[Federal Register: August 24, 2007 (Volume 72, Number 164)]
[Proposed Rules]
[Page 48889-48926]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24au07-21]
[[Page 48889]]
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Part VIII
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 780, 784, 816, and 817
Excess Spoil, Coal Mine Waste, and Buffers for Waters of the United
States; Proposed Rule
[[Page 48890]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 780, 784, 816, and 817
RIN 1029-AC04
Excess Spoil, Coal Mine Waste, and Buffers for Waters of the
United States
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are proposing to amend our regulations concerning stream buffer
zones, stream diversions, siltation structures, impoundments, and the
creation and disposal of excess spoil and coal mine waste. Among other
things, this proposed rule would require that surface coal mining
operations be designed to minimize the creation of excess spoil and the
adverse environmental impacts of fills constructed to dispose of excess
spoil and coal mine waste. It would apply the buffer requirement to all
waters of the United States, not just perennial and intermittent
streams. The rule would clearly specify the activities to which that
requirement does and does not apply and the limitations on conducting
activities within the buffer, either under a variance or an exception.
It also would specify requirements to protect aquatic and other
resources when an activity is conducted under either a variance or an
exception.
DATES: Electronic or written comments: We will accept written comments
on the proposed rule on or before October 23, 2007.
Public hearings: If you wish to testify at a public hearing, you
must submit a request before 4:30 p.m., Eastern time, on September 24,
2007. We will hold a public hearing only if there is sufficient
interest. Hearing arrangements, dates and times, if any, will be
announced in a subsequent Federal Register notice. If you are a
disabled individual who needs reasonable accommodation to attend a
public hearing, please contact the person listed under FOR FURTHER
INFORMATION CONTACT.
ADDRESSES: You may submit comments, identified by docket number 1029-
AC04. by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
The proposed rule is listed under the agency name ``OFFICE OF SURFACE
MINING RECLAMATION AND ENFORCEMENT.''
Mail/Hand-Delivery/Courier: Office of Surface Mining
Reclamation and Enforcement, Administrative Record, Room 252 SIB, 1951
Constitution Avenue, NW., Washington, DC 20240. Please identify the
comments as pertaining to RIN 1029-AC04.
You may submit a request for a public hearing on the proposed rule
to the person and address specified under FOR FURTHER INFORMATION
CONTACT. If you are disabled and require special accommodation to
attend a public hearing, please contact the person listed under FOR
FURTHER INFORMATION CONTACT.
If you are commenting on the information collection aspects of this
proposed rule, please submit your comments to the Office of Management
and Budget, Office of Information and Regulatory Affairs, Attention:
Interior Desk Officer, via e-mail to oira_docket@omb.eop.gov, or via
facsimile to 202-365-6566.
You may review the draft environmental impact statement for this
proposed rule online at http://www.regulations.gov. At that internet
address, the document is listed under ``Office of Surface Mining
Reclamation and Enforcement.'' You may also review the draft
environmental impact statement at any of the following locations:
Office of Surface Mining Reclamation and Enforcement, Administrative
Record, Room 101 SIB, 1951 Constitution Avenue, NW., Washington, DC
20240, 202-208-4264.
Office of Surface Mining Reclamation and Enforcement, Appalachian
Regional Office, Three Parkway Center, Pittsburgh, PA 15220, 412-937-
2909.
Office of Surface Mining Reclamation and Enforcement, Mid-Continent
Regional Office, Alton Federal Bldg., 501 Belle Street, Rm 216, Alton,
IL 62002, 618-463-6460.
Office of Surface Mining Reclamation and Enforcement, Western Regional
Office, 1999 Broadway, Suite 3320, Denver, CO 80201-6667, 303-844-1401.
FOR FURTHER INFORMATION CONTACT: Dennis G. Rice, Office of Surface
Mining Reclamation and Enforcement, U.S. Department of the Interior,
1951 Constitution Avenue, NW., Washington, DC 20240. Telephone: 202-
208-2829. E-mail address: drice@osmre.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. How does this rule relate to the proposed rule published on
January 7, 2004?
II. Why is there a need to construct fills in streams in connection
with coal mining?
III. Why are we proposing to revise our stream buffer zone rules?
A. What does SMCRA say about surface coal mining operations in
or near streams?
B. What provisions of SMCRA form the basis for the existing
stream buffer zone rules?
C. What is the history of the existing stream buffer zone rules?
D. How have the existing stream buffer zone rules been
interpreted?
IV. Why are we proposing to revise our rules concerning excess
spoil?
V. Why are we proposing to revise our rules concerning coal mine
waste?
VI. How are we proposing to revise our existing rules?
A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans
B. Sections 780.25 and 784.16: Reclamation Plan: Siltation
Structures, Impoundments, Refuse Piles, and Coal Mine Waste
Impounding Structures
C. Sections 780.28 and 784.28: Activities in or Adjacent to
Waters of the United States
D. Section 780.35: Disposal of Excess Spoil from Surface Mines
E. Section 784.19: Disposal of Excess Spoil from Underground
Mines
F. Sections 816.11 and 817.11: Signs and Markers
G. Sections 816.43 and 817.43: Diversions
H. Sections 816.46 and 817.46: Siltation Structures
I. Sections 816.57 and 817.57: Activities in or Adjacent to
Waters of the United States
J. Sections 816.71 and 817.71: General Requirements for Disposal
of Excess Spoil
K. What does the phrase ``to the extent possible'' mean in these
rules?
L. What does the phrase ``best technology currently available''
mean in these rules?
VII. Are we considering any alternatives to this proposed rule?
A. No Action Alternative
B. Alternative 1: Preferred Alternative
C. Alternative 2: January 7, 2004, Proposed Rule
D. Alternative 3: Change Only the Excess Spoil Regulations
E. Alternative 4: Change Only the Stream Buffer Zone Regulations
VIII. How do I submit comments on the proposed rule?
IX. Procedural Matters and Required Determinations
I. How does this rule relate to the proposed rule published on January
7, 2004?
On January 7, 2004 (69 FR 1036), we published a proposed rule to
amend our excess spoil, stream buffer zone, and stream diversion
regulations. The preamble to that proposed rule contains an extensive
discussion of the purpose and need for the proposed rule and pertinent
background information. We will not fully repeat that information in
[[Page 48891]]
this preamble, but we will supplement that information as appropriate.
On February 26, 2004 (69 FR 8899), we announced the schedule and
arrangements for five hearings on the proposed rule, and extended the
time allowed for receipt of comments by 30 days until April 7, 2004. On
March 30, 2004, we held public hearings in Harriman, Tennessee; Hazard,
Kentucky; Charleston, West Virginia; Pittsburgh, Pennsylvania; and
Washington, DC. Approximately 200 people testified at the five
hearings. We received approximately 32,000 written comments. Numerous
commenters asked us to consider other alternatives to the proposed
rule. Some commenters also asked that we prepare an environmental
impact statement (EIS) on the proposed action.
On June 16, 2005 (70 FR 35112), we announced our intent to prepare
an EIS on the proposed rule changes. We also stated that we intended to
consider additional alternatives and to publish a new proposed rule to
coincide with the release of a draft EIS. The proposed rule that we are
publishing today reflects that decision and replaces the proposed rule
published on January 7, 2004.
II. Why is there a need to construct fills in streams in connection
with coal mining?
Most fill material placed in streams in connection with coal mining
is a result of the need to dispose of excess spoil generated by mining
operations conducted in areas consisting of steep slopes and narrow
valleys. To remove coal by surface mining methods, the formerly solid
rock strata overlying the coal seam must be broken up into fragments
and excavated. The broken rock fragments (referred to as spoil) are
separated by numerous voids, resulting in a significant increase in
volume over the volume of solid rock in place before mining. The
increase in volume varies considerably depending upon the nature of the
rock and the mining method, but the industry average is about 25
percent. Returning all spoil to the mined-out area in steep-slope
terrain would create highly unstable conditions and in most cases is
physically impossible. Consequently, some spoil must be permanently
placed outside the mined-out area in engineered fills. The most
economically feasible disposal areas are the upper reaches of valleys
adjacent to the mine. As defined in 30 CFR 701.5, spoil not needed to
restore the approximate original contour and disposed of in locations
other than the mined-out area is considered ``excess spoil.''
A nationwide survey of all coal mining permits issued between
October 1, 2001, and June 30, 2005, found that those permits included a
total of 1,612 excess spoil fills, of which 1,589 (98.6 percent) are
located in the central Appalachian coalfields. Specifically, most of
the fills approved in those permits are located in Kentucky (1,079),
West Virginia (372), and Virginia (125), with 13 approved in Tennessee.
The remaining fills approved during that time are located in Alaska,
Alabama, Ohio, Pennsylvania, and Washington. This survey is discussed
in greater detail in the draft environmental impact statement (DEIS)
that accompanies this proposed rule. You may review the DEIS for this
proposed rule online at http://www.regulations.gov. At that internet
address, the document is listed under ``Office of Surface Mining
Reclamation and Enforcement.'' A notice announcing the availability of
the DEIS was published in this edition of the Federal Register. That
notice also lists OSM offices and public libraries in Kentucky,
Tennessee, Virginia, and West Virginia where you may review the DEIS.
The central Appalachian coalfields are characterized by highly
eroded plateaus, dissected by numerous narrow, deeply incised valleys
with steep side slopes. In this region, even small valleys may contain
intermittent and perennial streams. For example, in a study conducted
in West Virginia, the United States Geological Survey found that, on
average, perennial streams begin in watersheds as small as 40.8 acres
and intermittent streams in watersheds as small as 14.5 acres. See
Katherine S. Paybins, Flow Origin, Drainage Area, and Hydrologic
Characteristics for Headwater Streams in Mountaintop Coal-Mining Region
of Southern West Virginia, Water Resources Investigations Report 02-
4300, U.S. Geological Survey, 2003, p. 1. Consequently, the
construction of excess spoil fills in those valleys often involves
burying the upper reaches of perennial and intermittent streams.
