to the corresponding revision that we
propose in part 779. Therefore, this
portion of the preamble discusses only
those proposed revisions to part 783
that differ from the proposed revisions
to the corresponding provisions of part
779. Otherwise, the rationale that we
provide for the proposed revisions to
part 779 applies with equal effect to our
proposed revisions to part 783.
We also call attention to our proposed
revisions to the definition of ‘‘adjacent
area’’ in 30 CFR 701.5, which clarifies
the size and extent of the area to which
certain of the information requirements
of part 783 would apply. As revised, the
definition would include all areas that
could experience adverse impacts from
either a surface coal mining operation or
underground mining activities,
including potential impacts from any
subsidence that may occur as a result of
underground mining activities. The
existing definition is limited to areas
that either would be adversely impacted
or could reasonably be expected to be
adversely impacted. If adopted as
proposed, the revised definition would
ensure the collection of baseline and
other data from all areas where adverse
impacts are possible, not just from those
areas where adverse impacts are
probable. In other words, our proposed
definition of ‘‘adjacent area’’ would
include, at a minimum, the entire area
overlying the proposed underground
workings plus the area within a
reasonable angle of draw from the
perimeter of those workings.
H. Part 783: Underground Mining
Permit Applications—Minimum
Requirements for Information on
Environmental Resources and
Conditions
tkelley on DSK3SPTVN1PROD with PROPOSALS2
780.28 is an element of the rule that we
are proposing today, while 30 CFR
816.150 and 816.151 are existing rules.
We propose to add paragraph (a)(4) to
require that the application identify
each road that would be located in or
within 100 feet of the channel of a
perennial or intermittent stream,458 each
proposed ford of a perennial or
intermittent stream that would be used
as a temporary route during road
construction, any plans to alter or
relocate a natural stream channel, and
each proposed low-water crossing of a
perennial or intermittent stream
channel. The regulatory authority would
need this information to determine
compliance with the applicable
requirements of proposed 30 CFR
780.28 and existing 30 CFR 816.150,
and 816.151.
We also propose to add paragraph
(a)(5) to require that the applicant
explain why any proposed fords,
alterations or relocations of natural
stream channels, or low-water crossings
are necessary and how they comply
with the applicable requirements of
proposed 30 CFR 780.28 and section
515(b)(18) of the Act.459 Section
515(b)(18) of SMCRA 460 provides that
surface coal mining and reclamation
operations must ‘‘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.’’
The proposed revisions are needed to
ensure that the stream protection
requirements of proposed 30 CFR
780.28 are applied to roads, which can
have very damaging environmental
impacts on streams.
1. Section 783.24: What maps, plans,
and cross-sections must I submit with
my permit application?
Part 783 contains the minimum
requirements for information on
environmental resources and
environmental conditions when
preparing applications for underground
mining operations. It is the counterpart
to part 779 for applications for surface
mining operations. In general, part 783
is substantively identical to part 779,
except for the substitution of
‘‘underground mining activities’’ for
‘‘surface mining activities,’’ the
replacement of references to surface
458 See the discussion of proposed 30 CFR
780.16(c) in this preamble for an explanation of
how this distance must be measured.
459 30 U.S.C. 1265(b)(18).
460 Id.
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We propose to apply the requirements
of 30 CFR 783.24(a)(5) to include the
location of surface and subsurface manmade features within, passing through,
or passing over the proposed permit and
adjacent areas, rather than just the
proposed permit area as in the
corresponding proposed surface mining
rules at 30 CFR 779.24(a)(5). The
regulatory authority would need this
information when evaluating the
potential impacts of both the proposed
underground mining operation and
subsidence resulting from that operation
on those features.
Proposed 30 CFR 783.24(a)(11) would
be the underground mining counterpart
to proposed 30 CFR 779.24(a)(11),
which, as previously discussed, would
add a new provision requiring mapping
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of all wellhead protection zones 461
located within one-half mile of the
proposed permit area for surface mining
operations. Proposed 30 CFR
783.24(a)(11) would expand that
requirement to include all wellhead
protection zones located within one-half
mile of either the proposed permit area
of an underground mine or the area
overlying the proposed underground
workings. This expansion is warranted
to ensure that the permit application
review process includes consideration
of the potential impact of underground
mining activities, and subsidence
resulting from those activities, on these
important zones and the water supplies
that they protect. However, this
provision is not intended to prohibit
underground mining operations within
wellhead protection zones when those
operations can be conducted in a
manner that will not endanger public
water supplies or when the permit
applicant can identify suitable
alternative sources of water capable of
providing water of equivalent quantity
and quality.
Proposed 30 CFR 783.24(a)(13) also
would require that the map include the
location of any discharge into or from an
active, inactive, or abandoned
underground or surface mine when the
discharge is located within one-half
mile of the area overlying the proposed
underground workings, rather than just
when the discharge is located within
one-half mile of the proposed permit
area as in our proposed surface mining
rules at 30 CFR 779.24(a)(13). The larger
area is appropriate because the permit
area for an underground mine does not
include the area overlying the
underground workings unless the mine
disturbs the surface of those lands.
However, the regulatory authority needs
the discharge information from the
expanded area to fully evaluate the
potential impacts of the proposed
underground mining operation on the
hydrologic balance and to prepare the
CHIA.
We propose to lift the suspension of
existing 30 CFR 783.25(a)(3), (a)(8), and
(a)(9) and remove those provisions from
our rules. Our proposed actions are
consistent with PSMRL I, Round II, in
which the court remanded those
provisions, which were then located at
30 CFR 783.25(c), (h), and (i), for further
rulemaking proceedings because the
preamble provided insufficient
justification of the need for or
usefulness of that information for
461 A wellhead protection zone or area is a surface
and subsurface land area regulated under the Safe
Drinking Water Act (42 U.S.C. 330f–300j) to prevent
contamination of a well or well-field supplying a
public water system.
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proposed underground mining
operations.462 As discussed below in the
context of 30 CFR 783.24(a)(21), (25),
and (26), we are re-proposing those
elements of the suspended rules that are
relevant to underground mining
operations and necessary or useful in
the review of permit applications for
underground mining operations.
Proposed 30 CFR 783.24(a)(21) would
require that the application include
information concerning the nature,
depth, thickness, and commonly used
names of the coal seams to be mined.
Except for the names of the coal seams,
this information currently is part of
suspended 30 CFR 783.25(a)(3).
Information concerning the depth and
thickness of the coal seam would assist
the regulatory authority in reviewing the
subsidence control plan. Chemical
characteristics of the coal seam play an
important role in determining whether
acid mine drainage may be a problem.
The name of the coal seam would allow
the regulatory authority to compare
reported data with data representative of
that seam. The remaining information
required by suspended 30 CFR
783.25(a)(3) either is not relevant to
underground mining or is covered by
the geologic information requirements
in proposed 30 CFR 784.19(f), which
corresponds to existing 30 CFR 784.22.
Proposed 30 CFR 783.24(a)(23) would
require that the application include a
map and cross-sections showing the
location and extent of known workings
of active, inactive, or abandoned
underground mines located either
within the proposed permit area or
within a 2,000-foot radius in any
direction of the proposed underground
workings. Existing 30 CFR 783.25(a)(5)
applies this requirement to the permit
and adjacent areas. The additional
specificity in our proposed rule would
ensure that the application contains
location information for all other
underground mine workings that could
either impact or be impacted by the
proposed operation.
Proposed 30 CFR 783.24(a)(25), like
suspended 30 CFR 783.25(a)(8), would
require that the application include
maps identifying the location and extent
of existing or previously surface-mined
areas within the proposed permit area.
This information is important in
determining which postmining surface
configuration and revegetation success
standards apply, as well as evaluating
eligibility for the remining provisions of
30 CFR 785.25.
Proposed 30 CFR 783.24(a)(26) closely
resembles suspended 30 CFR
462 PSMRL I, Round II, 1980 U.S. Dist. LEXIS
17660 at *23–24 (D.D.C. 1980), 19 ERC (BNA) 1477.
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783.24(a)(9). It would require that the
application include a map with the
location and dimensions of existing
areas of spoil, coal mine waste, noncoal
waste disposal sites, dams,
embankments, other impoundments,
and water treatment facilities within the
proposed permit area. Those features
would affect the reclamation plan, and
possibly the operations plan, for the
mine, so they should be included on the
permit application maps. The proposed
rule differs from the suspended rule in
that the proposed rule does not include
‘‘waste,’’ which is an undefined term of
uncertain meaning. The proposed rule
uses updated terminology concerning
coal mine waste and, for the reasons
discussed in the part of this preamble
that explains our proposed removal of
existing 30 CFR 780.15, it does not
include air pollution control facilities.
Finally, proposed 30 CFR
783.24(a)(27), which corresponds to
existing 30 CFR 783.25(a)(10), would
expand the scope of the existing rule to
include conventional gas and oil wells
within both the proposed permit and
adjacent areas, rather than just within
the proposed permit area. As in the
proposed surface mining counterpart
rule at 30 CFR 779.24(a)(27), we also
propose to require that the map include
the extent of any directional or
horizontal drilling for hydrocarbon
extraction operations within both the
proposed permit and adjacent areas. The
permit area for an underground mine
does not include the area overlying the
underground workings or other areas
where subsidence may occur. Therefore,
the regulatory authority needs the
information in proposed 30 CFR
783.24(a)(27) for both the proposed
permit area and the adjacent area, not
just the proposed permit area, when
evaluating what impacts the proposed
underground mining operation and any
potential subsidence resulting from that
operation may have on oil and gas
operations.
I. Part 784: Underground Mining Permit
Applications—Minimum Requirements
for Reclamation and Operation Plans
Part 784 contains the minimum
requirements for operation and
reclamation plans when preparing
applications for underground mining
operations. It is the counterpart to part
780 for applications for surface mining
operations. In general, part 784 is
substantively identical to part 780,
except for the substitution of
‘‘underground mining activities’’ for
‘‘surface mining activities,’’ the
replacement of references to surface
mining regulations with references to
the corresponding underground mining
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regulations, and changes of a similar
nature. Our proposed revisions to part
784 are similarly substantively identical
to the corresponding revisions that we
propose in part 780. Therefore, this
portion of the preamble discusses only
those proposed revisions to part 784
that differ from the proposed revisions
to the corresponding provisions of part
780. Otherwise, the rationale that we
provide for the proposed revisions to
part 780 applies with equal effect to our
proposed revisions to part 784.
We also call attention to our proposed
revisions to the definition of ‘‘adjacent
area’’ in 30 CFR 701.5, which could
significantly affect the scope of some of
the plans that part 784 requires. As
revised, the definition would include all
areas that could experience adverse
impacts from either a surface coal
mining operation or underground
mining activities, including potential
impacts from any subsidence that may
occur as a result of underground mining
activities. At a minimum, this area
would include the entire area overlying
proposed underground workings plus
the area encompassed by an appropriate
angle of draw from the perimeter of
those workings. It also would include
all areas with underground mine pools
that could be affected as well as areas
that could be affected by any mine pool
that forms after closure of the
underground mine and any areas that
could be affected by landslides or
blowouts resulting from the formation of
that mine pool.
The existing definition is limited to
areas that either would be adversely
impacted or could reasonably be
expected to be adversely impacted. If
adopted as proposed, the revised
definition would require that the
reclamation plan address all areas
where adverse impacts are possible, not
just those areas where adverse impacts
are probable.
1. Section 784.11: What must I include
in the general description of my
proposed operation?
We propose to add language in
paragraph (b)(5) to clarify that the
narrative required by paragraph (b) must
address underground mine ventilation
boreholes, fans, and access roads.
2. Section 784.13: What additional maps
and plans must I include in the
reclamation plan?
Proposed 30 CFR 784.13(a)(4), which
would combine existing 30 CFR
784.23(b)(1) and (13), would require that
the application include a map showing
the location of all buildings, utility
corridors, and other facilities to be used
or constructed within the proposed
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permit area, together with identification
of each facility that will remain as a
permanent feature after the completion
of underground mining activities.
We also propose to remove existing 30
CFR 784.23(b)(11), which requires a
cross-section profile of the anticipated
final surface configuration of the
affected area, because this requirement
duplicates part of proposed 30 CFR
784.12(d).
The preamble to 30 CFR 780.13
includes a discussion of the proposed
removal of existing 30 CFR 780.13(b)(7)
concerning air pollution. There is no
counterpart to existing 30 CFR
780.13(b)(7) in the underground mining
regulations at 30 CFR 784.23, so the
discussion of our proposed removal of
that paragraph does not pertain to
proposed 30 CFR 784.13. Paragraph
numbering adjustments need to be made
accordingly when applying the
discussion in this preamble concerning
30 CFR 780.13 to 30 CFR 784.13.
3. Section 784.19: What baseline
information on hydrology, geology, and
aquatic biology must I provide?
Proposed paragraph (a) differs from its
counterpart in proposed 30 CFR
780.19(a) only in that it contains an
additional requirement in paragraph
(a)(5) that the baseline information
collected be in sufficient detail to assist
in preparing the subsidence control plan
under 30 CFR 784.30. In the existing
rules, this requirement appears in 30
CFR 784.22(a)(4) and applies only to
geologic information.
Proposed paragraph (c) is
substantively identical to its counterpart
in proposed 30 CFR 780.19(c) with the
exception that we propose to add
paragraph (c)(3)(D) to the surface-water
quantity description. This new
paragraph would require that the
description include seepage-run
sampling determinations, if the
application proposes to deploy a
longwall panel beneath a perennial or
intermittent stream or employ other
types of full-extraction mining methods
beneath a perennial or intermittent
stream. Seepage runs are a series of instream flow measurements taken to
determine the discharge rate of the
stream at various points. The
measurement begins upstream of any
probable impacts from the proposed
underground mine, proceeds through
the reach of the stream that lies above
the proposed mine workings, and
continues to a point in the stream
downgradient of any probable impacts
from the proposed mine. At each
measurement point, the stream width is
divided into segments and an average
velocity is measured for each segment.
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The average velocity is determined by
either a single measurement taken at a
point located six-tenths of the distance
from the surface of the stream to the
bottom of the stream or an average of
two measurements taken at two-tenths
and eight-tenths of the distance from the
surface of the stream to the bottom of
the stream. The discharge rate of each
stream segment then is calculated based
on the cross-sectional area and the
average velocity. The sum of the
discharge rates for all stream segments
is the total streamflow at that point.
Subsidence resulting from longwall
mining can cause a loss of part or all of
the streamflow. Where the overburden
is sufficiently thick (>100 to 150
meters), streamflow may be diverted
into dilated fractures in the rocks
immediately underlying the stream.
This is especially true for sandstone
units which, when fractured, tend to
remain open, allowing significant
transmission of streamflow to
groundwater. Groundwater flow through
fractures behaves in a cubic-root
function in that doubling of the size of
a fracture aperture enables the fracture
to transmit approximately eight times
the original flow.463 The dilation of
fractures caused by subsidence resulting
from longwall mining can and
frequently does result in diversion of
surface streamflow into the groundwater
via these fractures. Where this happens,
the loss may be spatially limited; i.e.,
once the stream passes beyond the
impact footprint of the mine, the flow
generally returns to the surface at a level
expected at that point based on areanormalized flow criteria (e.g., liters per
minute per hectare drained).
Seepage-run determinations are
necessary to accurately determine the
impacts of longwall mining on
streamflow. Minor to moderate loss of
streamflow often is not noticeable by
visual observation. So, seepage run
determinations are needed to quantify
the impacts. Seepage run
determinations also are needed to
quantify streamflow should it return in
reaches that are beyond the impact of
mining.
Proposed paragraph (e) sets forth the
baseline information on the biological
condition of streams that the application
must include. The proposed
requirements are substantively identical
for both surface and underground
mining operations, with the exception
that applicants for underground mining
operations must submit the required
463 Witherspoon, P.A., J.S.K. Wang, K. Iwai, and
J.E. Gale, 1979. Validity of Cubic Law for Fluid
Flow in a Deformable Rock Fracture, Water
Resources Research, Vol. 16, No. 6, pp. 1016–1024.
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information for all perennial and
intermittent streams within the adjacent
area that might possibly be impacted by
subsidence resulting from the proposed
operation. As discussed in the preamble
to our proposed definition of material
damage to the hydrologic balance
outside the permit area in 30 CFR 701.5,
the regulatory authority may not
approve any proposed operation that is
predicted to cause subsidence that
would result in the dewatering of
perennial or intermittent streams or that
is predicted to result in other adverse
impacts that would cause the stream to
no longer be capable of supporting
existing or reasonably foreseeable uses
or that would preclude attainment of
designated uses under section 101(a) or
303(c) of the Clean Water Act.464
However, the regulatory authority still
would need the information that this
paragraph would require for both the
area overlying the proposed
underground workings and the area
within a reasonable angle of draw from
the perimeter of those workings to
determine whether the operation has
created material damage to the
hydrologic balance outside the permit
area as a result of unanticipated
subsidence. This information also
would provide a standard for
determining when any material damage
to the stream has been corrected under
30 CFR 817.121(a).
We propose to add paragraph (f)(1)(iv)
to the requirements for baseline geologic
information for proposed underground
mining operations. The new paragraph
would require a description of the
composition of the base of each
perennial and intermittent stream
within the proposed permit and
adjacent areas, together with a
prediction of how that base would be
affected by subsidence and how
subsidence of the streambed would
impact streamflow. This information
would be of value in preparation of the
PHC determination under proposed 30
CFR 784.20 and the CHIA under
proposed 30 CFR 784.21 and in
determining whether the proposed
operation may result in material damage
to the hydrologic balance outside the
permit area.
Proposed paragraph (h) establishes
conditions under which the regulatory
authority may grant an exception from
the requirement to provide baseline
information on the biological condition
of streams. It is substantively identical
to proposed 30 CFR 780.19(h)(2), except
that it includes a provision clarifying
that the exception is not available if the
proposed operation could cause
464 33
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subsidence resulting in changes in the
base flow of perennial or intermittent
streams or in pooling of those streams.
Unlike proposed 30 CFR 780.19(h),
proposed 30 CFR 784.19(h) does not
include an exception for proposed
operations for which the area from
which coal is to be extracted includes
only lands eligible for remining. The
purpose of this exception for surface
mining operations under proposed 30
CFR 780.19(h)(1) is to provide an
incentive to remine previously mined
areas by surface mining methods and
then reclaim the redisturbed acreage
with no expenditure of public funds.
However, underground mining
operations do not involve surface
mining, apart from preparation of the
face-up for the underground mine
entries. Therefore, underground mining
operations are unlikely to result in the
remining and reclamation of previously
mined areas to any significant extent.
Thus, an exception intended to promote
the remining and reclamation of
previously mined areas would serve
little purpose in rules that apply only to
underground mining operations.
4. Section 784.20: How must I prepare
the determination of the probable
hydrologic consequences of my
proposed operation (PHC
determination)?
Proposed section 784.20, which
appears at 30 CFR 784.14(e) in the
existing rules, is substantively identical
to the corresponding proposed rule
concerning surface mining at 30 CFR
780.20, with the exception of
paragraphs (a)(3), (a)(6), and (a)(7).
Proposed paragraph (a)(3), like the
existing rule at 30 CFR 784.14(e)(3)(iv),
includes provisions consistent with the
water replacement requirements of
section 720 of SMCRA 465 for
underground operations rather than the
water replacement requirements of
section 717(b) of SMCRA,466 which
apply only to surface mines. We
propose to add paragraph (a)(6) to
require that the PHC determination
include a finding on what impact
subsidence resulting from the proposed
operation may have on perennial and
intermittent streams. This finding is
critical to a determination of whether
the proposed operation would cause
material damage to the hydrologic
balance outside the permit area, as
required by 30 CFR 773.15(e) and
section 510(b)(3) of SMCRA.467
In addition, we propose to add
paragraph (a)(7), which would require
465 30
U.S.C. 1309a.
466 30 U.S.C. 1307(b).
467 30 U.S.C. 1260(b)(3).
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that the PHC determination include a
finding on whether the proposed
underground workings would flood
after mine closure and, if so, a statement
and explanation of the highest
anticipated potentiometric surface of the
mine pool after closure; whether, where,
and when the mine pool is likely to
result in a surface discharge; and the
predicted quality of any discharge from
the mine pool. The regulatory authority
would use this information, in
combination with models and
calculations of void space and adjacent
mine barrier seepage, to predict the
probability of a blowout, where and
when blowouts might occur, and the
likelihood that water discharged as a
result of the blowout will require
treatment to meet water quality
standards or any applicable effluent
limitations.
The biggest environmental threat from
an underground mine is the formation
of a post-closure point-source discharge
or baseflow discharge that is acidic in
character (and thus usually high in
metal concentrations) or that contains
high total dissolved solids, which result
in elevated electrical conductivity in
receiving streams. Either characteristic
can substantially degrade water quality
and the biological condition of streams.
Our proposed requirement that the PHC
determination include information and
a finding on mine pools should enable
the applicant to make a business
decision as to whether revenue from the
proposed operation would be sufficient
to justify the cost of preventing future
noncompliant discharges of a perpetual
nature. It also would enable the
regulatory authority to prepare a better
CHIA and require the applicant to take
discharge prevention measures or
change the mining plan to avoid
creating a post-closure discharge that
would cause material damage to the
hydrologic balance outside the permit
area in violation of section 510(b)(3) of
SMCRA.468
Proposed paragraph (a)(7) also would
require that the PHC determination
include a statement and explanation of
the predicted impact of the mine pool
on the hydrologic balance of the
proposed permit and adjacent areas after
the mine pool reaches equilibrium, the
potential for a mine pool blowout or
other hydrologic disturbances, the
potential for the mine pool to
destabilize surface features, and the
potential impact of roof collapses on
mine pool behavior and equilibrium.
Both the permit applicant and the
regulatory authority need this
information to determine whether any
468 30
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preventive or remedial measures are
necessary to address adverse impacts
related to mine pools.
5. Section 784.21: What requirements
apply to preparation and review of the
cumulative hydrologic impact
assessment (CHIA)?
Proposed 30 CFR 784.21 is
substantively identical to the CHIA
requirements for surface mine permits
in proposed 30 CFR 780.21, with one
exception: Our proposed CHIA
requirements for a permit for an
underground mine do not contain a
counterpart to the requirement in
proposed 30 CFR 780.21(b)(8)(iv) that
the regulatory authority find that the
proposed operation has been designed
to protect the quantity and quality of
water in any aquifer that significantly
ensures the prevailing hydrologic
balance. That provision does not apply
to underground mines because section
516(b)(9) of SMCRA,469 which is the
underground mining counterpart to
section 515(b)(10),470 does not include a
counterpart to section 515(b)(10)(D),
which requires restoration of the
recharge capacity of the mined area to
approximate premining conditions. As
Congress further recognized in adopting
section 720 of SMCRA,471 underground
mining operations will necessarily
dewater some aquifers. In those
situations, section 720 specifies what
actions the permittee must take to
replace water supplies protected under
that section of the law.
6. Section 784.22: What information
must I include in the hydrologic
reclamation plan and what information
must I provide on alternative water
resources?
Proposed 30 CFR 780.22(a) is
substantively identical to the
corresponding requirements for surface
mine permit applications in proposed
30 CFR 780.22(a), with one exception:
Our proposed hydrologic reclamation
plan requirements for a permit
application for an underground mine do
not contain a counterpart to the
requirement in proposed 30 CFR
780.22(a)(2)(ix) that the plan
demonstrate how the operation will
restore the approximate premining
recharge capacity. Not including a
counterpart to this provision in the
underground mining rules is consistent
with the difference between sections
515 and 516 of SMCRA,472 as discussed
above in the preamble to proposed 30
469 30
U.S.C. 1266(b)(9).
U.S.C. 1265(b)(10).
471 30 U.S.C. 1309a.
472 30 U.S.C. 1265 and 1266.
470 30
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CFR 784.21. Section 515(b)(10)(D) of
SMCRA 473 requires that surface coal
mining operations restore the recharge
capacity of the mined area to
approximate premining conditions.
However, this requirement does not
appear in the corresponding provision
for underground coal mining operations
in section 516(b)(9) of SMCRA.474
We also propose to add paragraph (b)
to require that an underground mining
permit application contain information
on alternative water sources. The
existing rules concerning underground
mining permit applications do not
include a similar provision. However,
the addition of this requirement would
enhance the ability of both the permittee
and the regulatory authority to ensure
that the water supply replacement
requirements of 30 CFR 817.40 and
section 720 of SMCRA 475 are properly
implemented. Proposed paragraph (b) is
substantively identical to the
corresponding proposed surface mining
requirement at 30 CFR 780.22(b), with
the exception that paragraph (b)(1) of
section 784.22 reflects the different
scope of water supply replacement
requirements for underground mining
operations, as specified in 30 CFR
817.40 and section 720 of SMCRA.476
7. Section 784.23: What information
must I include in my plans for the
monitoring of groundwater, surface
water, and the biological condition of
streams during and after mining?
Proposed 30 CFR 784.23 is
substantively identical to the
corresponding monitoring plan
requirements for surface mine permit
applications in proposed 30 CFR 780.23,
except as discussed below.
Proposed 30 CFR 784.23(a)(1)(iii) does
not include a requirement that the
groundwater monitoring plan provide
for monitoring wells to be placed in
backfilled portions of the permit area.
We did not include this requirement
because surface excavations associated
with underground mining operations
typically are small in size relative to
surface mines and do not involve
ongoing backfilling and grading
activities. Any changes in water quality
detected by wells placed in backfilled
areas would not be useful in planning
changes in future phases of the
operation, because there would be no
future phases. Instead, we propose to
require that the groundwater monitoring
plan include at least one monitoring
well to be located in the mine pool after
473 30
U.S.C. 1265(b)(10)(D).
U.S.C. 1266(b)(9).
475 30 U.S.C. 1309a.
476 Id.
474 30
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mine closure. This requirement would
allow both the permittee and the
regulatory authority to monitor changes
in mine pool elevation and to evaluate
the accuracy of the PHC determination’s
prediction of whether the mine pool
ultimately will rise to the level that a
surface discharge will result. This
information is important because water
quality in mine pools is often poor,477
which means that any surface discharge
would need to be treated, potentially in
perpetuity.
Proposed paragraphs (a)(1)(iii) and
(b)(1)(iv) would require that upgradient
and downgradient monitoring points for
groundwater and surface water be
located at a distance sufficiently close to
the underground mine workings to
detect changes as the mining operation
progresses. The plan must include a
schedule and map for moving these sites
as the underground workings advance.
Without this provision, the upgradient
and downgradient monitoring points
could be located so far away from the
active underground workings that they
would provide no meaningful data for
purposes of analyzing impacts of
current operations on groundwater or
surface water.
Proposed paragraph (d) establishes
conditions under which the regulatory
authority may grant an exception from
the requirement to monitor the
biological condition of streams. It is
substantively identical to proposed 30
CFR 780.23(d)(2), except that it includes
a provision clarifying that the exception
is not available if the proposed
operation could cause subsidence
resulting in changes in the base flow of
a perennial or an intermittent stream or
in pooling of a perennial or an
intermittent stream.
Unlike proposed 30 CFR 780.23(d) for
permit applications for surface mines,
proposed 30 CFR 784.23(d) does not
include an exception for proposed
underground mining operations for
which the area from which coal is to be
extracted includes only lands eligible
for remining. The purpose of this
exception for surface mining operations
under proposed 30 CFR 780.23(d)(1) is
to provide an incentive to remine
previously mined areas by surface
mining methods and then reclaim the
redisturbed acreage with no expenditure
of public funds. However, underground
mining operations do not involve
surface mining, apart from preparation
477 Donovan, J. J., B. Leavitt, E. Werner, E. Perry,
and K. McCoy, 2000, Long-term Hydrogeological
and Geochemical Response to Flooding of an
Abandoned Below-drainage Pittsburgh Coal Mine,
in the Proceedings of the Twenty-First West
Virginia Surface Mine Drainage Task Force
Symposium, Morgantown, WV, pp. 139–160.
PO 00000
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44527
of the face-up or mine entries, which
means that any redisturbance–and
hence reclamation—of previously
mined areas would be comparatively
minimal. Therefore, an exception
intended to promote the surface mining
and reclamation of previously mined
areas would serve no purpose in rules
that apply only to underground mining
operations.
8. Section 784.24: What requirements
apply to the postmining land use?
Proposed section 784.24 is
substantively identical to its proposed
surface mining counterpart in 30 CFR
780.24. Both proposed 30 CFR 780.24
and 784.24 would include a modified
version of the interpretive rules
concerning postmining land use
changes for underground mines at 30
CFR 784.200 and 817.200(d)(1), which
we propose to remove in concert with
this rule change. Please refer to the
preamble to proposed 30 CFR 780.24(c)
for a discussion of this proposed rule
change.
9. Why are we proposing to remove
existing 30 CFR 784.26?
We propose to remove existing 30
CFR 784.26 because the references to
fugitive dust and cross-references to 30
CFR 817.95 in the existing rule refer to
provisions that we removed in 1983 in
response to a court decision striking
down our authority to regulate air
pollution under SMCRA, except for air
pollution attendant to erosion. The
court held that ‘‘the legislative history
indicates that Congress only intended to
regulate air pollution related to
erosion’’ 478 and that ‘‘the Secretary’s
authority to regulate [air] pollution is
limited to activities related to
erosion.’’ 479 The court remanded former
30 CFR 816.95 and 817.95 (1979), which
contained performance standards for
fugitive dust control, for revision.
However, the court did not address the
parallel permitting requirements at 30
CFR 780.15 and 784.26.
The 1983 rulemaking removed all
requirements in 30 CFR 817.95 for
fugitive dust control practices,
including requirements for monitoring
of fugitive dust to determine compliance
with federal and state air quality
standards. That rulemaking also
changed the section heading of 30 CFR
817.95 from ‘‘Air resources protection’’
to ‘‘Stabilization of surface areas’’ and
replaced the air quality performance
standards formerly located in 30 CFR
817.95 with soil stabilization
478 PSMRL I, Round II, 1980 U.S. Dist. LEXIS
17660 at *43–44, 19 Env’t Rep. Cas. (BNA) 1477.
479 Id. at *42.
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requirements that contain no mention of
fugitive dust or air quality monitoring.
See 48 FR 1160–1163 (Jan. 10, 1983).
However, the 1983 rulemaking did
not remove the parallel permitting
requirements in 30 CFR 784.26. Instead,
we stated in the preamble to that
rulemaking that we agreed with a
commenter that we also needed to
amend the permit application rules at
30 CFR 780.15 and 784.26 for
consistency with the revisions to 30
CFR 816.95 and 817.95, and that we
would do so in a subsequent
independent rulemaking.480 Adoption
of this proposed rule would fulfill that
long-delayed commitment.
With respect to air pollution attendant
to erosion, proposed 30 CFR 784.12(f)
would add a permitting counterpart to
the existing performance standard at 30
CFR 817.95(a), which provides that all
exposed surface areas must be protected
and stabilized to effectively control
erosion and air pollution attendant to
erosion. We also propose to add crossreferences to the dust control
performance standards for roads in 30
CFR 817.150 and 817.151.
We also propose to redesignate
existing 30 CFR 784.25, which contains
requirements pertaining to the return of
coal processing waste to abandoned
underground mine workings, as new 30
CFR 784.26.
10. Section 784.26: What information
must I provide if I plan to return coal
processing waste to abandoned
underground workings?
We propose to redesignate existing 30
CFR 784.25 as 30 CFR 784.26. We
propose to revise redesignated 30 CFR
784.26 by replacing the word ‘‘backfill’’
and its variants with ‘‘backstow’’ or
equivalent terminology to avoid any
confusion with the process of
backfilling open pits or our proposed
definition of ‘‘backfill’’ in 30 CFR 701.5.
Proposed paragraph (b)(2) would add a
requirement for a description of all
chemicals used to process the coal, the
quantity of those chemicals remaining
in the coal processing waste, and the
likely impact of those chemicals on
groundwater and any persons, aquatic
life, or wildlife using or exposed to that
groundwater. We propose to revise
paragraph (c) to require that the
backstowing plan include plans for
monitoring the chemicals contained in
the coal processing waste and a
description of the anticipated effect on
biological communities. The regulatory
authority needs the information
described above to determine whether
the proposed backstowing operation
480 48
would cause material damage to the
hydrologic balance outside the permit
area in violation of section 510(b)(3) of
SMCRA.481
We propose to add paragraph (c)(6),
which would require that the
backstowing plan submitted to the
regulatory authority include the
measures to be taken to comply with the
underground mine discharge
requirements of 30 CFR 817.41, when
applicable. The inclusion of this
provision would serve as a reminder
that the permitting requirements of 30
CFR 784.26 are not the only regulations
that may apply to review of applications
of this nature.