Underground mines also may result in the filling of some stream
segments. Rock and other overburden materials removed as part of the
cut made to expose the coal seam into which the mine entries and
ventilation shafts are driven normally are used to construct an
adjoining bench upon which mine offices, parking lots, equipment, and
other support facilities are located. This process is referred to as
``facing up'' the mine. Any material removed as part of the face-up
operation that is not used to construct the bench or placed in
temporary storage for use in restoring the approximate original contour
and reclaiming the face-up area once the mine closes permanently is
excess spoil. Should such excess spoil exist, it would be placed in
fills on adjacent hillsides or in adjoining valleys. Underground mining
operations also may involve the excavation of non-coal waste rock from
underground tunnels. The waste rock, which we define as underground
development waste, is typically brought to the surface and placed in
fills.
Activities associated with coal preparation plants also may result
in the filling of some stream segments. These plants clean coal by
removing impurities, especially ash, incombustible rock, and sulfur.
They create large quantities of coal processing waste, including both a
very fine fraction, which is often suspended in water in a semi-liquid
form (slurry) and a coarse fraction (refuse). Coal processing waste
normally is placed in disposal sites near the plant. The slurry is
usually impounded behind dams constructed of coarse refuse in a valley
adjacent to the plant.
The previously mentioned survey of all coal mining permits issued
between October 1, 2001, and June 30, 2005, indicates that coal mining
activities authorized by those permits will directly affect about 535
miles of streams nationwide, of which 324 miles (60.6 percent) are in
the central Appalachian coalfields. Based on data from the West
Virginia permits, we estimate that approximately two-thirds of the 324
miles will be permanently covered by excess spoil fills and coal mine
waste disposal facilities. Most of the remaining miles of stream
directly affected by mining operations should experience only temporary
adverse environmental impacts, chiefly as a result of mining through
those streams. In those cases, the streams are diverted and relocated
while the mining operation proceeds through the streambed. When mining
is completed, the stream is restored to its original location unless
the relocation is permanent.
A further description of the existing environment of the central
Appalachian coalfields can be found in the draft and final
environmental impact statements issued in 2003 and 2005, respectively,
by the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps
of Engineers, the U.S. Fish and Wildlife Service, OSM, and the West
Virginia Department of Environmental Protection. The draft EIS, which
the final EIS incorporates by reference, contains the bulk of that
description. The draft EIS is entitled ``Mountaintop Mining/Valley
Fills in Appalachia Draft
[[Page 48892]]
Programmatic Environmental Impact Statement'' (EPA 9-03-R-00013, EPA
Region 3, June 2003) and is available at http://www.epa.gov/region3/mtntop/eis.htm.
The final EIS, which is entitled ``Mountaintop Mining/
Valley Fills in Appalachia Final Programmatic Environmental Impact
Statement'' (EPA 9-03-R-05002, EPA Region 3, October 2005), is
available at http://www.epa.gov/region3/mtntop/pdf/mtm-vf_fpeis_full-document.pdf
.
According to the draft EIS referenced in the preceding paragraph,
approximately 5,700 excess spoil fills were approved between 1985 and
2001 in the central Appalachian coalfields. These fills, if
constructed, would cover approximately 724 miles of intermittent and
perennial streams, which is about 1.2 percent of the approximately
59,000 miles of intermittent and perennial streams within the central
Appalachian coal fields (EPA 9-03-R-00013, Chapter IV.B-2 and Table
III.K-8).
The draft EIS, as incorporated into the final EIS, also contains
the following statements regarding actual and projected impacts:
``Impacts (including valley fills and other permit
features) * * * based on ten years (1992-2002) of permit footprints
were 1,208 miles (2.05%) of the 58,998 stream miles in the EIS study
area.'' (EPA 9-03-R-00013, Chapter IV.B-1)
``If valley fill construction continued at this historical
rate documented in the Fill Inventory for the next seventeen years
(2003-2020), an additional 724 miles (for a total of 2.4%) could be
impacted.'' (EPA 9-03-R-00013, Chapter IV.B-2)
``If that rate (for permit footprints) continued for
another 10 years, a total of 4.10% would be impacted by 2013.'' (EPA 9-
03-R-00013, Chapter IV.B-1)
III. Why are we proposing to revise our stream buffer zone rules?
In regulating surface coal mining operations, OSM and State
regulatory authorities have historically applied the 1983 stream buffer
zone rules in 30 CFR 816.57 and 817.57 in a manner that allows excess
spoil fills, refuse piles, coal mine waste impoundments, and
sedimentation ponds to be located in perennial and intermittent streams
under certain circumstances. However, as discussed below, there has
been considerable controversy over the proper interpretation of the
1983 rules. Some of those interpretations appear to be at odds with the
underlying provisions of the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). Therefore, Federal action is needed to end the
ambiguity in interpretation of the stream buffer zone rules and to
ensure that regulatory authorities, mine operators, other governmental
entities, landowners, and citizens all can have a common understanding
of what the stream buffer zone rules do and do not require, consistent
with underlying statutory authority.
As discussed below, two Federal appellate court decisions are
relevant to our reconsideration of the 1983 stream buffer zone rules.
One of those decisions concluded that SMCRA does not prohibit placement
of excess spoil in waters of the United States. It further recognized
that section 515(b)(22) of SMCRA contemplated the placement of excess
spoil in such waters. The other decision reversed contrary district
court decisions on other grounds (lack of jurisdiction under the
Eleventh Amendment to the U.S. Constitution) without reaching the
merits of the district court's holding on the applicability of the
stream buffer zone rules. Nevertheless, we believe that both the public
and the regulated community would best be served by revising the 1983
stream buffer zone rules to clearly specify the scope of their
applicability.
The revisions that we are proposing today represent an attempt to
minimize disputes and misunderstandings associated with application of
the existing rules. The revised rules distinguish between those
situations in which maintenance of an undisturbed buffer between mining
and reclamation activities and waters of the United States constitutes
the best technology currently available to implement the underlying
statutory provisions (sections 515(b)(10)(B)(i) and (24) and
516(b)(9)(B) and (11) of SMCRA) and those situations in which
maintenance of a buffer is neither feasible nor appropriate because the
activities inherently involve placement of fill material in waters of
the United States. Examples of the latter category of activities
include mining through streams and the construction of excess spoil
fills, refuse piles, slurry impoundments, and in-stream sedimentation
ponds. Those activities are governed by other regulations.
We are also proposing changes to better conform the rule language
to the underlying provisions of SMCRA and to expand the scope of the
rule to include all waters of the United States instead of just
perennial and intermittent streams as under the existing rules.
Finally, we are proposing to reorganize the rules in recognition of the
fact that the review and approval of proposals to disturb the surface
of lands within buffer zones is a permitting action, not a performance
standard. At present, the buffer zone rules are part of the performance
standards in subchapter K. We are proposing to move portions of those
rules to new sections 780.28 and 784.28, which would be part of the
permitting requirements of subchapter G.
The history of the existing stream buffer zone rules, their
statutory basis, and the impetus for our proposed rule changes are
discussed at length below. A detailed rationale for our proposed
changes to the existing buffer zone rules appears in Parts VI.C. and
VI.I. of this preamble.
A. What does SMCRA say about surface coal mining operations in or near
streams?
SMCRA contains three references to streams, two references to
watercourses, and several provisions that indirectly refer to
activities in or near streams.
Section 507(b)(10) requires that permit applications include ``the
name of the watershed and location of the surface stream or tributary
into which surface and pit drainage will be discharged.'' However, this
provision has no relevance to mining-related activities in or near
streams or to the existing or proposed buffer zone rules.
Section 515(b)(18) requires that surface coal mining and
reclamation operations ``refrain from the construction of roads or
other access ways up a stream bed or drainage channel or in such
proximity to such channel so as to seriously alter the normal flow of
water.''
Section 516(c) requires the regulatory authority to suspend
underground coal mining under permanent streams if an imminent danger
to inhabitants exists. However, this provision is not relevant to a
discussion of the stream buffer zone rules because, in response to
litigation concerning the 1983 version of 30 CFR 817.57, we stipulated
that ``this regulation is directed only to disturbance of surface lands
by surface activities associated with underground mining.'' In re:
Permanent Surface Mining Regulation Litigation II-Round II, 21 ERC
1725, 1741, footnote 21 (D.D.C. 1984).
Section 515(b)(22)(D) provides that sites selected for the disposal
of excess spoil must ``not contain springs, natural water courses or
wet weather seeps unless lateral drains are constructed from the wet
areas to the main underdrains in such a manner that filtration of the
water into the spoil pile will be prevented.'' In adopting this
provision, Congress could have chosen to exclude perennial and
intermittent streams (or other waters) from the scope
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of ``natural water courses,'' but it did not do so. In addition, the
fact that this provision of the Act authorizes disposal of excess spoil
in areas containing springs and seeps further suggests that Congress
did not intend to prohibit placement of excess spoil in perennial or
intermittent streams. Springs and seeps constitute groundwater
discharges. To the extent that those discharges provide intermittent or
continuous flow in a channel, they are included within the scope of our
definitions in 30 CFR 701.5 of ``intermittent stream'' and ``perennial
stream,'' respectively. The definition of ``intermittent stream,''
which is based upon technical literature, includes any ``stream or
reach of a stream that is below the local water table for at least some
part of the year, and obtains its flow from both surface runoff and
ground water discharge.'' Furthermore, the U.S. Court of Appeals for
the Fourth Circuit cited section 515(b)(22) as the basis for its
statement that ``it is beyond dispute that SMCRA recognized the
possibility of placing excess spoil material in waters of the United
States even though those materials do not have a beneficial purpose.''
Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443
(4th Cir. 2003).
Section 515(c)(4)(D) provides that, in approving a permit
application for a mountaintop removal operation, the regulatory
authority must require that ``no damage will be done to natural
watercourses.'' The regulations implementing this provision clarify
that the prohibition applies only to natural watercourses ``below the
lowest coal seam mined.'' See 30 CFR 824.11(a)(9). However, section
515(c)(4)(E) of the Act specifies that ``all excess spoil material not
retained on the mountaintop shall be placed in accordance with the
provisions of subsection (b)(22) of this section.'' By including this
proviso, Congress recognized that not all excess spoil generated by
mountaintop removal operations could be retained on benches or placed
within the mined-out area. And by cross-referencing section 515(b)(22),
Congress authorized placement of excess spoil from mountaintop removal
operations in natural watercourses, provided all requirements of
section 515(b)(22) are met. As discussed in Part II of this preamble,
in the steep-slope terrain of central Appalachia, excess spoil
typically can most feasibly be placed in valley fills.
In addition, the legislative history of section 515(f) of SMCRA
indicates that Congress anticipated that coal mine waste impoundments
would be constructed in perennial and intermittent streams:
In order to assure that mine waste impoundments used for the
disposal of liquid or solid waste material from coal mines are
constructed or have been constructed so as to safeguard the health
and welfare of downstream populations, H.R. 2 gives the Army Corps
of Engineers a role in determining the standards for construction,
modification and abandonment of these impoundments. * * *
Thus, the corps' experience and expertise in the area of design,
construction, maintenance, et cetera, which were utilized for
carrying out the congressionally authorized surveys of mine waste
embankments in West Virginia following the disastrous failure of the
mine waste impoundments on Buffalo Creek, is to be applied in order
to prevent similar accidents in the future.
H. Rep. No. 95-218; at 125 (April 22, 1977) (emphasis added).
Section 515(f) provides that--
The Secretary, with the written concurrence of the Chief of
Engineers, shall establish within one hundred and thirty-five days
from the date of enactment, standards and criteria regulating the
design, location, construction, operation, maintenance, enlargement,
modification, removal, and abandonment of new and existing coal mine
waste piles referred to in section 515(b)(13) and section 516(b)(5).
Sections 515(b)(13) and 516(b)(5) concern ``all existing and new
coal mine waste piles consisting of mine wastes, tailings, coal
processing wastes, or other liquid and solid wastes and used either
temporarily or permanently as dams or embankments.'' (Emphasis added.)
Sections 515(f), 515(b)(13), and 516(b)(5) do not specifically mention
streams or watercourses. However, the reference to dams and
embankments, the requirement for the concurrence of the U.S. Army Corps
of Engineers (for its expertise in dam construction and flood control),
and the legislative history documenting that the 1972 Buffalo Creek
flood was the driving force behind adoption of those SMCRA provisions
demonstrate that Congress was aware that coal mine waste impoundments
had been constructed in perennial and intermittent streams in the past
and would be constructed there in the future. Furthermore, the fact
that all three paragraphs specifically apply to both new and existing
structures (rather than to just existing structures) implies that new
structures would and could be built in streams under SMCRA. As
mentioned in the legislative history, Congress' intent was to prevent a
recurrence of the Buffalo Creek impoundment failure and to ensure that
all coal mine waste impoundments either are or have been constructed in
a manner that protects the safety of downstream residents. There is no
indication that Congress intended to prohibit construction of those
structures in perennial or intermittent streams.
Finally, sections 515(b)(11) and 516(b)(4) of the Act govern the
construction of coal refuse piles that are not used as dams or
embankments. While those paragraphs do not mention constructing refuse
piles in watercourses, neither do they prohibit such construction.
Because of the similarity of those piles to excess spoil fills, the
regulations implementing sections 515(b)(11) and 516(b)(4) incorporate
language similar to that of section 515(b)(22)(D) for the construction
of excess spoil disposal facilities. Specifically, the regulations at
30 CFR 816.83 (a)(1) and 817.83(a)(1) allow the construction of non-
impounding coal refuse piles on areas containing springs, natural or
man-made watercourses, or wet weather seeps if the design includes
diversions and underdrains. Not all areas containing springs,
watercourses, or wet-weather seeps are waters of the United States, but
some are, which means that refuse piles may be constructed in streams
or other waters of the United States.
B. What provisions of SMCRA form the basis for the existing stream
buffer zone rules?
Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA provide
the basis for the existing stream buffer zone rule at 30 CFR 816.57,
which applies to surface mining activities. Section 515(b)(10)(B)(i)
requires that surface coal mining operations be conducted so as to
prevent the contribution of additional suspended solids to streamflow
or runoff outside the permit area to the extent possible using the best
technology currently available. Section 515(b)(24) requires that
surface coal mining and reclamation operations be conducted to minimize
disturbances to and adverse impacts on fish, wildlife, and related
environmental values ``to the extent possible using the best technology
currently available.''
Paragraphs (b)(9)(B) and (11) of section 516 of SMCRA form the
basis for the existing stream buffer zone rule at 30 CFR 817.57, which
applies to surface activities associated with underground mines. Those
section 516 provisions are substantively equivalent to paragraphs
(b)(10)(B)(i) and (24) of section 515 of SMCRA, respectively, except
that section 516(b)(9)(B) also includes the provisions found in section
515(b)(10)(E) regarding the avoidance of channel deepening or
enlargement. Therefore, in the remainder of this
[[Page 48894]]
preamble, we generally refer only to the section 515 paragraphs, with
the understanding that, unless otherwise indicated, references to those
paragraphs should be read as including their section 516 counterparts.
C. What is the history of the existing stream buffer zone rules?
SMCRA and Its Legislative History
SMCRA does not establish or require a buffer zone for streams or
other waters. In 1972, the U.S. House of Representatives passed a bill
(H.R. 6482) that included a flat prohibition on mining within 100 feet
of any ``body of water, stream, pond, or lake to which the public
enjoys use and access, or other private property.'' This prohibition
appeared in the counterpart to what is now section 522(e) of the Act.
However, the bill never became law and the provision did not appear in
subsequent versions of SMCRA legislation.
Initial Regulatory Program
As part of the regulations implementing the initial regulatory
program under SMCRA, we adopted the concept of a 100-foot buffer zone
around intermittent and perennial streams as a means ``to protect
stream channels from abnormal erosion'' from nearby upslope mining
activities. See 30 CFR 715.17(d)(3) and 42 FR 62652 (December 13,
1977). The regulation reads as follows:
No land within 100 feet of an intermittent or perennial stream
shall be disturbed by surface coal mining and reclamation operations
unless the regulatory authority specifically authorizes surface coal
mining and reclamation operations through such a stream. The area
not to be disturbed shall be designated a buffer zone and marked as
specified in Sec. 715.12.
The rule does not specify the conditions under which the regulatory
authority may authorize operations within the buffer zone.
Permanent Regulatory Program (1979 Rules)
The original version of the permanent program regulations, as
published on March 13, 1979, included more extensive stream buffer zone
rules at 30 CFR 816.57 (for surface mining operations) and 817.57 (for
underground mining operations). Specifically, the 1979 version of
section 816.57 reads as follows:
(a) No land within 100 feet of a perennial stream or a stream
with a biological community determined according to paragraph (c)
below shall be disturbed by surface mining activities, except in
accordance with Sec. Sec. 816.43-816.44 [the stream diversion
regulations], unless the regulatory authority specifically
authorizes surface mining activities closer to or through such a
stream upon finding--
(1) That the original stream channel will be restored; and
(2) During and after the mining, the water quantity and quality
from the stream section within 100 feet of the surface mining
activities shall not be adversely affected.
(b) The area not to be disturbed shall be designated a buffer
zone and marked as specified in Sec. 816.11.
(c) A stream with a biological community shall be determined by
the existence in the stream at any time of an assemblage of two or
more species of arthropods or molluscan animals which are:
(1) Adapted to flowing water for all or part of their life
cycle;
(2) Dependent upon a flowing water habitat;
(3) Reproducing or can reasonably be expected to reproduce in
the water body where they are found; and
(4) Longer than 2 millimeters at some stage of the part of their
life cycle spent in the flowing water habitat.
The counterpart regulation for underground mining at 30 CFR 817.57
was identical except that it substituted the term ``surface operations
and facilities'' for ``surface mining activities'' and clearly
indicated that the restrictions were limited to ``surface areas.''
The preamble to the 1979 rules explains that the purpose of the
revised rules was to implement sections 515(b)(10) and (24) of the Act.
44 FR 15176, March 13, 1979. It states that ``[b]uffer zones are
required to protect streams from the adverse effects of sedimentation
and from gross disturbance of stream channels,'' but that ``if
operations can be conducted within 100 feet of a stream in an
environmentally acceptable manner, they may be approved.'' Id. In
addition, it states that ``[t]he 100-foot limit is based on typical
distances that should be maintained to protect stream channels from
sedimentation,'' but that, while the 100-foot standard provides a
simple rule for enforcement purposes, ``site-specific variation should
be made available when the regulatory authority has an objective basis
for either increasing or decreasing the width of the buffer zone.'' Id.
Permanent Regulatory Program Revisions (1983 Rules)
In 1983, we revised the stream buffer zone rules to delete the
requirement that the original stream channel be restored, to replace
the biological community criterion for determining which non-perennial
streams must be protected under the rule with a requirement for
protection of all intermittent streams, and to add a requirement for a
finding that the proposed mining activities will not cause or
contribute to a violation of applicable State or Federal water quality
standards and will not adversely affect the environmental resources of
the stream.
The preamble reiterates the general rationale for adoption of a
stream buffer zone rule that we specified in the preamble to the 1979
rules. It identifies the reason for replacing the biological community
threshold with the intermittent stream threshold as a matter of
improving the ease of administration and eliminating the possibility of
applying the rule to ephemeral streams and other relatively
insignificant water bodies:
The biological-community standard was confusing to apply since
there are areas with ephemeral surface waters of little biological
or hydrologic significance which, at some time of the year, contain
a biological community as defined by previous Sec. 816.57(c). Thus,
much confusion arose when operators attempted to apply the previous
rule's standards to springs, seeps, ponding areas, and ephemeral
streams. While some small biological communities which contribute to
the overall production of downstream ecosystems will be excluded
from special buffer-zone protection under final Sec. 816.57(a), the
purposes of Section 515(b)(24) of the Act will best be achieved by
providing a buffer zone for those streams with more significant
environmental-resource values.