We also propose to revise paragraph
(d) to clarify that the surface-water and
groundwater monitoring plans for the
proposed backstowing operation must
comply with the requirements of 30 CFR
784.23, which apply to all operations
subject to part 784.
Finally, we propose to revise
paragraph (e) to specify that the
regulatory authority may exempt
pneumatic backstowing operations from
compliance with these requirements if
the applicant demonstrates, and the
regulatory authority finds in writing,
that the proposed pneumatic
backstowing operation will not
adversely impact surface water,
groundwater, or water supplies. The
corresponding existing rule at 30 CFR
784.25(e) lacks any requirement for a
demonstration by the applicant and it
has no criteria for determining when the
regulatory authority may grant an
exception. Such an open-ended
provision is not consistent with the
environmental protection purposes and
provisions of SMCRA. We invite
comment on whether any of the
requirements of paragraphs (a) through
(d) should apply to all pneumatic
backstowing operations, either because
the regulatory authority needs that
information to decide whether to grant
an exemption or because those
requirements are needed to ensure that
the operation is conducted in an
environmentally sound manner.
We also invite comment on whether
we should adopt similar requirements
that would apply to backstowing of coal
processing waste in abandoned
underground mines when that activity
occurs in connection with either a
surface coal mine or a coal preparation
plant regulated under 30 CFR 785.21.
FR 1161 (Jan. 10, 1983).
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481 30
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12. Section 784.30: When must I prepare
a subsidence control plan and what
information must that plan include?
We propose to redesignate existing 30
CFR 784.20 as 30 CFR 784.30. Proposed
30 CFR 784.30 is substantively identical
to existing 30 CFR 784.20. However,
existing 30 CFR 784.20(a)(3) contains
language that we suspended on
December 22, 1999 (64 FR 71652–
71653), in response to a court order
vacating those provisions.482 We
propose to lift the suspension and then
remove the previously suspended
language. Specifically, we propose to
delete the language in existing 30 CFR
784.20(a)(3) that requires a presubsidence survey of the condition of all
noncommercial buildings or occupied
residential dwellings and related
structures that might be materially
damaged by subsidence, or have their
reasonably foreseeable value diminished
by subsidence, within the area
encompassed by the angle of draw.
Proposed 30 CFR 784.30(a)(3) would
retain the requirement in existing 30
CFR 784.20(a)(3) for a pre-subsidence
survey of the condition of the quantity
and quality of all drinking, domestic,
and residential water supplies within
the proposed permit area and the
adjacent area.
13. Section 784.35: What information
must I provide concerning the
minimization and disposal of excess
spoil?
Proposed 30 CFR 784.35 is
substantively identical to its proposed
surface mining counterpart at 30 CFR
780.35. Existing 30 CFR 784.19, which
is the current underground mining
counterpart to 30 CFR 780.35, contains
an ambiguous cross-reference to the
requirements of 30 CFR 780.35, ‘‘if
appropriate.’’ We propose to replace this
cross-reference with actual regulatory
text and thus eliminate the ambiguity.
482 Nat’l Mining Ass’n v. Babbitt, 173 F.3d 906
(D.C. Cir. 1999).
U.S.C. 1260(b)(3).
Frm 00094
11. Section 784.28: What additional
requirements apply to proposed surface
activities in, through, or adjacent to
streams?
Proposed 30 CFR 784.28 is
substantively identical to its surface
mining counterpart at proposed 30 CFR
780.28, except that proposed 30 CFR
784.28 includes language clarifying that
it applies to activities conducted on the
land surface. Like existing 30 CFR
784.28, proposed 30 CFR 784.28 would
not apply to activities conducted
underground or to surface impacts
resulting from subsidence caused by
underground workings.
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Proposed 30 CFR 784.35 also contains
revisions to provide consistency 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.
The design requirements for fills in
existing 30 CFR 784.19 apply to both
underground development waste and
excess spoil, which means that those
permitting requirements are
inconsistent with the 1983 changes to
the corresponding performance
standards. Proposed 30 CFR 784.35
would 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
propose to remove all references to
underground development waste in
existing 30 CFR 784.19 and to revise the
section heading accordingly in concert
with our proposed redesignation of
existing 30 CFR 784.19 as 30 CFR
784.35. Under proposed 30 CFR 784.35,
the permitting requirements for refuse
piles in proposed 30 CFR 784.25, not
the excess spoil requirements of
proposed 30 CFR 784.35, would govern
the disposal of underground
development waste.
Proposed 30 CFR 784.35 parallels
proposed 30 CFR 780.35, which
contains the permit application
requirements for the disposal of excess
spoil generated by surface mining
activities. As noted above, the existing
rule at 30 CFR 784.19 includes those
requirements by cross-reference in a
somewhat ambiguous fashion. Adding
specific language in place of the crossreference to 30 CFR 780.35 in the
existing rule would be consistent with
the pattern established in most of our
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other rules for surface and underground
mines, in which separately codified
provisions for surface and underground
mines 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 30 CFR
780.35 will allow the inclusion of crossreferences to the appropriate
underground mining performance
standards in part 817 rather than having
to use the cross-references in 30 CFR
780.35 to the surface mining
performance standards in part 816.
14. Why are we proposing to remove
existing 30 CFR 784.200?
Existing 30 CFR 784.200 contains
only one interpretive rule, which
addresses the use of the permit revision
process for postmining land use changes
for underground mines. We propose to
include this interpretive rule in 30 CFR
784.24 in revised form to the extent that
it contains unique provisions not
already present in other regulations.
Specifically, proposed 30 CFR 784.24(c)
would require that any proposed change
to a higher or better postmining land use
must be processed as a significant
permit revision. Please refer to the
preamble to proposed 30 CFR 780.24(c)
for a discussion of this proposed rule
change. We will remove 30 CFR 784.200
if we adopt proposed 30 CFR 784.24(c).
J. Part 785: Requirements for Permits for
Special Categories of Mining
1. Section 785.14: What special
provisions apply to proposed
mountaintop removal mining
operations?
We propose to revise and reorganize
30 CFR 785.14 in accordance with plain
language principles. However, we will
not discuss those changes here because
they are nonsubstantive in nature.
With regard to substantive changes,
we propose to move existing paragraph
(b) to 30 CFR 701.5 as part of our
proposed definition of mountaintop
removal mining. In proposed paragraph
(b)(1), which corresponds to existing
paragraph (c)(1), we propose to replace
‘‘land to be affected’’ with ‘‘land to be
disturbed’’ to be consistent with the
definitions of ‘‘affected area’’ and
‘‘disturbed area’’ in 30 CFR 701.5. This
change also would reflect the fact that
only lands to be disturbed by the mining
operation would have a proposed
postmining land use.
We propose to remove existing 30
CFR 785.14(c)(3), which provides that
the requirements of 30 CFR part 824
must be made a specific condition of the
permit. This provision is redundant and
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44529
unnecessary because the performance
standards of 30 CFR part 824 are
independently enforceable. Making
those performance standards a specific
condition of the permit condition adds
nothing of value. Furthermore, nothing
in SMCRA requires this permit
condition. Proposed 30 CFR
785.14(b)(8), like existing 30 CFR
785.14(c)(2), would continue to require
that the applicant demonstrate, and the
regulatory authority find, that the
proposed operation has been designed
to comply with the requirements of 30
CFR part 824.
Proposed paragraph (b)(9) would
replace existing 30 CFR 824.11(a)(9),
which prohibits damage to natural
watercourses below the lowest coal
seam to be mined. We propose to delete
the clause limiting the scope of that
prohibition to watercourses below the
lowest coal seam to be mined because
that clause does not appear in the
underlying statutory provision. Instead,
section 515(c)(4)(D) of SMCRA 483
provides that ‘‘no damage will be done
to natural watercourses.’’ However,
SMCRA does not define either
‘‘damage’’ or ‘‘natural watercourses.’’
Proposed paragraph (b)(9) would
specify that we will consider no damage
to have occurred to other natural
watercourses if the applicant
demonstrates and the regulatory
authority finds in writing that all the
following conditions exist:
• The proposed operation will not
increase the amount or concentration of
parameters of concern in discharges to
groundwater and surface water from the
proposed permit area, when compared
to the discharges that would occur if the
operation were designed to adhere to
approximate original contour restoration
requirements.
• The proposed operation will not
result in changes in the size or
frequency of peak flows from the
proposed permit area that would cause
an increase in damage from flooding,
when compared to the impacts that
would occur if the operation were
designed to adhere to approximate
original contour restoration
requirements.
• The total volume of flow from the
proposed permit area, during every
season of the year, will not vary in a
way that would adversely affect any
existing or reasonably foreseeable use of
surface water or groundwater or any
designated use of surface water under
section 101(a) or 303(c) of the Clean
Water Act.484
483 30
484 33
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U.S.C. 1251(a) and 1313(c), respectively.
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These requirements are intended to
ensure that the proposed operation is
designed to prevent material damage to
the hydrologic balance outside the
permit area, as required by 30 CFR
773.15(e) and section 510(b)(3) of
SMCRA,485 and as we propose to define
that term in 30 CFR 701.5.
We invite comment on whether we
can or should instead adopt a rule that
would allow the approval of
mountaintop removal mining operations
that would damage natural watercourses
within the permit area if the applicant
can demonstrate that the damage will be
fully offset by implementation of the
fish and wildlife enhancement measures
proposed under 30 CFR 780.16.
Under proposed paragraph (b)(10), the
revegetation plan proposed under 30
CFR 780.12(g) for the operation would
have to require that those portions of the
proposed permit area that are forested at
the time of application or that would
revert to forest under conditions of
natural succession be revegetated using
native tree and understory species to the
extent that this requirement is not
inconsistent with attainment of the
proposed postmining land use. Addition
of this requirement would improve
implementation of the revegetation
requirements of section 515(b)(19) of
SMCRA.486 It also would be consistent
with section 515(b)(24) of SMCRA,487
which provides that, to the extent
possible, surface coal mining and
reclamation operations must minimize
disturbances to and adverse impacts on
fish, wildlife, and related environmental
values and enhance those resources
where practicable, using the best
technology currently available.
Proposed paragraph (b)(11) would
require that the bond posted for the
permit under part 800 of this chapter
include an amount equal to the cost of
regrading the site to its approximate
original contour and revegetating the
regraded land in the event that the
approved postmining land use is not
implemented before expiration of the
revegetation responsibility period under
§ 816.115. As an alternative to requiring
posting of this bond amount at the time
of permit issuance, we are considering
adopting a rule that would prohibit
release of any bond amount for the
entire permit until the approved
postmining land use has been
implemented. We invite comment on
which alternative would be more
effective in preventing abuse of this
exception from the AOC restoration
requirements of SMCRA.
485 30
U.S.C. 1260(b)(3).
486 30 U.S.C. 1265(b)(19).
487 30 U.S.C. 1265(b)(24).
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Proposed paragraph (b)(13) would
require that the permit clearly identify
the acreage and location of mountaintop
removal mining areas. Many permits
include several types of mining, so the
permittee, the regulatory authority, and
other interested persons need this
information to determine which
portions of the permit area are subject
to the mountaintop removal mining
provisions.
Finally, in proposed paragraph (c), we
propose to replace the permit review
requirements of existing paragraphs
(d)(1) and (2) with a cross-reference to
the permit review requirements of
proposed 30 CFR 774.10(a)(2). Existing
paragraph (d)(1) requires a permit
review within the sixth month
preceding the third year from the date
of permit issuance, before each permit
renewal, and not later than the middle
of each permit term. Proposed 30 CFR
774.10(a)(2) would replace both this
provision and a corresponding
provision in existing 30 CFR
774.10(a)(3) with language that is
consistent with the underlying statutory
provision in section 515(c)(6) of
SMCRA,488 which requires that permits
of this type be reviewed not more than
3 years from the date of permit issuance,
unless the permittee affirmatively
demonstrates that the proposed
development is proceeding in
accordance with the terms of the
approved schedule and reclamation
plan. This review is a one-time
requirement, not a recurring event.
2. Section 785.16: What special
requirements apply to proposed
variances from approximate original
contour restoration requirements for
steep-slope mining?
Proposed Paragraph (a): Application and
Approval Requirements
We propose to revise 30 CFR
785.16(a) to clarify that a variance
approved under this section may apply
to only a portion of the permit area
rather than to the entire permit area.
This change would emphasize that a
variance should be limited to the
smallest area necessary to accommodate
the proposed postmining land use for
which the variance is granted.
We propose to include the criteria in
existing 30 CFR 816.133(d) and
817.133(d) for approval of a variance
from approximate original contour
requirements in 30 CFR 785.16 because
those variances may be granted only for
steep-slope mining operations.
Consolidation of all steep-slope variance
provisions into 30 CFR 785.16 would
488 30
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make our regulations easier to
understand and more user-friendly.
Proposed paragraph (a)(8) would
allow approval of a variance only if the
variance will not result in the
construction of a fill in a perennial or
an intermittent stream. Sacrificing
perennial or intermittent stream
segments for the purpose of creating a
different postmining land use is neither
appropriate nor warranted in view of
paragraphs (a) and (d) of section 102 of
SMCRA.489 Those paragraphs provide
that two of the purposes of SMCRA are
to establish a nationwide program to
protect society and the environment
from the adverse effects of surface coal
mining operations and to assure that
those operations are conducted in a
manner that protects the environment.
Proposed paragraph (a)(8) is
consistent with section 515(b)(23) of
SMCRA,490 which requires that surface
coal mining and reclamation operations
‘‘meet such other criteria as are
necessary to achieve reclamation in
accordance with the purposes of this
Act, taking into consideration the
physical, climatological, and other
characteristics of the site.’’ Addition of
this provision also would be consistent
with sections 515(b)(24) and 516(b)(11)
of SMCRA,491 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.
Proposed paragraph (a)(9) would
revise the criteria in existing 30 CFR
785.16(a)(3) for determining when the
watershed of the proposed permit area
and the adjacent area will be deemed
improved by the proposed operation.
The proposed revisions, which we
summarize and discuss below, would
promote environmental protection in
keeping with the purposes of SMCRA in
paragraphs (a), (d), and (f) of section 102
of the Act.492 They also would be
consistent with our proposed definition
of ‘‘material damage to the hydrologic
balance outside the permit area’’ in 30
CFR 701.5.
Proposed paragraph (a)(9)(i) would
require a demonstration that the
proposed operation would reduce the
amount or concentration of total
suspended solids or other parameters of
concern in discharges to groundwater or
surface water. The proposed rule
corresponds to the first part of existing
489 30
U.S.C. 1202(a) and (d).
U.S.C. 1265(b)(23).
491 30 U.S.C. 1265(b)(24) and 1266(b)(11).
492 30 U.S.C. 1202(a), (d), and (f).
490 30
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30 CFR 785.16(a)(3)(i), which does not
mention concentration. We propose to
add a reference to concentration because
the concentration of parameters of
concern in discharges may be more
ecologically important than actual
amounts under certain conditions. In
addition, the existing rule refers to
pollutants rather than parameters of
concern. We propose to replace
‘‘pollutants’’ with ‘‘parameters of
concern’’ because the latter term
potentially encompasses a broader range
of ecologically important discharge
characteristics than would the term
‘‘pollutants.’’ We also propose to delete
the somewhat ambiguous language in
the existing rule that refers to
improvement of public or private uses
or the ecology of the water. The
language proposed for deletion is not
necessary because the critical factor is
whether the proposed operation would
reduce the amount or concentration of
parameters of concern.
We propose to revise paragraph
(a)(9)(ii), which corresponds to the last
part of existing 30 CFR 785.16(a)(3)(i),
by adding a reference to the ‘‘size or
frequency’’ of peak-flow discharges.
Both size and frequency factor into
damage from floods, so the applicant
and the regulatory authority should
consider both factors.
Proposed paragraph (a)(9)(iv) would
add a requirement for a demonstration
that the proposed operation would
result in a lesser adverse impact on the
aquatic ecology of the cumulative
impact area than would occur if the area
were to be mined and restored to its
approximate original contour.
Proposed paragraph (a)(9)(v) would
add a requirement for a demonstration
that the proposed operation would
result in less impact on perennial and
intermittent streams than would occur if
the land were to be mined and restored
to its approximate original contour. The
proposed rule would allow the
regulatory authority to consider fish and
wildlife enhancement measures
approved under proposed 30 CFR
780.16 and 784.16 in making this
determination. However, fish and
wildlife enhancement measures
approved under proposed 30 CFR
780.16 and 784.16 may not be used to
avoid the prohibition on excess spoil
fills in proposed paragraph (a)(8).
Proposed paragraphs (a)(10)(i) and (ii)
contain the same surface owner consent
provisions as existing 30 CFR
785.16(a)(4). We propose to add
paragraph (a)(10)(iii), which would
specify that the surface owner has not
and will not receive any monetary
compensation, item of value, or other
consideration in exchange for requesting
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the variance. Proposed paragraph
(a)(10)(iii) is consistent with section
102(b) of SMCRA,493 which provides
that one of the purposes of the Act is to
assure that the rights of surface
landowners are fully protected from
surface coal mining operations. It also is
consistent with section 102(a) of
SMCRA,494 which seeks to ‘‘protect
society and the environment from the
adverse effects of surface mining,’’ by
ensuring that variances are requested
because they are necessary and
appropriate to achieve the approved
postmining land use and not due to
coercion, deception, or monetary
compensation.
Proposed paragraph (a)(11) would
require a demonstration that the
proposed deviations from the premining
surface configuration are necessary and
appropriate to achieve the approved
postmining land use. The intent of this
provision is to ensure that variances are
granted only for the area necessary to
accommodate legitimate postmining
land use needs.
Proposed paragraph (a)(12) would
require the use of native tree and
understory species to revegetate all
portions of the permit area that are
forested at the time of the application or
that would revert to forest under
conditions of natural succession. This
requirement would not apply to
permanent impoundments, roads and
other impervious surfaces to be retained
following the completion of mining and
reclamation. It also would not apply to
those portions of the permit area
covered by the variance if compliance
with this requirement would be
inconsistent with the attainment of the
postmining land use. The intent of this
provision is to encourage reforestation
of reclaimed lands, where appropriate,
and to minimize adverse impacts on
fish, wildlife, and related environmental
values, as required by sections
515(b)(24) and 516(b)(11) of SMCRA.495
Proposed paragraph (a)(13) would
require that the performance bond
posted for the permit include an amount
equal to the cost of regrading the site to
its approximate original contour and
revegetating the regraded land in the
event that the approved postmining
land use is not implemented before
expiration of the revegetation
responsibility period under 30 CFR
816.115 or 817.115. The intent of this
proposed provision is to ensure that
variances are granted only for legitimate
immediate postmining land use needs.
If the postmining land use is not
PO 00000
U.S.C. 1202(b).
U.S.C. 1202(a).
495 30 U.S.C. 1265(b)(24) and 1266(b)(11).
implemented before expiration of the
revegetation responsibility period, the
proposed rule would require that the
regulatory authority order the permittee
to restore the variance area to
approximate original contour and plant
it with the vegetation that would have
been required had no variance been
granted. The bond that this proposed
paragraph would require would ensure
that the regulatory authority has
sufficient funds to complete the
reclamation in the event that the
permittee fails to do so.
As an alternative to requiring posting
of this bond amount at the time of
permit issuance, we are considering
adopting a rule that would prohibit
release of any bond amount for the
entire permit area until the postmining
land use for which the variance was
granted has been implemented. We
invite comment on which alternative
would be more effective in preventing
abuse of this exception from the AOC
restoration requirements of SMCRA.
Proposed Paragraph (b): Regulatory
Authority Responsibilities
We propose to remove existing
paragraph (b)(1), which provides that
the requirements of 30 CFR 816.133(d)
or 817.133(d) must be included as a
specific permit condition. There is no
counterpart in SMCRA for this
provision. Performance standards are
just as enforceable as permit conditions,
so there is no reason why these
particular performance standards
should be made a permit condition.
Proposed paragraph (b)(2) would
replace the permit review requirements
of existing paragraphs (c) and (d) with
a cross-reference to the corresponding
permit review requirements of 30 CFR
774.10(a), which we propose to revise to
be consistent with the underlying
statutory provisions in section 515(e)(6)
of SMCRA.496
Proposed paragraphs (b)(3) and (4)
would include existing paragraphs (e)
and (f), respectively, in substantively
identical form.
Proposed paragraph (b)(5) would
require that, before approving a steepslope variance from approximate
original contour, the regulatory
authority find and document in writing
that the surface-owner consent
requirements of proposed paragraph
(a)(10) have been met. Proposed
paragraph (b)(5) is consistent with
section 102(b) of SMCRA,497 which
provides that one of the purposes of the
Act is to assure that the rights of surface
landowners are fully protected from
493 30
494 30
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496 30
497 30
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U.S.C. 1265(e)(6).
U.S.C. 1202(b).
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surface coal mining operations. It also is
consistent with section 102(a) of
SMCRA,498 which seeks to ‘‘protect
society and the environment from the
adverse effects of surface mining,’’ by
ensuring that variances are requested
because they are necessary and
appropriate to achieve the approved
postmining land use and not due to
coercion, deception, or monetary
compensation.
3. Section 785.25: What special
provisions apply to proposed operations
on lands eligible for remining?
We propose to revise 30 CFR 785.25
to improve clarity and to specify that
the potential environmental and safety
problems that could reasonably be
anticipated to occur must be the result
of prior mining activities within the
proposed permit area. In addition, we
propose to specify that the identification
of these anticipated problems may be
based upon, among other things, a
record review of operations near the site
and any relevant available information,
including data from prior mining
activities and remining operations on
similar sites.
Finally, we propose to delete the term
‘‘mitigative’’ when referring to the
measures that will be taken to ensure
that reclamation requirements will be
met. Mitigation refers to measures to be
taken to compensate for the inability to
meet reclamation requirements. Hence,
the term is not appropriate in the
context in which it is used in existing
30 CFR 785.25.
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K. Part 800: Bond, Financial Assurance,
and Liability Insurance Requirements
for Surface Coal Mining and
Reclamation Operations.
We propose to revise part 800 by
adding provisions for the use of
financial assurances to guarantee
treatment of long-term discharges,
modifying the provisions governing
alternative bonding systems, and adding
more specific criteria and procedures to
the provisions governing bond release.
In the latter case, we propose to split
existing 30 CFR 800.40 into five
separate sections (30 CFR 800.40
through 800.44) that address various
aspects of the bond release process in
greater detail. We also propose to adopt
other changes and clarifications, which
we discuss below on a section-bysection basis. In addition, for the
reasons explained in Part VIII of this
preamble, we propose to revise elements
of part 800 in accordance with plain
language principles.
498 30
U.S.C. 1202(a).
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1. How do we propose to guarantee
treatment of long-term discharges?
We propose to add 30 CFR 800.18 and
revise other sections of part 800 as
appropriate to require that permittees
post suitable financial instruments
(known as ‘‘financial assurances’’) to
guarantee that sufficient funds will be
available for the treatment of long-term
or perpetual discharges for which a
surface or underground coal mine or
other facility regulated under SMCRA is
responsible. We also propose to add a
definition of financial assurance in 30
CFR 800.5 and include necessary and
appropriate references to, and
provisions for, financial assurances in
proposed 30 CFR 800.1, 800.4, 800.13,
800.15, 800.30, and 800.42.
Under 30 CFR 773.15(e) and section
510(b)(3) of SMCRA,499 the regulatory
authority may not issue a permit unless
the application demonstrates, and the
regulatory authority finds, that the
proposed operation has been designed
to prevent material damage to the
hydrologic balance outside the permit
area. In addition, under 30 CFR
773.15(b) and section 510(b)(2) of
SMCRA,500 the regulatory authority may
not issue a permit unless the application
demonstrates, and the regulatory
authority finds, that reclamation as
required by the Act and the applicable
regulatory program can be accomplished
under the reclamation plan approved in
the permit. Further, the policy entitled
‘‘Hydrologic Balance Protection: Policy
Goals and Objectives on Correcting,
Preventing, and Controlling Acid/Toxic
Mine Drainage’’ 501 that we issued on
March 31, 1997, states, ‘‘[i]n no case
should a permit be approved if the
determination of probable hydrologic
consequences or other reliable
hydrologic analysis predicts the
formation of a postmining pollutional
discharge that would require continuing
long-term treatment without a defined
endpoint.’’ 502
Improved permitting practices and
advances in predictive techniques have
almost eliminated acid mine drainage
with respect to surface mining permits
issued in the last three decades. For
example, in Pennsylvania, a state in
which acid mine drainage has
historically been a widespread and
significant problem, a 1999 study 503
U.S.C. 1260(b)(3).
U.S.C. 1260(b)(2).
501 See www.osmre.gov/lrg/docs/
amdpolicy033197.pdf (last accessed August 6,
2014).
502 Id., p. 5.
503 Pennsylvania Department of Environmental
Protection, ‘‘Evaluation of Mining Permits Resulting
in Acid Mine Drainage 1987–1996: A Post Mortem
Study’’ (March 1999).
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499 30
500 30
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found that only 17 (one percent) of the
1,699 surface mining permits issued in
Pennsylvania between1987 and1996
had long-term postmining discharges
that required treatment. In contrast,
long-term postmining discharges that
required treatment developed on an
average of 17 percent of permits issued
between1977 and 1983 before the
introduction of a science-based permit
review program in 1984.
However, legacy discharges from
older mines remain a concern, as do
potential discharges from underground
mines after closure. Long-term
discharges vary in quality and rate of
attenuation. According to one study and
literature review, ‘‘surface mines and
below-drainage underground mines
improve in discharge quality relatively
rapidly (20–40 years), [but] abovedrainage underground mines are not as
easily predicted.’’ 504 The researchers
examined discharges from 44
underground mines in the Pittsburgh
and Upper Freeport coal seams in 1968
and again in 1999–2000. During the
intervening 30+ years, there were no
significant changes in pH, but iron
decreased an average of 80 percent,
sulfate decreased between 50 percent
and 75 percent on average, and total
acidity decreased between 56 percent
and 79 percent on average.505 While 34
of the 44 mines showed significant
improvement in total acidity, 10 showed
no change, and 3 became much
worse.506 This variability supports our
proposal to require that financial
assurances for long-term discharges be
calculated using a worst-case scenario
(treatment in perpetuity) to ensure that
sufficient funds will be available for
treatment at all times. In addition, there
are few studies evaluating the length of
time treatment may be needed for other
parameters of concern.
Section 509(e) of SMCRA 507 requires
that the regulatory authority adjust the
amount of bond or deposit required and
the terms of acceptance of the bond
‘‘where the cost of future reclamation
changes.’’ This requirement applies
whenever an unanticipated discharge
requiring long-term treatment develops.
However, conventional bond
instruments (surety bonds, collateral
bonds, and self-bonds) are not optimal
for this purpose because, under
conditions of forfeiture, they provide a
one-time lump sum payout rather than
the income stream needed to fund
504 Demchak, J.; J. Skousen; and L. M. McDonald.
Longevity of Acid Discharges from Underground
Mines Located above the Regional Water Table, J.
Environ. Qual. 33:656–668 (2004), p. 656.
505 Id.
506 Id.
507 30 U.S.C. 1259(e).
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treatment of long-term discharges.
Surety bonds and self-bonds are
especially ill-suited for this purpose
because (1) the need for discharge
treatment may outlast the surety or the
permittee and (2) neither a surety bond
nor a self-bond requires that funds or
other assets be physically placed with
the regulatory authority or in an account
dedicated solely to the regulatory
authority, which means that funds
would not necessarily be available to
continue treatment if the surety and the
permittee go out of business before the
need for treatment ends. Furthermore,
surety companies normally do not
underwrite a bond when there is no
expectation of release of liability, as
would be the case with almost all longterm discharges because there is no
reliable prospect of fully abating the
source of the discharge.
Section 509(c) of SMCRA 508 provides
that ‘‘the Secretary may approve as part
of a State or Federal program an
alternative system that will achieve the
objectives and purposes of the bonding
program pursuant to this section.’’ This
provision affords statutory authority for
our proposal in 30 CFR 800.18 to allow
the use of financial assurances in place
of conventional bonds when a
continuing income stream is needed to
meet ongoing treatment requirements
for long-term discharges. Existing 30
CFR 800.11(e), which we propose to
redesignate as 30 CFR 800.9, provides
that, to meet the objectives and
purposes of the bonding program, the
alternative system (1) ‘‘must assure that
the regulatory authority will have
available sufficient money to complete
the reclamation plan for any areas
which may be in default at any time;’’
and (2) ‘‘must provide a substantial
economic incentive for the permittee to
comply with all reclamation
provisions.’’ Establishment of a
financial assurance in the form of a trust
fund or annuity would satisfy the first
criterion, while the permittee’s
provision of the moneys needed to
establish the trust fund or annuity and
the express terms of the trust would
satisfy the second criterion.
We relied upon this statutory
authority to adopt similar financial
assurance provisions at 30 CFR 942.800
as part of the Tennessee federal
regulatory program.509 As we did in the
Tennessee rulemaking, we propose to
elaborate upon and incorporate into
regulation pertinent elements of the
policy entitled ‘‘Hydrologic Balance
Protection: Policy Goals and Objectives
on Correcting, Preventing, and
508 30
509 72
U.S.C. 1259(c).
FR 9616 (Mar. 2, 2007).
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Controlling Acid/Toxic Mine
Drainage’’ 510 that we adopted on March
31, 1997. Specifically, Objective 2 under
the ‘‘Environmental Protection’’ policy
goal includes the following strategies:
Strategy 2.2—If, subsequent to permit
issuance, monitoring identifies acid- or toxicforming conditions which were not
anticipated in the mining and operation plan,
the regulatory authority should require the
operator to adjust the financial assurance.
Strategy 2.3—Where inspections
conducted in response to bond release
requests identify surface or subsurface water
pollution, bond in an amount adequate to
abate the pollution should be held as long as
water treatment is required, unless a
financial guarantee or some other enforceable
contract or mechanism to ensure continued
treatment exists.511
The policy acknowledges that ‘‘the
required financial assurance may take a
form other than those associated with a
traditional performance bond.’’ 512 In
2002, we published an advance notice
of proposed rulemaking entitled
‘‘Bonding and Other Financial
Assurance Mechanisms for Treatment of
Long-Term Pollutional Discharges and
Acid/Toxic Mine Drainage (AMD)
Related Issues.’’ See 67 FR 35070 (May
17, 2002). In that notice, we sought
comments on, among other things, the
form and amount of financial assurance
that should be required to guarantee
treatment of postmining discharges.
Commenters disagreed as to whether
financial assurance should be required,
but they largely agreed that, if it was,
surety bonds are not the best means—
or even an appropriate means—of
accomplishing that purpose because a
surety bond is not designed to provide
the income stream needed to fund
ongoing treatment.
We provided the following
explanation of the statutory basis for the
requirement that permittees post
financial guarantees for treatment of
long-term discharges.
Section 509(a) of the Act requires that each
permittee post a performance bond
conditioned upon faithful performance of all
the requirements of the Act and the permit.
Paragraph (b) of this Section of the Act
specifies that ‘‘[t]he amount of the bond shall
be sufficient to assure the completion of the
reclamation plan if the work had to be
performed by the regulatory authority in the
event of forfeiture.’’ The hydrologic
reclamation plan is part of the reclamation
plan to which this section refers. Section
519(c) of SMCRA authorizes release of this
bond only when the regulatory authority is
satisfied that the reclamation required by the
510 See www.osmre.gov/lrg/docs/
amdpolicy033197.pdf (last accessed August 6,
2014).
511 Id., p. 6.
512 Id., p. 15 (response to comment 16).
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bond has been accomplished, and paragraph
(c)(3) specifies that ‘‘no bond shall be fully
released until all reclamation requirements of
this Act are fully met.’’ Furthermore, section
519(b) of the Act provides that whenever a
bond release is requested, the regulatory
authority must conduct an inspection to
evaluate the reclamation work performed,
including ‘‘whether pollution of surface or
subsurface water is occurring, the probability
of continuance of future occurrence of such
pollution, and the estimated cost of abating
such pollution.’’ Therefore, there is no doubt
that, under SMCRA, the permittee must
provide a financial guarantee to cover
treatment of postmining discharges when
such discharges develop and require
treatment.513
The financial assurance elements of
this proposed rule rely upon the same
rationale. In addition, our financial
assurance requirements in proposed 30
CFR 800.18 derive support from the
following discussion in a Federal
district court decision affirming our
disapproval of a West Virginia
regulatory program amendment that
would have authorized final bond
release upon installation of a passive
treatment system for long-term
discharges:
SMCRA and its accompanying regulations
comprise an intricate and complicated
scheme, which contains a wealth of
Congressional policies and purposes. See,
e.g., 30 U.S.C. 1201, 1202. Further, the
overriding policies of SMCRA, minimization
of environmental damage and maximization
of coal production, necessarily are in tension
with each other. It is within this delicate
framework that OSM regulates.