48 FR 30313, June 30, 1983. The preamble further states that ``[i]t
is impossible to conduct surface mining without disturbing a number of
minor natural streams, including some which contain biota'' and that
``surface coal mining operations will be permissible as long as
environmental protection will be afforded to those streams with more
significant environmental-resource value.'' Id. It further provides
that the revised rules ``also recognize that intermittent and perennial
streams generally have environmental-resource values worthy of
protection under Section 515(b)(24) of the Act.'' Id. at 30312. In
addition, the preamble notes that ``[a]lthough final Sec. 816.57 is
intended to protect significant biological values in streams, the
primary objective of the rule is to provide protection for the
hydrologic balance and related environmental values of perennial and
intermittent streams.'' Id. at 30313. It further states that ``[t]he
100-foot limit is used to protect streams from sedimentation and help
preserve riparian vegetation and aquatic habitats.'' Id. at 30314.
We also stated that we removed the requirement to restore the
original stream channel in deference to the
[[Page 48895]]
stream channel diversion requirements of 30 CFR 816.43 and 817.43 and
to clarify that there does not have to be a stream diversion for mining
to occur inside the buffer zone. Id.
Finally, the preamble states that we added the finding concerning
``other environmental resources of the stream'' to clarify ``that
regulatory authorities will be allowed to consider factors other than
water quantity and quality in making buffer-zone determinations'' and
``to provide a more accurate reflection of the objectives of Sections
515(b)(10) and 515(b)(24) of the Act.'' Id. at 30316.
Revised 30 CFR 816.57 (1983) reads as follows:
(a) No land within 100 feet of a perennial stream or an
intermittent stream shall be disturbed by surface mining activities,
unless the regulatory authority specifically authorizes surface
mining activities closer to, or through, such a stream. The
regulatory authority may authorize such activities only upon finding
that--
(1) Surface mining activities will not cause or contribute to
the violation of applicable State or Federal water quality
standards, and will not adversely affect the water quantity and
quality or other environmental resources of the stream; and
(2) If there will be a temporary or permanent stream-channel
diversion, it will comply with Sec. 816.43.
(b) The area not to be disturbed shall be designated as a buffer
zone, and the operator shall mark it as specified in Sec. 816.11.
We revised the stream buffer zone rule for underground mining at 30
CFR 817.57 in identical fashion except for substitution of the term
``underground mining activities'' for ``surface mining activities.''
The National Wildlife Federation challenged this regulation as
being inconsistent with sections 515(b)(10) and (24) of the Act,
primarily because it deleted the biological community threshold for
stream protection. However, the court rejected that challenge, finding
without elaboration that the ``regulation is not in conflict with
either section 515(b)(10) or 515(b)(24).'' In re: Permanent Surface
Mining Regulation Litigation II--Round II, 21 ERC 1725, 1741-1742
(D.D.C. 1984).
The court also noted that the Secretary had properly justified the
rule change on the grounds that the previous rule was confusing and
difficult to apply without protecting areas of little biological
significance. Unfortunately, the new criterion (intermittent streams)
has proven as difficult to apply as the biological community standard
that it replaced. The definition of ``intermittent stream'' in 30 CFR
701.5 has two parts, separated by an ``or.'' The first part defines all
streams with a drainage area of one square mile as intermittent. This
part of the definition is the aspect that was litigated and upheld for
its clarity of application. However, the second part of the definition
includes all streams and stream segments that are below the local water
table for part of the year and that derive at least part of their flow
from groundwater discharge. This part of the definition has been much
more difficult to apply in practice. In fact, some States use
biological criteria for making that determination.
Industry also challenged 30 CFR 817.57(a) to the extent that it
included all underground mining activities. However, industry withdrew
its challenge when the Secretary stipulated that the rule would apply
only to surface lands and surface activities associated with
underground mining. See footnote 21, id. at 1741.
D. How have the existing stream buffer zone rules been interpreted?
Historically, we and the State regulatory authorities have applied
the 1983 stream buffer zone rules as allowing the placement of excess
spoil fills, refuse piles, slurry impoundments, and sedimentation ponds
in intermittent and perennial streams. However, as discussed at length
in the preamble to the January 7, 2004 proposed rule (69 FR 1038-1042),
there has been considerable controversy over the proper interpretation
of both the Clean Water Act and the 1983 rules as they apply to the
placement of fill material in and near perennial and intermittent
streams. Some interpretations of our 1983 rules appear to be at odds
with the underlying provisions of SMCRA.
We first placed our interpretation of the 1983 stream buffer zone
rules in writing in a document entitled ``Summary Report--West Virginia
Permit Review--Vandalia Resources, Inc. Permit No. S-2007-98.''
According to our annual oversight reports for West Virginia for 1999
and 2000, that document stated that the stream buffer zone rule does
not apply to the footprint of a fill placed in a perennial or
intermittent stream as part of a surface coal mining operation. On June
4, 1999, in West Virginia Highlands Conservancy v. Babbitt, Civ. No.
1:99CV01423 (D.D.C.), the plaintiffs challenged the validity of that
document, alleging that it constituted rulemaking in violation of the
Administrative Procedure Act. In an order filed September 23, 1999, the
court approved an unopposed motion to dismiss the case as moot.
In a lawsuit filed in the U.S. District Court for the Southern
District of West Virginia in July 1998, plaintiffs asserted that the
stream buffer zone rule allows mining activities through or within the
buffer zone for a perennial or intermittent stream only if the
activities are minor incursions. They argued that the rule did not
allow substantial segments of the stream to be buried underneath excess
spoil fills or other mining-related structures. On October 20, 1999,
the district court ruled in favor of the plaintiffs on this point,
holding that the stream buffer zone rule applies to all segments of a
stream, including those segments within the footprint of an excess
spoil fill, not just to the stream as a whole. The court also stated
that the construction of fills in perennial or intermittent streams is
inconsistent with the language of 30 CFR 816.57(a)(1), which provides
that the regulatory authority may authorize surface mining activities
within a stream buffer zone only after finding that the proposed
activities ``will not adversely affect the water quantity and quality
or other environmental resources of the stream.'' See Bragg v.
Robertson, 72 F. Supp. 2d 642, 660-663 (S.D. W. Va., 1999).
The U.S. Court of Appeals for the Fourth Circuit ultimately
reversed the district court on other grounds (lack of jurisdiction
under the Eleventh Amendment to the U.S. Constitution) without reaching
the merits of the district court's holding on the applicability of the
stream buffer zone rule. Bragg v. West Virginia Coal Association, 248
F.3d 275, 296 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).
In a different case, the same district court stated that SMCRA and
the stream buffer zone rule do not authorize disposal of overburden in
streams: ``SMCRA contains no provision authorizing disposal of
overburden waste in streams, a conclusion further supported by the
buffer zone rule.'' Kentuckians for the Commonwealth, Inc. v.
Rivenburgh, 204 F. Supp. 2d 927, 942 (S.D. W. Va. 2002).
The U.S. Court of Appeals for the Fourth Circuit subsequently
rejected the district court's interpretation, stating that ``SMCRA does
not prohibit the discharge of surface coal mining excess spoil in
waters of the United States.'' Kentuckians for the Commonwealth, Inc.
v. Rivenburgh, 317 F.3d 425, 442 (4th Cir. 2003). The court further
stated that ``it is beyond dispute that SMCRA recognizes the
possibility of placing excess spoil material in waters of the United
States even though those materials do not have a beneficial purpose.''
Id. at 443.
The court explained the basis for its statements as follows:
[[Page 48896]]
Section 515(b)(22)(D) of SMCRA authorizes mine operators to
place excess spoil material in ``springs, natural water courses or
wet weather seeps'' so long as ``lateral drains are constructed from
the wet areas to the main underdrains in such a manner that
filtration of the water into the spoil pile will be prevented.'' 30
U.S.C. Sec. 1265(b)(22)(D). In addition, Sec. 515(b)(24) requires
surface mine operators to ``minimize disturbances and adverse
impacts of the operation on fish, wildlife, and related
environmental values, and achieve enhancement of such resources
where practicable,'' implying the placement of fill in the waters of
the United States. 30 U.S.C. Sec. 1265(b)(24). It is apparent that
SMCRA anticipates the possibility that excess spoil material could
and would be placed in waters of the United States, and this fact
cannot be juxtaposed with Sec. 404 of the Clean Water Act to
provide a clear intent to limit the term ``fill material'' to
material deposited for a beneficial primary purpose.
Id. at 443.
The preamble to the proposed rule that we published on January 7,
2004, contains additional discussion of litigation and related matters
arising from the 1983 stream buffer zone rules. See especially Part
I.B.1. at 69 FR 1038-1040.
IV. Why are we proposing to revise our rules concerning excess spoil?
The environmental impacts of fills and other structures associated
with the disposal of excess spoil from surface coal mining operations,
and of coal mine waste, have been the subject of controversy, largely
because they involve the filling of substantial portions of stream
valleys, especially in central Appalachia. This controversy has
highlighted the need to ensure that excess spoil creation is minimized
to the extent possible, and that, to the extent possible, excess spoil
and coal mine waste disposal facilities are located and designed to
minimize adverse impacts on the hydrologic balance, streams and other
aquatic resources, fish, wildlife, and related environmental values.
Our existing regulations pertaining to the disposal of excess spoil
primarily focus on ensuring that fills are safe and stable. To
complement the proposed rule changes concerning buffers for waters of
the United States, we propose to revise our excess spoil rules by
adding several requirements focused on environmental considerations,
including minimization of the adverse environmental impacts of fill
construction in waters of the United States. The proposed rule changes
would implement, in part, the requirement at section 515(b)(24) of
SMCRA that surface coal mining and reclamation operations be conducted
in a manner that minimizes disturbances to, and adverse impacts on,
fish, wildlife, and related environmental values to the extent
possible, using the best technology currently available. Section
515(b)(24) applies to the disposal of excess spoil both by its own
terms and through section 515(b)(22)(I), which requires that the
placement of excess spoil meet ``all other provisions of this Act.''
The proposed rules (see the discussion of specific rule changes in
Part VI of this preamble) require that surface coal mining operations
be designed to minimize the creation of excess spoil to the extent
possible. They also specify that the maximum cumulative design volume
of all proposed excess spoil fills within the permit area must be no
larger than the capacity needed to accommodate the anticipated
cumulative volume of excess spoil that the operation will generate.
These requirements should reduce the adverse environmental impacts of
the operation by minimizing the amount of land and waters disturbed to
construct excess spoil fills. The proposed rules further require that
the permit application include an analysis of the environmental impacts
of a reasonable range of alternatives for disposal of excess spoil,
including variations in the number, size, location, and configuration
of proposed fills. The analysis must consider impacts on both
terrestrial and aquatic ecosystems. To the extent possible, the
applicant must select the alternative with the least overall adverse
environmental impact, including adverse impacts on water quality and
aquatic ecosystems. The proposed rule clarifies that an alternative is
possible if it is capable of being done after consideration of cost,
logistics, and available technology, and that the least costly
alternative may not be selected at the expense of environmental
protection solely on the basis of cost. If another alternative
considered would be more environmentally protective than the
alternative selected by the applicant, the application must
demonstrate, to the satisfaction of the regulatory authority, that
implementation of the more environmentally protective alternative is
not possible. In addition, when construction of the excess spoil fill
would involve placement of excess spoil in waters of the United States,
the proposed rule specifies certain factors that must be considered as
part of the evaluation of environmental impacts to ensure adequate
assessment of impacts on water quality and aquatic ecosystems, which
are among the ``related environmental values'' mentioned in sections
515(b)(24) and 516(b)(11) of SMCRA.
We are proposing these rule changes to improve the analysis of
permit applications and permitting decisions under SMCRA. We recognize
that SMCRA itself does not require an analysis of alternatives.
However, we believe that the alternatives analysis that we propose to
require is a reasonable means of implementing sections 515(b)(24) and
516(b)(11) of SMCRA. Those provisions of the law require that surface
coal mining and reclamation operations be conducted in a manner that
minimizes disturbances to, and adverse impacts on, fish, wildlife, and
related environmental values to the extent possible, using the best
technology currently available.
The addition of requirements for an alternatives analysis and
selection of the alternative with the least overall adverse
environmental impact (to the extent possible) also may facilitate the
coordinated processing of coal mining permit applications in accordance
with a memorandum of understanding entitled ``Memorandum of
Understanding among the U.S. Army Corps of Engineers, the U.S. Office
of Surface Mining, the U.S. Environmental Protection Agency, and the
U.S. Fish and Wildlife Service for the Purpose of Providing Concurrent
and Coordinated Review and Processing of Surface Coal Mining
Applications Proposing Placement of Dredged and/or Fill Material in
Waters of the United States,'' which took effect February 8, 2005. For
example, Nationwide Permits 21, 49, and 50, which authorize placement
of excess spoil and coal mine waste in waters of the United States as
part of surface coal mining operations, are predicated upon issuance of
a SMCRA permit or participation in an integrated permitting process.
See 72 FR 11092, 11184 and 11191, March 12, 2007. A person seeking
authorization under one of these nationwide permits must submit a
preconstruction notification to the U.S. Army Corps of Engineers
(Corps). The Corps then must review the notification and issue a
decision on whether the proposed activities lie within the scope of the
nationwide permit or whether an individual permit is necessary under
section 404 of the Clean Water Act. While an alternatives analysis is
not listed as a required element of the preconstruction notification
that must be submitted to the U.S. Army Corps of Engineers under
Nationwide Permits 21, 49, and 50, we believe that such an analysis may
assist the Corps in evaluating preconstruction notifications that
involve construction
[[Page 48897]]
of an excess spoil fill, refuse pile, or slurry impoundment.
The addition of these requirements to our rules is consistent with
section 102(d) of SMCRA, which provides that one of the purposes of
SMCRA is to assure that surface coal mining operations are conducted so
as to protect the environment. In addition, the proposed additions are
consistent with section 102(f) of SMCRA, which provides that another
purpose of SMCRA is to strike a balance between protection of the
environment and the Nation's need for coal as an essential energy
source. The rule changes that we are proposing today would not prohibit
coal production. If the creation of excess spoil as part of a surface
coal mining operations is unavoidable, the proposed rules would not
prevent construction of the fills needed to accommodate the excess
spoil. Instead, the rules that we are proposing are intended to ensure
that surface coal mining operations are planned and conducted in a
manner that minimizes adverse environmental impacts from the
construction of fills for the disposal of excess spoil. Section
201(c)(2) of SMCRA, 30 U.S.C. 1211(c)(2), which directs the Secretary
of the Interior to publish and promulgate such rules and regulations as
may be necessary to carry out the purposes and provisions of SMCRA,
provides additional authority for the adoption of these rule changes.
Since the mid-1990s, the extent of excess spoil fill construction
in central Appalachia has been controversial, especially when fills
bury stream segments. As part of our oversight activities, we conducted
studies in 1999 in Kentucky, Virginia, and West Virginia to determine
how State regulatory authorities were administering SMCRA regulatory
programs regarding restoration of approximate original contour. From
our review of permit files and reclaimed mines, we determined that,
typically, some of the spoil placed in excess spoil fills could have
been retained on or returned to mined-out areas. See ``An Evaluation of
Approximate Original Contour and Postmining Land Use in Kentucky''
(OSM, September 1999); ``An Evaluation of Approximate Original Contour
Variances and Postmining Land Uses in Virginia'' (OSM, September 1999);
and ``Final Report: An Evaluation of Approximate Original Contour and
Postmining Land Use in West Virginia'' (OSM, May 1999).
In many instances, we found that the permit application
overestimated the anticipated volume of excess spoil that the operation
would produce. In addition, fills were designed and constructed larger
than necessary to accommodate the anticipated excess spoil, which
resulted in the unnecessary disturbance of additional land. Kentucky,
Virginia and West Virginia worked with us to develop enhanced guidance
on material balance determinations, spoil management, and approximate
original contour determinations to correct these problems to the extent
feasible under the existing regulations. We also developed guidance for
use under the Tennessee Federal regulatory program. In most cases, the
regulatory authorities in those states have adopted policies based on
that guidance for use in reviewing permit applications. Adopting
regulations that clearly establish limits on excess spoil generation
and fill capacity and that require an analysis of alternatives when
selecting locations and designs for fills would reinforce the basis for
those policies, strengthen the enforceability of decisions based on
those policies, and provide national consistency by ensuring that
certain basic requirements will be applied nationwide, including in
those states that have not adopted policies. We also believe that the
environment, the public, and the regulated community would best be
served by the adoption of national regulations to clarify environmental
considerations concerning the generation and disposal of excess spoil.
We also are taking this opportunity to propose to consolidate most
fill design and permitting requirements in the permit application
regulations at 30 CFR 780.35 and 784.19, rather than splitting them
between those regulations and the performance standards at 30 CFR
816.71 and 817.71, as they are at present. In addition, we are
proposing to revise those rules to be more consistent with plain
language principles, to eliminate redundancies, and to remove
inconsistencies between the performance standards and the permitting
requirements. We invite comment on whether further changes would be
useful or desirable in achieving these goals.
V. Why are we proposing to revise our rules concerning coal mine waste?
As noted in the first paragraph of Part IV of this preamble, our
reasons for proposing revisions to our coal mine waste disposal rules
are similar to the reasons for which we are proposing changes to our
excess spoil disposal rules. In steep-slope areas, coal mine waste
disposal facilities are similar to excess spoil fills in that they are
often placed in valleys containing perennial and intermittent streams
and other waters of ecological significance. Consequently, to minimize
the environmental impacts of those structures on fish, wildlife, and
related environmental values to the extent possible using the best
technology currently available, as required by sections 515(b)(24) and
516(b)(11) of SMCRA, we are proposing to revise our coal mine waste
disposal rules in a manner similar to the proposed changes to the
excess spoil rules by requiring consideration of other methods of
handling coal mine waste, an analysis of alternative locations for coal
mine waste disposal facilities, and, to the extent possible, selection
of the alternative with the least overall adverse environmental impact.
Additional Proposed Changes to Permitting Rules Concerning Coal Mine
Waste
On September 26, 1983 (48 FR 44006), we revised the definitions and
performance standards in our regulations relating to coal mine waste to
be more consistent with the terminology used by the Mine Safety and
Health Administration (MSHA). As we stated at 48 FR 44009, col. 1,
``[i]t is undesirable to have two regulatory programs for the same
subject that contain conflicting standards or which use fundamentally
different terminology.''
Among other things, we adopted definitions of three new terms in 30
CFR 701.5. ``Coal mine waste'' is defined as ``coal processing waste
and underground development waste.'' ``Impounding structure'' is
defined as ``a dam, embankment, or other structure used to impound
water, slurry, or other liquid or semi-liquid material.'' ``Refuse
pile'' is defined as ``a surface deposit of coal mine waste that does
not impound water, slurry, or other liquid or semi-liquid material.''
The latter two terms are consistent with the terminology of MSHA's
rules. ``Refuse pile'' replaces the term ``coal processing waste bank''
previously used in our rules, while ``impounding structure''
incorporates all structures that our rules previously referred to as
coal processing waste dams or embankments.
In concert with the new definition of coal mine waste, we revised
our performance standards at 30 CFR 817.71-817.74 to eliminate the
language that combined underground development waste with excess spoil
for purposes of performance standards for underground mines. Because
the definition of coal mine waste includes underground development
waste, we revised our rules to specify that the disposal of underground
development
[[Page 48898]]
waste is subject to the performance standards for refuse piles (30 CFR
817.83) rather than the performance standards for the disposal of
excess spoil that applied under the old rules.