*
*
*
*
*
The balance in the Director’s approach,
consistent with congressional direction, is
readily ascertainable. The Director begins
with the proposition that complete
prevention of AMD [acid mine drainage]
during mining and reclamation may not be
possible and the associated environmental
burden, with treatment, is judged tolerable
resulting in a permit being issued. At this
interim juncture, then, environmental
considerations give way to the goal of
maximizing coal production for the nation’s
energy requirements. Once an operator
decides to close up shop and leave, however,
it then would be inconsistent to allow the
treatment guarantee to lapse, potentially
saddling the taxpayers and adjoining
landowners with a perpetual financial and
environmental problem that should have
been internalized by the operator. At this
final stage, environmental considerations and
cost internalization assume ultimate priority
over the goal of maximization of production
to require the total abatement of AMD.
The Director has thus struck a reasonable
balance in the face of Congressional
ambiguity and difficult, conflicting policy
considerations. Given satisfaction of the
513 Id.,
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Chevron inquiry, the Court is bound to defer
to that interpretation.514
The court noted that ‘‘a bedrock
principle of SMCRA is the obligation of
the mine operator to bear the costs
associated with surface mining, from the
permitting of a mining operation
through to the conclusion of the
reclamation process.’’ 515 In a footnote,
the court observed that—
Even were treatment acceptable for bond
release, the lingering difficulty with the
proposed amendment is its hands-off
approach to passive treatment. An operator
conceivably could erect a passive treatment
system, gain release and the system could
later fail, leaving the taxpayers and adjoining
landowners with a burden contrary to the
policy of cost internalization. Such a burden
could not have been intended by Congress.516
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Proposed 30 CFR 800.18 seeks to
avoid precisely this burden and result.
Finally, finding 1.b.(2) in the
preamble to the document announcing
our decision on another West Virginia
program amendment provision contains
the following rationale for requiring that
permittees post performance bonds
adequate to guarantee ongoing treatment
of discharges:
For conventional bonds, 30 CFR 800.14(b)
provides that ‘‘the amount of the bond shall
be sufficient to assure the completion of the
reclamation plan if the work had to be
performed by the regulatory authority in the
event of forfeiture.’’ Under 30 CFR
780.18(b)(9), 780.21(h), 784.13(b)(9), and
784.14(g), the reclamation plan must include
the steps to be taken to comply with all
applicable effluent limitations and State and
Federal water quality laws and regulations.
These steps include treatment. Therefore,
when the mining and reclamation plan
indicates that treatment will be needed on a
temporary basis during mining and the early
stages of reclamation, the bond must be
calculated to include an amount adequate to
provide for continued temporary treatment in
the event forfeiture occurs within the
timeframe during which treatment is needed.
Also, under 30 CFR 800.15(a), the regulatory
authority is required to adjust the amount
and terms of a conventional bond whenever
the cost of future reclamation changes.
Therefore, if an unanticipated treatment need
arises, the regulatory authority has an
obligation to order an increase in the
minimum bond required for the site. This
amount must be adequate to cover all
foreseeable treatment costs. This
interpretation is consistent with the preamble
to 30 CFR 800.17, which under the heading
‘‘Section 800.17(c)’’ states that:
‘‘Performance bonding continues to be
required at § 800.17(a) for surface
disturbances incident to underground mining
514 West Virginia Mining and Reclamation Ass’n
et al. v. Babbitt, 970 F. Supp. 506, 517, 518 (S.D.
W.Va. 1997).
515 Id. at 512 (citing Cat Run Coal Co. v. Babbitt,
932 F.Supp. 772, 780–81 (S.D.W.V 1996)).
516 Id. at 517, n. 12.
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to ensure that the reclamation plan is
completed for those areas. Completion of the
reclamation plan as it relates to mine
drainage and protection of the hydrologic
balance would continue to be covered by the
bond with respect to requirements included
in § 784.14. 48 FR 32948, July 19, 1983.’’
Sections 780.21(h) and 784.14(g) require a
hydrologic reclamation plan showing how
surface and underground mining operations
will comply with applicable State and
Federal water quality laws and regulations.
Furthermore, section 519(b) of SMCRA
requires the regulatory authority, when
evaluating bond release requests, to consider
whether pollution of surface and ground
water is occurring, the probability of any
continuing pollution, and the estimated cost
of abating such pollution. Section 519(c)(3) of
SMCRA and the implementing regulations at
30 CFR 800.40(c)(3) provide that no bond
shall be fully released until all the
reclamation requirements of the Act, the
regulatory program, and the permit have been
met. These requirements include abatement
of surface and ground water pollution
resulting from the operation.517
While proposed 30 CFR 800.18
focuses on financial assurance
instruments (trust funds and annuities)
to provide the necessary income stream,
it also recognizes that collateral bonds
can, under certain circumstances, be a
satisfactory means of guaranteeing
treatment of long-term discharges
because collateral bonds require the
posting of cash, securities, or other
collateral. Specifically, proposed 30
CFR 800.18(b)(2) would allow the use of
collateral bonds provided that the
amount of the collateral bond posted
includes the cost of treating the
discharge during the time required to
collect and liquidate the bond and
convert the proceeds to a financial
instrument that will generate interest in
an amount sufficient to cover future
treatment costs and associated
administrative expenses.
2. How do we propose to revise the
definitions in 30 CFR 800.5?
We propose to revise existing 30 CFR
800.5(b)(6), which is part of the
definition of ‘‘collateral bond,’’ to delete
the reference to ‘‘investment-grade rated
securities having a rating of AAA, AA,
or A or an equivalent rating issued by
a nationally recognized securities rating
service.’’ According to the Department
of the Treasury regulations at 12 CFR
16.2, a security is considered
investment grade if it is rated in one of
the top four rating categories by each
nationally recognized statistical rating
organization that has rated the security.
Our rules include only those securities
with ratings in the top three categories.
In addition, unlike the Treasury
PO 00000
517 60
FR 51902 (Oct. 4, 1995).
Frm 00100
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regulations, we do not require that the
security receive these ratings from all
organizations that have rated the
security. Therefore, we propose to revise
30 CFR 800.5(b)(6) to eliminate the
reference to ‘‘investment-grade’’
securities and to instead use language
consistent with a similar provision in 30
CFR 800.23(b)(3)(i). We also propose to
replace the term ‘‘nationally recognized
securities ratings service’’ with the term
found in the Credit Rating Agency
Reform Act of 2006 (Pub. L. 109–291)
and used by the Securities and
Exchange Commission: ‘‘Nationally
recognized statistical rating
organization.’’ As revised, our proposed
rule would include securities with a
rating of ‘‘A’’ or higher from either
Moody’s Investors Service or Standard
and Poor’s or an equivalent rating
issued by any other nationally
recognized statistical rating organization
registered with the Securities and
Exchange Commission.
In existing paragraph (d), we propose
to define ‘‘financial assurance’’ as ‘‘a
trust fund, an annuity, or a combination
thereof.’’ We invite comment on
whether there are other investment
vehicles that could provide the income
stream needed to guarantee treatment of
long-term discharges and therefore
should be included in this definition.
3. Section 800.9: What requirements
apply to alternative bonding systems?
We propose to redesignate the
provisions for alternative bonding
systems in existing 30 CFR 800.11(e) as
new 30 CFR 800.9(a). Proposed 30 CFR
800.9(b) would clarify that the
alternative bonding system will apply in
lieu of the performance bond
requirements of part 800 to the extent
specified in the regulatory program and
the document in which we approve the
alternative bonding system as part of a
state or federal program. Proposed
paragraph (b) also would specify that all
alternative bonding systems must
include provisions analogous to the
bond release provisions of proposed 30
CFR 800.40 through 800.44 and the
bond forfeiture provisions of 30 CFR
800.50. This provision is necessary to
ensure that the regulatory program,
including the alternative bonding
system, remains consistent with section
519 of SMCRA,518 which governs bond
release, which in turn determines when
the regulatory authority may terminate
jurisdiction over the operation in
accordance with 30 CFR 700.11(d).
Proposed 30 CFR 800.9(c) would clarify
that an alternative bonding system may
be structured to include only certain
518 30
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phases of reclamation under proposed
30 CFR 800.42, provided that the other
phases are covered by one of the forms
of bond listed in 30 CFR 800.12. This
provision would ensure that the entire
operation has bond coverage, as
required by section 509 of SMCRA.519
Proposed 30 CFR 800.9(d)(1) would
prohibit an alternative bonding system
from covering restoration of the
ecological function of a stream under 30
CFR 780.28, 784.28, 816.57, and 817.57.
Alternative bonding systems are not
appropriate or reliable mechanisms to
guarantee restoration of the ecological
function of a stream, given the length of
time that we anticipate will be required
to restore that function. Furthermore,
restoration should be the responsibility
of the individual, company, or other
mining entity that makes the decision to
mine through a stream. Existing
alternative bonding systems were not
established with the expectation that
they might have to cover the costs of
restoring the ecological function of a
stream. Exposing those systems to these
unanticipated costs could compromise
their fiscal integrity.
Proposed 30 CFR 800.9(d)(2)(i) would
prohibit an alternative bonding system
from covering treatment of long-term
discharges that come into existence after
the effective date of paragraph (d),
unless, upon discovery of the discharge,
the permittee contributes an amount
sufficient to cover all costs that the
alternative bonding system will incur to
treat the discharge in perpetuity and the
alternative bonding system sets that
money aside in a separate account
dedicated solely to treatment of that
discharge. Otherwise, consistent with
proposed 30 CFR 800.18, the permittee
would be required to post a financial
assurance, a collateral bond, or a
combination thereof to cover this
obligation. Financial assurances are
preferred because they produce an
income stream, but the permittee has
the option of posting a sufficiently large
collateral bond to cover all foreseeable
treatment and reclamation costs.
Self-bonds are neither appropriate nor
reliable for this purpose because they do
not require the deposit of any funds
with the regulatory authority or under
the control of the regulatory authority.
Therefore, the regulatory authority may
not be able to recover the necessary
funds if the permittee goes out of
business. In that case, there would be no
dedicated funding set aside to ensure
continued treatment of the discharge,
which means either that treatment
would cease, resulting in environmental
damage, or that a governmental entity
would assume treatment, meaning that
the public would bear the cost of
avoiding environmental damage.
Under proposed 30 CFR
800.9(d)(2)(ii), long-term discharges that
came into existence before the effective
date of paragraph (d) would continue to
be covered by any applicable state
alternative bonding system unless the
regulatory authority amends its program
to specifically establish an earlier
effective date. The proposed rule would
require that the permittee of a site with
a discharge subject to paragraph
(d)(2)(ii) contribute to the alternative
bonding system an amount sufficient to
cover all costs that the regulatory
authority estimates that the alternative
bonding system will incur to treat the
discharge for as long as the discharge
requires active or passive treatment to
meet Clean Water Act standards or
pertinent SMCRA-related requirements.
The proposed rule would require that
the alternative bonding system place
that amount in a separate account
available only for treatment of the
discharge for which the contribution is
made. The proposed rule further
provides that a permittee unable to
make this contribution must post a
financial assurance, a collateral bond, or
a combination thereof to cover this
obligation.
4. Section 800.11: When and how must
I file a bond?
We propose to redesignate existing 30
CFR 800.11(e) as 30 CFR 800.9. We
propose to streamline the remaining
provisions of existing 30 CFR 800.11
and improve the wording and structure
to clarify their meaning. We also
propose to add a requirement that the
bond be filed in the amount that the
regulatory authority determines
necessary under 30 CFR 800.14.
In addition, we propose to delete a
mostly obsolete provision in existing 30
CFR 800.11(c) specifying that an
operator ‘‘may not extend any
underground shafts, tunnels or
operations’’ before the regulatory
authority accepts the performance bond
required for that area. This provision is
inconsistent with section 509(a) of
SMCRA,520 which requires a
performance bond only for that area of
land within the permit area upon which
the operator will conduct surface coal
mining and reclamation operations.
Paragraphs (27) and (28) of section 701
of SMCRA 521 define surface coal
mining and reclamation operations, in
relevant part, as ‘‘activities conducted
on the surface of lands’’ and ‘‘the areas
520 30
519 30
U.S.C. 1259.
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PO 00000
U.S.C. 1259(a).
U.S.C. 1291(27) and (28).
Frm 00101
Fmt 4701
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44535
upon which such activities occur or
where such activities disturb the natural
land surface.’’ Therefore, SMCRA does
not require posting of performance bond
for underground workings.
Proposed paragraph (d) would replace
the mostly obsolete provision in existing
paragraph (c) with a prohibition on
disturbing any surface area (by any type
of surface coal mining operation) or
extending any vertical underground
mine shaft or other vertical
underground mine opening for which a
performance bond is required before the
regulatory authority accepts the
performance bond required for that area
or extension. A performance bond is
required for extension of vertical
underground mine shafts and other
vertical underground mine openings
because those openings must be filled
upon the completion of mining and the
depth of the opening will affect the cost
of reclamation.
5. Section 800.12: What form of bond is
acceptable?
The first sentence of existing 30 CFR
800.12 provides that the regulatory
authority must prescribe the form of the
bond. We propose to redesignate this
sentence as paragraph (a). The
remainder of existing 30 CFR 800.12
provides that the regulatory authority
may allow the permittee to post a surety
bond, a collateral bond, a self-bond, or
a combination of these forms of bond.
We propose to redesignate this
provision as paragraph (b) and add
paragraphs (c) through (e) to identify
exceptions and special requirements.
Proposed paragraph (c) would clarify
that an alternative bonding system
approved under proposed 30 CFR 800.9
is not subject to 30 CFR 800.12.
Proposed paragraph (d) reflects the fact
that proposed 30 CFR 800.18 would
require that a permittee post either a
financial assurance or a collateral bond
to guarantee treatment of a long-term
discharge.
Consistent with proposed 30 CFR
780.28(c), 784.28(c), 816.57(b), and
817.57(b), proposed paragraph (e) would
require that the permittee post a surety
bond, a collateral bond, or a
combination thereof to guarantee
restoration of the ecological function of
a stream segment. A self-bond is not an
appropriate mechanism to guarantee
restoration of a stream’s ecological
function because of the risk that the
company may cease to exist during the
time required to accomplish that
restoration. In addition, a self-bond does
not require that the permittee file
financial instruments or collateral with
the regulatory authority, nor is there any
third party obligated to complete the
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reclamation or pay the amount of the
bond if the permittee defaults on
reclamation obligations.
tkelley on DSK3SPTVN1PROD with PROPOSALS2
6. Section 800.13: What is the liability
period for a bond?
Existing 30 CFR 800.13(b) allows
separate bonding of isolated and clearly
defined portions of the permit area that
require extended liability. We propose
to revise this paragraph to allow those
provisions to apply to the bond posted
to guarantee restoration of a stream’s
ecological function under proposed 30
CFR 780.28, 784.28, 816.57, and 817.57.
The proposed addition would recognize
that restoring the premining ecological
function of a stream segment is a
lengthy process. We also propose to
revise paragraph (b) to require that
access routes to any separately bonded
areas be included within those areas.
Under the existing rule, bonding of
these routes is discretionary on the part
of the regulatory authority. However, we
see no basis under section 509 of
SMCRA to exclude any disturbed areas
from bonding requirements unless those
areas are fully reclaimed and are no
longer used for any activity related to
mining and reclamation.
Existing paragraph (d) provides that
the permittee is responsible under the
bond for restoring the disturbed area to
a condition capable of supporting the
approved postmining land use. It further
provides that the permittee’s
responsibility does not extend to actual
implementation of the approved use.
We propose to revise this paragraph to
reflect the proposed revisions to 30 CFR
785.16(a)(13), which would impose
alternative reclamation requirements on
the permittee if the postmining land use
forming the basis for a variance from the
approximate original contour restoration
requirements is not implemented by the
end of the revegetation responsibility
period. We also propose to add a
provision clarifying that proposed 30
CFR 800.18 would govern the liability
period for long-term treatment of
discharges.
7. Section 800.14: How will the
regulatory authority determine the
amount of bond required?
We propose to revise existing 30 CFR
800.14(a) by adding the biological
condition of perennial and intermittent
streams within the permit area to the list
of factors that the regulatory authority
must consider in establishing bond
amounts. This revision is consistent
with our proposal to require restoration
of the ecological function of perennial
and intermittent streams under 30 CFR
780.28, 784.28, 816.57, and 817.57.
Streams with a more pristine biological
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condition may be more difficult to
restore and thus may require a higher
bond amount.
We propose to revise existing 30 CFR
800.14(b) by adding paragraph (b)(2) to
require that the calculations used to
determine the bond amount specifically
identify the amount of bond needed to
restore stream function. Under proposed
paragraph (b)(2), the permittee then
would have the option of either posting
a separate bond for that amount or
incorporating it into the bond posted for
the entire permit or increment.
We propose to redesignate existing 30
CFR 800.14(c) as paragraph (f) and add
a new paragraph (c) to reflect the
proposed revisions to 30 CFR
785.16(a)(13), which would impose
alternative reclamation requirements on
the permittee if the postmining land use
forming the basis for a variance from
approximate original contour restoration
requirements is not implemented by the
end of the revegetation responsibility
period. Specifically, we propose to
require that the amount of the bond be
sufficient to restore the variance area to
its approximate original contour if the
approved postmining land use is not
implemented by the end of the
applicable revegetation responsibility
period. This proposed requirement is
intended to minimize any potential
abuse of the steep-slope variance
provision.
Proposed 30 CFR 800.14(d) would
clarify that proposed 30 CFR 800.18
would govern the amount of the
financial assurance required to
guarantee long-term treatment of
discharges.
Proposed 30 CFR 800.14(e) is
substantively identical to the provision
in existing paragraph (b) establishing
that the total bond posted for the entire
area under one permit may not be less
than $10,000, as required by the last
clause of section 509(a) of SMCRA.522
8. Section 800.15: When must the
regulatory authority adjust the bond
amount and when may I request
adjustment of the bond amount?
We propose to revise existing 30 CFR
800.15(a) to more clearly distinguish
between bond adjustments under
section 509(e) of SMCRA 523 and bond
releases under section 519 of
SMCRA.524 Specifically, as discussed
below, we propose to incorporate into
regulation our interpretation of section
509(e) of SMCRA,525 which we explain
in the preamble to the existing rules and
PO 00000
526 https://www.osmre.gov/LRG/docs/
directive882.pdf (last accessed October 28, 2014).
527 48 FR 32944 (Jul. 19, 1983).
528 Id. at 32945.
529 30 U.S.C. 1259(e).
522 30
U.S.C. 1259(a).
523 30 U.S.C. 1259(e).
524 30 U.S.C. 1269.
525 30 U.S.C. 1259(e).
Frm 00102
Fmt 4701
in Directive TSR–1, ‘‘Handbook for
Calculation of Reclamation Bond
Amounts.’’ 526 Section 509(e) of SMCRA
provides that ‘‘[t]he amount of the bond
or deposit required and the terms of
each acceptance of the applicant’s bond
shall be adjusted by the regulatory
authority from time to time as affected
land acreages are increased or decreased
or where the cost of future reclamation
changes.’’ The preamble to existing 30
CFR 800.15(c) states that ‘‘reduction of
bond is considered a bond adjustment if
the reduction is based on a change in
method of operation or other
circumstances which reduces the
estimated cost for the regulatory
authority to reclaim.’’ 527 It further states
that ‘‘any reduction in bond amount for
reclamation work performed on
disturbed areas’’ does not qualify as a
bond adjustment because ‘‘bond for
disturbed areas can only be released or
reduced through formal release
procedures of § 800.40.’’ 528
Proposed 30 CFR 800.15(a) would
clarify that, consistent with existing
policy, the changes in the cost of
reclamation to which section 509(e) of
SMCRA 529 refers are limited to
decreases in the cost of future
reclamation as a result of (1) the
approval of revisions to the operation
and reclamation plan in the permit or
(2) changes in the unit costs of future
reclamation; e.g., the cost of moving a
cubic yard of spoil x number of feet, the
cost of planting x number of trees, or the
hourly cost to operate a specified piece
of equipment. Situations that qualify for
bond reduction through the bond
adjustment process on this basis would
include technological advances that
would reduce the unit costs of
reclamation, approved revisions to the
operation plan (such as a decision not
to remove the lowest coal seam) that
would result in an operation of more
limited extent than originally approved
and bonded, and approved revisions to
the reclamation plan (such as an
alteration in the postmining land use)
that would reduce reclamation costs.
A bond reduction under 30 CFR
800.15 on the basis of a change in the
cost of reclamation must be justified
solely upon a demonstration that the
reclamation cost estimates that form the
basis for the existing bond amount are
no longer valid for reasons other than
completion of elements of the
reclamation process. We propose to add
language specifying that the bond
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adjustment provisions may not be used
to reduce the amount of the
performance bond to reflect decreases in
the cost of future reclamation as a result
of completion of activities required
under the reclamation plan approved in
the permit. Bond reduction for
completed reclamation activities such as
backfilling or topsoil replacement may
be accomplished only in accordance
with the bond release requirements and
procedures of proposed 30 CFR 800.40
through 800.44. Any bond reduction
requested as a result of reclamation
work performed must be submitted and
processed as an application for bond
release under proposed 30 CFR 800.40
through 800.44.
Under proposed 30 CFR 800.15(e), the
regulatory authority would have to
require that appropriate bond or
financial assurance be posted in
accordance with proposed 30 CFR
800.18 whenever a discharge that will
require long-term treatment is
identified.
Proposed 30 CFR 800.15(f) would
prohibit reduction of the bond amount
to reflect the failure of the permittee to
restore the approximate original contour
or when the reclamation plan was
improperly modified to reflect the level
of reclamation completed rather than
the level of reclamation required under
the regulatory program.
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9. Section 800.16: What are the general
terms and conditions of the bond?
Existing 30 CFR 800.16(e) states that
the bond must provide a mechanism for
banks and sureties to give prompt notice
to the regulatory authority and the
permittee of any action filed alleging the
insolvency or bankruptcy of the
permittee, bank, or surety or alleging
any violations that would result in
suspension or revocation of the bank’s
or surety’s license or charter to do
business. We propose to revise this
paragraph so that it would apply not
just to banks and sureties, but also to
any other responsible financial entity
that issues bonds. We see no logical or
legal reason to limit the scope of this
requirement to banks and sureties.
We also propose to move existing 30
CFR 800.16(e)(2), which sets forth the
actions that the permittee and regulatory
authority must take in the event of
incapacity of a bank or surety, to 30 CFR
800.30(b). This provision is not a term
or condition of the bond. Therefore, it
is more appropriately located in 30 CFR
800.30, which is the section that
contains requirements for replacement
of bonds.
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10. Why are we proposing to remove
existing 30 CFR 800.17?
Existing 30 CFR 800.17 contains bond
requirements for underground coal
mines and long-term coal-related
surface facilities and structures. We
propose to remove this section because
it largely duplicates provisions of other
sections of part 800. The only unique
provision authorizes the posting of bond
instruments with defined expiration
dates, provided the bond is conditioned
upon extension, replacement, or
payment in full 30 days before the
expiration date. The rule also requires
that the regulatory authority initiate
bond forfeiture proceedings if the
permittee has not filed a term extension
or a replacement bond 30 days before
the expiration date.
This provision was originally adopted
under the authority of section 516(d) of
SMCRA,530 which requires
consideration of ‘‘the distinct difference
between surface and underground coal
mining’’ in developing regulations
applying the bond requirements of
section 509 of SMCRA 531 to
underground mines. Specifically,
section 800.17 provides a limited
exception to the following provision in
section 509(b) of SMCRA: ‘‘Liability
under the bond shall be for the duration
of the surface coal mining and
reclamation operation and for a period
coincident with [the] operator’s
responsibility for revegetation
requirements in section 515.’’ This
exception is no longer necessary
because underground mines can obtain
letters of credit and other bonds just as
other surface coal mining operations do.
11. Section 800.18: What special
provisions apply to financial guarantees
for treatment of long-term discharges?
Proposed 30 CFR 800.18 would
establish performance bond and
financial assurance requirements that
would apply whenever any discharge
from a surface or underground coal
mine or other facility regulated under
SMCRA requires treatment and
continues or may reasonably be
expected to continue after the
completion of mining, backfilling,
grading, and the establishment of
revegetation. Part IX.K.1. of this
preamble explains the rationale for
requiring a bond or financial assurance
to guarantee treatment of long-term
discharges and for the use of financial
assurances in place of conventional
bond instruments.
We also propose to apply these
requirements to situations in which the
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531 30
U.S.C. 1266(d).
U.S.C. 1259.
Frm 00103
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44537
regulatory authority finds that a
discharge requiring long-term treatment
will develop in the future, provided that
the quantity and quality of the future
discharge can be determined with
reasonable probability. In these
situations, it would be prudent to
require that the permittee establish a
trust fund or annuity during the mining
phase when revenues are available. If
the regulatory authority does not require
establishment of a trust fund or annuity
until the discharge actually develops,
the permittee may no longer be in
business or may lack the resources to
establish a trust fund or annuity. One
example of an operation that would
meet these criteria is an underground
mine that creates a mine pool that will
reach surface elevations and begin to
discharge at some point after mine
closure.
Proposed paragraph (b) would specify
that only financial assurances and
collateral bonds are acceptable forms of
bond to guarantee treatment of longterm discharges. As discussed in Part
IX.K.1. of this preamble, surety bonds
and self-bonds are not appropriate
instruments because neither would
produce the income stream needed to
cover treatment expenses and because
there is a distinct possibility that the
discharge would outlast both the
permittee and the surety. If the
permittee elects to post a collateral bond
rather than a financial assurance, the
rule would require that the amount of
the collateral bond include the cost of
treating the discharge during the time
needed to collect and liquidate the bond
and convert the proceeds to a financial
instrument that will generate interest in
an amount sufficient to cover future
treatment costs and associated
administrative expenses. To minimize
threats to the solvency of alternative
bonding systems, we propose to prohibit
those systems from covering treatment
of long-term discharges unless the
permittee posts an amount equal to the
cost of treating the discharge in
perpetuity and the alternative bonding
system places that money in a separate
account dedicated solely to treatment of
that discharge. However, the proposed
rule would grandfather in operations
with discharges covered by an
alternative bonding system on the
effective date of this new provision.
Proposed paragraph (c) would specify
that the amount of financial assurance
or collateral bond required must include
the cost of treating the discharge to meet
all applicable numerical standards or
limits that are in effect at the time that
the regulatory authority issues an order
requiring posting of a financial
assurance or bond. The numerical
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standards or limits may be established
in a SMCRA permit (the criteria for
material damage to the hydrologic
balance outside the permit area), in a
permit or authorization issued under the
Clean Water Act (an NPDES permit, a
section 404 dredge or fill permit or
authorization, or a section 401 water
quality certification), or in regulations
implementing the Clean Water Act.
Proposed paragraph (d) would
establish requirements for the financial
assurance instrument itself. We based
these provisions on the experience of
the Pennsylvania and Tennessee
regulatory authorities in establishing
and managing trust funds and annuities
to guarantee long-term treatment of
discharges. Proposed paragraph (d)
would require that the trust fund or
annuity be in a form approved by the
regulatory authority and contain all
terms and conditions required by the
regulatory authority. The trust fund or
annuity would have to be established in
a manner that guarantees that sufficient
moneys will be available when needed
to pay for treatment costs in perpetuity
(unless the permittee demonstrates, and
the regulatory authority finds, based on
scientifically proven facts, that
treatment will be needed for a lesser
time, either because the discharge will
attenuate or because its quality will
improve); periodic maintenance,
renovation, and replacement of
treatment and support facilities; final
reclamation of the sites upon which
treatment facilities are located and areas
used in support of those facilities; and
administrative costs incurred by the
regulatory authority or trustee.
Calculations of the amount required for
the trust fund or annuity would have to
be based on a conservative anticipated
rate of return on the proposed
investments that is consistent with longterm historical rates of return for similar
investments. The regulatory authority
would be required to specify the
investment objectives of the trust fund
or annuity to ensure that those
objectives are consistent with
production of an income stream
adequate to meet ongoing treatment
needs. The trust fund or annuity must
irrevocably establish the regulatory
authority as the beneficiary of the trust
fund or of the proceeds from the annuity
for the purpose of treating mine
drainage or other mining-related
discharges to protect the environment
and users of surface water.
Proposed paragraph (d)(1)(i) would
allow permittees a reasonable time to
fully fund trust funds and annuities
rather than requiring a lump-sum
deposit as would be required for
collateral bonds. Under the proposed
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rule, the regulatory authority could
accept an arrangement by which the
permittee builds the amount of the trust
fund or annuity over time, provided that
the permittee continues to treat the
discharge during that time; and the
regulatory authority retains all
performance bonds posted for the
permit until the trust fund or annuity
reaches a self-sustaining level as
determined by the regulatory authority.
This provision is needed because some
permittees may require additional time
to obtain the financing needed to
establish a trust fund or annuity for
treatment of unanticipated discharges.
Insisting on immediate funding of the
full cost of a trust fund or annuity could
force the permittee into a default on
reclamation or other obligations, which
could be counterproductive if it results
in the permittee ceasing treatment or if
it disrupts or precludes the allocation of
funds for treatment or other reclamation
activities.
Proposed paragraph (d)(6) would
require that the trust fund or annuity
provide that disbursement of money
from the trust fund or annuity may be
made only upon written authorization
of the regulatory authority or according
to a schedule established in the
agreement accompanying the trust fund
or annuity. We anticipate that a fully
funded trust or annuity may include
provisions for disbursements to the
permittee as a mechanism to cover the
cost of water treatment, especially for
those permittees no longer generating
income from the mining of coal.
Disbursements from the income stream
of a fully funded trust fund or annuity
would not be considered a bond release
or a bond forfeiture because we propose
to adopt these financial assurance
provisions as an alternative bonding
system for the specific purpose of
producing the income stream needed to
pay for treatment and related costs.
Proposed paragraph (d)(7) would
provide that the financial institution or
company serving as a trustee or issuing
an annuity must be one of the following:
• A national bank chartered by the
Office of the Comptroller of the
Currency.
• An operating subsidiary of a
national bank chartered by the Office of
the Comptroller of the Currency.
• A bank or trust company chartered
by the state in which the operation is
located.
• An insurance company licensed or
authorized to do business in the state in
which the operation is located or
designated by the pertinent regulatory
body of that state as an eligible surplus
lines insurer.
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• Any other financial institution or
company with trust powers and with
offices located in the state in which the
operation is located, provided that the
institution’s or company’s activities are
examined or regulated by a state or
federal agency.
This proposed restriction is intended
to ensure that only competent, reliable,
and properly capitalized and insured
companies are eligible for selection as
trustees. We invite comment on whether
the proposed list is too inclusive or
exclusive.
Proposed paragraph (e) would allow
termination of a trust fund or annuity
only upon the demise of the trustee or
the company issuing the annuity or as
specified by the regulatory authority
upon a determination that one of the
following situations exists:
• No further treatment or other
reclamation measures are necessary.
• A satisfactory replacement bond or
financial assurance has been posted.
• The terms of the trust fund or
annuity establish conditions for
termination and those conditions have
been met.
• The trustee’s administration of the
trust fund or annuity is unsatisfactory to
the regulatory authority, in which case
the permittee or the regulatory authority
must procure a new trustee.
We invite comment on whether there
are any other situations in which
termination should be allowed or
required.
Proposed paragraph (f) would require
that the regulatory authority establish a
schedule for reviewing the performance
of the trustee, the adequacy of the trust
fund or annuity, and the accuracy of the
assumptions upon which the trust fund
or annuity is based. We propose to
require that these reviews occur on at
least an annual basis, but we invite
comment on whether a different review
frequency would be more appropriate
and why. The rule would require that
the regulatory authority order the
permittee to provide additional
resources to the trust fund or annuity
whenever the review or any other
information available to the regulatory
authority at any time demonstrates that
the financial assurance is no longer
adequate to meet the purpose for which
it was established.
Proposed paragraph (g) provides that
the bond replacement provisions of 30
CFR 800.30(a) would govern the
replacement of any financial assurance.
Proposed paragraph (h) specifies that
release of reclamation liabilities and
obligations under financial assurances
would be subject to the applicable bond
release provisions of proposed 30 CFR
800.40 through 800.44.
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Proposed paragraph (i) provides that
the permittee may apply for, and the
regulatory authority may approve,
release of any bonds posted for the
permit or permit increment for which
the regulatory authority has approved a
financial assurance, provided that the
permittee and the regulatory authority
comply with the bond release
requirements and procedures in
proposed §§ 800.40 through 800.44.