However, we did not revise our permitting requirements in a similar
fashion at that time. We are taking this opportunity to propose to
modify our regulations in 30 CFR parts 780 and 784 to harmonize those
rules with the 1983 changes to the definitions and performance
standards concerning coal mine waste. In essence, we are proposing to
replace references to coal processing waste banks and coal processing
waste dams and embankments with references to refuse piles and coal
mine waste impounding structures, respectively.
Also, because the definition of coal mine waste, as adopted on
September 26, 1983, includes both coal processing waste and underground
development waste, we are proposing to restructure the permitting
regulations to take this change into account. In particular, 30 CFR
784.19, which is currently entitled ``Underground Development Waste,''
even though it refers to the disposal of both underground development
waste and excess spoil, would be retitled ``Disposal of Excess Spoil.''
The language of that section also would be revised to eliminate
references to underground development waste, which would instead be
regulated under the refuse pile provisions of revised 30 CFR 784.16,
consistent with the 1983 changes to the performance standards. The new
language of 30 CFR 784.19 would parallel the language of 30 CFR 780.35
(the permit application requirements for the disposal of excess spoil
generated by surface mining activities), which the existing rule
incorporates by reference. Adding specific language in place of the
cross-reference to section 780.35 would make this rule consistent with
the pattern established in most of our other rules for surface and
underground mines (i.e., the provisions for surface and underground
mines are in separate parts, but are nearly identical except for cross-
references and the type of operation to which they apply). In addition,
adding specific language in place of the cross-reference to section
780.35 would allow the incorporation of cross-references to the
appropriate underground mining performance standards in part 817 rather
than having to use the existing cross-references in 30 CFR 780.35 to
the surface mining performance standards in part 816.
We are also proposing to delete the cross-references to 30 CFR
77.216-1 in 30 CFR 780.25(e) and 784.16(e) because 30 CFR 77.216-1
consists solely of signage requirements and does not include any design
requirements. Consequently, there is no purpose in cross-referencing 30
CFR 77.216-1 in our permitting rules. The cross-reference to 30 CFR
77.216-2, which contains design requirements for impoundments and
impounding structures, would remain.
VI. How are we proposing to revise our existing rules?
A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans
We propose to revise 30 CFR 780.14(b)(11) and 784.23(b)(10) by
replacing the terms ``coal processing waste bank'' and ``coal
processing waste dam and embankment'' with ``refuse pile'' and ``coal
mine waste impounding structure'' to employ terminology consistent with
the definitions and performance standards that we adopted September 26,
1983. See Part V of this preamble for a more detailed explanation.
In addition, we propose to replace the references to sections
780.35(c) and 816.71(b) in existing section 780.14(c) with a reference
to section 780.35 to be consistent with other changes that we are
proposing to those rules, including moving the design certification
requirement of existing section 816.71(b) to section 780.35(b). In
similar fashion, we are proposing to delete the reference in existing
section 784.23(c) to section 817.71(b) because we are proposing to move
the design certification provisions of existing section 817.71(b) to
section 784.19(b). There is no need for a replacement cross-reference
because section 784.23(c) already cross-references section 784.19 in
its entirety.
B. Sections 780.25 and 784.16: Reclamation Plan: Siltation Structures,
Impoundments, Refuse Piles, and Coal Mine Waste Impounding Structures
We propose to revise the heading and contents of sections 780.25
and 784.16 by replacing the terms ``coal processing waste bank'' and
``coal processing waste dam and embankment'' with ``refuse pile'' and
``coal mine waste impounding structure.'' With these changes, our
permitting requirements concerning coal mine waste will employ
terminology consistent with the definitions and performance standards
for coal mine waste that we adopted September 26, 1983. See Part V of
this preamble for a more detailed explanation.
To improve clarity, we propose to remove the last sentence of
existing paragraph (a)(2) of sections 780.25 and 784.16 and redesignate
the remainder of that paragraph as paragraph (a)(2)(i). The last
sentence of existing paragraph (a)(2) would be redesignated as
paragraph (a)(2)(ii). Existing subparagraphs (a)(2)(i) through (iv)
would be redesignated as subparagraphs (a)(2)(ii)(A) through (D). We
propose to make these redesignations because the last sentence of
existing paragraph (a)(2) and existing subparagraphs (i) through (iv)
apply to all structures meeting the criteria of 30 CFR 77.216(a), while
the remainder of existing paragraph (a)(2) applies only to those
impoundments that meet the Class B or C criteria (now the Significant
Hazard Class or High Hazard Class criteria, respectively) for dams in
the U.S. Department of Agriculture publication Technical Release No.
60, ``Earth Dams and Reservoirs.''
We propose to revise redesignated paragraph (a)(2)(i) of these
sections to update the incorporation by reference of U.S. Department of
Agriculture 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 criteria,
respectively. (The actual criteria remain unchanged.) The newer
publication is not available from the National Technical Information
Service, but is available online from the Natural Resources
Conservation Service (the successor to the Soil Conservation Service).
Consequently, we propose to delete the ordering information pertinent
to the National Technical Information Service and replace it with the
URL (Web 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 to
update the URL information (Web address) for the National Archives and
Records Administration.
To improve clarity and consistency with other regulations, we
propose to revise 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, paragraph (c)(2) requires that plans for
impoundments meeting MSHA criteria comply with MSHA's impoundment
[[Page 48899]]
design requirements at 30 CFR 77.216-2. We are proposing to delete the
existing requirement that those plans also comply with 30 CFR 77.216-1.
The deleted requirement is not germane to permit applications and plans
because it contains signage requirements that apply only to
impoundments that already exist or are under construction.
We also propose to combine existing paragraph (d), which addresses
coal processing waste banks, and existing paragraph (e), which
addresses coal processing waste dams and embankments, into a
substantially revised paragraph (d), and to redesignate paragraph (f)
as paragraph (e). The last paragraph also would be revised to reflect
plain language principles and to include classification terminology
consistent with the 2005 edition of NRCS Technical Release No. 60, as
discussed in the context of the proposed changes to 30 CFR
780.25(a)(2)(i).
Proposed paragraph (d)(1) contains new general requirements for all
structures constructed of or impounding coal mine waste; i.e., refuse
piles and slurry impoundments. Subparagraph (d)(1)(i)(A) provides that
the application must identify a reasonable range of alternative
disposal methods and alternative locations for any proposed refuse
piles or coal mine waste impoundments and impounding structures.
Subparagraph (d)(1)(i)(B) provides that the application must include an
analysis of the viability and environmental impacts (both terrestrial
and aquatic) of each alternative identified. Subparagraph (d)(1)(i)(C)
requires that the applicant select the alternative that would have the
least overall adverse environmental impact, including adverse impacts
on water quality and aquatic ecosystems, to the extent possible. The
proposed rule clarifies that an alternative is possible if it is
capable of being done after consideration of cost, logistics, and
available technology, and that the least costly alternative may not be
selected at the expense of environmental protection solely on the basis
of cost. If another alternative considered would be more
environmentally protective than the alternative selected by the
applicant, the application must demonstrate, to the satisfaction of the
regulatory authority, that implementation of the more environmentally
protective alternative is not possible.
When construction of the proposed refuse pile or coal mine waste
impoundment would involve placement of coal mine waste in waters of the
United States, proposed paragraph (d)(1)(ii) requires that the analysis
performed under paragraph (d)(1)(i)(B) include an evaluation of the
short-term and long-term impacts of each alternative on the aquatic
ecosystem, both individually and on a cumulative basis. The analysis
also must consider impacts on the physical, chemical, and biological
characteristics of downstream flows, including seasonal variations in
temperature and volume, changes in stream turbidity or sedimentation,
the degree to which the coal mine waste may introduce or increase
contaminants, the effects on aquatic organisms, and the extent to which
wildlife is dependent upon those organisms.
In addition, if the applicant must prepare an analysis of
alternatives for the proposed refuse pile or coal mine waste
impoundment or impounding structure under 40 CFR 230.10, which sets
forth requirements for individual permits for placement of fill
material in waters of the United States under section 404 of the Clean
Water Act, proposed paragraph (d)(1)(ii) provides that the application
may initially include a copy of that analysis in lieu of the analysis
of alternatives required under proposed paragraph (d)(1)(i)(B). The
regulatory authority must then determine the extent to which the Clean
Water Act analysis satisfies the analytical requirements of proposed
paragraph (d)(1). When OSM is the regulatory authority, we will
coordinate with the Corps of Engineers in conducting any necessary
analysis of alternatives under the National Environmental Policy Act.
The rationale for these new requirements is set forth in Parts III,
IV, and V of this preamble. In essence, the new requirements would, in
part, implement section 515(b)(24) of SMCRA, which provides that
surface coal mining and reclamation operations must use the best
technology currently available to minimize disturbances to and adverse
impacts on fish, wildlife, and related environmental values to the
extent possible. The new requirements would achieve this goal by
requiring that the permit applicant demonstrate that the proposed
operation has been designed to minimize adverse impacts on land and
waters and that environmental factors have been taken into
consideration when locating and designing the refuse pile or coal mine
waste impoundment.
We are proposing these rule changes to improve the analysis of
permit applications and permitting decisions under SMCRA. However, the
addition of these provisions also may facilitate achieving the
coordinated processing of coal mining permit applications in accordance
with a memorandum of understanding entitled ``Memorandum of
Understanding among the U.S. Army Corps of Engineers, the U.S. Office
of Surface Mining, the U.S. Environmental Protection Agency, and the
U.S. Fish and Wildlife Service for the Purpose of Providing Concurrent
and Coordinated Review and Processing of Surface Coal Mining
Applications Proposing Placement of Dredged and/or Fill Material in
Waters of the United States,'' which took effect February 8, 2005. For
example, the information and analysis submitted under the proposed rule
may assist the Corps of Engineers in its review of preconstruction
notifications submitted under Nationwide Permits 21, 49, or 50, or, if
an individual permit is needed under section 404 of the Clean Water
Act, compliance with the Section 404(b)(1) Guidelines at 40 CFR part
230 concerning placement of dredged or fill materials in waters of the
United States.