This provision would apply only if the
financial assurance is in place and fully
funded, the permit or permit increment
fully meets all applicable reclamation
requirements (with the exception of the
discharge and the presence of associated
treatment and support facilities), and
the financial assurance will serve as the
bond for reclamation of the portion of
the permit area required for postmining
water treatment facilities and access to
those facilities. Release of all other
bonds for the site would be appropriate
under these conditions because the fully
funded trust fund or annuity would be
available to fund treatment and
reclamation activities in the event of a
permittee’s bankruptcy or dissolution.
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12. Section 800.21: What additional
requirements apply to collateral bonds?
We propose to revise existing 30 CFR
800.21(a)(3) to allow the acceptance of
certificates of deposit issued by
financial institutions other than banks.
We also propose to revise existing 30
CFR 800.21(a)(4) and (d)(4) to eliminate
references to the now-defunct Federal
Savings and Loan Insurance Corporation
and references to the obsolete $100,000
maximum on the amount insured by the
Federal Deposit Insurance Corporation.
The proposed revisions would make
this section consistent with the current
structure and nomenclature of the
financial industry and its regulators.
13. Section 800.23: What additional
requirements apply to self-bonds?
We propose to revise existing 30 CFR
800.23(b)(3)(i) to allow the use of any
nationally recognized statistical rating
organization (NRSRO) registered with
the Securities and Exchange
Commission in determining whether a
corporation is eligible to self-bond. The
existing rule allows use of only Moody’s
Investors Service and Standard and
Poor’s. The proposed revision is
consistent with the Credit Rating
Agency Reform Act of 2006 (Pub. L.
109–291), which facilitated the entry of
new credit rating organizations into the
market by abolishing the authority of
the Securities and Exchange
Commission (SEC) to designate NRSROs
by no-action letters and replacing that
process with a provision that, to be
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recognized as an NRSRO, a rating
agency must register with the SEC. As
stated in section 2(5) of the Credit
Rating Agency Reform Act of 2006, ‘‘the
2 largest credit rating agencies serve the
vast majority of the market, and
additional competition is in the public
interest.’’ Therefore, our existing rule
requiring use of either Moody’s or
Standard and Poor’s in determining selfbonding eligibility is no longer
appropriate.
14. Section 800.30: When may I replace
a bond or financial assurance
instrument and when must I do so?
We propose to revise this section by
combining existing 30 CFR 800.30(a)
and (b) into paragraph (a) and by
deleting an unnecessary sentence in
existing 30 CFR 800.30(b) stating that
replacement of a performance bond does
not constitute bond release. We also
propose to extend the applicability of
this section to financial assurances
under proposed 30 CFR 800.18, and to
redesignate the mandatory bond
replacement provisions of existing 30
CFR 800.16(e)(2) as 30 CFR 800.30(b).
Proposed paragraph (a) would allow
the regulatory authority to decline to
accept a proffered replacement surety
bond if, in the judgment of the
regulatory authority, the new surety
does not have adequate reinsurance or
other resources sufficient to cover the
default of one or more mining
companies for which the surety has
provided bond coverage. This proposed
provision is intended to avoid a repeat
of the situation involving Frontier
Insurance Company in the 1980s in
which the surety could not meet its
obligations.
Proposed paragraph (b) would extend
the applicability of existing 30 CFR
800.16(e)(2) to include other responsible
financial entities issuing bonds. The
existing language in 30 CFR 800.16(e)(2)
applies only to banks and sureties, but
we see no logical reason to exclude
other bond-issuing entities from the
scope of this paragraph. We also
propose to revise this paragraph to
clarify that failure to replace a bond
within the specified time is a violation
for which the regulatory authority must
issue a notice of violation. Operating
without bond coverage would be a
violation of the permit condition
required under 30 CFR 773.17(a).
15. Section 800.40: How do I apply for
release of all or part of a bond?
We propose to redesignate existing 30
CFR 800.40(a) as new section 800.40,
with two substantive revisions. First, we
propose to require that the applicant
submit a certified copy of the required
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44539
newspaper advertisement. Addition of
the certification requirement would
provide independent documentation
that the newspaper advertisement has
indeed been published for the required
4 weeks. Second, we propose to require
that the description of the results
achieved under the approved
reclamation plan include an analysis of
the results of the monitoring of
groundwater, surface water, and the
biological condition of perennial and
intermittent streams under 30 CFR
816.35 through 816.37 or 817.35
through 817.37. This analysis is critical
to a determination of whether
reclamation requirements relating to
protection of the hydrologic balance
have been met.
16. Section 800.41: How will the
regulatory authority process my
application for bond release?
We propose to redesignate existing 30
CFR 800.40(b)(1) as section 800.41 and
restructure the existing rule as
paragraphs (a) and (b) of section 800.41.
We also propose two substantive
revisions. First, proposed paragraph
(a)(1) would specify that the regulatory
authority’s clock for processing the
application begins only upon submittal
of a complete application rather than
upon receipt of any application. Second,
proposed paragraph (a)(2) would clarify
that a complete application for bond
release is one that includes all items
required under 30 CFR 800.40. The
proposed additions would benefit both
the applicant and the regulatory
authority by ensuring that an
application is complete before the
review process begins, which would
have the additional benefit of promoting
the efficient use of resources.
17. Section 800.42: What are the criteria
for bond release?
We propose to redesignate existing 30
CFR 800.40(c) as 30 CFR 800.42, with a
number of substantive revisions.
Proposed paragraph (a) sets forth the
general requirements that would have to
be met before the regulatory authority
may approve an application for bond
release and release all or part of the
bond in accordance with the other
paragraphs of 30 CFR 800.42. Proposed
paragraph (a) would apply to all types
of bond release applications (Phase I
through Phase III). In general, sections
509(a) and 519(b) of SMCRA 532 provide
authority for the proposed revisions.
Section 509(a) 533 provides, in relevant
part, that the amount of bond in place
for a surface coal mining and
532 30
533 30
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U.S.C. 1259(a).
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reclamation operation ‘‘shall be
sufficient to assure the completion of
the reclamation plan if the work had to
be performed by the regulatory authority
in the event of forfeiture.’’ The new
requirements in proposed paragraphs
(a)(2) through (a)(6) are intended to
ensure that the regulatory authority
retains sufficient bond to complete the
reclamation plan if the work has to be
performed by the regulatory authority in
the event of forfeiture. Section 519(b) of
SMCRA 534 provides that the regulatory
authority’s evaluation of a bond release
application must ‘‘consider, among
other things, the degree of difficulty to
complete any remaining reclamation,
whether pollution of surface and
subsurface water is occurring, the
probability of continuance of future
occurrence of such pollution, and the
estimated cost of abating such
pollution.’’ Proposed paragraphs (a)(2)
through (a)(6) are intended to ensure
that the regulatory authority takes these
factors into consideration.
Proposed paragraph (a)(2) would not
allow the regulatory authority to release
any bond if, after an evaluation of the
monitoring data for groundwater,
surface water, and the biological
condition of perennial and intermittent
streams submitted under proposed 30
CFR 816.35 through 816.37 or 817.35
through 817.37, it determines that
adverse trends exist that may result in
material damage to the hydrologic
balance outside the permit area. This
provision is intended to prevent
premature release of bond that may be
needed to correct potentially expensive
damage to the hydrologic balance. This
proposed requirement is consistent with
section 515(b)(23) of SMCRA,535 which
requires that surface coal mining and
reclamation operations ‘‘meet such
other criteria as are necessary to achieve
reclamation in accordance with the
purposes of this Act, taking into
consideration the physical,
climatological, and other characteristics
of the site.’’
Proposed paragraph (a)(3) would
prohibit the release of any portion of the
bond unless and until the permittee
posts a financial assurance or collateral
bond under proposed 30 CFR 800.18 if
a discharge requiring long-term
treatment exists either on the permit
area or at a point that is hydrologically
connected to the permit area. Adoption
of this proposed paragraph would
incorporate into regulation one of the
strategies in the policy entitled
‘‘Hydrologic Balance Protection: Policy
Goals and Objectives on Correcting,
534 30
535 30
U.S.C. 1269(b).
U.S.C. 1265(b)(23).
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Preventing, and Controlling Acid/Toxic
Mine Drainage’’ that we issued on
March 31, 1997. Specifically, Strategy
2.3 of Objective 2 under the
‘‘Environmental Protection’’ goal
provides that—
Strategy 2.3—Where inspections
conducted in response to bond release
requests identify surface or subsurface water
pollution, bond in an amount adequate to
abate the pollution should be held as long as
water treatment is required, unless a
financial guarantee or some other enforceable
contract or mechanism to ensure continued
treatment exists.536
Proposed paragraph (a)(4) would
apply whenever the permit area or
increment includes a variance under 30
CFR 785.16 from restoration of the
approximate original contour. In that
case, the proposed rule would prohibit
release of the portion of the bond
described in proposed 30 CFR
785.16(a)(13), in whole or in part, until
the approved postmining land use is
implemented or until the site is restored
to the approximate original contour and
revegetated in accordance with 30 CFR
816.111 and 816.116 or 817.111 and
817.116. This provision is intended to
prevent abuse of the steep-slope
variance provision and to ensure that
variances are requested and granted
only when there is a reasonable
likelihood of achieving the alternative
postmining land use, as provided in the
requirements for approval of higher or
better land uses under section 515(b)(2)
of SMCRA.537 Authority for this
provision derives in part from section
515(e)(5) of SMCRA,538 which provides
that the regulatory authority ‘‘shall
promulgate specific regulations to
govern the granting of variances in
accord with the provision of this
subsection, and may impose such
additional requirements as he deems to
be necessary.’’
Proposed paragraph (a)(5) pertains to
buildings and structures to be retained
as part of the approved postmining land
use. It would prohibit release of the
bond amount described in proposed 30
CFR 780.24(d)(2) or 784.24(d)(2) either
until the structure is in use as part of the
postmining land use or until the
structure is removed and the site upon
which it was located is reclaimed in
accordance with part 816 or part 817.
This provision is intended to ensure
that only structures with actual utility
for the postmining land use are retained.
536 ‘‘Policy Goals and Objectives on Correcting,
Preventing and Controlling Acid/Toxic Mine
Drainage,’’ OSMRE, March 31, 1997. Available at
www.osmre.gov/lrg/docs/amdpolicy033197.pdf (last
accessed August 27, 2014), p. 6.
537 30 U.S.C. 1265(b)(2).
538 30 U.S.C. 1265(e)(5).
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Unused and unmaintained mine
buildings can become dangerous
attractive nuisances and a visual blight
on the landscape. There would be no
funds available to remove structures
retained as part of the postmining land
use at the time of bond release if they
subsequently deteriorate.
Proposed 30 CFR 800.42(a)(6) would
require that the regulatory authority
consider the results of the evaluation
required under proposed 30 CFR
816.41(a)(3) when determining the
amount of bond to release. Proposed 30
CFR 816.41(a)(3) requires that the
evaluation consider, among other
factors, the degree of difficulty to
complete any remaining reclamation,
whether pollution of surface and
subsurface water is occurring, the
probability of future occurrence of such
pollution, and the estimated cost of
abating such pollution. The factors
listed in the proposed rule are identical
to the factors listed in section 519(b) of
SMCRA.539
Proposed paragraph (b) would include
the criteria for Phase I bond release in
existing 30 CFR 800.40(c)(1). We
propose to revise the existing criteria by
adding a provision clarifying that
restoration of the form of perennial and
intermittent stream segments mined
through under 30 CFR 816.57 or 817.57
is part of the backfilling and grading
process and therefore must be
accomplished before the area is eligible
for Phase I bond release. We also
propose to add a provision stating that
the amount of bond that the regulatory
authority retains after Phase I release
must be adequate to ensure that the
regulatory authority will have sufficient
funds for a third party to complete the
remaining portion of the reclamation
plan, including restoration of the
ecological function of perennial and
intermittent streams under 30 CFR
816.57 or 817.57 and completion of any
fish and wildlife enhancement measures
required in the permit in accordance
with 30 CFR 780.16 or 784.16, in the
event of forfeiture. The proposed
additional requirements are necessary
and appropriate to ensure compliance
with section 509(a) of SMCRA,540 which
provides, in relevant part, that the
amount of bond in place for a surface
coal mining and reclamation operation
‘‘shall be sufficient to assure the
completion of the reclamation plan if
the work had to be performed by the
regulatory authority in the event of
forfeiture.’’
539 30
540 30
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U.S.C. 1269(b).
U.S.C. 1259(a).
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Section 519(c)(1) of SMCRA 541
authorizes ‘‘release of 60 per centum of
the bond or collateral for the applicable
permit area’’ upon the completion of
backfilling, grading, and drainage
control. Proposed paragraph (b) would
clarify that section 519(c)(1) of
SMCRA 542 does not stand alone; i.e.,
that release of the entire 60 percent is
neither required nor allowed if releasing
that amount of money would result in
retention of insufficient bond to cover
remaining reclamation costs, as required
by section 509(a) of SMCRA.543
Proposed paragraph (c) would include
the criteria for Phase II bond release in
existing 30 CFR 800.40(c)(2). Proposed
paragraph (c)(1) would revise the
existing criteria by adding a requirement
that the regulatory authority establish
standards for determining when
revegetation has been successfully
established for purposes of this
paragraph. Establishment connotes an
element of permanence. However,
except for prime farmland, revegetation
need not meet the entire suite of
revegetation success standards under 30
CFR 816.116 or 817.116 to qualify for
Phase II bond release. Otherwise, there
would be little practical difference
between the criteria for Phase II and
Phase III bond release if the revegetation
responsibility period must expire before
a site is eligible for Phase II bond
release. We invite comment on whether
we should provide national standards
for establishment of revegetation for
purposes of Phase II bond release or
whether this decision is best left to the
judgment of the regulatory authority,
based on local conditions.
We also propose to add a provision in
proposed paragraph (c)(2) stating that
the amount of bond that the regulatory
authority retains after Phase II release
must be adequate to ensure that the
regulatory authority will have sufficient
funds for a third party to complete the
remaining portion of the reclamation
plan, including restoration of the
ecological function of perennial and
intermittent streams under 30 CFR
816.57 or 817.57 and completion of any
fish and wildlife enhancement measures
required in the permit in accordance
with 30 CFR 780.16 or 784.16, in the
event of forfeiture. The proposed
additional requirements are necessary
and appropriate to ensure compliance
with section 509(a) of SMCRA,544 which
provides, in relevant part, that the
amount of bond in place for a surface
coal mining and reclamation operation
541 30
U.S.C. 1269(c)(1).
U.S.C. 1269(c)(1).
543 30 U.S.C. 1259(a).
544 30 U.S.C. 1259(a).
542 30
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‘‘shall be sufficient to assure the
completion of the reclamation plan if
the work had to be performed by the
regulatory authority in the event of
forfeiture.’’
Proposed paragraph (c)(5) would
replace the reference to ‘‘subchapter K
of this chapter’’ in existing 30 CFR
800.40(c)(2) with more specific crossreferences to the regulations pertaining
to permanent impoundments; i.e., 30
CFR 816.49(b) and 816.56 or 817.49(b)
and 817.56. We invite comment on the
meaning of ‘‘silt dam’’ as used in
proposed paragraph (c)(5) and in section
519(c)(2) of SMCRA.545
Proposed paragraph (d) would
include the criteria for Phase III (final)
bond release in existing 30 CFR
800.40(c)(3). We propose to add
language in proposed paragraph (d)(2)
emphasizing that Phase III reclamation
is not completed until the permittee
restores the ecological function of
perennial and intermittent streams
under 30 CFR 816.57 or 817.57 and
completes any fish and wildlife
enhancement measures required in the
permit in accordance with 30 CFR
780.16 or 784.16.
18. Section 800.43: When and how must
the regulatory authority provide
notification of its decision on a bond
release application?
Proposed 30 CFR 800.43(a) is
substantively identical to existing 30
CFR 800.40(b)(2). Proposed 30 CFR
800.43(b) and (c) are substantively
identical to existing 30 CFR 800.40(d)
and (e), respectively.
19. Section 800.44: Who may file an
objection to a bond release application
and how must the regulatory authority
respond to an objection?
Proposed 30 CFR 800.44 is comprised
of paragraphs (a) through (c), which are
substantively identical to existing 30
CFR 800.40(f) through (h), respectively.
L. Part 816: Permanent Program
Performance Standards—Surface
Mining Activities
In this preamble, we typically discuss
only those sections and paragraphs for
which we propose substantive revisions.
For the reasons explained in Part VIII of
this preamble, we propose to revise
other sections and paragraphs within
this part in accordance with plain
language principles, to update crossreferences, and to improve consistency.
In general, we do not discuss those
proposed changes because no
substantive change in meaning is
intended.
545 30
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1. Section 816.1: What does this part
do?
Existing 30 CFR 816.1 provides that
part 816 sets forth the minimum
environmental protection performance
standards to be adopted and
implemented under regulatory programs
for surface mining activities. However,
the content requirements and approval
criteria for state regulatory programs are
located at 30 CFR parts 730 through 732.
Therefore, we propose to revise this
section to simply state that it sets forth
the environmental protection
performance standards for surface
mining activities under the Act.
2. Section 816.2: What is the objective
of this part?
Existing 30 CFR 816.2 provides that
the objective of part 816 is to ensure that
all surface mining activities are
conducted in a manner that preserves
and enhances environmental and other
values in accordance with the Act.
However, SMCRA does not require
preservation and enhancement of all
values in all cases. Instead, as stated in
section 102(f) of the Act,546 one of the
purposes of the Act 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.’’
Therefore, we propose to revise 30 CFR
816.2 to state that the objective of part
816 is to ensure that surface mining
activities are conducted in an
environmentally sound manner in
accordance with the Act.
3. Section 816.11: What signs and
markers must I post?
The existing rules contain four
requirements to mark buffer zones for
perennial and intermittent streams—one
in the stream buffer zone rule for surface
mining operations at 30 CFR 816.57(b),
one in the stream buffer zone rule for
underground mining operations at 30
CFR 817.57(b), one in the requirements
for signs and markers for surface mining
operations at 30 CFR 816.11(e), and one
in the requirements for signs and
markers for underground mining
operations at 30 CFR 817.11(e). We
propose to consolidate those
requirements into 30 CFR 816.11(e) and
817.11(e). Proposed 30 CFR 816.11(e)
would provide that the boundaries of
any buffer to be maintained between
surface mining activities and perennial
or intermittent streams in accordance
with proposed 30 CFR 780.28 and
816.57 must be clearly marked to avoid
disturbance by surface mining activities.
546 30
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4. Section 816.22: How must I handle
topsoil, subsoil, and other plant growth
media?
General Discussion of Basis for
Proposed Revisions
In general, our proposed revisions to
this section would improve
implementation of section 515(b)(6) of
SMCRA,547 which requires that surface
coal mining operations ‘‘restore the
topsoil or the best available subsoil
which is best able to support
vegetation,’’ and section 515(b)(5) of
SMCRA,548 which states that surface
coal mining operations must—
tkelley on DSK3SPTVN1PROD with PROPOSALS2
remove the topsoil from the land in a
separate layer, replace it on the backfill area,
or if not utilized immediately, segregate it in
a separate pile from other spoil and when the
topsoil is not replaced on a backfill area
within a time short enough to avoid
deterioration of the topsoil, maintain a
successful cover by quick growing plant or
other means thereafter so that the topsoil is
preserved from wind and water erosion,
remains free of any contamination by other
acid or toxic material, and is in a usable
condition for sustaining vegetation when
restored during reclamation, except if topsoil
is of insufficient quantity or of poor quality
for sustaining vegetation, or if other strata
can be shown to be more suitable for
vegetation requirements, then the operator
shall remove, segregate, and preserve in a
like manner such other strata which is best
able to support vegetation.
Existing 30 CFR 816.22 focuses
primarily on topsoil handling. We
propose to revise this section and its
permitting counterpart at 30 CFR
780.12(e) to require salvage, protection,
and redistribution of soil materials in
addition to the topsoil to ensure that the
reconstructed soil on the reclaimed
minesite provides a root zone of
sufficient depth and comprised of
appropriate soil and overburden
materials that will create a plant growth
medium suitable for the vegetation to be
planted. The existing regulations are
either unclear on this point (see existing
paragraphs (a)(1)(ii) and (2), which
sometimes have been interpreted as
meaning that soil materials other than
topsoil need be salvaged, stored, and
redistributed only if the topsoil is less
than 6 inches thick or is of poor quality)
or, in the case of existing paragraph (e),
make salvage of soil materials other than
topsoil discretionary on the part of the
regulatory authority.
The revised performance standards in
proposed paragraphs (a), (b), and (e) of
30 CFR 816.22 and the soil-handling
plan required by proposed 30 CFR
780.12(e) would require salvage,
protection, storage, and redistribution of
547 30
548 30
U.S.C. 1265(b)(6).
U.S.C. 1265(b)(5).
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whatever soil materials are necessary to
ensure that the site will be restored ‘‘to
a condition capable of supporting the
uses which it was capable of supporting
prior to any mining, or higher or better
uses of which there is reasonable
likelihood,’’ as required by section
515(b)(2) of SMCRA,549 and to ensure
that the site will be able to meet the
revegetation requirements of paragraphs
(b)(19) and (20) of section 515 of the
Act.550 The preamble discussion of
proposed 30 CFR 780.12(e), to which we
are proposing to move paragraphs (b)
and (e) of existing 30 CFR 816.22 in
revised form, provides additional
background on the basis and purpose for
the proposed revisions. In addition,
Forest Reclamation Advisory No. 8 (one
of the publications implementing and
supporting the Forestry Reclamation
Approach) states that deep soil is
required for productive tree growth and
that ‘‘[s]alvaging and re-spreading only
the upper few inches or horizons of soil
is unlikely to restore premining
capability unless additional materials
suitable for reforestation are added.’’ 551
Furthermore, the following excerpt
from a U.S. District Court for the District
of Columbia decision in PSMRL I,
Round I concerning the 1979 version of
our regulations at 30 CFR 816.22(d),
which required segregation of the B
horizon and portions of the C horizon if
the regulatory authority determined that
those materials were necessary or
desirable to ensure soil productivity,
provides support for our proposed
revisions:
Section 515(b)(5) [of SMCRA] authorizes
segregation [of materials other than topsoil]
if the topsoil cannot sustain vegetation or if
other strata enhance post-mining vegetation.
This is essentially what the regulations
command. They focus on ‘‘soil productivity,’’
and grant the regulatory authority power to
require segregation if necessary to improve
such productivity.552
Proposed Paragraph (a): Removal and
Salvage
Proposed paragraph (a) would require
that the permittee separately remove
and salvage all topsoil and other soil
materials identified for salvage and use
as postmining plant growth media in the
soil-handling plan approved in the
permit under § 780.12(e). The rule
U.S.C. 1265(b)(2).
U.S.C. 1265(b)(19) and (20).
551 Skousen, J., C. Zipper, J. Burger, C. Barton, and
P. Angel. ‘‘Forest Reclamation Advisory No. 8:
Selecting Materials for Mine Soil Construction
when Establishing Forests on Appalachian Mine
Sites.’’ (July 2011), p. 2. Available at https://
arri.osmre.gov/FRA/Advisories/FRA_
No.8%20Soil%20Materials.pdf (last accessed
November 19, 2014).
552 PSMRL I, Round I, Mem. Op. at 54.
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would require completion of removal
and salvage of these materials from the
area to be disturbed before any drilling,
blasting, mining, or other surface
disturbance takes place on that area.
Like the existing rule, it provides an
exemption for minor disturbances.
The proposed rule differs from the
existing rule primarily in that it requires
removal and salvage of all topsoil and
other soil and overburden materials
needed to reconstruct a suitable
postmining plant growth medium
throughout the root zone required to
support the vegetation to be planted
after the completion of mining. The
existing rule requires removal and
salvage of only topsoil, topsoil
substitutes, or the top 6 inches of
material when the topsoil is less than 6
inches in depth. As discussed above, in
most cases, that material would result in
a postmining plant growth medium of
insufficient depth to support all land
uses that the land was capable of
supporting before any mining, which
would be inconsistent with section
515(b)(2) of SMCRA.553
Proposed Paragraph (b): Storage
The stockpiling requirements and
temporary distribution provisions of
proposed paragraph (b) are
substantively identical to those of
existing paragraph (c), with the
exception that we propose to add a
requirement that any species used to
establish a vegetative cover on
stockpiles be non-invasive to avoid
endangering the success of efforts to
revegetate the site with plants native to
the area.
Proposed Paragraph (c): Soil Substitutes
and Supplements
Proposed paragraph (c) provides that
when the soil handling plan approved
in the permit in accordance with
§ 780.12(e) provides for the use of
substitutes for or supplements to the
existing topsoil or subsoil, the permittee
must salvage, store, and redistribute the
overburden materials selected and
approved for that purpose in a manner
consistent with paragraphs (a), (b), and
(e) of section 816.22. It is the
counterpart to existing paragraph
(a)(1)(ii), but differs in that it applies to
all soil substitutes and supplements, not
just to topsoil substitutes and
supplements. We propose to move the
approval standards for soil substitutes
and supplements from existing
paragraph (b) to 30 CFR 780.12(e) as
part of our effort to consolidate
permitting requirements in subchapter
G rather than having them split between
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the permitting requirements of
subchapter G and the performance
standards of subchapter K.
Proposed Paragraph (d): Site Preparation
Proposed paragraph (d)(1) would
require that the permittee minimize
grading of backfilled areas to avoid
compaction of the reconstructed root
zone, as specified in the soil-handling
plan approved in the permit in
accordance with § 780.12(e). The rule
would allow compaction only to the
extent necessary to ensure stability and
to comply with water-quality standards.
Loosely graded soil materials have
less compaction, greater water
infiltration, and less erosion than more
intensely graded soil materials.554
Greater infiltration generally makes
more water available for plant growth
and less erosion may result in a reduced
frequency for cleanouts of
sedimentation ponds.555 As stated in
one research report:
Third-year results show that intensive
grading did not result in better ground cover
establishment or erosion control. In fact,
erosion was highest on the intensively graded
plots.556
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Limited compaction is also more
favorable to tree root growth, which will
increase survival and growth rates and
promote the establishment of productive
forest land on reclaimed minesites.557
Proposed paragraph (d)(2) would
require that, if necessary, the permittee
rip, chisel-plow, or otherwise
mechanically treat backfilled and
graded areas before topsoil
redistribution to reduce potential
slippage of redistributed material placed
on slopes and to promote root
penetration. This provision is
substantively identical to existing
paragraph (d)(2) except that we propose
to specify that the treatment must be
mechanical in nature (ripping and
chisel-plowing are the two most
common methods) because we are not
aware of any other effective type of
treatment.
554 Sweigard, R., J. Burger, C. Zipper, J. Skousen,
C. Barton, and P. Angel. ‘‘Forest Reclamation
Advisory No. 3: Low Compaction Grading to
Enhance Reforestation Success on Coal Surface
Mines’’ (July 2007), pp. 1 and 6. Available at https://
arri.osmre.gov/FRA/Advisories/FRA_No.3.pdf (last
accessed November 19, 2014).
555 Id.
556 Torbert, J. L. and J. A. Burger, Influence of
Grading Intensity on Ground Cover Establishment,
Erosion, and Tree Establishment on Steep Slopes,
Virginia Polytechnic Institute and State University,
in ‘‘Proceedings of the International Land
Reclamation and Mine Drainage Conference and the
Third International Conference on the Abatement of
Acidic Drainage,’’ 1994, p. 230.
557 Sweigard, op. cit.
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Proposed Paragraph (e): Redistribution
Proposed paragraph (e) includes soil
redistribution requirements analogous
to those of existing paragraph (d)(1). The
proposed rule differs from the
redistribution requirements in the
existing rule primarily in that the
proposed rule would apply to all
salvaged soil and soil substitute
materials, not just to topsoil and topsoil
substitutes and supplements, as in the
existing rule. In addition, the proposed
rule not only would require
minimization of compaction to the
extent possible (a requirement that is
similar to the existing rule’s ban on
excess compaction); it would require
that the permittee take measures to
alleviate any excess compaction that
does occur, which would minimize
adverse impacts on site productivity
and plant growth.
We propose to remove existing
paragraph (d)(4), which requires
application of nutrients and soil
amendments to initially-redistributed
soil material when necessary to
reestablish vegetative cover. The
revegetation component of the
reclamation plan required under
proposed 30 CFR 780.12 governs the use
of nutrients and soil amendments.
Finally, proposed paragraph (e) would
require use of a statistically-valid
sampling technique to document that
soil materials have been redistributed in
the locations and to the depths required
by the soil-handling plan approved in
the permit in accordance with
§ 780.12(e). We encourage use of EPA’s
Data Quality Objectives model,558
which is a seven-step method to assist
in assuring that the appropriate type,
quantity, and quality of data are
collected for decision-making purposes.
Site-specific variability should be taken
into account when designing a sampling
program and caution is recommended in
the selection of composite versus
discrete sampling methods for certain
soil constituents. We invite comment on
whether use of the EPA Data Quality
Objectives model or its equivalent
should be mandatory.
Proposed Paragraph (f): Organic Matter
Proposed paragraph (f) would require
the salvage of organic matter found on
the site, including duff, other organic
litter, and vegetative materials such as
tree tops, small logs, and root balls. We
propose to prohibit the burning or
burying of these materials. Instead, for
558 ‘‘Guidance on Systematic Planning Using the
Data Quality Objectives Process,’’ (EPA QA/G–4),
EPA/240/B–06/001, February 2006; available at
https://www.epa.gov/quality/qa_docs.html (last
accessed August 7, 2014).
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the reasons discussed at slightly greater
length in the preamble to proposed 30
CFR 780.12(e), proposed paragraph (f)
would require that the permittee
redistribute the salvaged materials
across the regraded surface or
incorporate them into the soil to control
erosion, promote growth of vegetation,
serve as a source of native plant seeds
and inoculants such as mycorrhizae,
speed restoration of the soil’s ecological
community and ecosystem processes,
and increase the moisture retention
capability of the soil. Proposed
paragraph (f) is consistent with Forest
Reclamation Advisory No. 8, which
states that ‘‘[w]hen soil is obtained from
forested areas prior to mining, the
salvage operation should take stumps,
roots, and woody debris left on the site,
transport them to the reclaimed area,
and re-spread them with the soil.’’ 559
The rule also would allow the use of
woody debris for stream restoration
purposes and to construct fish and
wildlife habitat enhancement features.
Proposed paragraph (f) would
enhance implementation of section
515(b)(19) of SMCRA,560 which requires
that surface coal mining and
reclamation operations establish ‘‘a
diverse, effective, and permanent
vegetative cover of the same seasonal
variety native to the area of land to be
affected and capable of self-regeneration
and plant succession.’’ It also would
improve implementation of section
515(b)(24) of SMCRA,561 which requires
that surface coal mining and
reclamation operations, ‘‘to the extent
possible using the best technology
currently available, minimize
disturbances and adverse impacts of the
operation on fish, wildlife, and related
environmental values, and achieve
enhancement of such resources where
practicable.’’
5. Section 816.34: How must I protect
the hydrologic balance?
This new section would incorporate,
reorganize, and consolidate paragraphs
(a), (b), and (d) of existing 30 CFR
816.41. Those paragraphs contain
general requirements for protection of
the hydrologic balance as well as
provisions specific to protection of
groundwater and surface water.
Proposed Paragraph (a)
Proposed paragraph (a) is primarily
comprised of existing 30 CFR 816.41(a).
However, proposed paragraph (a)(3)
would add a requirement to protect
streams within the permit area, unless
559 Skousen,
et al. (2011), op. cit. at 3.
U.S.C. 1265(b)(19).
561 30 U.S.C. 1265(b)(24).
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otherwise approved in the permit in
accordance with proposed 30 CFR
780.28 and 816.57. This provision
would enhance implementation of
section 515(b)(24) of SMCRA,562 which
requires that surface coal mining and
reclamation operations be conducted to
minimize adverse impacts on fish,
wildlife, and related environmental
values to the extent possible using the
best technology currently available.
In addition, proposed paragraphs
(a)(4) and (5) would clarify and refine
the scope of existing 30 CFR 816.41(a),
which requires the ‘‘protection or
replacement of water rights.’’ Proposed
paragraph (a)(4) would require that the
permittee assure the protection or
replacement of water supplies to the
extent required by 30 CFR 816.40.