The provisions in the proposed rule that would allow the applicant
to select an alternative other than the most environmentally protective
alternative if implementation of the most environmentally protective
alternative is not possible are consistent with paragraphs
(b)(10)(B)(i) and (24) of section 515 of the Act, both of which require
use of the best technology currently available to achieve the
requirements of those sections ``to the extent possible.'' The proposed
rule clarifies that an alternative is possible if it is capable of
being done after consideration of cost, logistics, and available
technology, and that the least costly alternative may not be selected
at the expense of environmental protection solely on the basis of cost.
See also the discussion of the meaning of ``to the extent possible'' in
Part VI.K. of this preamble, as well as the meaning of ``best
technology currently available'' in Part VI.L. of this preamble. We
seek comment on whether this approach is an appropriate interpretation
of the phrase ``to the extent possible'' in SMCRA.
Proposed paragraph (d)(2) provides that each application for an
operation that will generate or dispose of coal mine waste must
describe the steps to be taken to avoid or, if avoidance is not
possible, to minimize the adverse environmental impacts that may result
from the construction of refuse piles and coal mine waste impoundments
and impounding structures. This requirement applies to construction,
maintenance, and reclamation of the alternative selected under
paragraph (d)(1)(i)(C). It also would implement, in part, the
sedimentation prevention requirements of sections 515(b)(10)(B)(i)
[[Page 48900]]
and 516(b)(9)(B) of SMCRA and the fish, wildlife, and related
environmental value protection requirements of sections 515(b)(24) and
516(b)(11) of SMCRA.
Proposed paragraph (d)(3) is substantively identical to existing
paragraph (d). We propose to delete the cross-reference to section
816.84 in existing section 780.25(d) and the cross-reference to section
817.84 in existing section 784.16(d) because proposed sections
780.25(d)(3) and 784.16(d)(3), like existing sections 780.25(d) and
784.16(d), pertain only to refuse piles, not to the coal mine waste
impounding structures to which sections 816.84 and 817.84 apply.
Proposed paragraph (d)(4) is substantively identical to existing
paragraph (e). We propose to delete the cross-reference to section
816.83 in existing section 780.25(e) and the cross-reference to section
817.83 in existing section 784.16(e) because proposed sections
780.25(d)(4) and 784.16(d)(4), like existing sections 780.25(e) and
784.16(e), pertain only to coal mine waste impoundments and impounding
structures, not to the refuse piles to which sections 816.83 and 817.83
apply. In addition, we propose to delete the requirement in existing
sections 780.25(e) and 784.16(e) that each plan for an impounding
structure comply with 30 CFR 77.216-1, which contains MSHA requirements
for signage for existing impoundments and impoundments under
construction. There is no reason to retain this cross-reference because
the referenced requirement is not relevant to preparation of plans or
permit applications for proposed impoundments.
Proposed paragraph (e) is substantively identical to existing
paragraph (f). Consistent with the terminology in the July 2005 edition
of Technical Release No. 60, we propose to replace references to Class
B or C dam criteria with references to Significant Hazard Class or High
Hazard Class criteria, respectively. The actual criteria remain
unchanged.
C. Sections 780.28 and 784.28: Activities in or Adjacent to Waters of
the United States
Proposed sections 780.28 and 784.28 contain permitting requirements
specific to waters of the United States, as regulated under the Clean
Water Act, 33 U.S.C. 1311, 1362, and activities within or adjacent to
those waters. Among other things, they would replace the existing
stream buffer zone rules at 30 CFR 816.57(a)(1) and 817.57(a)(1), which
provide that the regulatory authority may authorize activities on the
surface of lands within 100 feet of a perennial or intermittent stream
only upon finding that the activities will not cause or contribute to
the violation of applicable State or Federal water quality standards
and will not adversely affect the water quantity and quality or other
environmental resources of the stream.
Paragraph (a) of the proposed rules provides that sections 780.28
and 784.28 apply to applications to conduct activities in waters of the
United States or on the surface of lands near waters of the United
States to the extent that those waters are regulated under the Clean
Water Act. This paragraph reflects the fact that, under 30 CFR
816.57(a) and 817.57(a), we propose to prohibit disturbance of the
surface of lands within 100 feet of all waters of the United States,
not just perennial and intermittent streams as under existing 30 CFR
816.57 and 817.57. Sections 515(b)(10)(B)(i) and (24) and 516(b)(9)(B)
and (11) of SMCRA, which form the basis for the existing stream buffer
zone rules, are not limited to preventing or minimizing adverse impacts
on perennial and intermittent streams. The change that we are proposing
recognizes that waters such as lakes, ponds, and wetlands also may have
value for fish, wildlife, and related environmental resources and that
sedimentation and sediment-laden runoff from mine sites could degrade
that value. However, we do not anticipate that this change in
terminology will result in a significant expansion in the applicability
of our rules because the vast majority of waters that may be affected
by surface coal mining and reclamation operations are perennial and
intermittent streams.
If we ultimately adopt this proposal, both the SMCRA regulatory
authority and permit applicants would no longer be able to use or rely
upon the definitions of ``perennial stream'' and ``intermittent
stream'' in 30 CFR 701.5 to determine when the prohibitions of 30 CFR
816.57(a) and 817.57(a) apply. Permit applicants may request a
jurisdictional determination from the U.S. Army Corps of Engineers
before submitting a SMCRA permit application in situations in which
there is a question as to whether waters within or adjacent to the
proposed permit area are waters of the United States under the Clean
Water Act. Similarly, we anticipate that the SMCRA regulatory authority
would consult and coordinate with the Corps of Engineers in situations
in which there is a question as to whether waters within or adjacent to
the proposed permit area are waters of the United States under the
Clean Water Act. In effect, under the proposed rule, permit applicants
must receive a jurisdictional determination from the Corps of Engineers
before the SMCRA permitting process can be completed if there is any
question as to whether the proposed permit area includes or is adjacent
to any waters that may be waters of the United States.
We seek comment on the impact of this change on the administration
of SMCRA regulatory programs and, whether the benefits (increased
environmental protection and consistency with the Clean Water Act)
outweigh any problems identified. We will carefully evaluate all
comments received before deciding whether to adopt the rule as proposed
or retain the scope of the existing rules, which apply to perennial and
intermittent streams.
We are not soliciting comment on the interpretation of the term
``waters of the United States'' under the Clean Water Act. That issue
lies outside the scope of this rulemaking.
Proposed section 780.28(b) specifies that the maps prepared under
30 CFR 779.25, 780.14 or 780.21(b)(2) must show all waters of the
United States that are located either within the proposed permit area
or within the adjacent area, as that term is defined at 30 CFR 701.5.
Proposed section 784.28(b) contains identical requirements for
underground mining operations, with the substitution of cross-
references to 30 CFR 783.25, 784.23, and 784.14(b)(2), respectively.
Both rules also require that the maps delineate all lands within the
proposed permit area that are within 100 feet, measured horizontally,
of any waters of the United States. This requirement is intended to
ensure that the maps submitted with the permit application include
sufficient detail about waters of the United States within the proposed
permit area and the adjacent area to determine what lands within the
proposed permit area are potentially subject to the prohibition under
30 CFR 816.57(a) or 817.57(a). The 100 feet must be measured from the
ordinary high water mark of the stream or other waters of the United
States, consistent with the Corps of Engineers' practices for
establishing jurisdictional limits for waters of the United States. For
wetlands without an ordinary high water mark, the 100 feet must be
measured in a manner consistent with the Corps' practices for wetland
delineations under the Clean Water Act. See the online version of the
1987 ``Corps of Engineers Wetlands Delineation Manual'' (https://www.nwo.usace.army.mil/html/od-rne/87-manual.pdf
), which includes
[[Page 48901]]
updates subsequent to the original January 1987 publication date.
Paragraph (b) of proposed sections 780.28 and 784.28 establishes
requirements for requesting a variance from the prohibition in 30 CFR
816.57(a) and 817.57(a) on surface activities that would disturb the
surface of lands within 100 feet, measured horizontally, of any waters
of the United States. Under paragraph (c), the permit application must
describe any measures that would be implemented in lieu of maintaining
the 100-foot buffer, including the extent of any lesser buffer to be
maintained, and explain how the proposed measures constitute the best
technology currently available to--
(1) Prevent the contribution of additional suspended solids to
streamflow or runoff outside the permit area to the extent possible;
and
(2) Minimize disturbances and adverse impacts on fish, wildlife,
and related environmental values to the extent possible.
Paragraph (c) would not apply to the activities listed in proposed
30 CFR 816.57(b) and 817.57(b) because those activities are exempt from
the prohibition in 30 CFR 816.57(a) and 817.57(a). Therefore, the
applicant does not need a variance to conduct them in or within 100
feet of waters of the United States. However, the applicant will need
to make the demonstration required under proposed paragraph (e) of 30
CFR 780.28 and 784.28 and the regulatory authority will need to make
the findings required under that paragraph before approving a permit
that authorizes those activities. See Part VI.I. of this preamble for a
request for comment on whether the list of activities in proposed 30
CFR 816.57(b) and 817.57(b) is sufficiently comprehensive to include
all activities that inherently occur in waters of the United States or
whether additional rules are needed to address activities that are not
included in either paragraph (a) or (b) of those sections.
Paragraph (d) of proposed sections 780.28 and 784.28 specifies
that, before approving any measures proposed under paragraph (c), the
regulatory authority must determine that the measures--
(1) Would be no less effective in meeting the requirements of the
regulatory program than the prohibition in 30 CFR 816.57(a) or
817.57(a) on disturbance of the surface of lands within 100 feet of
waters of the United States; and
(2) Constitute the best technology currently available to--
(i) Prevent the contribution of additional suspended solids to
streamflow or to runoff outside the permit area to the extent possible;
and
(ii) Minimize disturbances and adverse impacts on fish, wildlife,
and related environmental values to the extent possible.