Proposed paragraph (a)(5) would require
that the permittee protect existing water
rights under state law. (Water rights are
determined by state law.) Proposed
paragraphs (a)(4) and (5) better reflect
the provisions of section 717 of
SMCRA,563 which contains the water
rights and water supply replacement
requirements applicable to surface
mines. With respect to water rights,
section 717(a) 564 provides that nothing
in SMCRA ‘‘shall be construed as
affecting in any way the right of any
person to enforce or protect, under
applicable law, his interest in water
resources affected by a surface coal
mining operation.’’ With respect to
water supply replacement, section
717(b) 565 provides that—
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The operator of a surface coal mine shall
replace the water supply of an owner of
interest in real property who obtains all or
part of his supply of water for domestic,
agricultural, industrial, or other legitimate
use from an underground or surface source
where such supply has been affected by
contamination, diminution, or interruption
proximately resulting from such surface coal
mine operation.
Proposed paragraph (a)(4) relates to
section 717(b) of SMCRA,566 while
proposed paragraph (a)(5) relates to
section 717(a) of SMCRA.567
Proposed paragraphs (a)(8) and (10)
correspond to existing 30 CFR
816.41(b)(1) and (d)(1), respectively. We
propose to revise the existing rules by
adopting language that more closely
follows the language of section
515(b)(10)(A) of SMCRA.568
Specifically, we propose to replace
requirements in the existing rules to
562 30
U.S.C. 1265(b)(24).
U.S.C. 1307.
564 30 U.S.C. 1307(a).
565 30 U.S.C. 1307(b).
566 30 U.S.C. 1307(b).
567 30 U.S.C. 1307(a).
568 30 U.S.C. 1265(b)(10)(A).
563 30
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minimize acidic or toxic drainage with
requirements to avoid acid or toxic mine
drainage. In addition, we propose to add
a requirement for use of the best
technology currently available. Section
515(b)(10) of SMCRA 569 uses this
phrase only in paragraph (B)(i), which
pertains to suspended solids. However,
proposed paragraphs (a)(8) and (10) of
this rule would require use of the best
technology currently available to meet
the requirements of section
515(b)(10)(A) 570 as well. Application of
this standard to all surface-water and
groundwater protection activities is
appropriate because section 515(b)(24)
of SMCRA 571 requires use of the best
technology currently available to
minimize adverse impacts on fish,
wildlife, and related environmental
values. Surface water and groundwater
quality are related environmental values
in this context.
In proposed paragraph (a)(11), which
is the counterpart to existing 30 CFR
816.41(d)(2), we propose to add a crossreference to the surface-water runoff
control plan that would be required by
proposed 30 CFR 780.29.
Proposed Paragraph (b)
Proposed paragraph (b)(1) is
substantively identical to the last
sentence in existing 30 CFR 816.41(a)
except that we propose to expand its
scope to include a requirement that the
permittee use mining and reclamation
practices that minimize adverse impacts
on stream biota rather than relying upon
water treatment to minimize those
impacts. The existing rule applies only
to water pollution and changes in flow.
We also propose to revise the existing
rule to clarify that this requirement is
not absolute and that it applies only to
the maximum extent practicable.
The addition of a reference to streams
and their biota recognizes the
importance of those features to the
hydrologic balance, watershed ecology,
and environmental values related to fish
and wildlife. This requirement also
would benefit the permittee because
using mining and reclamation practices
that avoid the creation of discharges
requiring treatment is economically
advantageous, especially for selenium
where recent settlement agreements and
court orders have resulted in the
construction of treatment plants and
implementation of treatment plans that
will cost tens of millions of dollars.
Proposed paragraph (b)(2) is
substantively identical to the last
U.S.C. 1265(b)(10).
U.S.C. 1265(b)(10)(A).
571 30 U.S.C. 1265(b)(24).
sentence of existing 30 CFR
816.41(d)(1).
Proposed Paragraph (c)
Proposed paragraph (c) is
substantively identical to the middle
sentence of existing 30 CFR 816.41(a).
Proposed Paragraph (d)
Proposed paragraph (d) would
establish examination and reporting
requirements for the surface-runoff
control structures identified in the
surface-water runoff control plan
approved in the permit under proposed
30 CFR 780.29. Section 515(b)(10)(B)(i)
of SMCRA,572 which requires that
surface coal mining operations be
conducted ‘‘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,’’ provides legal
authority for adoption of these
requirements.
In general, hydraulic structures for
sediment control are designed to retain
surface runoff from the 10-year, 24-hour
precipitation event within the permit
area and then discharge the retained
runoff at a rate that does not exacerbate
downstream and off-permit impacts. In
other words, by retaining surface runoff
on the minesite, peak flow, stream
scour, and sediment deposition in
receiving streams does not increase
beyond the level that would occur in the
absence of mining. The structures act as
‘‘flow equalization chambers.’’
Proposed paragraph (d)(1) would
require that the permittee examine the
entire surface-water control system
promptly after the cessation of each
precipitation event of a specified size.
The size of the precipitation event
generating the examination would differ
depending on average annual
precipitation amounts. For consistency,
we propose to use the same average
annual precipitation amounts as section
515(b)(20) of SMCRA 573 uses to
determine the length of revegetation
responsibility periods; i.e., our proposed
examination requirements would differ
depending on whether the permit lies in
an area with average annual
precipitation of 26.0 inches or less.
Bankfull flow in a stream in an area
with an average annual precipitation of
more than 26.0 inches generally occurs
in response to a precipitation event with
a recurrence interval between 1.5 and 2
years. Bankfull flow is the stage at
which water in the stream just fills the
stream channel to the top of its banks;
569 30
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573 30
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U.S.C. 1265(b)(20).
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i.e., it is the point at which any further
increase in the elevation of streamflow
would cause water to begin to flow onto
the flood plain. Under natural
conditions, any precipitation event
greater than the 2-year event would be
expected to result in some flooding—
and possibly flood-related damage.
However, the more modest flows from
smaller, more frequent events often
transport the greatest quantity of
sediment material over time.574
Hydraulic structures for surface coal
mining and reclamation operations are
typically designed with a combination
of sediment and stormwater runoff
storage capacity well in excess of the
estimated surface runoff from the 2-year
event. Failure to maintain these
structures by removing accumulated
sediment can result in a reduction of
stormwater storage capacity, which in
turn may result in a discharge that
causes property damage or material
damage to the hydrologic balance
outside the permit area.
Therefore, for areas with an average
annual precipitation of more than 26.0
inches, proposed paragraph (d)(1)(i)
would apply the examination and
reporting requirements to all
precipitation events that equal or exceed
the 2-year recurrence interval. We invite
comment on whether a precipitation
event with a 2-year recurrence interval
is an appropriate threshold for requiring
examination of sediment control
systems in mesic regions or whether we
should allow variations based upon
differences in terrain, storm frequency,
the nature of sedimentation control
structures, and the frequency with
which discharges from sedimentation
control structures occur.
In contrast, our experience indicates
that discharges from sedimentation
ponds are extremely rare in areas with
an average annual precipitation of 26.0
inches or less. A review of
representative mines in the West
determined that approximately one
percent of all impoundments discharge
in any single year. Another survey
indicated that discharges occurred in
only one of the past 10 years. Therefore,
for areas with an average annual
precipitation of 26.0 inches or less,
proposed paragraph (d)(1)(ii) would
apply the examination and reporting
requirements only to significant
precipitation events. The regulatory
authority would be responsible for
establishing that threshold, either as
part of the regulatory program or in the
permit. We invite comment on whether
we should establish more specific
574 Rosgen, Dave. ‘‘Applied River Morphology.’’
Wildland Hydrology (1996).
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criteria for examination of hydraulic
structures in arid and semiarid regions.
Proposed paragraph (d)(2) would
require that the permittee prepare a
report after the occurrence of each
precipitation event that equals or
exceeds the applicable threshold. The
proposed rule would require that the
report discuss the performance of the
hydraulic structures, identify and
describe any material damage to the
hydrologic balance outside the permit
area that occurred, and identify and
describe the remedial measures taken in
response to that damage. The proposed
rule also would require that the report
be certified by a registered professional
engineer and be submitted to the
regulatory authority within 48 hours of
cessation of the applicable precipitation
event to ensure that the regulatory
authority has the ability to take prompt
action to correct any deficiencies.
saturation, groundwater migration rates
typically are measured in only feet per
day.
Therefore, proposed paragraph (a)(2)
would require that groundwater
monitoring continue through mining
and during reclamation until the entire
bond amount for the monitored area has
been fully released under proposed 30
CFR 800.42(d), which generally will not
occur until expiration of the
revegetation responsibility period. In
addition, proposed 30 CFR 800.42(a)
would provide that the regulatory
authority may not release any portion of
the bond if an evaluation of monitoring
data indicates that adverse trends exist
that could result in material damage to
the hydrologic balance outside the
permit area. Any shorter time could
result in a failure to detect impacts,
given the combination of slow
saturation and migration rates.
6. Section 816.35: How must I monitor
groundwater?
Proposed 30 CFR 816.35 is
substantively identical to existing 30
CFR 816.41(c), except as discussed
below.
Proposed Paragraphs (b) and (c)
Proposed paragraphs (b) and (c) are
substantively identical to existing 30
CFR 816.41(c)(2).
Proposed Paragraph (a)
Proposed paragraph (a)(1)(i) is
substantively identical to the first
sentence of existing 30 CFR 816.41(c)(1).
Proposed paragraph (a)(1)(ii) would
require adherence to the data collection,
analysis, and reporting requirements of
proposed 30 CFR 777.13(a) and (b)
when conducting groundwater
monitoring. This provision would be
consistent with section 517(b)(2) of
SMCRA, which requires that monitoring
data collection and analysis ‘‘be
conducted according to standards and
procedures set forth by the regulatory
authority in order to assure their
reliability and validity.’’
Proposed paragraph (a)(2) includes
the requirement in existing 30 CFR
816.41(c)(3) that groundwater
monitoring proceed through mining and
continue during reclamation until bond
release. However, we propose to revise
the existing language to clarify that
monitoring must continue until the
entire bond amount for the monitored
area has been fully released under
proposed 30 CFR 800.42(d), not just
partial or Phase I or II bond release. This
change is appropriate because the time
required to achieve saturation of
backfilled areas or underground mine
voids typically is measured in years,
which means that mining-related
impacts on groundwater outside the
permit area may not occur until years
after completion of mining and land
reclamation. Even after complete
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Proposed Paragraph (d)
Proposed paragraph (d) is the
counterpart to those elements of existing
30 CFR 816.41(c)(3) that pertain to
modification of the groundwater
monitoring plan. We propose to remove
existing 30 CFR 816.41(c)(3)(ii) because
it provides that the regulatory authority
may approve a permit revision that
would allow the cessation of
groundwater monitoring based on a
finding that monitoring is no longer
necessary to achieve the purposes of the
monitoring plan. As discussed in the
preamble to proposed paragraph (a)
above, cessation of monitoring before
the entire bond amount for the
monitored area has been fully released
under proposed 30 CFR 800.42(d) is
inappropriate, based on the time
required for saturation of the backfill
and slow groundwater migration rates.
Proposed paragraph (d) would continue
to allow the regulatory authority to
approve a permit revision to otherwise
modify the parameters monitored and
the sampling frequency under certain
conditions. We invite comment on
whether we should establish a
minimum sampling frequency or place
other restrictions on the regulatory
authority’s ability to modify monitoring
requirements.
However, to supplement the
demonstrations required by existing 30
CFR 816.41(c)(3)(i) before the regulatory
authority may approve a permit revision
of this nature, we propose to add
requirements that the permittee
demonstrate that future changes in
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groundwater quantity or quality are
unlikely and that the operation has
preserved or restored the biological
condition of perennial and intermittent
streams with base flows originating in
whole or in part from groundwater
within the permit or adjacent areas. See
proposed paragraphs (d)(1) and (2)(iii).
The additional criteria are intended to
ensure that groundwater monitoring
requirements are not reduced or
modified prematurely.
In addition, we propose to replace the
requirement in existing 30 CFR
816.41(c)(3)(i) for a demonstration that
the water quantity and quality are
suitable to support approved
postmining land uses with a
requirement for a demonstration that the
operation has maintained the
availability and quality of groundwater
in a manner that can support existing
and reasonably foreseeable uses. Our
proposed replacement language
parallels the terminology in our
proposed definition of ‘‘material damage
to the hydrologic balance outside the
permit area’’ in 30 CFR 701.5.
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Proposed Paragraph (e)
Proposed paragraph (e) corresponds to
the second sentence of existing 30 CFR
816.41(c)(1), which provides that the
regulatory authority may require
additional monitoring when necessary.
We propose to modify the existing
language to specify that the regulatory
authority must require additional
monitoring when information available
to the regulatory authority indicates that
additional monitoring is necessary to
protect the hydrologic balance, detect
hydrologic changes, or meet other
requirements of the regulatory program.
We also propose to specify that the
regulatory authority must issue a permit
revision order under § 774.10(b) when
requiring changes to the monitoring
plan approved in the permit.
Proposed Paragraph (f)
Like existing 30 CFR 816.41(c)(4),
proposed paragraph (f) would require
that the permittee install, maintain,
operate, and, when no longer needed,
remove all equipment, structures, and
other devices used in conjunction with
monitoring groundwater. We propose to
add cross-references to 30 CFR 816.13
and 816.39, which also contain
requirements pertinent to the closure or
disposition of monitoring wells.
7. Section 816.36: How must I monitor
surface water?
Proposed 30 CFR 816.36 is
substantively identical to existing 30
CFR 816.41(e), except as discussed
below.
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Proposed Paragraph (a)
Proposed paragraph (a)(1)(I) is
substantively identical to the first
sentence of existing 30 CFR 816.41(e)(1).
Proposed paragraph (a)(1)(ii) would
require adherence to the data collection,
analysis, and reporting requirements of
proposed 30 CFR 777.13(a) and (b)
when conducting groundwater
monitoring. This provision would be
consistent with section 517(b)(2) of
SMCRA, which requires that monitoring
data collection and analysis ‘‘be
conducted according to standards and
procedures set forth by the regulatory
authority in order to assure their
reliability and validity.’’
Proposed paragraph (a)(2) includes
the requirement in existing 30 CFR
816.41(e)(3) that surface-water
monitoring proceed through mining and
continue during reclamation until bond
release. However, we propose to revise
the existing language to remove any
ambiguity concerning the meaning of
‘‘bond release’’ and clarify that
monitoring must continue until the
entire bond amount posted for the
monitored area has been fully released
under proposed 30 CFR 800.42(d), not
just partial or Phase I or II bond release.
As discussed above in the portion of the
preamble concerning proposed 30 CFR
816.35(a), this change is appropriate
because the time required to achieve
saturation of backfilled areas or
underground mine voids typically is
measured in years, which means that
mining-related impacts on groundwater,
and hence surface water fed by
groundwater, outside the permit area
may not occur until years after the
completion of mining and land
reclamation. Even after complete
saturation, groundwater migration rates
typically are measured in only feet per
day.
Therefore, proposed paragraph (a)(2)
would require that surface-water
monitoring continue through mining
and during reclamation until the entire
bond amount posted for the monitored
area has been fully released under
proposed 30 CFR 800.42(d), which
generally will not occur until expiration
of the revegetation responsibility period.
In addition, proposed 30 CFR 800.42(a)
would provide that the regulatory
authority may not release any portion of
the bond if an evaluation of monitoring
data indicates that adverse trends exist
that could result in material damage to
the hydrologic balance outside the
permit area. Any shorter time could
result in a failure to detect impacts on
surface water fed by groundwater, given
the combination of slow saturation and
migration rates for groundwater.
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Proposed Paragraphs (b) and (c)
Proposed paragraphs (b) and (c) are
substantively identical to existing 30
CFR 816.41(e)(2).
Proposed Paragraph (d)
Proposed paragraph (d) would be the
counterpart to those elements of existing
30 CFR 816.41(e)(3) that pertain to
modification of the surface-water
monitoring plan. We propose to remove
existing 30 CFR 816.41(e)(3)(ii) because
it provides that the regulatory authority
may approve a permit revision that
would allow the cessation of surfacewater monitoring based on a finding
that monitoring is no longer necessary
to achieve the purposes of the
monitoring plan. As discussed in the
preamble to paragraph (a) above,
cessation of monitoring before the entire
bond amount for the monitored area has
been fully released under proposed 30
CFR 800.42(d) is inappropriate, based
on the time required for saturation of
the backfill and slow groundwater
migration rates. Proposed paragraph (d)
would continue to allow the regulatory
authority to approve a permit revision to
otherwise modify the parameters
monitored and the sampling frequency
under certain conditions. We invite
comment on whether we should
establish a minimum sampling
frequency or place other restrictions on
the regulatory authority’s ability to
modify monitoring requirements.
However, as in the similar provision
in proposed 30 CFR 816.35 relating to
groundwater monitoring, we propose to
add requirements that the permittee
demonstrate that future changes in
surface-water quantity or quality are
unlikely and that the operation has
preserved or restored the biological
condition of perennial and intermittent
streams within the permit and adjacent
areas. See proposed paragraphs (d)(1)
and (2)(iii). The additional criteria are
intended to ensure that surface-water
monitoring requirements are not
reduced or modified prematurely.
In addition, we propose to replace the
requirement in existing 30 CFR
816.41(e)(3)(i) for a demonstration that
the water quantity and quality are
suitable to support approved
postmining land uses with a
requirement for a demonstration that the
operation has maintained the
availability and quality of surface water
in a manner that can support existing
and reasonably foreseeable uses and that
does not preclude attainment of
designated uses under section 101(a) or
303(c) of the Clean Water Act.575 Our
575 33
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U.S.C. 1251(a) and 1313(c), respectively.
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proposed replacement language
parallels the terminology of our
proposed definition of material damage
to the hydrologic balance outside the
permit area in 30 CFR 701.5, which also
relies upon existing, reasonably
foreseeable, and designated uses under
section 101(a) or 303(c) of the Clean
Water Act. We propose to retain the
requirement in the last clause of existing
30 CFR 816.41(e)(3)(i) for a
demonstration that the water rights of
other users have been protected or
replaced.
Proposed Paragraph (e)
Proposed paragraph (e) corresponds to
the second sentence of existing 30 CFR
816.41(e)(1), which provides that the
regulatory authority may require
additional monitoring when necessary.
We propose to modify the existing
language to specify that the regulatory
authority must require additional
monitoring when information available
to the regulatory authority indicates that
additional monitoring is necessary to
protect the hydrologic balance, detect
hydrologic changes, or meet other
requirements of the regulatory program.
We also propose to specify that the
regulatory authority must issue a permit
revision order under § 774.10(b) when
requiring changes to the monitoring
plan approved in the permit.
tkelley on DSK3SPTVN1PROD with PROPOSALS2
Proposed Paragraph (f)
Like existing 30 CFR 816.41(e)(4),
proposed paragraph (f) would require
that the permittee install, maintain,
operate, and, when no longer needed,
remove all equipment, structures, and
other devices used in conjunction with
monitoring surface water.
8. Section 816.37: How must I monitor
the biological condition of streams?
We propose to add this section to
require monitoring of the biological
condition of perennial and intermittent
streams, consistent with the monitoring
plan approved in the permit in
accordance with proposed 30 CFR
780.23(c). The proposed rule would
require annual monitoring during
mining and reclamation until the entire
bond amount for the monitored area has
been fully released under proposed 30
CFR 800.42(d). The annual frequency is
intended to provide sufficient data to
evaluate the impacts of mining and
reclamation without depleting the
stream segment of aquatic life, as more
frequent sampling might do. Monitoring
would enable the permittee and the
regulatory authority to determine
whether the predictions in the permit
application are accurate and to take
timely corrective measures if the
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predictions turn out to be inaccurate.
The proposed monitoring requirements
generally parallel the requirements for
water monitoring under 30 CFR 816.35
and 8816.36, but in simplified form.
9. Section 816.38: How must I handle
acid-forming and toxic-forming
materials?
Proposed section 816.38 would
replace and revise existing 30 CFR
816.41(f), which requires that drainage
from acid-forming and toxic-forming
materials into surface water and
groundwater be avoided by appropriate
storage, burial, and treatment practices.
We propose to flesh out the existing rule
to more completely implement section
515(b)(14) of SMCRA,576 which requires
that all acid-forming materials and toxic
materials be ‘‘treated or buried and
compacted or otherwise disposed of in
a manner designed to prevent
contamination of ground or surface
waters,’’ and section 515(b)(3) of
SMCRA,577 which provides that
‘‘overburden or spoil shall be shaped
and graded in such a way as to prevent
slides, erosion, and water pollution.’’
Proposed 30 CFR 816.38 also would
more completely implement section
515(b)(10) of SMCRA,578 which
provides that surface coal mining and
reclamation operations must 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 both during
and after surface coal mining operations
and during reclamation by *** avoiding
acid or other toxic mine drainage.’’
We propose to revise the introductory
text of 30 CFR 816.38 to require that the
permittee use the best technology
currently available to handle acidforming and toxic-forming materials in
a manner that will avoid the creation of
acid or toxic mine drainage into surface
water and groundwater. The phrase
‘‘best technology currently available’’
does not appear in the sections of
SMCRA mentioned above. However,
application of this standard to the
handling of acid-forming and toxicforming materials is appropriate because
section 515(b)(24) of SMCRA 579
requires use of the best technology
currently available to minimize adverse
impacts on fish, wildlife, and related
environmental values. The handling of
acid-forming and toxic-forming
materials would affect surface-water and
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576 30
U.S.C. 1265(b)(14).
U.S.C. 1265(b)(3).
578 30 U.S.C. 1265(b)(10).
579 30 U.S.C. 1265(b)(24).
577 30
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44547
groundwater quality, which are related
environmental values in the context of
fish and wildlife.
Proposed paragraphs (a) through (f)
contain more specific provisions on
how the permittee must implement this
requirement.
Proposed paragraph (a) would require
that the permittee identify potential
acid-forming and toxic-forming
materials in overburden strata and the
stratum immediately below the lowest
coal seam to be mined. We invite
comment on whether there are
generally-accepted tests for potential
acid-forming and toxic-forming
materials in overburden strata that the
final rule should require.
Proposed paragraph (a) also would
require that the permittee cover exposed
coal seams and the stratum immediately
beneath the lowest coal seam mined
with a layer of compacted material with
a hydraulic conductivity at least two
orders of magnitude lower than the
hydraulic conductivity of the adjacent
less-compacted spoil to minimize
contact and interaction with water.
Covering the coal seam and the
underlying stratum with material that
has a lower permeability than the
adjacent spoil would reduce the amount
of water that could either reach or leave
the coal seam and underlying stratum.
Reduced water transmission will inhibit
both the creation and migration of acid
or toxic mine drainage. Use of materials
with such a great difference in
permeability should result in the lowpermeability material behaving as an
aquitard. The groundwater and
infiltrating surface water should
preferentially flow through the
surrounding high-permeability material
and not through the low-permeability
material encapsulating the acid-forming
or toxic-forming materials.
Proposed paragraph (b) would require
that the permittee identify the
anticipated postmining groundwater
level for all locations at which acidforming or toxic-forming materials are to
be placed. This information is critical to
a determination of whether the
materials will remain in an environment
that will prevent formation or migration
of acid or toxic mine drainage.
Proposed paragraph (c) would require
that the permittee selectively handle
and place acid-forming and toxicforming materials within the backfill in
accordance with the plan approved in
the permit, unless the permit allows
placement of those materials in an
excess spoil fill or a coal mine waste
refuse pile. Proposed paragraph (c)
identifies three acceptable handling
techniques for acid-forming and toxicforming materials to be placed in the
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backfill: (1) Complete isolation of acidforming and toxic-forming materials
from contact or interaction with surface
water or groundwater by surrounding
those materials with compacted material
with a hydraulic conductivity at least
two orders of magnitude lower than the
hydraulic conductivity of the adjacent
less-compacted spoil; (2) placement of
acid-forming and toxic-forming
materials in a location below the water
table where they will remain fully
saturated at all times, provided that the
permittee demonstrates, and the
regulatory authority finds in writing in
the permit, that complete saturation will
prevent the formation of acid or toxic
leachate; and (3) treatment to neutralize
the acid-forming and toxic-forming
potential of those materials. The last
technique may be used in combination
with either of the first two methods.
Under the proposed rule, the permittee
must use the technique or combination
of techniques approved in the permit in
accordance with proposed 30 CFR
780.12(d)(4). The permittee must
demonstrate and the regulatory
authority must confirm that the selected
technique will be effective for each
parameter of concern. For example, a
technique that may be effective in
preventing the formation of acid
drainage might not be effective in
preventing leaching of selenium. The
regulatory authority may require that
the permittee or permit applicant
submit additional information,
including fate and transport modeling, if
deemed necessary.
Isolation of acid-forming and toxicforming materials from contact with
groundwater or surface water can be
accomplished by completely
surrounding those materials with
compacted material with a hydraulic
conductivity at least two orders of
magnitude lower than the hydraulic
conductivity of the adjacent lesscompacted spoil to minimize interaction
with water. Situations requiring
saturation rather than isolation arise
most frequently in the relatively flat
terrain of coalfields in the Midwest and
the West. Saturation may not be suitable
for materials with the potential for
forming toxic compounds through
processes other than pyritic oxidation.
Proposed paragraph (d) would allow
placement of acid-forming and toxicforming materials in an excess spoil fill
or a coal mine waste refuse pile when
approved in the permit. The proposed
rule would require the use of isolation
or treatment or a combination of those
techniques whenever the permittee
places acid-forming or toxic-forming
materials in an excess spoil fill or a coal
mine waste refuse pile. The proposed
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rule would not authorize use of the
saturation technique because saturation
could jeopardize the stability of the fill
or refuse pile. Saturation also could
result in discharges with high levels of
total dissolved solids, which in turn
could adversely impact the biological
condition of streams and cause material
damage to the hydrologic balance
outside the permit area.
Alternatively, prohibition of
placement of acid-forming or toxicforming materials in an excess spoil fill
would provide an additional layer of
protection against the development of
seeps containing acid or toxic mine
drainage. We invite comment on
whether we should revise our rule to
include such a prohibition.
Proposed paragraph (e) would modify
the requirements in existing 30 CFR
816.41(f)(1)(ii) for temporary storage of
acid-forming and toxic-forming
materials to emphasize that storage may
be used only when the regulatory
authority specifically approves
temporary storage as necessary and
finds in writing in the permit that the
proposed storage method will protect
surface water and groundwater by
preventing erosion, the formation of
polluted runoff, and the infiltration of
polluted water into aquifers. The
proposed rule would require that the
regulatory authority specify a maximum
time for temporary storage, which may
not exceed the period until burial first
becomes feasible. We also propose to
add a provision prohibiting temporary
storage if doing so would result in a risk
of adverse impacts to the biological
condition of perennial or intermittent
streams. Minimizing the need for, and
duration of, temporary storage is critical
because the oxidation of pyritic
materials continues while the material
is exposed. Precipitation may infiltrate
and percolate through the pile, which
can result in an increase in the
concentration of total dissolved solids
leaving the site. The weathering
products of pyrite oxidation essentially
become ‘‘stored acidity,’’ which
presents a greater risk to the hydrologic
balance if the permanent placement
technique ultimately is not successful.
Our proposed revisions to the temporary
storage requirements for acid-forming
and toxic-forming materials would
improve implementation of section
515(b)(10) of SMCRA.580
580 30 U.S.C. 1265(b)(10). This provision of
SMCRA specifies that surface coal mining and
reclamation operations must 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
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Proposed paragraph (f) would require
that disposal, treatment, and storage
practices for acid-forming and toxicforming materials be consistent with
other material handling and disposal
provisions of the regulatory program.
This paragraph is substantively
identical to existing 30 CFR 816.41(f)(2).
10. Section 816.40: What responsibility
do I have to replace water supplies?
Proposed 30 CFR 816.40 would
replace and revise existing 30 CFR
816.41(h), which contains performance
standards to implement section 717(b)
of SMCRA.581 That paragraph of
SMCRA provides that—
The operator of a surface coal mine shall
replace the water supply of an owner of
interest in real property who obtains all or
part of his supply of water for domestic,
agricultural, industrial, or other legitimate
use from an underground or surface source
where such supply has been affected by
contamination, diminution, or interruption
proximately resulting from such surface coal
mine operation.
Proposed 30 CFR 816.40 would
further flesh out the requirements of this
statutory provision by incorporating
paragraphs (a) and (b) of the existing
definition of ‘‘replacement of water
supply’’ in 30 CFR 701.5. We propose to
move those paragraphs to 30 CFR
816.40(a)(2) through (4) because they
effectively function as performance
standards and are not definitional in
nature. We also propose to require
adherence to the water supply
replacement provisions of proposed 30
CFR 780.22(b) when the permit
anticipates that damage to water
supplies will occur. Finally, we propose
to add the following provisions that
would apply when unanticipated
damage to a protected water supply
occurs:
• The permittee would have to
provide an emergency temporary water
supply within 24 hours of notification
of unanticipated damage to a protected
water supply. The temporary supply
must be adequate in quantity and
quality to meet normal household
needs.
• The permittee would have to
develop and submit a plan for a
permanent replacement supply to the
regulatory authority within 30 days of
receiving notice of unanticipated
damage.
systems both during and after surface coal mining
operations and during reclamation by—
(A) avoiding acid or other toxic mine drainage by
such measures as, but not limited to—
(i) preventing or removing water from contact
with toxic producing deposits[.]
581 30 U.S.C. 1307(b).
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• The permittee would have to
provide a permanent replacement water
supply within 2 years of receiving
notice of unanticipated damage.
The proposed timeframes for
replacement of water supplies for which
damage is unanticipated differ
somewhat from those set forth in the
preamble to the existing definition of
‘‘replacement of water supply’’ in 30
CFR 701.5. That preamble defines
prompt replacement as providing an
emergency drinking water supply
within 48 hours of notification, a
temporary water supply hookup within
2 weeks of notification, and a
permanent replacement supply within 2
years of notification.582 We propose to
replace the timeframes in that preamble
with the times set forth in proposed 30
CFR 816.40 as discussed above. The
proposed timeframes would better
protect society and the environment
from the adverse effects of surface coal
mining operations, in keeping with the
purpose of SMCRA set forth in section
102(a) of the Act.583
11. Section 816.41: Under what
conditions may I discharge to an
underground mine?
Proposed section 816.41 would inlude
existing 30 CFR 816.41(i) and add four
new requirements that must be met
before the regulatory authority may
approve a proposed discharge to any
type of underground mine. First,
proposed paragraph (a)(1)(ii) would
require a demonstration that the
discharge will be made in a manner that
will prevent material damage to the
hydrologic balance of the area in which
the underground mine receiving the
discharge is located. Second, proposed
paragraph (a)(1)(iii) would require a
demonstration that the discharge will be
made in a manner that will not
adversely impact the biological
condition of perennial or intermittent
streams. Third, proposed paragraph
(a)(3)(ii) would allow the regulatory
authority to approve discharges of water
that exceed the effluent limitations for
pH and total suspended solids only if
available evidence indicates that there is
no direct hydrologic connection
between the underground mine and
other waters and that the discharge
would not cause material damage to the
hydrologic balance outside the permit
area. All three of the proposed revisions
discussed above are intended to more
fully implement section 510(b)(3) of
SMCRA,584 which prohibits approval of
a permit application unless the
applicant demonstrates, and the
regulatory authority finds, that the
proposed operation has been designed
to prevent material damage to the
hydrologic balance outside the permit
area.
The fourth proposed revision would
add paragraph (a)(5), which would
require that the permit applicant obtain
written permission from the owner of
the mine into which the discharge is to
be made and provide a copy of that
authorization to the regulatory
authority.
12. Section 816.42: What are my
responsibilities to comply with water
quality standards and effluent
limitations?
We propose to redesignate existing 30
CFR 816.42 as paragraph (a) of this
section. We also propose to revise this
paragraph by replacing the reference to
the effluent limitations in 40 CFR part
434 with a reference to the effluent
limitations established in the NPDES
permit for the operation. This change
would make our regulations consistent
with the policy and practice of the EPA,
which recognizes only the effluent
limitations in the NPDES permit as
being enforceable.
Proposed paragraph (b) would require
that discharges of overburden (including
excess spoil), coal mine waste, and
other materials into waters of the United
States be made in compliance with
section 404 of the Clean Water Act 585
and its implementing regulations. While
the language would be new, the
requirement would not—SMCRA
permittees always have been required to
comply with the Clean Water Act, as
emphasized in section 702(a) of
SMCRA,586 which provides that
‘‘[n]othing in this Act shall be construed
as superseding, amending, modifying, or
repealing’’ the Clean Water Act (33
U.S.C. 1251 et seq.), any rule or
regulation adopted under the Clean
Water Act, any state laws enacted
pursuant to the Clean Water Act, ‘‘or
other Federal laws relating to
preservation of water quality.’’ We
invite comment on whether the
provisions of proposed paragraph (b)
should be considered informational in
nature like the provisions of section
702(a) of SMCRA 587 or whether they
should be directly enforceable under
SMCRA.
Proposed paragraphs (c) through (e)
would establish enforceable
performance standards requiring proper
operation and maintenance of water
582 60
585 33
583 30
FR 16727 (Mar. 31, 1995).
U.S.C. 1202(a).
584 30 U.S.C. 1260(b)(3).
586 30
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U.S.C. 1344.
U.S.C. 1292(a).
587 Id.
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treatment facilities and environmentally
appropriate disposition of precipitates
from those facilities. They are intended
to improve implementation of section
515(b)(10)(A)(ii) of SMCRA,588 which
requires that surface coal mining and
reclamation operations avoid acid or
other toxic mine drainage by ‘‘treating
drainage to reduce toxic content which
adversely affects downstream water
upon being released to water courses.’’
Specifically, proposed paragraph (c)
would require the permittee to construct
water treatment facilities for discharges
from the operation as soon as the need
for those facilities becomes evident.
Proposed paragraph (d) would require
that the permittee remove precipitates
and otherwise maintain all water
treatment facilities involving the use of
settling ponds or lagoons as necessary to
maintain the functionality of the ponds
or lagoons. The permittee would be
required to dispose of the precipitates
removed either in an approved solid
waste landfill or in a location within the
permit area. Proposed paragraph (e)
would require that the permittee operate
and maintain water treatment facilities
until the regulatory authority authorizes
their removal based upon monitoring
data demonstrating that influent to the
facilities meets all applicable water
quality standards and effluent limits
without treatment.
13. Section 816.43: How must I
construct and maintain diversions and
other channels to convey water?
We propose to revise this section to
reflect plain language principles. In
addition, we propose several
substantive changes. First, proposed
paragraph (a)(3) would require the
construction of channels that meet
temporary diversion design criteria to
convey surface runoff to siltation
structures whenever the sedimentation
control plan approved in the permit
pursuant to 30 CFR 816.45 involves the
use of siltation structures. This
requirement would not apply if the
entire disturbed area would naturally
drain to the siltation structure without
the construction of channels. Requiring
that these channels meet temporary
diversion design criteria would
minimize the potential for failure and
the resulting possibility of offsite
impacts. Diversion failures have
resulted in subsequent failures of larger
structures. For example, in West
Virginia in 2003, the failure of a
diversion ditch caused erosion and the
breaching of a reclaimed impoundment,
resulting in a flow of water, slurry, and
coarse refuse downstream. This event
588 30
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isolated residents along Ned’s Branch,
blocked roads and a major railroad, and
contaminated the Guyandotte River.
Existing 30 CFR 816.43(a) requires
that diversions be designed to minimize
adverse impacts to the hydrologic
balance within the permit and adjacent
areas. Proposed paragraph (a)(4)(ii)
would clarify that this provision
includes a requirement to minimize
adverse impacts to perennial and
intermittent streams within that area.
Existing 30 CFR 816.43(a) requires
that diversions be designed to ‘‘prevent
material damage outside the permit
area.’’ Proposed paragraph (a)(4)(iii)
would revise this language to require
that diversions be designed to prevent
material damage to the hydrologic
balance outside the permit area. The
revised language would make this
provision consistent with the
terminology of 30 CFR 773.15(e) and
section 510(b)(3) of SMCRA,589 which
require that surface coal mining and
reclamation operations be designed to
prevent material damage to the
hydrologic balance outside the permit
area.
We propose to combine existing 30
CFR 816.43(a)(2)(ii) and (c)(3) into a
new paragraph (a)(5)(ii). Existing
paragraph (a)(2)(ii) provides that each
diversion and its appurtenant structures
must be designed, located, constructed,
maintained, and used to provide
protection against flooding and resultant
damage to life and property. Existing
paragraph (c)(3) states that this
requirement will be deemed met when
the combination of channel, bank, and
floodplain configuration is adequate to
safely pass the peak runoff of a 2-year,
6-hour precipitation event for a
temporary diversion and a 10-year, 6hour precipitation event for a
permanent diversion. Proposed
paragraph (a)(5)(ii) would replace
existing paragraph (a)(2)(ii) with a
slightly modified version of existing
paragraph (c)(3) because existing
paragraph (c)(3) effectively negates
existing paragraph (a)(2)(ii). Proposed
paragraph (a)(5)(ii) would not contain
the reference to floodplain configuration
in existing paragraph (c)(3) because use
of a floodplain to convey flows from
storm runoff is appropriate in naturallyfunctioning streams and in restored
streams, but not with temporary or
permanent diversions.
Proposed paragraph (a)(5)(ii) also
would require that each diversion be
designed using the appropriate regional
NRCS synthetic storm distribution to
determine peak flows. The preamble to
589 30
proposed 30 CFR 780.29 explains the
rationale for this proposed requirement.
Proposed paragraph (a)(5)(iii) would
include existing paragraph (a)(2)(iii). We
propose to add a reference to runoff
outside the permit area to be consistent
with the underlying statutory provision
in section 515(b)(10)(B)(i) of SMCRA,590
which requires that surface coal mining
operations be conducted ‘‘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.’’
The last sentence of existing
paragraph (a)(3) and the entirety of
existing paragraph (b) contain approval,
design, and construction requirements
for temporary and permanent diversions
of perennial, intermittent, and
ephemeral streams. We propose to move
the approval and design provisions to
30 CFR 780.28(c) and the construction
requirements to 30 CFR 816.57(b) to
consolidate requirements concerning
activities in, through, or adjacent to
streams in those sections. Proposed
paragraph (b) would specify that 30 CFR
780.28 and 816.57 contain additional
requirements applicable to diversions of
perennial and intermittent streams.
Lastly, we propose to revise paragraph
(c)(1) of the existing rules to limit the
scope of paragraph (c), which applies to
diversions of miscellaneous flows, to
surface-water flows other than perennial
and intermittent streams. The existing
rule is internally inconsistent in that it
specifically includes groundwater
discharges, but expressly excludes
perennial and intermittent streams.
However, any flow resulting from a
groundwater discharge would be a
perennial or intermittent stream under
both the existing and proposed
definitions of those terms in 30 CFR
701.5. Therefore, diversions of
groundwater discharges would be
subject to the stream-channel diversion
requirements referenced in proposed
paragraph (b) rather than standards for
miscellaneous flows under paragraph
(c).
We invite comment on whether we
should revise paragraph (c) to apply the
same design events for temporary and
permanent diversions of miscellaneous
flows as apply to temporary and
permanent diversions of perennial and
intermittent streams because there is no
readily apparent hydrologic reason to
apply different standards based on the
flow regime of the stream. Instead, it
may be more logical to prescribe design
events based upon the length of time
that the diversion is expected to remain
U.S.C. 1260(b)(3).
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in existence; i.e., whether it is
temporary or permanent. Under this
approach, temporary diversions of
miscellaneous flows would have to be
designed and constructed to safely pass
the peak runoff from the 10-year, 6-hour
precipitation event rather than the 2year, 6-hour event. Similarly, permanent
diversions of miscellaneous flows
would have to be designed and
constructed to safely pass the peak
runoff from the 100-year, 6-hour
precipitation event rather than the 10year, 6-hour event. We also invite
comment on whether we should raise
the design event for temporary
diversions to the 25-year, 6-hour event
to provide an added margin of safety.
14. Section 816.45: What sediment
control measures must I use?
We propose to remove the second
sentence of 30 CFR 816.45(b), which
reads as follows: ‘‘The sedimentation
storage capacity of practices in and
downstream from the disturbed areas
shall reflect the degree to which
successful mining and reclamation
techniques are applied to reduce erosion
and control sediment.’’ The meaning of
this sentence is unclear, but it appears
to be predicated on the assumption that
all mines will have a sedimentation
pond or other siltation structure located
downstream of the disturbed area. That
assumption is inconsistent with the
court decision remanding former 30
CFR 816.46(b)(2) (1983).591
Furthermore, not all sediment control
practices include sedimentation storage
capacity. Therefore, we propose to
remove this sentence to avoid any
conflict with either the court decision or
current technology.
15. Section 816.46: What requirements
apply to siltation structures?
We propose to remove existing
paragraph (b)(1) of this section because
it duplicates 30 CFR 816.45(a)(1), both
of which require use of the best
technology currently available to
prevent additional contributions of
suspended solids to streamflow or
runoff outside the permit area to the
extent possible. Section 816.45 is the
more appropriate location for this
provision because section 816.46 covers
only siltation structures, whereas
section 816.45 encompasses all methods
of sediment control. Section 816.45 sets
forth various measures and techniques
that may constitute the best technology
currently available for sediment control,
591 PSMRL II, Round III, 620 F. Supp. 1519, 1566–
1568 (D.D.C. 1985), as discussed at 73 FR 75854
(Dec. 12, 2008). See also 51 FR 41961 (Nov. 20,
1986).
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although applicants and regulatory
authorities are not limited to those
measures and techniques.
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. In a technical rule that
corrected various errors in citations,
cross-references, and other inadvertent
errors, we lifted that suspension and
removed paragraph (b)(2) from our
regulations on September 29, 2010 (75
FR 60272, 60275). However, on
February 14, 2014, the court’s decision
in NPCA reinstated the version of 30
CFR 816.46(b) in effect before adoption
of the stream buffer zone rule on
December 12, 2008. This action had the
effect of reinstating the suspension,
which we codified in a final rule
published on December 22, 2014. See 79
FR 76227–76233. We now propose to
lift this suspension, remove paragraph
(b)(2) of sections 816.46 and 817.46, and
redesignate the remaining paragraphs of
those sections accordingly.
In addition, we propose to redesignate
as paragraph (b)(1) the provision in
existing paragraph (b)(3) requiring that
the permittee construct siltation
structures for an area before initiating
any surface mining activities in the area.
We also propose to revise this paragraph
to clarify that the requirement to
construct siltation structures applies
only when the approved permit requires
the use of siltation structures to achieve
the sediment control requirements of 30
CFR 816.45. This revision is needed
because, as the courts have recognized,
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siltation structures are not always the
best technology currently available for
sediment control.592 Proposed
paragraph (b)(2) would retain only the
requirement in existing paragraph (b)(3)
that the construction of siltation
structures be certified by a qualified
registered professional engineer or a
qualified registered professional land
surveyor.
Finally, we propose to—
• Revise existing paragraph (b)(5),
which we propose to redesignate as
paragraph (b)(4), to remove the
prohibition on removing siltation
structures sooner than 2 years after the
last augmented seeding. The standard is
too inflexible and it is arguably
inconsistent with the decision in
PSMRL II, Round III discussed above, in
which the court held that we had not
demonstrated that siltation structures
are always the best technology currently
available to control sediment in runoff
from the minesite. Applying that
rationale, the permittee should have the
option of using other methods of
sediment control in lieu of retaining the
siltation structures for 2 years after the
last augmented seeding. In addition, the
remaining standard in the rule, which
prohibits removal of siltation structures
until the disturbed area is stabilized and
revegetated, is sufficient to ensure an
appropriate level of environmental
protection.
• Revise existing paragraph (b)(6),
which we propose to redesignate as
paragraph (b)(5), to clarify that the
exemption for sedimentation ponds
approved by the regulatory authority for
retention as permanent impoundments
under 30 CFR 816.49(b) is contingent
upon meeting the maintenance
requirements of 30 CFR 800.42(c)(5).
The latter rule implements the statutory
provision in section 519(c)(2) of
SMCRA 593 establishing bond release
requirements for silt dams to be retained
as permanent impoundments.
• Remove existing paragraph (c)(1)(i),
which provides that sedimentation
ponds must be used individually or in
series. This provision adds nothing
meaningful to our regulations because
there is no other way in which
sedimentation ponds could be used.
• Revise existing paragraph (c)(1)(ii),
which we propose to redesignate as
paragraph (c)(1)(i), to provide that the
prohibition on locating sedimentation
ponds in stream channels applies to
both perennial and intermittent stream
channels, not just to perennial stream
592 PSMRL II, Round III, 620 F. Supp. 1519, 1566–
1568 (D.D.C. 1985), as discussed at 73 FR 75854
(Dec. 12, 2008).
593 30 U.S.C. 1269(c)(2).
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44551
channels as in the existing rule. In
addition, we propose to clarify that any
exceptions to this prohibition must
comply with 30 CFR 780.28, which
contains the permitting requirements for
activities in, through, or adjacent to
perennial and intermittent streams, and
the performance standards concerning
sedimentation control structures in
streams in 30 CFR 816.57(c). The
statutory basis for these proposed
changes is the same as the statutory
basis for the stream protection measures
proposed in 30 CFR 780.28.
• Revise existing paragraph
(c)(1)(iii)(H), which we propose to
redesignate as paragraph (c)(1)(ii)(H), to
replace the prohibition on the use of
acid-forming or toxic-forming coal
processing waste in the construction of
sedimentation ponds with a prohibition
on the use of any acid-forming or toxicforming materials in the construction of
sedimentation ponds. This change is
both appropriate and necessary because
coal processing waste is not the only
form of acid-forming or toxic-forming
materials that could conceivably be
used in the construction of
sedimentation ponds. The proposed
change also would better implement
section 515(b)(10)(A)(i) of SMCRA,594
which requires the avoidance of acid or
other toxic mine drainage by
‘‘preventing or removing water from
contact with toxic producing deposits.’’
16. Section 816.47: What requirements
apply to discharge structures for
impoundments?
We propose to revise this section by
updating the terminology to reflect our
1983 rulemaking in which we
introduced the term ‘‘coal mine waste’’
and replaced the term ‘‘coal processing
waste dams and embankments’’ with
coal mine waste impounding structures.
See 48 FR 44006 (Sept. 26, 1983).
17. Section 816.49: What requirements
apply to impoundments?
We propose to update the hazard
classifications and incorporations by
reference in existing paragraph (a)(1) of
this section to be consistent with those
in 30 CFR 780.25, which contains the
permitting requirements for
impoundments. Specifically we propose
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 proposed to replace
594 30
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references to Class B or C dam criteria
throughout section 816.49 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 NRCS.
Consequently, we propose to delete the
ordering information pertinent to the
National Technical Information Service
and replace it with the URL (Internet
address) at which the publication may
be reviewed and from which it may be
downloaded without charge.
We propose to revise our permanent
impoundment requirements in
paragraph (b) by adding three new
criteria for approval of permanent
impoundments. Proposed paragraph
(b)(7) would require a demonstration
that approval of the impoundment
would not result in retention of spoil
piles or ridges that are inconsistent with
the definition of approximate original
contour. Proposed paragraph (b)(8)
would require a demonstration that
approval of the impoundment would
not result in the creation of an excess
spoil fill elsewhere within the permit
area. These two proposed changes are
intended to provide a safeguard against
the retention of final-cut impoundments
and associated spoil ridges that are
inconsistent with the requirement in
section 515(b)(3) of SMCRA 595 to
‘‘restore the approximate original
contour of the land with all highwalls,
spoil piles, and depressions
eliminated.’’
Proposed paragraph (b)(9) would
require a demonstration that the
impoundment has been designed with
dimensions and other characteristics
that would enhance fish and wildlife
habitat to the extent that doing so is not
inconsistent with the intended use of
the impoundment. This provision
would improve implementation of
section 515(b)(24) of SMCRA,596 which
requires use of the best technology
currently available to the extent possible
to enhance fish, wildlife, and related
environmental values where practicable.
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18. Section 816.57: What additional
performance standards apply to
activities in, through, or adjacent to a
perennial or intermittent stream?
General Discussion of Basis for
Proposed Changes
We propose to replace existing 30
CFR 816.57 with provisions that would
better protect perennial and intermittent
595 30
596 30
U.S.C. 1265(b)(3).
U.S.C. 1265(b)(24).
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streams, consistent with the June 11,
2009, MOU discussed in Part VI of this
preamble. Part II of this preamble
summarizes both the terrestrial impacts
of surface coal mining operations and
the impacts of those operations on
streams, as documented by scientific
studies. Among other things, our
proposed rule is intended to prevent or
minimize the adverse impacts on fish,
wildlife, and related environmental
values, including streams, documented
in those studies. The authority for our
proposed revisions to 30 CFR 816.57 is
identical to our authority for the
corresponding permitting requirements
in proposed 30 CFR 780.28 and is
discussed at length in the introductory
portion of the preamble to that proposed
rule.
Proposed Paragraph (a)
Existing paragraph (a) provides that
‘‘[n]o land within 100 feet of a perennial
or 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 specifies that the
regulatory authority may provide that
authorization only upon finding that the
activities will not cause or contribute to
the violation of applicable state or
federal water quality standards and that
they will not adversely affect the water
quantity and quality or other
environmental resources of the stream.
The regulatory authority also must find
that if there will be a temporary or
permanent stream-channel diversion, it
will comply with 30 CFR 816.43, which
contains the performance standards for
diversions.
As described in more detail in Part VI
of this preamble, existing paragraph (a)
has been subject to differing
interpretations over the years. In an
effort to provide greater clarity,
proposed paragraph (a)(1) would retain
only the provision that prohibits
disturbance of land within 100 feet of a
perennial or intermittent stream without
regulatory authority approval. We
propose to replace the criteria for
regulatory authority approval in the
existing rule with new permit
application requirements and approval
criteria and requirements in 30 CFR
780.28. We also propose to expand
protections for perennial and
intermittent streams, as discussed
below.
Proposed paragraph (a)(1) would
prohibit the conduct of surface mining
activities in or through a perennial or
intermittent stream, or that would
disturb the surface of land within 100
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feet, measured horizontally,597 of a
perennial or intermittent stream, unless
the regulatory authority authorizes those
activities in the permit after making the
findings that would be required by
proposed 30 CFR 780.28. Part VI of this
preamble discusses the history of stream
buffer zone rules under SMCRA, all of
which have established a minimum
buffer zone width of 100 feet on either
side of the stream. The preamble to our
1979 rules explains the rationale for that
width. See 44 FR 15176–15177 (Mar. 13,
1979). A more recent literature review
documents that a vegetative filter strip
width of 100 feet generally will
attenuate sediment in runoff from
disturbed areas.598
Section 515(b)(10)(B)(i) of SMCRA,599
which, in relevant part, requires that
surface coal mining operations be
conducted ‘‘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,’’ provides the primary
statutory authority for the minimum
buffer width that we propose to
establish in paragraph (a)(1). The
prohibition on disturbing the buffer
zone also would implement section
515(b)(24) of SMCRA,600 which
provides 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.
Proposed paragraph (a)(2) would
reiterate that surface mining activities
may be conducted in waters of the
United States only if the permittee first
obtains all necessary authorizations,
certifications, and permits under the
Clean Water Act, 33 U.S.C. 1251 et seq.
This proposed paragraph is an
informational provision that would be
consistent with section 702(a) of
SMCRA,601 which provides that
‘‘[n]othing in this Act shall be construed
as superseding, amending, modifying, or
repealing’’ the Clean Water Act, any rule
or regulation adopted under the Clean
Water Act, or any state laws enacted
pursuant to the Clean Water Act.
Proposed paragraph (a)(2) would
operate in tandem with proposed 30
597 See the discussion of proposed 30 CFR
780.16(c) in this preamble for an explanation of
how this distance must be measured.
598 Wenger, S. ‘‘A Review of the Scientific
Literature of Riparian Buffer Width, Extent and
Vegetation.’’ Institute of Ecology, University of
Georgia, Athens, GA, 1999.
599 30 U.S.C. 1265(b)(10)(B)(i).
600 30 U.S.C. 1265(b)(24).
601 30 U.S.C. 1292(a).
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CFR 773.17(h), which would add a new
permit condition requiring that the
permittee obtain all necessary
authorizations, certifications, and
permits in accordance with Clean Water
Act requirements before conducting any
activities that require approval or
authorization under the Clean Water
Act. Permit conditions are directly
enforceable under SMCRA. Therefore,
addition of the permit condition in
proposed 30 CFR 773.17(h) would mean
that the SMCRA regulatory authority
must take enforcement action if the
permittee does not obtain all necessary
Clean Water Act authorizations,
certifications, and permits before
beginning any activity under the
SMCRA permit that also requires
approval, authorization, or certification
under the Clean Water Act.
Proposed Paragraph (b)
Existing paragraph (b) requires that
the permittee mark the buffer zone that
is not to be disturbed. We propose to
move this provision to 30 CFR
816.11(e), which contains a similar
requirement, to consolidate the marking
requirement in the signs and markers
section.
Proposed paragraph (b) would
establish requirements specific to
mining through or diverting perennial
or intermittent streams. Proposed
paragraph (b)(1) would require
compliance with the design and
construction and maintenance plans
approved in the permit. Proposed
paragraph (b)(2) would require that the
permittee restore the hydrological form
and ecological function of the stream
segment as expeditiously as practicable.
In essence, this provision would require
that the permittee take timely steps to
restore the stream, first by constructing
an appropriate channel as soon as
surface mining is completed in the area
in which the channel is to be located,
then by planting appropriate vegetation
in the riparian corridor in the first
appropriate season following channel
construction, followed by whatever
other action may be needed to restore
the stream’s ecological function.
Proposed paragraph (b)(2) does not
mean that we anticipate rapid
restoration of the ecological function of
the stream. We recognize that a
considerable amount of time may be
needed to accomplish that requirement,
particularly if restoration of the
ecological function requires
establishment of substantial canopy
cover. Appendix B of a 2012 EPA
publication describes a scenario in
which high-gradient stream channels
devoid of aquatic life on an abandoned
minesite in West Virginia may be
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restored to biological health in an
estimated 10 years.602 This time is
roughly consistent with the time
required for restoration of low-gradient
streams in Illinois and Indiana, as
discussed in Part II of this preamble.
Other studies suggest that a much
longer, as-yet-undetermined length of
time may be needed to restore formerly
high-quality Appalachian streams to a
biological condition comparable to their
premining biological condition.603
However, as discussed in connection
with proposed paragraph (b)(2)(ii), reestablishment of the premining
biological condition is not necessarily
required to restore the ecological
function of the stream.
Proposed paragraph (b)(2)(i) would
provide that a restored stream channel
or a stream-channel diversion need not
exactly replicate the channel
morphology that existed before mining,
but it must have a channel morphology
comparable to the premining form of the
affected stream segment in terms of
baseline stream pattern, profile, and
dimensions, including channel slope,
sinuosity, water depth, bankfull depth,
bankfull width, width of the flood-prone
area, and dominant in-stream substrate.
These characteristics are critical to
restoration of the premining
hydrological form or the ecological
function of the stream or both. The
proposed paragraph also would use
terminology that would improve
consistency with corresponding
requirements under section 404 of the
Clean Water Act. Finally, proposed
paragraph (b)(2)(i) would include a
clause specifying that, for degraded
streams, the enhancement provisions of
proposed paragraph (b)(4) would apply
in place of the requirement in proposed
paragraph (b)(2)(i) for restoration of
streams to their premining form. This
clause is necessary to ensure that the
proposed rule would not require
restoration of a degraded stream to its
degraded premining form and
condition.
Proposed paragraph (b)(2)(ii)(A)
would specify that a stream flowing
through a restored stream channel or a
stream-channel diversion must meet the
602 Harman, W., R. Starr, M. Carter, K. Tweedy,
M. Clemmons, K. Suggs, C. Miller. 2012. A
Function-Based Framework for Stream Assessment
and Restoration Projects. U.S. Environmental
Protection Agency, Office of Wetlands, Oceans, and
Watersheds, Washington, DC EPA 843–K–12–006,
pp. 336–339.
603 See, e.g., Pond, G.J., M.E. Passmore, N.D.
Pointon, J.K. Felbinger, C.A. Walker, K.J.G. Krock,
G.B. Fulton, and W.L. Nash. 2014. Long-Term
Impacts on Macroinvertebrates Downstream of
Reclaimed Mountaintop Mining Valley Fills in
Central Appalachia. Environmental Management
54(4), 919–933.
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functional restoration criteria
established by the regulatory authority
in consultation with the Clean Water
Act agency under proposed 30 CFR
780.28(e)(1). Proposed paragraph
(b)(2)(ii)(B) would clarify that a stream
flowing through a restored stream
channel or a stream-channel diversion
need not contain precisely the same
biota or have the same biological
condition as the original stream segment
did before mining, but it must have a
biological condition that is adequate to
support the uses that existed before
mining and that would not preclude
attainment of the designated uses of the
original stream segment under section
101(a) or 303(c) of the Clean Water
Act 604 before mining. This provision is
intended to allow some change in the
species composition of the array of
insects, fish, and other aquatic
organisms found in a stream flowing
through a restored stream channel or
stream-channel diversion, provided that
the change in species composition
would preclude neither any use that
existed before mining nor attainment of
any designated use before mining.
Proposed paragraph (b)(2)(ii)(C)
would require that the biological
condition of the restored stream be
determined using a protocol that meets
the requirements of proposed 30 CFR
780.19(e)(2). In effect, it would require
use of a scientifically-valid multimetric
bioassessment protocol used by agencies
responsible for implementing the Clean
Water Act, with modifications to meet
SMCRA-related needs. At a minimum,
the protocol must be based upon the
measurement of an appropriate array of
aquatic organisms, including benthic
macroinvertebrates. It must require
identification of benthic
macroinvertebrates to the genus level;
result in the calculation of index values
for both habitat and macroinvertebrates;
and provide a correlation of index
values to the capability of the stream to
support designated uses under section
101(a) or 303(c) of the Clean Water Act,
as well as any other existing or
reasonably foreseeable uses. We seek
comment on the effectiveness of using
index scores from bioassessment
protocols to ascertain impacts on
existing, reasonably foreseeable, or
designated uses. We also invite
commenters to suggest other approaches
that may be equally or more effective.
Finally, proposed paragraph
(b)(2)(ii)(D) would specify that
populations of organisms used to
determine the postmining biological
condition of the stream segment must be
self-sustaining within that segment. We
604 33
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propose to include this provision
because the presence of individual
organisms that happen to drift into the
reconstructed channel from other areas
is not an indicator of restoration of the
ecological function of the restored
stream segment.
Our proposed performance standards
in paragraph (b) would complement our
proposed permitting requirements at 30
CFR 780.12(b)(3) (one of the steps in the
reclamation timetable is restoration of
the form of perennial and intermittent
stream segments), 780.12(b)(7) (one of
the steps in the reclamation timetable is
restoration of the ecological function of
perennial and intermittent stream
segments), 780.12(h) (the reclamation
plan must include a detailed stream
restoration plan), 780.28(c) (detailed
permit application requirements for
mining through or diverting a perennial
or intermittent stream segment), and
780.28(e)(2) (the regulatory authority
must make a specific written finding
before approving mining through or
diversion of a perennial or intermittent
stream segment).
Proposed paragraph (b)(2)(iii)(A)
would require that performance bond
calculations for the operation include a
specific line item for restoration of the
ecological function of the stream
segment. See also proposed 30 CFR
800.14(b)(2). In addition, proposed
paragraph (b)(2)(iii)(B) would require
that the permittee post a surety bond, a
collateral bond, or a combination of
surety and collateral bonds to cover the
cost of restoration of the ecological
function of the stream segment. A selfbond is not an appropriate mechanism
to guarantee restoration of a stream’s
ecological function because of the risk
that the company may cease to exist
during the time required to accomplish
that restoration. In addition, a self-bond
does not require that the permittee file
financial instruments or collateral with
the regulatory authority, nor is there any
third party obligated to complete the
reclamation or pay the amount of the
bond if the permittee defaults on
reclamation obligations.
Proposed paragraph (b)(2)(iii)(C)
would require that the permittee
demonstrate full restoration of the
physical form of the restored stream
segment before the site would qualify
for final bond release under proposed 30
CFR 800.42(d). Proposed 30 CFR
800.42(b)(1) would define Phase I
reclamation as including restoration of
the form of perennial and intermittent
streams, which means that no bond
could be released until the permittee
restores the hydrological form of any
stream segment within the area to which
the bond release application applies.
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Proposed paragraph (b)(2)(iii)(D)
would require that the permittee
demonstrate full restoration of the
ecological function of the restored
stream segment before the site would
qualify for final bond release under
proposed 30 CFR 800.42(d). Under
proposed 30 CFR 800.42(b)(2) and (c)(2),
the amount of bond retained following
Phase I and II reclamation, respectively,
must be sufficient to restore the
ecological function of the stream
segments that were restored in form as
part of Phase I reclamation.
Proposed paragraph (b)(3) would
specify that, upon completion of
construction of a stream-channel
diversion or restored stream channel,
the permittee must obtain a certification
from a qualified registered professional
engineer that the stream-channel
diversion or restored stream channel
meets all construction requirements of
this section (except those pertaining to
restoration of the ecological function)
and is in accordance with the design
approved in the permit. A similar
requirement appears in existing 30 CFR
816.43(b)(4). We propose to move it to
30 CFR 816.57 to consolidate
performance standards for the diversion
and restoration of perennial and
intermittent streams. We also propose to
expand its scope to include restored
stream channels because proper
construction of those channels is no less
important in terms of stability,
hydraulic capacity, and ecological
restoration than is construction of
stream-channel diversions. This
certification requirement applies only to
the construction of the channel; it does
not extend to restoration of ecological
function or biological requirements,
which may lie beyond the engineer’s
sphere of professional competence.
Finally, proposed paragraph (b)(4)
would provide that if the stream
segment to be mined through or
diverted is in a degraded condition
before mining, the permittee must
implement measures to enhance the
form and ecological function of the
segment as part of the restoration or
diversion process. This provision is
intended to ensure that stream segments
degraded by prior mining or other
human activities are improved to the
fullest extent possible, not just restored
to the condition that existed before the
current mining operation. It also would
implement section 515(b)(24) of
SMCRA,605 which provides that surface
coal mining and reclamation operations
must ‘‘achieve enhancement’’ of fish,
wildlife, and related environmental
values where practicable, to the extent
PO 00000
possible using the best technology
currently available.
Nothing in our proposed stream
restoration requirements would exempt
the permittee from meeting any
additional onsite or offsite mitigation
requirements that the U.S. Army Corps
of Engineers may require under section
404 of the Clean Water Act.606
We invite commenters to—
• Identify studies pertinent to
restoration of the functions of perennial
and intermittent streams, particularly
headwaters streams, after mining or
similar disturbances.
• Weigh in on whether our rule
should differentiate between lowgradient and high-gradient streams on
the theory that high-gradient streams are
more difficult to restore in backfilled
areas because of the lack of a competent
substrate and the removal of perched
aquifers.
Proposed Paragraph (c)
Proposed paragraph (c)(1) would
prohibit the use of perennial or
intermittent streams as waste treatment
systems to convey surface runoff from
the disturbed area to a sedimentation
pond. It also would prohibit
construction of a sedimentation pond in
a perennial or an intermittent stream.
Almost all perennial and intermittent
streams are of high value to fish and
wildlife. Therefore, prohibiting the use
of those streams for sedimentation
control purposes is consistent with
section 515(b)(24) of SMCRA,607 which
provides that to the extent possible,
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. Our experience indicates that
there are almost always reasonable
alternatives to using perennial and
intermittent streams as waste treatment
systems.
However, in steep-slope areas, those
alternatives may not have the least
overall adverse impact on fish, wildlife,
and related environmental values
because of the extensive disturbance
and excavation that would be needed to
construct diversions and sedimentation
ponds outside streams in that
topography. Therefore, proposed
paragraph (c)(2) would exempt excess
spoil fills or coal mine waste disposal
facilities in steep-slope areas from this
prohibition when use of a perennial or
intermittent stream segment as a waste
treatment system for sediment control
and construction of a sedimentation
606 33
605 30
U.S.C. 1265(b)(24).
Frm 00120
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U.S.C. 1344.
U.S.C. 1265(b)(24).
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pond in a perennial or an intermittent
stream would have less overall adverse
impact on fish, wildlife, and related
environmental values than construction
of diversions and sedimentation ponds
on slopes above the stream.
Proposed paragraph (c)(3) would
require that the adverse impacts of using
a stream segment as a waste treatment
system on fish, wildlife, and related
environmental values be minimized by
keeping the length of the stream
segment used as a waste treatment
system as short as possible and, when
practicable, maintaining an undisturbed
buffer at least 100 feet in width along
that segment. The proposed rule would
require placement of the sedimentation
pond as close to the toe of the excess
spoil fill or coal mine waste disposal
structure as possible. We also propose to
require that the permittee remove the
sedimentation pond and restore the
hydrological form and ecological
function of the stream segment in
accordance with proposed paragraph
(b)(2) following the completion of
construction and revegetation of the fill
or coal mine waste disposal structure.
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
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.
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*
*
*
*
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
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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.
44 FR 15159–15160 (Mar. 13, 1979)
(citations omitted).
In short, what was true in 1979
remains true today; i.e., sedimentation
ponds must be constructed where there
is sufficient storage capacity, which, in
narrow valleys lacking natural terraces,
typically means in the stream.
Our proposed rule is consistent with
a March 1, 2006, letter from Benjamin
Grumbles, Assistant Administrator of
the EPA, to John Paul Woodley,
Assistant Secretary of the Army (Civil
Works). 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 adverse environmental
impacts associated with construction
and operation of the waste treatment
system.
19. Section 816.71: How must I dispose
of excess spoil?
We propose to revise our excess spoil
rules to minimize the extent to which
excess spoil fills adversely impact
perennial and intermittent streams, to
improve fill stability, and to enhance fill
aesthetics and compatibility with
surrounding landforms. As previously
discussed in the portions of this
preamble concerning 30 CFR 780.35, we
propose to move paragraphs (b)(1)
(design certification), (c) (location), and
(d)(1) (foundation investigations) of the
existing version of 30 CFR 816.71 to 30
CFR 780.35 as part of our effort to place
provisions that are solely design
considerations and requirements in our
permitting regulations in subchapter G
rather than in the performance
standards in subchapter K.
Proposed Paragraph (a): General
Requirements
Both the existing and proposed
versions of paragraph (a) require that
excess spoil be placed in a controlled
manner. However, we propose to revise
the introductory language of this
paragraph to specifically require that
excess spoil be transported and placed
by mechanical means. The added
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44555
language is intended to more fully
implement 515(b)(22)(A) of SMCRA,608
which requires that excess spoil be
‘‘transported and placed in a controlled
manner in position for concurrent
compaction and in such a way to assure
mass stability and to prevent mass
movement.’’ Our existing rules at 30
CFR 816.73 allow end-dumping of
excess spoil down steep slopes into a
valley. This practice relies upon gravity
transport, rather than mechanical
transport, of spoil to its final location.
We no longer consider gravity transport
of spoil to its final location to be
controlled placement under section
515(b)(22)(A) of SMCRA.609 The
preamble to our proposed removal of 30
CFR 816.73 explains the shortcomings
of end-dumping and durable rock fills
in greater detail. However, nothing in
the proposed revisions to our excess
spoil requirements would prohibit the
construction of valley fills, head-ofhollow fills, sidehill fills, or any type of
fill other than durable rock fills.
We propose to revise existing
paragraphs (a)(1) through (3) and add
paragraphs (a)(4) through (7) as follows:
• Proposed paragraph (a)(1) is
substantively identical to existing
paragraph (a)(1) except that we propose
to add a requirement that excess spoil
placement will minimize adverse effects
of leachate and surface-water runoff on
the biological condition of perennial
and intermittent streams within the
permit area, not just adverse effects on
surface water and groundwater as in the
existing rule. The new requirement
would implement section 515(b)(24) of
SMCRA 610 more fully by minimizing
adverse impacts of the operation on fish,
wildlife, and related environmental
values.
• Proposed paragraph (a)(2) is
substantively identical to existing
paragraph (a)(2).
• We propose to revise paragraph
(a)(3) to be more consistent with the
underlying requirement in section
515(b)(22)(G) of SMCRA,611 which
provides that excess spoil must be
placed in a manner that will ensure that
‘‘the final configuration is compatible
with the natural drainage pattern and
surroundings and suitable for intended
uses.’’ As revised, proposed paragraph
(a)(3) would require that the final
surface configuration of the fill be
suitable for revegetation and the
postmining land use or uses and be
compatible with the natural drainage
pattern and surroundings. The existing
608 30
U.S.C. 1265(b)(22)(A).
609 Id.
610 30
611 30
E:\FR\FM\27JYP2.SGM
U.S.C. 1265(b)(24).
U.S.C. 1265(b)(22)(G).
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rule does not mention the final
configuration of the fill or the natural
drainage pattern. Our proposed
revisions would correct those
omissions.
• Proposed paragraph (a)(4) would
add a requirement that excess spoil be
placed in a manner that would
minimize disturbances to and adverse
impacts on fish, wildlife, and related
environmental values to the extent
possible, using the best technology
currently available. This provision
parallels the language of section
515(b)(24) of SMCRA,612 which applies
to all aspects of surface coal mining and
reclamation operations, including the
disposal of excess spoil.
• Proposed paragraph (a)(5) would
require that excess spoil be placed in a
manner that would ensure that the fill
will not change the size or frequency of
peak flows from precipitation events or
thaws in a way that would result in an
increase in damage from flooding when
compared with the impacts of
premining peak flows.
• Proposed paragraph (a)(6) would
require that excess spoil be placed in a
manner that would ensure that the fill
will not preclude any existing or
reasonably foreseeable use of surface
water or groundwater or, for surface
water downstream of the fill, preclude
attainment of any designated use under
section 101(a) or 303(c) of the Clean
Water Act.613 The proposed language
parallels the terminology in our
proposed definition of ‘‘material damage
to the hydrologic balance outside the
permit area’’ in 30 CFR 701.5, which
relies in large measure upon the status
of existing, reasonably foreseeable, and
designated uses of water.
• Proposed paragraph (a)(7) would
require that excess spoil be placed in a
manner that would ensure that the fill
will not cause or contribute to an
exceedance of any applicable federal,
state, or tribal water quality standards.
Proposed paragraphs (a)(5) through (7)
would more fully implement sections
510(b)(3) and 515(b)(10) of SMCRA.614
Section 510(b)(3) 615 prohibits approval
of a permit application unless the
applicant demonstrates and the
regulatory authority finds that the
proposed operation ‘‘has been designed
to prevent material damage to the
hydrologic balance outside the permit
area.’’ Section 515(b)(10) 616 requires
that surface coal mining and
reclamation operations be conducted so
612 30
U.S.C. 1265(b)(24).
U.S.C. 1251(a) and 1313(c), respectively.
614 30 U.S.C. 1265(b)(3) and (10).
615 30 U.S.C. 1265(b)(3).
616 30 U.S.C. 1265(b)(10).
613 33
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as to ‘‘minimize 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.’’ The proposed revisions
also are consistent with our proposed
definition of ‘‘material damage to the
hydrologic balance outside the permit
area’’ in 30 CFR 701.5, which focuses on
mining-related impacts to uses of
groundwater and surface water.
Proposed Paragraph (b): Stability
Requirements
We propose to move existing
paragraph (b))(1), which pertains to
certification of the design for the excess
spoil fill and appurtenant structures, to
30 CFR 780.35 as part of our effort to
move permitting requirements from the
performance standards of subchapter K
to the permitting provisions of
subchapter G. We propose to
redesignate existing paragraph (b)(2) as
paragraph (b)(1) and revise it to require
that the fill not only be designed to
attain a minimum static safety factor of
1.5 as required by the existing 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,617 which requires that all
excess spoil be placed in a way that
ensures mass stability and prevents
mass movement.
We also propose to redesignate
existing paragraph (d)(2), which
requires keyway cuts for excess spoil
fills built on steep slopes, as paragraph
(b)(2). In addition, we propose to
replace the term ‘‘keyway cuts’’ with
‘‘bench cuts.’’ The term ‘‘keyway cut’’ is
technically a cut beneath a dam that is
used to extend low-permeability fill
material to, but not into, bedrock. The
term ‘‘bench cut’’ is more appropriate
here because it refers to cuts into
bedrock, not just down to bedrock. Fill
construction under steep-slope
conditions requires that cuts be made
into bedrock, not just down to bedrock,
to ensure stability. Therefore, our
proposed revisions would provide
greater fill stability than the existing
regulations.
Proposed Paragraph (c): Compliance
With Permit
We propose to move the fill location
requirements of existing paragraph (c) to
30 CFR 780.35 because those
requirements pertain primarily to the
fill design and thus are more
appropriately codified as part of the
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617 30
U.S.C. 1265(b)(22)(A).
Frm 00122
Fmt 4701
Sfmt 4702
permitting provisions of subchapter G.
We propose to replace those
requirements with a performance
standard reminding the permittee that
the fill must be constructed in
accordance with the design and plans
approved in the permit. Proposed
paragraph (c) would require that fills be
built on the sites selected under section
780.35 in a manner consistent with the
designs submitted under those sections
and approved as part of the permit.
Proposed Paragraph (d): Requirements
for Handling of Organic Matter and Soil
Materials
We propose to move the foundation
investigation requirements of existing
paragraph (d)(1) to 30 CFR 780.35 to
consolidate those provisions with a
similar and overlapping foundation
investigation requirement in that
section. We also propose to redesignate
existing paragraph (d)(2) as paragraph
(b)(2) as discussed above.
We propose to redesignate existing
paragraph (e)(1) as new paragraph (d).
Proposed paragraph (d) would require
that soil and organic matter, including
vegetative materials, in the footprint of
excess spoil fills be salvaged, stored,
and redistributed or otherwise used in
a manner consistent with our proposed
revisions to 30 CFR 780.12(e) and
816.22.
Proposed Paragraph (e): Surface Runoff
Control Requirements
As discussed above, we propose to
redesignate existing paragraph (e)(1) as
new paragraph (d). In addition, we
propose to redesignate existing
paragraphs (e)(2) through (5) as
paragraphs (g)(1), (h), (i), and (g)(3),
respectively.
We propose to redesignate existing 30
CFR 816.72(a) as 30 CFR 816.71(e) and
revise it to apply to all fills because
control of surface-water runoff from the
fill and adjacent areas is critical to the
stability of all types of fills, not just
valley and head-of-hollow fills.
Proposed paragraph (e)(1), like existing
30 CFR 816.72(a), would require that
runoff from areas above the fill and
runoff from the surface of the fill be
directed into stabilized channels
designed to meet the requirements of 30
CFR 816.43 and to safely pass the runoff
from a 100-year, 6-hour precipitation
event. We do not consider surface runoff
diversions constructed under proposed
30 CFR 816.71(e)(1) to be streamchannel diversions or restored streams,
nor would they qualify as offsetting fish
and wildlife enhancement measures
under proposed 30 CFR 780.28(d)(2).
In proposed paragraph (e)(1)(ii), we
propose to add a requirement that those
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channels be designed using the
appropriate regional NRCS synthetic
storm distribution. The preamble to
proposed 30 CFR 780.29 explains the
rationale for this proposed requirement.
Like its counterpart in existing 30
CFR 816.72(a), proposed paragraph
(e)(2) would prohibit directing
uncontrolled surface runoff over the
outslope of the fill. Like the existing
rule, it also would require that the
permittee grade the top surface of a
completed fill such that the final slope
after settlement will be toward properly
designed drainage channels.
Proposed Paragraph (f): Control of Water
Within the Footprint of the Fill
Our proposed revisions to this
paragraph focus on underdrain
requirements, with particular emphasis
on ensuring the use of hard, weatherresistant materials and construction
techniques that will promote long-term
stability. We propose to require that the
underdrain system be designed to carry
the anticipated infiltration of water due
to precipitation, snowmelt, and water
from seeps and springs in the
foundation of the disposal area away
from the excess spoil fill. This
requirement would minimize the
phreatic level within the fill. We also
propose to require that the underdrain
system be protected from material
piping, clogging, and contamination by
an adequate filter system designed and
constructed using current, prudent
engineering practices to ensure the longterm functioning of the underdrain
system. A long-term functioning filter
using natural materials generally
requires multiple lifts of material
specifically sized, graded, and placed so
that the overlying lift is progressively
smaller in diameter. Geotextile material
may be used for filter construction.
Filter construction is vital to providing
a long-term functioning underdrain.
We propose to prohibit the use of
perforated pipe as an alternative to hard,
weather-resistant rock for two reasons.
First, minor shifts within a fill mass can
result in a broken and consequently
dysfunctional pipe underdrain, but a
rock underdrain of sufficient size is
likely to be flexible enough to retain
sufficient continuity to transport
infiltrated water from the fill. Second, a
pipe with small perforations and limited
to a single flow-through orifice is more
likely to clog than a porous rock
underdrain with multiple alternative
pathways for water transport.
Future changes in local surface-water
and groundwater hydrology may result
44557
in water infiltration into the fill in
excess of what is anticipated. Therefore,
we propose to allow the use of
perforated pipe in an underdrain system
only for the purpose of enhancing the
capability of the underdrain to pass
water in excess of the anticipated
maximum infiltration. However, the
rock underdrain must be capable of
transporting the anticipated maximum
water infiltration out of the fill
independent of the presence of the
perforated pipe. In addition, the
perforated pipe must be made of
materials that are not susceptible to
corrosion (not just corrosion-resistant
materials as in the existing rules) and
sufficiently crush-resistant to withstand
pressures at the depth at which the pipe
will be buried.
Finally, we propose to specify that
only hard rock that is resistant to
weathering, for example, well-cemented
sandstone and massive limestone, and
that is not acid-forming or toxic-forming
may be used to construct durable rock
underdrains. The proposed rule would
require that the underdrain be free of
both soil and fine-grained, clastic rocks
such as siltstone, shale, mudstone, and
claystone. All rock used to construct
underdrains would have to meet the
criteria in the following table:
ASTM standard
AASHTO
standard
Acceptable results
Los Angeles Abrasion .............
Sulfate Soundness ..................
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Test
C 131 or C 535 ......................
C 88 or C 5240 ......................
T 96 ..................
T 104 ................
Loss of no more than 50 percent of test sample by weight.
Sodium sulfate test: Loss of no more than 12 percent of test
sample by weight.
Magnesium sulfate test: Loss of no more than 18 percent of
test sample by weight.
Section 515(b)(22) of SMCRA 618 and
most of the rules implementing that
statutory provision focus on the longterm stability of excess spoil fills. Longterm stability is of great importance
because the industry does not provide
maintenance for fills following final
bond release, nor does the regulatory
authority monitor fills after final bond
release. An effective underdrain system
is a critical factor in ensuring fill
stability.
A functional underdrain system
allows water from surface-water
infiltration into the fill mass and from
seeps and springs in the fill’s
foundation to freely pass from the fill.
The absence of an effective underdrain
can result in the formation of a phreatic
surface and the associated potential for
destabilization because of increased
pore-water pressures within the fill
mass. The effectiveness of an
618 30
U.S.C. 1265(b)(22).
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underdrain depends on whether the
material is sufficiently permeable or
hydraulically conductive to convey all
subsurface water from the fill. This in
turn depends on the presence of large
and interconnected pores or voids
between the material particles. For this
reason, it is important that the
underdrains be composed of large,
blocky rock. For an underdrain to
function well over the long term, the
rock must be resistant to weathering and
hard enough to withstand the effects of
blasting and conveyance from the blast
site to the site at which the underdrain
system is being constructed. Rock that is
not resistant to weathering effects, i.e.,
rock that is not ‘‘sound,’’ will
disintegrate into fragments too small to
act as an effective filter and
consequently make the underdrain
much less permeable.
Historically, the criterion governing
whether rock is suitable as underdrain
material has been its ‘‘durability.’’
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Existing 30 CFR 816.71(f)(3) requires
that the rock underdrains of excess spoil
fills ‘‘be constructed of durable,
nonacid-, nontoxic-forming rock (e.g.,
natural sand and gravel, sandstone,
limestone, or other durable rock) that
does not slake in water or degrade to
soil material, and which is free of coal,
clay or other nondurable material.’’
Similar language appears in existing 30
CFR 816.73(b) for durable rock fills. The
durable rock fill construction technique
has been the predominant construction
method for the last 30 years. Unlike
other construction methods, it does not
require underdrain construction prior to
spoil placement or bottom-to-top spoil
placement in thin lifts. Instead, spoil is
end-dumped into valleys in a single lift
or multiple lifts, during which gravity
segregation theoretically forms a freedraining zone of large-sized rock in the
lower one-third of the fill.
The existing regulations do not
specify how the durability of rock is to
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be determined. In general, both the
mining industry and regulatory
authorities have relied upon the slake
durability index (SDI) for this purpose.
This test involves the placement of
oven-dried rock samples in 2 mm wire
mesh drums 1/3 immersed in water,
which are then rotated at 20 rpm for 10
minutes for two cycles. The weight of
the sample remaining in the drum is
divided by the weight of the original
sample and multiplied by 100 to obtain
a percentage. SDI values of 90 percent
or more are generally considered
durable.
OSMRE studies and inspection
reports indicated that some of the rock
material being used in durable rock fill
construction was weak and non-durable
despite documentation in the permit
that the materials being used were
considered durable based on SDI tests.
The apparent failure of the SDI tests to
adequately distinguish between durable
and nondurable rock was attributed to
the nature of the test and the behavior
of shale and other mudstones as they
slake or disintegrate into soil.
Frequently, samples with those geologic
compositions would turn into loose
flakes or mud balls that would not pass
through the wire mesh during the test.
State and federal regulatory authorities
have developed a broad consensus that
the SDI test is not adequate for surface
coal mining and excess spoil fill
construction purposes.
In response, we developed and tested
an alternative testing protocol and
classification system called the
‘‘Strength Durability Classification’’
(Welsh et al., 1991).619 The initial phase
of the Strength Durability Classification
protocol, the jar-slake test, consists of
soaking oven-dried rock samples in
water for 24 hours to identify very lowdurability rock by its short-term slaking
behavior. Samples with minimal
breakdown are then subjected to a
second phase of free-swell and pointload tests. The free-swell test entails
measuring the swell of an oven-dried
sample immersed in water for 4 hours.
The degree of swell reflects the amount
of water absorbed into the void spaces
of the rock. Rocks that absorb more
water generally weather more rapidly.
The point-load strength test involves
placing samples between opposite
conical platens that are pressed or
619 Welsh, R.A., Jr., Vallejo, L.E., Lovell, L.W., and
Robinson, M.K., 1991, The U.S. Office of Surface
Mining (OSM) Proposed Strength-Durability
Classification System, in ‘‘Proceedings of
Symposium on Detection of and Construction at the
Soil/Rock Interface’’ (W.F. Kane and B. Amadei,
eds.), ASCE Geotechnical Special Publication No.
28, American Society of Civil Engineers, New York,
NY, pp. 19–24.
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‘‘loaded’’ against the sample until it
fails. The amount of load needed to
generate failure is the point-load
strength of the sample. The test is
performed on at least 20 samples for
statistical validity. After plotting the
point-load strength and swell-test data
on a graph, the points are compared to
two ‘‘zones’’ on the same graph
representing the acceptable value ranges
for durable rock fill underdrains and
more conventional, selectively placed
rock underdrains. The Strength
Durability Classification protocol has
proven to be more discriminating than
the SDI, but some critics claim that its
durability standards are unrealistically
stringent.
In 2002, we conducted a study in
which we visually estimated the percent
of durable rock in 44 durable rock fills
under construction and judged whether
a discernible underdrain was forming by
gravity segregation. Of 44 fills under
construction, 28 appeared to have less
than 80 percent durable rock and 5 fills
showed no visual evidence of having a
functioning underdrain. The study
found that excess spoil fills in
Appalachia generally have been stable,
but it recommended improvement in the
design, construction, and regulation of
fills to ensure long-term stability. One
recommendation urged continued work
on the development of a more
discriminating method for determining
rock durability. The study suggested
that the amount of sandstone available
at a minesite should be one criterion for
approving a proposed durable rock fill.
It also stated that it might be feasible to
develop a quantitative method of
assessing gravity-segregated underdrain
formation.620
In a 2006 special study, we and the
Kentucky Department of Surface Mine
Reclamation and Enforcement found
that 4 of 29 durable rock fills evaluated
had ‘‘questionable’’ underdrains.621
Given the problems with rock
durability determination discussed
above, application of the SDI or other
tests of comparable rigor will not ensure
a functioning underdrain in any type of
fill. While the SDI can distinguish rocks
that will quickly slake or disintegrate
into soil material, it does not adequately
assess whether they can withstand
620 Office of Surface Mining, ‘‘Long-Term
Stability of Valley Fills’’ (2002) in Appendices A,
B, and C of ‘‘Draft Programmatic Environmental
Impact Statement—Mountaintop Mining/Valley
Fills in Appalachia,’’ U.S. Environmental Protection
Agency, 2003, EPA 9–03–R–00013, EPA Region 3,
Philadelphia, PA, available at https://www.epa.gov/
region3/mtntop/eis2003.htm.
621 Kentucky Department of Natural Resources
and U.S. Office of Surface Mining, ‘‘Excess Spoil
Fill Stability,’’ Evaluation Year 2006 Special Study,
OSM open file report, Lexington, KY, 2006.
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crushing or weakening from blasting
and handling in a mine operation or
resist the long-term effects of
weathering. Although the Strength
Durability Classification protocol is
somewhat more discriminatory than the
SDI, it also is not sufficiently
representative of the short-term and
long-term dynamics of a surface mine
site. The jar-slake and free-swell tests in
particular do not adequately assess the
long-term weathering resistance of the
rock and the point-load test may not be
sufficiently representative of the
dynamic effects of blasting, collision,
and abrasion.
Although there are other classification
systems relating to rock durability in the
literature, many are designed for rocks
unlike those encountered in coal
mining. Other protocols apply only to
shale, include SDI in addition to other
tests or indices, or measure the
properties of in-place rock slopes.
Therefore, we propose to base the
acceptability of rock for use in
underdrains on the rock’s hardness and
resistance to weathering. Underdrains in
a fill constructed in lifts occupy narrow
corridors within the fill mass even when
properly sized to handle anticipated
maximum drainage discharge. Any
clogging within these limited zones will
quickly engender fill instability.
Consequently, criteria for underdrain
materials must be selected with the goal
of ensuring that the underdrain system
will remain effective on a long-term
basis, not just until final bond release.
Our proposed rule would establish
criteria based on rock lithology and the
results of two methods that measure the
rock’s hardness and soundness via
laboratory tests. First, materials used to
construct underdrains must consist of
hard rock that is resistant to weathering,
such as well-cemented sandstone and
massive limestone, and that is not acidforming or toxic-forming (and thus
would not result in acid or toxic mine
drainage). In addition, materials used to
construct underdrains must be free of
both soil and fine-grained, clastic rocks
such as siltstone, shale, mudstone, and
claystone, which generally are weaker
and more prone to rapid weathering
than sandstones and limestone. Finegrained rocks also are problematic in
that they produce a fine-grained,
impermeable soil when highly
weathered. From field observations of
durable rock fills under construction,
we know that the appearance of shale
boulders can be deceptive. Large shale
particles that appear competent soon
after being end-dumped often quickly
disintegrate from natural weathering
processes, the stress resulting from
being buried at depth, and abrasion
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from handling. Even if tests find some
shale to be hard and sound enough for
underdrain material, the certifying
engineer would have difficulty ensuring
that all rock placed in the underdrain
was correctly selected.
Second, the materials must meet
certain threshold criteria as determined
by the Los Angeles abrasion test and
either the sodium sulfate or magnesium
sulfate soundness test.622 Highway
departments frequently use both tests to
assess the suitability of rock for the
construction of roads and riprap-lined
drainage channels. The Los Angeles
abrasion test focuses on rock hardness.
It consists of placement of the rock
sample in a steel drum containing a
prescribed number of steel spheres.
After rotating the drum 1,000 times, the
sample is removed and sieved. The
amount of degradation of the sample is
reported as the percent (by weight) of
the sample lost through the sieve. The
shocks, collisions, and abrasions that
the sample experiences are reasonably
representative of the dynamics and
handling of materials at a minesite.
The sodium sulfate and magnesium
sulfate soundness tests measure the
susceptibility of rock to weathering. In
these tests, the rock sample is immersed
in a saturated solution of sodium sulfate
or magnesium sulfate, after which the
sample is placed in an oven to
dehydrate the salts, which precipitate in
the voids between the rock particles.
The process is then repeated on the
sample for a specified number of cycles
to simulate freezing and thawing. The
external expansive force of the salt
crystals during the immersion phase of
each cycle simulates the expansion of
water upon freezing. We acknowledge
that freezing of water in rocks and soil
does not occur in all climates.
Furthermore, its occurrence is limited to
a relatively shallow depth below the
surface and consequently is not a
process that would affect most of the
buried underdrain. However, an
underdrain is only as good as its
weakest point and, like the natural
weathering process, this test exploits
openings and weaknesses in rock such
as fractures and the porous zones of
weakly cemented grains. The sulfate
soundness tests measure the rock’s
ability to withstand repeated freezethaw cycles and thus facilitate
identification of those rock materials
most likely to remain competent on a
long-term basis.
622 See https://www.pavementinteractive.org/
index.php?title=Sulfate_Soundness_Test (last
accessed January 19, 2015).
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Proposed Paragraph (g): Placement of
Excess Spoil
Proposed paragraph (g)(1) is the
counterpart to existing paragraph (e)(2).
We propose to move the provision of
existing paragraph (e)(2) requiring that
the fill be covered with topsoil or other
suitable materials to proposed
paragraph (d), which contains all
requirements related to soils. We also
propose to eliminate the provision in
existing paragraph (e)(2) that would
allow the regulatory authority to
approve an exception to the requirement
that excess spoil be placed in horizontal
lifts of no more than 4 feet in thickness.
Placement in lifts exceeding 4 feet in
thickness will not uniformly result in
the concurrent compaction necessary to
minimize the volume of void spaces in
the fill. Minimization of the volume of
void spaces is critical to minimizing the
adverse impact on fish and wildlife
because the volume of void spaces
correlates directly with the amount of
dissolved solids that migrate from the
fill into the receiving stream. An
increase in dissolved solids can have a
substantial adverse impact on aquatic
life.
Proposed paragraph (g)(1) would
require the use of mechanized
equipment to transport and place excess
spoil. Similarly, proposed paragraph
(g)(2) would prohibit the use of any
excess spoil transport and placement
technique that involves end-dumping,
wing-dumping, cast-blasting, gravity
placement, or casting spoil downslope,
all of which are not conducive to
concurrent compaction or placement in
lifts no greater than 4 feet in thickness.
As noted above, section 515(b)(22)(A) of
SMCRA 623 provides that all excess spoil
material resulting from surface coal
mining operations must be ‘‘transported
and placed in a controlled manner in
position for concurrent compaction and
in such a way to assure mass stability
and to prevent mass movement.’’ Our
proposed prohibition on the placement
of excess spoil in horizontal lifts greater
than 4 feet in thickness would improve
implementation of this provision of
SMCRA, especially the requirements for
controlled placement and concurrent
compaction. As explained in our
discussion of proposed paragraph (a),
our existing rules at 30 CFR 816.73
allow end-dumping of excess spoil
down steep slopes into a valley. This
practice relies upon gravity transport of
spoil to its final location. We no longer
consider gravity transport of spoil to its
final location to be controlled placement
under section 515(b)(22)(A) of
SMCRA.624 Only mechanical transport
meets that statutory requirement. The
preamble to our proposed removal of 30
CFR 816.73 explains the shortcomings
of end-dumping and durable rock fills
in greater detail.
Furthermore, we have found that
gravity placement in single or large lifts
has resulted in elevated suspended
solids during storm events because of
the flushing of fine material from the
loose-dumped excess spoil and from the
typically large unvegetated active free
face associated with this construction
method. Placement in smaller lifts with
concurrent compaction would decrease
the permeability of the fill, inhibiting
infiltration, allowing revegetation of the
fill face concurrent with construction of
the fill, and reducing discharges of both
suspended and dissolved solids.
Proposed paragraph (g)(3) is the
counterpart to existing paragraph (e)(5).
Proposed paragraph (g)(3)(i) would
require that acid-forming and toxicforming materials be handled and
placed in accordance with 30 CFR
816.38 and in a manner that will
minimize adverse effects on plant
growth and the approved postmining
land use. Under proposed 30 CFR
816.38(d), the only acceptable
techniques for the placement of acidforming and toxic-forming materials
would be isolation and treatment. The
proposed rule would not authorize use
of saturation techniques because of the
stability risk that saturation poses for
fills and because of the possibility that
use of saturation techniques would
increase discharges of total dissolved
solids, which could have adverse
impacts on aquatic life in streams that
receive those discharges. Proposed
paragraph (g)(3)(ii) would require that
the permittee cover combustible
materials with noncombustible
materials in a manner that will prevent
sustained combustion and minimize
adverse effects on plant growth and the
approved postmining land use.
Proposed paragraph (g)(3) is
consistent with section 515(b)(14) of
SMCRA,625 which requires that all acidforming materials and toxic materials be
‘‘treated or buried and compacted or
otherwise disposed of in a manner
designed to prevent contamination of
ground or surface waters’’ and which
requires that materials constituting a fire
hazard be treated or buried to prevent
sustained combustion. Section
515(b)(22)(I) of SMCRA,626 which
provides that excess spoil must be
placed in a manner that meets ‘‘all other
624 Id.
625 30
623 30
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626 30
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requirements of this Act,’’ provides
additional authorization for proposed
paragraph (g)(3).
Proposed Paragraph (h): Final
Configuration
Proposed paragraph (h) is the
counterpart to existing paragraph (e)(3),
which requires that the final
configuration of the fill be suitable for
the approved postmining land use.
Proposed paragraph (h)(1) would add
requirements that the final configuration
of the fill be compatible with the natural
drainage pattern and the surrounding
terrain and, to the extent practicable,
consistent with natural landforms. The
added provisions would better
implement section 515(b)(22)(G) of
SMCRA,627 which requires that the final
configuration be ‘‘compatible with the
natural drainage pattern and
surroundings and suitable for intended
uses.’’
Proposed paragraph (h)(2) is
substantively identical to the provisions
of existing paragraph (e)(3) concerning
terracing.
Proposed paragraph (h)(3)(i) would
add a new requirement for the use of
geomorphic reclamation principles for
the final surface configuration of the fill.
Specifically, it would require that the
top surface of the fill be graded to create
a topography that includes ridgelines
and valleys with varied hillslope
configurations when practicable,
compatible with stability and
postmining land use considerations, and
generally consistent with the premining
topography. Geomorphic reclamation
principles are intended to produce a
final surface configuration with greater
erosional stability and more ecological
benefits than other techniques.
Proposed paragraph (h)(3)(ii) would
allow the final surface elevation of the
fill to exceed the elevation of the
surrounding terrain when necessary to
minimize placement of excess spoil in
perennial and intermittent streams,
provided the final configuration
complies with the compatibility and
postmining land use requirements of
proposed paragraphs (a)(3) and (h)(1).
Sections 515(b)(10)(B)(i) and
515(b)(24) of SMCRA provide the
primary statutory authority for proposed
paragraphs (h)(3)(i) and (ii). Section
515(b)(10)(B)(i) of SMCRA 628 requires
that surface coal mining operations be
conducted 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. Section 515(b)(24) of SMCRA 629
requires that, to the extent possible
using the best technology currently
available, surface coal mining and
reclamation operations be conducted so
as to minimize disturbances and adverse
impacts of the operation on fish,
wildlife, and related environmental
values and to achieve enhancement of
those resources where practicable.
Finally, we propose to add paragraph
(h)(3)(iii), which would provide that the
geomorphic reclamation requirements of
paragraph (h)(3)(i) do not apply in
situations in which they would result in
burial of a greater length of perennial or
intermittent streams than traditional fill
design and construction techniques.
Allowing use of reclamation techniques
that would bury a greater length of
stream than other techniques would not
be consistent with section 515(b)(24) of
SMCRA as discussed above.
Proposed Paragraph (i): Impoundments
and Depressions
Proposed paragraph (i) is the
counterpart to existing paragraph (e)(4),
which prohibits the construction of
permanent impoundments on the
completed fill and establishes criteria
for the construction of small
depressions on the surface of the fill.
The proposed rule is substantively
identical to the existing rule with the
exception that we propose to further
restrict the conditions under which
small depressions may be constructed or
retained on the completed fill.
Specifically, we propose to allow small
depressions only when they are
consistent with the hydrologic
reclamation plan approved in the permit
in accordance with 30 CFR 780.22 and
when infiltration resulting from those
depressions would not result in elevated
levels of parameters of concern
(especially sulfate and other ions that
increase specific conductance and
electrical conductivity in streams) in
discharges from the fill. The proposed
revisions would assist in ensuring that
discharges from the fill will not cause
material damage to the hydrologic
balance outside the permit area, in
compliance with section 510(b)(3) of
SMCRA.630 It also would minimize
‘‘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’’ as required
by section 515(b)(10) of SMCRA.631
629 30
U.S.C. 1265(b)(24).
U.S.C. 1260(b)(3).
631 30 U.S.C. 1265(b)(10).
627 30
U.S.C. 1265(b)(22)(G).
628 30 U.S.C. 1265(b)(10)(B)(i).
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Proposed Paragraph (j): Surface Area
Stabilization
Proposed paragraph (j) is
substantively identical to existing
paragraph (g).
Proposed Paragraph (k): Inspections and
Examinations
Proposed paragraph (k) is the
counterpart to existing paragraph (h),
which establishes inspection
requirements for excess spoil fills. We
propose to revise the professional
inspection requirements for excess spoil
fills by specifying that the engineer or
other specialist must conduct additional
complete inspections during critical
construction periods to ensure that the
fill is constructed properly. Proposed
paragraphs (k)(2)(i) and (ii) would
require that the engineer or specialist
conduct daily examinations during
placement and compaction of fill
materials and maintain a log of those
examinations. Proposed paragraph
(k)(3)(iii) would require that the
certified report that the engineer or
specialist submits for each complete
inspection include a review and
summary of the daily examination logs.
If the report identifies any evidence of
instability, structural weakness, or other
hazardous conditions, proposed
paragraph (k)(3)(ii) would require that
the permittee submit an application for
a permit revision that includes
appropriate remedial design
specifications. The proposed revisions
are intended to ensure that excess spoil
fills are constructed in compliance with
the stability requirements of section
515(b)(22) of SMCRA.632
Placement of the underdrain and the
placement of the filter are each
considered critical construction phases.
Therefore, two separate inspections are
required if the underdrain is
constructed first and the filter system is
constructed later. However, these two
phases can be concurrent, in which case
one inspection may suffice for both
phases. We invite comment on whether
the rule should require additional
specific oversight by the engineer when
segregated, graded, natural material is
used to construct the filter system.
Finally, we propose to remove
existing paragraph (h)(3)(ii), which
pertains to durable rock fills constructed
under 30 CFR 816.73, consistent with
our proposal to prohibit that method of
fill construction. The preamble
concerning our proposed removal of 30
CFR 816.73 explains our rationale for
that proposed action.
630 30
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Proposed Paragraph (l): Coal Mine
Waste
Proposed paragraph (l) would
establish requirements for the disposal
of coal mine waste in excess spoil fills.
Proposed paragraph (l) is substantively
identical to existing paragraph (i) except
that we propose to add proposed
paragraph (l)(1), which would allow
disposal of coal mine waste in excess
spoil fills only if the permittee
demonstrates, and the regulatory
authority finds in writing, that there is
no credible evidence that the disposal of
coal mine waste in the excess spoil fill
will cause or contribute to a violation of
applicable water quality standards or
effluent limitations or result in material
damage to the hydrologic balance
outside the permit area. The proposed
addition would assist in ensuring that
the hydrologic balance protection
requirements of sections 510(b)(3) and
515(b)(10) of SMCRA are met.633 In
addition, we propose to add a crossreference to 30 CFR 816.81 to clarify
that the coal mine waste must be placed
in accordance with the general coal
mine waste disposal requirements of 30
CFR 816.81, not just the refuse pile
requirements of 30 CFR 816.83.
Proposed Paragraph (m): Underground
Disposal
Proposed paragraph (m) is
substantively identical to existing
paragraph (j).
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20. Why are we proposing to remove the
provisions for rock-core chimney drains
in existing 30 CFR 816.72(b)?
We propose to remove existing 30
CFR 816.72(b) because mine operators
are no longer constructing fills with
rock-core chimney drains. A rock-core
chimney drain is a vertical column of
durable rock extending from the toe of
the fill to the head of the fill and from
the base of the fill to the surface of the
fill. A few small fills constructed
decades ago included rock-core
chimney drains, but, to the best of our
knowledge, the technique has not been
used recently or on large fills.
Our proposed removal of 30 CFR
816.72(b) would not prohibit the
construction of head-of-hollow or valley
fills without rock-core chimney drains.
However, all proposed head-of-hollow
and valley fills would have to meet the
permitting requirements of proposed 30
CFR 780.28 and 780.35. If approved,
these fills would have to comply with
the performance standards of proposed
30 CFR 816.71.
633 30
21. Why are we proposing to remove the
provisions for durable rock fills in
existing 30 CFR 816.73?
Existing 30 CFR 816.73 allows excess
spoil fills to be constructed by enddumping, in which overburden is
pushed or dumped over the side of the
mountain to cascade into the valley
below. In theory, the larger rocks roll to
the bottom of the valley to form an
underdrain by gravity segregation. We
propose to remove this section for four
reasons. First, further scrutiny of the
statutory provisions governing disposal
of excess spoil indicates that this
method of fill construction does not
comply fully with section 515(b)(22)(A)
of SMCRA.634 That provision of SMCRA
requires that surface coal mining and
reclamation operations place all excess
spoil material in such a manner that the
‘‘spoil is transported and placed in a
controlled manner in position for
concurrent compaction and in such a
way [as] to assure mass stability and to
prevent mass movement.’’ End-dumping
of excess spoil relies upon gravity both
for transport after dumping and to
determine final placement, which does
not comport well with the statutory
requirement for transport and placement
in a controlled manner.
Second, as discussed in the preamble
to proposed 30 CFR 816.71(f), we have
observed inconsistent formation of
underdrains in durable rock fills. Nonfunctional underdrains may
compromise the stability of the fill by
raising the moisture content of the fill
material, which increases the ability of
that material to move. Saturated fills are
prone to buckling and landslides.
Third, as discussed in detail below,
durable rock fills may increase the risk
of flooding and associated damage
because of the large size of the fill face
and the length of time that the face
remains unvegetated.
Fourth, the lack of compaction during
the construction of durable rock fills
creates the potential for increased levels
of total dissolved solids in discharges
from those fills because of the greater
amount of pore space and reactive
surface compared with other types of
fills. Higher levels of total dissolved
solids in discharges from the fill
translate to elevated electrical
conductivity in streams downgradient of
the fill. As summarized in Part II of this
preamble, elevated electrical
conductivity can adversely impact the
capability of the stream to support
certain species of benthic
macroinvertebrates, which in turn
reduces the capability of the stream to
U.S.C. 1260(b)(3) and 1265(b)(10).
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634 30
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support species of fish dependent upon
those macroinvertebrates as a food
source.
Therefore, we propose to refine our
existing regulations by removing 30 CFR
816.73, which allows construction of
durable rock fills by gravity transport
and placement. With respect to other
types of excess spoil fills, proposed 30
CFR 816.71(g) would require use of
mechanized equipment to transport and
place the excess spoil in lifts no greater
than 4 feet, which would greatly
increase both control and compaction.
Increased compaction of the spoil
placed in the fill would increase the
density of each unit of excess spoil and
thus decrease the amount of space that
it occupies. The resulting reduction in
the amount of spoil storage space
needed would (or at least could) reduce
the footprint of the fill, which should
reduce the number and length of stream
segments buried by the fill.
Increased compaction also should
reduce discharges of total dissolved
solids and other parameters of concern,
thus minimizing the adverse impacts on
fish, wildlife, and related environmental
values as required by section 515(b)(24)
of the Act.635 Finally, construction of
fills using mechanized methods of
transport and placement would
facilitate the special handling of acidforming and toxic-forming materials,
which should result in a reduction in
the concentration and volume of toxic
materials, such as selenium, in water
discharged from the fill, which would
further minimize adverse impacts on
fish, wildlife, and related environmental
values.
As mentioned above, some durable
rock fills have exacerbated flooding
during and after precipitation events.
Flooding may threaten public safety and
cause property damage downstream of
the fill. The following case studies
describe how durable rock fills may
contribute to flooding and damage from
flooding.
Snap Creek, West Virginia
On June 13, 2010, an area near the
town of Man in Logan County, West
Virginia, received approximately 4.8
inches of rain within 24 hours. Floodrelated damage occurred downstream
from an end-dumped durable rock fill
on the Snap Creek minesite (Permit S–
5013–96) south of Man. Stormwater
runoff flowing down the face of the fill
completely filled the sedimentation
pond near the toe of the fill. The
sediment-laden runoff then scoured the
flood plain of the Left Fork of Rich
Creek down to bedrock for a distance of
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approximately 0.25 mile. The scoured
material, along with spoil from the face
of the fill, was deposited on the flood
plain and along the stream channel for
an additional 0.25 mile to its confluence
with Rich Creek. Sedimentation
continued along Rich Creek
approximately 0.25 mile further to the
stream’s confluence with the
Guyandotte River. No one was injured
and little property damage occurred
because most of the affected areas were
uninhabited.
The fill was being graded to its final
configuration when the rainfall event
occurred. The finer fractions of the soil
exposed on the face of an end-dumped
fill during final grading are very
susceptible to erosion, particularly
during heavy rainfall events. Protecting
downstream areas from this type of
mudflow at this stage of fill construction
is nearly impossible, which provides
additional justification for prohibiting
the construction of durable rock fills.
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Kayford South, West Virginia
On June 13, 2010, a significant rainfall
event occurred near the town of Dorothy
in Raleigh County, West Virginia,
resulting in flooding, erosion, and
deposition of eroded mine spoil
downstream from a durable rock fill
associated with a surface mine (Permit
S–3008–00). The event eroded the face
of the fill, which was being graded for
reclamation, with the sediment
completely filling the sedimentation
pond below the toe of the fill. After
filling the pond, water and mobilized
sediment flowed down Gardner Branch
approximately 0.5 mile to the
confluence with the Clear Fork of the
Coal River. The flow scoured the stream
channel and deposited sediment along
the length of Gardner Branch. In this
case, no one was injured and little
property damage occurred because the
affected areas were uninhabited.
The fill was being graded to its final
configuration when the rainfall event
occurred. A primary issue at this site
and other durable rock fills is the time
lag between completion of excess spoil
placement and final grading because of
the top-down construction method. In
this case, the lag was more than 2 years.
During this time, the face of the fill was
completely exposed and susceptible to
erosion.
Lyburn, West Virginia
On July 19, 2002, a flood event on
Winding Shoals Branch in Lyburn,
Logan County, West Virginia, destroyed
ten residences and damaged vehicles
and property. Stormwater runoff, rock,
mud, and debris from a surface mine
(Permit S–5023–93) flooded the narrow
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stream valley. The primary cause of the
significant damage at Lyburn was the
condition of the durable rock fill and its
proximity to structures. At the time of
the storm, the company was reclaiming
this end-dumped fill. As is typical of an
end-dumped durable rock fill during
reclamation, soil and small rock
particles on the face of the fill were
exposed and highly susceptible to
erosion.
Our proposal to remove 30 CFR
816.73 and the authority that it provides
to construct durable rock fills using enddumping and gravity segregation is
intended to prevent the recurrence of
events like those discussed above. Fills
constructed from the bottom up in
accordance with 30 CFR 816.71 are
much less susceptible to erosion and
much less likely to contribute to
flooding than are durable rock fills,
which are constructed from the top
down. The faces of fills constructed in
accordance with 30 CFR 816.71 can be
reclaimed and revegetated in stages,
which reduces surface runoff and
susceptibility to erosion, while the faces
of durable rock fills cannot be reclaimed
and revegetated until the fill is
completed.
22. Section 816.74: What special
requirements apply to the disposal of
excess spoil on a preexisting bench?
We propose to revise 30 CFR
816.74(a) to clarify that the term
‘‘preexisting bench’’ applies only to
features located on previously mined
areas or on bond forfeiture sites. This
term does not apply to benches created
as part of an earlier phase of the mining
operation that generated the excess spoil
to be disposed of under this provision.
We propose to revise 30 CFR
816.74(b) for consistency with our
proposed changes to 30 CFR 780.12(e)
and 816.22 concerning the removal,
salvage, storage, and redistribution of
soil and organic matter. We propose to
revise 30 CFR 816.74(c) by adding a
requirement that underdrains comply
with proposed 30 CFR 816.71(f)(3). In
addition, proposed 30 CFR 816.74(e)(2),
which is the counterpart to existing 30
CFR 816.74(d)(2), would require the use
of all reasonably available spoil to
eliminate all preexisting highwalls,
consistent with the regulations
governing backfilling and grading of
previously mined areas under 30 CFR
816.106.
Finally, we propose to remove the
gravity-transport provisions in 30 CFR
816.74(h) because this method of
transporting spoil from one bench to
another is not fully consistent with
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section 515(b)(22)(A) of SMCRA,636
which provides that all excess spoil
material resulting from surface coal
mining operations must be ‘‘transported
and placed in a controlled manner in
position for concurrent compaction and
in such a way to assure mass stability
and to prevent mass movement.’’
Gravity transport is not transport in a
controlled manner.
23. Section 816.81: How must I dispose
of coal mine waste?
Proposed Paragraph (a): General
Requirements
Proposed paragraph (a) is
substantively identical to the first
sentence of existing paragraph (a),
except that we propose to add language
requiring compliance with the refuse
pile requirements of 30 CFR 816.83 and
the coal mine waste impounding
structure requirements of 30 CFR 816.84
when applicable.
Proposed Paragraph (b): Basic
Performance Standards
Proposed paragraph (b) would include
the remaining provisions of existing
paragraph (a). Proposed paragraph (b)(1)
would revise existing paragraph (a)(1) to
require that the coal mine waste
disposal facility minimize adverse
effects not only on the quality and
quantity of surface water and
groundwater as in the existing rule, but
also on the biological condition of
perennial and intermittent streams
within the permit area to the extent
possible, using the best technology
currently available. Our proposed
revisions are consistent with section
515(b)(24) of SMCRA,637 which requires
that, to the extent possible using the
best technology currently available,
surface coal mining and reclamation
operations be conducted so as to
minimize disturbances and adverse
impacts of the operation on fish,
wildlife, and related environmental
values and to achieve enhancement of
those resources where practicable.
We propose to add paragraph (b)(6),
which would require that the coal mine
waste disposal facility not change the
size or frequency of peak flows from
precipitation events or thaws in a way
that would result in increased damage
from flooding when compared with the
impacts of premining peak flows. We
also propose to add paragraph (b)(7),
which would require that the coal mine
waste disposal facility not preclude any
existing or reasonably foreseeable use of
surface water or groundwater or, for
surface wates downstream of the
636 30
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facility, preclude attainment of any
designated use under section 101(a) or
303(c) of the Clean Water Act.638 The
proposed language parallels the
terminology in our proposed definition
of ‘‘material damage to the hydrologic
balance outside the permit area’’ in 30
CFR 701.5, which relies in large
measure upon the status of existing,
reasonably foreseeable, and designated
uses of water. In addition, we propose
to add paragraph (b)(8), which would
require that the coal mine waste
disposal facility not cause or contribute
to an exceedance of any applicable
water quality standards. Finally, we
propose to add paragraph (b)(9), which
would require that the disposal facility
not discharge acid or toxic mine
drainage.
The proposed addition of paragraphs
(b)(6) through (9) is intended to improve
implementation of sections 510(b)(3)
and 515(b)(10) of SMCRA. Section
510(b)(3) 639 prohibits approval of a
permit application unless the applicant
demonstrates and the regulatory
authority finds that the proposed
operation ‘‘has been designed to prevent
material damage to the hydrologic
balance outside the permit area.’’
Section 515(b)(10) 640 requires that
surface coal mining and reclamation
operations be conducted so as to
‘‘minimize 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.’’ The proposed revisions
also are consistent with our proposed
definition of ‘‘material damage to the
hydrologic balance outside the permit
area’’ in 30 CFR 701.5, which focuses on
mining-related impacts to uses of
groundwater and surface water. Finally,
the proposed revisions are consistent
with section 702(a) of SMCRA,641 which
provides that nothing in SMCRA may be
construed as superseding, amending,
modifying, or repealing the Clean Water
Act or state laws enacted pursuant to
the Clean Water Act.
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Proposed Paragraph (c): Coal Mine
Waste From Outside the Permit Area
Proposed paragraph (c) is
substantively identical to existing
paragraph (b).
638 33
U.S.C. 1251(a) and 1313(c), respectively.
639 30 U.S.C. 1260(b)(3).
640 30 U.S.C. 1265(b)(10).
641 30 U.S.C. 1292(a).
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Proposed Paragraph (d): Design and
Construction Requirements
Proposed paragraph (d) would
include existing paragraph (c) in revised
form. Proposed paragraph (d)((1)(i)
would require that coal mine waste
disposal facilities be constructed in
accordance with current, prudent
engineering practices and any criteria
established by the regulatory authority.
The existing regulations require that the
design of the facility meet those
requirements, but they do not address
the construction process, which also is
important in ensuring that the structure
is stable and performs as intended.
Proposed paragraph (d)(1)(ii) would
require that, as part of the design
certification, the engineer specifically
certify that any existing and planned
underground mine workings in the
vicinity of the disposal facility will not
adversely impact the stability of the
structure. The Martin County Slurry
Spill incident in Martin County,
Kentucky on October 11, 2000,
illustrates the magnitude of
environmental damage that can result
when impounded coal refuse slurry
breaks through into adjacent
underground mine workings that open
to the surface. In this case, the mine
openings discharged 306 million gallons
of slurry into two tributaries of the Tug
Fork River (Coldwater Fork and Wolf
Creek). The slurry covered nearby
residents’ yards to a depth of as much
as 5 feet, visibly polluted more than 100
miles of waterways, including the Big
Sandy and Ohio Rivers, and devastated
aquatic life in 70 miles of stream. Six
public water intakes were adversely
affected and alternative water supplies
had to be arranged for 27,000 residents.
Cleanup costs were approximately $59
million.642
Proposed paragraph (d)(1)(ii) is
intended to ensure that each coal mine
waste disposal facility is designed to
prevent similar events. This design
requirement would benefit the public,
the environment, and mine operators by
reducing the probability of
breakthroughs into underground mine
workings and the environmental and
property damage and cleanup expenses
that may result from those
breakthroughs.
Proposed paragraph (d)(1)(iii) would
require that the coal mine waste
disposal facility be constructed in
accordance with the design and plans
642 See https://www.sourcewatch.org/
index.php?title=Martin_County_sludge_spill (last
accessed February 4, 2015) and https://
www.jackspadaro.com/news_articles/2003/10_12_
03/herald-leader10_12_03.html (last accessed
February 4, 2015).
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44563
submitted under 30 CFR 780.25 and
approved in the permit and that a
qualified registered professional
engineer experienced in the design and
construction of similar earth and waste
structures certify that the facility has
been constructed in accordance with the
approved design. Proposed paragraph
(d)(1)(iii) would provide additional
safeguards for protection of the
environment, public health and safety,
and property. Thus, it would better
implement section 102(a) of SMCRA,643
which states that one of the purposes of
SMCRA is to ‘‘establish a nationwide
program to protect society and the
environment from the adverse effects of
surface coal mining operations.’’ To the
extent that proposed paragraph
(d)(1)(iii) would improve stability, it
also would improve implementation of
section 515(b)(11) of SMCRA,644 which
requires that all waste piles be stabilized
in designated areas, and sections
515(b)(13) and 515(f) of SMCRA,645
which include provisions intended to
ensure that coal mine waste
impoundments are constructed in a
manner that would protect public safety
and public and private property. And
the proposed revisions would be
consistent with section 515(b)(23) of
SMCRA,646 which requires surface coal
mining and reclamation operations to
‘‘meet such other criteria as are
necessary to achieve reclamation in
accordance with the purposes of this
Act, taking into consideration the
physical, climatological, and other
characteristics of the site.’’
Proposed Paragraph (e): Foundation
Investigations
Proposed paragraph (e) is
substantively identical to existing
paragraph (d), except that we propose to
add language requiring that the analysis
of foundation conditions for the coal
mine waste disposal facility take into
consideration the effect of any
underground mine workings located in
either the permit area or the adjacent
area. The rationale for this proposed
change is the same as the rationale for
proposed paragraph (d), as discussed
above.
Proposed Paragraph (f): Soil Handling
Requirements
Proposed paragraph (f) would require
that vegetation, organic matter, and soil
materials be salvaged, stored, and
redistributed or otherwise handled in
accordance with proposed 30 CFR
643 30
U.S.C. 1202(a).
U.S.C. 1265(b)(11).
645 30 U.S.C. 1265(b)(13) and (f).
646 30 U.S.C. 1265(b)(23).
644 30
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816.22. While 30 CFR 816.22 would
apply in the absence of this rule, the
addition of this paragraph would
reaffirm the applicability of that rule to
coal mine waste disposal facilities.
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Proposed paragraphs (g) and (h):
Emergency Procedures and
Underground Disposal
Proposed paragraphs (g) and (h) are
substantively identical to existing
paragraphs (e) and (f), respectively.
24. Section 816.83: What special
performance standards apply to coal
mine waste refuse piles?
Proposed 30 CFR 816.83 is
substantively identical to existing 30
CFR 816.83 except as discussed below.
We propose to revise paragraph (b),
which includes existing paragraph (a),
to specify that the refuse pile must be
constructed with the diversions and
underdrains included in the approved
design.
In proposed paragraph (b)(3), which
corresponds to part of existing
paragraph (a)(2), we propose to add a
requirement that diversion channels be
designed using the appropriate regional
NRCS synthetic storm distribution to
determine the peak flow from surface
runoff from a 100-year, 6-hour
precipitation event. The preamble to
proposed 30 CFR 780.29 explains the
rationale for this proposed requirement.
We propose to remove existing
paragraph (c)(1) because it duplicates
the soil handling requirements of
proposed 30 CFR 816.81, which 30 CFR
816.83(a) cross-references.
In proposed paragraph (d)(2), which
corresponds to existing paragraph (c)(3),
we propose to delete language in the
existing rule that allows the creation
and retention of small depressions on
the completed refuse pile. Removal of
this provision is justified because
depressions promote infiltration and
because discharges filtered through coal
mine waste typically contain higher
levels of total dissolved solids, metals,
and other parameters of concern than
discharges filtered through mine spoil.
The proposed revision would improve
implementation of sections 510(b)(3)
and 515(b)(10) of SMCRA.647 Section
510(b)(3) 648 prohibits approval of a
permit application unless the applicant
demonstrates and the regulatory
authority finds that the proposed
operation ‘‘has been designed to prevent
material damage to the hydrologic
balance outside the permit area.’’
Section 515(b)(10) 649 requires that
647 30
U.S.C. 1260(b)(3) and 1265(b)(10).
U.S.C. 1260(b)(3).
649 30 U.S.C. 1265(b)(10).
surface coal mining and reclamation
operations be conducted so as to
‘‘minimize 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.’’
In proposed paragraph (e), which
corresponds to existing paragraph (d),
we propose to delete the existing
inspection standards and requirements
and replace them with a cross-reference
to the corresponding inspection and
examination requirements for excess
spoil fills that we propose to adopt as
part of 30 CFR 816.71. Excess spoil fills
and coal mine waste refuse piles are
similar structures in terms of
engineering needs and requirements.
Therefore, they should have identical
inspection and examination
requirements.
25. Section 816.84: What special
requirements apply to coal mine waste
impounding structures?
Proposed 30 CFR 816.84 is
substantively identical to existing 30
CFR 816.84 except as discussed below.
Proposed paragraph (b), which is the
counterpart to existing paragraph (a),
would clarify that coal mine waste may
not be used to construct impounding
structures unless the use of coal mine
waste will not result acid drainage or
toxic seepage through the impounding
structure. The existing rule only refers
to acid seepage. Our proposed revision
of the scope of this rule to include toxic
seepage is appropriate because section
515(b)(10)(A) of SMCRA 650 requires
avoidance of ‘‘acid or other toxic mine
drainage.’’ We also propose to replace
the term ‘‘acid seepage’’ in the existing
rule with ‘‘acid drainage’’ because that
is the term that we define in 30 CFR
701.5. However, we propose to use the
term toxic seepage in recognition of the
mechanism by which we anticipate that
any toxic mine drainage might develop.
Proposed paragraph (e), which is the
counterpart to existing paragraph (d),
would specify that diversions must be
both designed and constructed to meet
the requirements of 30 CFR 816.43. The
existing rule contains only the design
requirement. The performance
standards of 30 CFR 816.43 apply to all
diversions subject to regulation under
SMCRA and our proposed revision
would reiterate that principle. We also
propose to specify that the diversions
must be designed using the appropriate
regional NRCS synthetic storm
648 30
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distribution to determine the peak flow
from surface runoff from a 100-year, 6hour precipitation event. The preamble
to proposed 30 CFR 780.29 explains the
rationale for this proposed requirement.
Finally, we propose to move existing
paragraph (e) to 30 CFR 780.25(d)
because it is a permitting requirement
rather than a performance standard. Our
goal is to move permitting requirements
now located in the performance
standards of subchapter K to the
permitting provisions of subchapter G
whenever feasible.
26. Section 816.95: How must I protect
surface areas from wind and water
erosion?
We propose to revise 30 CFR
816.95(b) to replace the references to
topsoil with references to soil and soil
substitutes to be consistent with 30 CFR
780.12(e) and 816.22(c), which allow
the use of topsoil and subsoil substitutes
and supplements under certain
conditions.
27. Section 816.97: How must I protect
and enhance fish, wildlife, and related
environmental values?
Unless otherwise noted, our proposed
substantive revisions to 30 CFR 816.97,
as discussed below, are intended to
more fully implement section 515(b)(24)
of SMCRA,651 which provides that ‘‘to
the extent possible using the best
technology currently available’’ surface
coal mining and reclamation operations
must be conducted so as to ‘‘minimize
disturbances and adverse impacts of the
operation on fish, wildlife, and related
environmental values, and achieve
enhancement of such resources where
practicable.’’ A few of the proposed
revisions also would provide more
detail on the measures and procedures
needed to ensure compliance with the
Endangered Species Act. Proposed
requirements for the use of native
species and reforestation would more
completely implement section
515(b)(19) of SMCRA,652 which requires
establishment of a ‘‘permanent
vegetative cover of the same seasonal
variety native to the area of land to be
affected and capable of self-regeneration
and plant succession.’’
Proposed Paragraph (a): General
Requirements
Proposed paragraph (a) would require
that the permittee, to the extent possible
using the best technology currently
available, minimize disturbances and
adverse impacts on fish, wildlife, and
related environmental values and
651 30
650 30
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U.S.C. 1265(b)(19).
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achieve enhancement of those resources
where practicable, as described in detail
in the fish and wildlife protection and
enhancement plan approved in the
permit in accordance with 30 CFR
780.16. Proposed paragraph (a) is
substantively identical to both section
515(b)(24) of SMCRA 653 and to existing
paragraph (a), with the exception that
we propose to add a reminder that the
permittee must comply with the fish
and wildlife protection and
enhancement plan approved in the
permit.
Proposed Paragraph (b): Species Listed
or Proposed for Listing as Threatened or
Endangered
Existing 30 CFR 816.97(b) and (d)
contain provisions that pertain to
threatened and endangered species. We
propose to consolidate those provisions
in proposed paragraph (b). Proposed
paragraph (b)(1) would set forth
requirements concerning species that
the U.S. Fish and Wildlife Service has
listed or proposed for listing under the
Endangered Species Act.
Proposed paragraphs (b)(1)(i) through
(iii) are substantively identical to the
requirements of existing 30 CFR
816.97(b) with respect to federally-listed
species, with four exceptions. First, we
propose to replace the terms ‘‘consult’’
and ‘‘consultation’’ in the existing
regulations with ‘‘contact and
coordinate’’ and ‘‘in coordination with’’
to clarify that, in this context, these
regulations do not refer to consultation
under section 7(a)(2) of the Endangered
Species Act.
Second, we propose to expand the
scope of paragraph (b)(1)(i) to include
species proposed for listing as
threatened or endangered under the
Endangered Species Act, not just
species actually listed under that law.
We are proposing this change in
response to discussions with the U.S.
Fish and Wildlife Service. The proposed
change is consistent with section 7(a)(4)
of the Endangered Species Act, which
provides that ‘‘[e]ach Federal agency
shall confer with the Secretary on any
agency action which is likely to
jeopardize the continued existence of
any species proposed to be listed under
section 4 or result in the destruction or
adverse modification of critical habitat
proposed to be designated for such
species.’’ It also would assist in
implementing the fish and wildlife
protection provisions of sections
515(b)(24) and 516(b)(11) of SMCRA.
The conferencing requirement of section
7(a)(4) of the Endangered Species Act is
not the same as the consultation
653 30
U.S.C. 1265(b)(24).
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19:15 Jul 24, 2015
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requirement for threatened and
endangered species under section
7(a)(2) of the Endangered Species Act.
Third, in proposed paragraph
(b)(1)(ii), we propose to add a sentence
clarifying that the requirement that the
permittee report to the regulatory
authority the presence of any federallylisted threatened or endangered species
within the permit area applies
regardless of whether the species was
listed before or after permit issuance.
We also propose to expand this
notification requirement to apply to
both the permit area and the adjacent
area, not just the permit area as under
the existing rule. We are proposing this
change in response to discussions with
the U.S. Fish and Wildlife Service
concerning compliance with the
Endangered Species Act.
We are considering whether to limit
the notification requirement of proposed
paragraph (b)(1)(ii) to the active mining
phase of the operation; i.e., whether the
final rule should specify that the
notification requirement expires at the
time of Phase II bond release because of
the typical lack of activity on the site
after that stage of reclamation. We invite
comment on this question.
Fourth, in proposed paragraph
(b)(1)(iii)(A), we propose to add a
requirement that the regulatory
authority issue a permit revision order
under 30 CFR 774.10(b) when necessary
to implement the results of the
coordination process with state and
federal fish and wildlife agencies
following receipt of notification under
proposed paragraphs (b)(1)(ii) and (iii).
This requirement would apply only
when revision of the operation and
reclamation plan approved in the permit
is necessary to ensure protection of
federally-listed threatened and
endangered species.
Proposed paragraph (b)(1)(iv) would
expressly require compliance with any
species-specific protective measures
required by the regulatory authority in
coordination with the U.S. Fish and
Wildlife Service. While proposed
paragraph (b)(1)(iv) would be a new
regulation, the requirement itself is a
longstanding component of the result of
a formal section 7(a)(2) consultation
under the Endangered Species Act with
respect to the continuation and approval
of surface coal mining and reclamation
operations under a SMCRA regulatory
program.
Proposed paragraph (b)(1)(v) is
substantively identical to those
elements of existing paragraph (d) that
pertain to the Endangered Species Act;
i.e., it would provide that nothing in our
regulations authorizes the taking of a
threatened or endangered species in
PO 00000
Frm 00131
Fmt 4701
Sfmt 4702
44565
violation of the Endangered Species Act.
Only the U.S. Fish and Wildlife Service
may quantify allowable take of species
listed as threatened or endangered.
Proposed paragraph (b)(2) would set
forth requirements pertaining to species
listed as threatened or endangered
under state statutes similar to the
Endangered Species Act. It would
include reporting and related
requirements analogous to those of
proposed paragraphs (b)(1)(ii) and (iii).
Proposed Paragraph (c): Bald and
Golden Eagles
Existing paragraphs (c) and (d) both
contain provisions that pertain to bald
and golden eagles. We propose to
consolidate those provisions in
proposed paragraph (c). Proposed
paragraphs (c)(1) through (3) are
substantively identical to existing
paragraph (c). Proposed paragraph (c)(4)
would consist of those elements of
existing paragraph (d) that pertain to the
Bald and Golden Eagle Protection Act;
i.e., it would provide that nothing in our
regulations authorizes the taking of a
bald or golden eagle, its nest, or its eggs
in violation of the Bald and Golden
Eagle Protection Act.
Proposed Paragraph (d): Miscellaneous
Protective Measures for Other Species of
Fish and Wildlife
We propose to redesignate existing
paragraph (e), which contains
miscellaneous provisions relating to
protection of fish and wildlife in
general, as paragraph (d). Proposed
paragraph (d)(1) is substantively
identical to existing paragraph (e)(1)
with one exception. We propose to
remove the clause allowing the
regulatory authority to determine that is
unnecessary to ensure that electric
power transmission lines and other
transmission facilities used for, or
incidental to, surface mining activities
on the permit area are designed and
constructed to minimize electrocution
hazards to raptors. We are not aware of
any situations in which these
precautions are not necessary or
appropriate. We also propose to expand
the scope of this paragraph to include
all avian species with large wingspans,
not just raptors, consistent with
recommendations of the Avian Power
Line Interaction Committee in a 2006
publication,654 which found that nonraptor avian species with large
wingspans including, but not limited to,
654 Avian Power Line Interaction Committee
(APLIC). 2006. Suggested Practices for Avian
Protection on Power Lines: The State of the Art in
2006. Edison Electric Institute, APLIC, and the
California Energy Commission. Washington, DC and
Sacramento, CA.
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Federal Register / Vol. 80, No. 143 / Monday, July 27, 2015 / Proposed Rules
tkelley on DSK3SPTVN1PROD with PROPOSALS2
ravens, magpies, storks, and cranes, are
subject to electrocution by power lines.
Proposed paragraph (d)(2) would
require that the permittee locate,
construct, operate, and maintain haul
and access roads and sedimentation
control structures in a manner that
avoids or minimizes impacts on
important fish and wildlife species or
other species protected by state or
federal law. It is substantively identical
to existing paragraph (e)(2), e