Paragraph (e) of proposed sections 780.28 and 784.28 provides that,
if the permit applicant proposes to conduct any surface mining
activities (or, for underground mines, surface activities) that are not
subject to the prohibition in 30 CFR 816.57(a) or 817.57(a), the
application must demonstrate, and the regulatory authority must find,
that, to the extent possible, the operation will utilize the best
technology currently available in accordance with 30 CFR 816.41(d) and
816.97(a) [or, for underground mines, 30 CFR 817.41(d) and 817.97(a)],
as required by 30 CFR 780.16(b) and 780.21(h) [or, for underground
mines, 30 CFR 784.21(b) and 784.14(g)]. The regulations at 30 CFR
816.41(d) and 817.41(d) require, in relevant part, that mining
operations prevent, to the extent possible using the best technology
currently available, additional contribution of suspended solids to
streamflow outside the permit area. They implement, in part, the
sedimentation prevention requirements of sections 515(b)(10)(B)(i) and
516(b)(9)(B) of SMCRA, respectively. The regulations at 30 CFR
816.97(a) and 817.97(a) require, in relevant part, that, to the extent
possible using the best technology currently available, mining
operations minimize disturbances and adverse impacts on fish, wildlife,
and related environmental values. They implement, in part, the fish and
wildlife protection requirements of sections 515(b)(24) and 516(b)(11)
of SMCRA, respectively. The regulations at 30 CFR 780.21(h) and
784.14(g) require that each permit application include a hydrologic
reclamation plan designed to implement, among other things, the
requirements of 30 CFR 816.41(d) and 817.41(d), respectively. The
regulations at 30 CFR 780.16(b) and 784.21(b) require that each permit
application include a fish and wildlife protection and enhancement plan
designed to implement the requirements of 30 CFR 816.97(a) and
817.97(a), respectively.
Paragraph (f) of proposed sections 780.28 and 784.28 summarizes the
relationship between SMCRA permitting actions and Clean Water Act
requirements. Paragraph (f)(1) provides that every permit application
must identify the authorizations that the applicant anticipates will be
needed under sections 401, 402, and 404 of the Clean Water Act, 33
U.S.C. 1341, 1342, and 1344, and describe the steps that the permit
applicant has taken or will take to procure those authorizations. This
provision would in part implement section 508(a)(9) of SMCRA, which
requires that each permit application include ``the steps to be taken
to comply with applicable air and water quality laws and regulations *
* *.'' It also is intended to facilitate coordination of permitting
activities under SMCRA and the Clean Water Act.
Paragraph (f)(2) of proposed sections 780.28 and 784.28 specifies
that, if the permit application meets all applicable requirements of
subchapter G (the permitting regulations), the regulatory authority
will process the permit application and may issue the permit before the
applicant obtains all necessary authorizations under the Clean Water
Act, 33 U.S.C. 1251 et seq. This arrangement may facilitate the Corps
of Engineers review of any preconstruction notification submitted by
the permit applicant with respect to any proposed placement of fill
material in waters of the United States. Nationwide Permits 21, 49, and
50, as issued by the Corps, apply only if the SMCRA permit has already
been issued or if the application is being processed as part of an
integrated permit processing procedure. See 72 FR 11092, 11184, and
11191, March 12, 2007.
For informational purposes, proposed paragraph (f)(2) also provides
that the permittee may not initiate any activities for which Clean
Water Act authorization or certification is required until that
authorization or certification is obtained. We seek comment on whether
this provision should remain informational or whether we should revise
our rules to require inclusion of this provision as a SMCRA permit
condition, which would mean that the prohibition on initiation of
activities before obtaining all necessary Clean Water Act
authorizations and certifications would be independently enforceable
under SMCRA.
Proposed 30 CFR 780.28(c) and (d) and 784.28(c) and (d) would
replace the requirement in existing 30 CFR 816.57(a) and 817.57(a) that
the regulatory authority make the finding specified in paragraph (a)(1)
of those rules before authorizing activities that would disturb the
surface of lands within 100 feet of a perennial or intermittent stream.
The rationale for this change appears in Part III of this preamble and
in the following discussion of how the proposed rule changes would
better implement the statutory provisions underlying the existing
stream buffer zone rules.
The first SMCRA provision underlying the existing stream buffer
zone rules is section 515(b)(10)(B)(i),
[[Page 48902]]
which, in context, provides that the performance standards adopted
under SMCRA must require that surface coal mining and reclamation
operations--
(10) minimize the disturbances to the prevailing hydrologic
balance at the mine-site and in associated offsite areas and to the
quality and quantity of water in surface and ground water systems
both during and after surface coal mining operations and during
reclamation by--
(A) * * *
(B)(i) conducting surface coal mining operations so as to
prevent, to the extent possible using the best technology currently
available, additional contributions of suspended solids to
streamflow, or runoff outside the permit area, but in no event shall
contributions be in excess of requirements set by applicable State
or Federal law.
* * * * *
The second provision, section 515(b)(24), requires that surface
coal mining and reclamation operations be conducted in a manner that--
to the extent possible using the best technology currently
available, minimize[s] disturbances and adverse impacts of the
operation on fish, wildlife, and related environmental values, and
achieve[s] enhancement of such resources where practicable.
The common thread in both provisions is the requirement for use of
the best technology currently available to achieve the requirements of
those provisions to the extent possible.
The existing stream buffer zone rules at 30 CFR 816.57 and 817.57
manifest an assumption that maintenance of an undisturbed 100-foot
buffer around perennial and intermittent streams is the best technology
currently available to achieve the sediment control and fish and
wildlife protection requirements of sections 515(b)(10)(B)(i) and (24)
with respect to those streams. However, that specificity is
inconsistent with the concept of best technology currently available,
which is inherently flexible, as discussed below. Appropriate measures
may vary from site to site and may change over time in concert with
advances in technology and scientific knowledge.
Therefore, we propose to revise our rules to allow the regulatory
authority to modify the prohibition on disturbances to the surface of
land within 100 feet of waters of the United States. That modification
would apply in situations in which the applicant proposes (and the
regulatory authority approves) alternative methods of implementing the
requirement to use the best technology currently available to the
extent possible. Under proposed 30 CFR 780.28(c) and (d) and 784.28(c)
and (d), the regulatory authority may approve a lesser buffer, or the
use of a technique that does not involve the maintenance of any buffer,
whenever the permit applicant demonstrates that a lesser buffer or the
use of alternative mining or reclamation techniques would constitute
the best technology currently available to (1) prevent the contribution
of additional suspended solids to streamflow or runoff outside the
permit area to the extent possible, and (2) minimize disturbances to
and adverse impacts on fish, wildlife, and related environmental values
to the extent possible. The latter two requirements correspond to the
two statutory requirements that have historically been described as the
basis for the existing stream buffer zone rules and their predecessors.
Under the proposed rules, the regulatory authority also would have to
first find that the proposed techniques would be no less effective in
meeting the requirements of the regulatory program than the prohibition
in 30 CFR 816.57(a) or 817.57(a) on activities that would disturb the
surface of lands within 100 feet of waters of the United States.
Our proposed approach also is consistent with the definition of
``best technology currently available'' at 30 CFR 701.5. In relevant
part, the definition provides that, ``[w]ithin the constraints of the
permanent program, the regulatory authority shall have the discretion
to determine the best technology currently available on a case-by-case
basis, as authorized by the Act and this chapter.''
In concert with this change, we propose to remove the provision in
existing 30 CFR 816.57(a)(1) and 817.57(a)(1) that specifies that,
before authorizing an activity closer than 100 feet to a perennial or
intermittent stream, the regulatory authority must find that the
activity will not cause or contribute to the violation of applicable
State or Federal water quality standards and will not adversely affect
the water quantity and quality or other environmental resources of the
stream. That requirement has no direct counterpart in either section
515(b)(10)(B)(i) or section 515(b)(24) of SMCRA, which, as previously
discussed, are the two provisions of SMCRA that form the basis for the
buffer zone rules.
We acknowledge that the introductory language of sections
515(b)(10) and 516(b)(9) of SMCRA provides that performance standards
for surface coal mining operations must include a requirement for the
minimization of disturbances to the quality and quantity (or, in the
case of section 516(b)(9), just the quantity) of water in surface and
ground water systems. However, that language does not stand alone as an
independent requirement. Instead, when read in its entirety, section
515(b)(10) provides that the requirement for minimization of
disturbances to water quality and quantity must be achieved by
implementation of the measures and techniques described in
subparagraphs (A) through (F) of section 515(b)(10). Similarly, section
516(b)(9) provides that the requirement for minimization of
disturbances to water quantity must be achieved by implementation of
subparagraphs (A) and (B) of section 516(b)(9).
In addition, sections 515(b)(10)(B)(i) and 516(b)(9)(B) refer only
to the prevention of additional contributions of suspended solids.
While those paragraphs provide that contributions of suspended solids
to streamflow must not be in excess of requirements set by applicable
State or Federal law, they do not mention any other water quality
parameter. Therefore, that provision by itself does not authorize the
required finding in existing 30 CFR 816.57(a)(1) and 817.57(a)(1) that
we propose to remove. Furthermore, the SMCRA regulatory authority is
not necessarily in the best position to determine whether a proposed
activity will cause or contribute to a violation of applicable State or
Federal water quality standards for any parameter. Those standards and
parameters are established and implemented under the authority of the
Clean Water Act (33 U.S.C. 1251 et seq.), not SMCRA, and are sometimes
administered by an agency other than the SMCRA regulatory authority.
Under 30 CFR 780.18(b)(9) and 784.13(b)(9), the SMCRA permit
application must include a description of the steps to be taken to
comply with the requirements of the Clean Air Act (42 U.S.C. 7401 et
seq.), the Clean Water Act (33 U.S.C.1251 et seq.), and other
applicable air and water quality laws and regulations, but there is no
requirement that the SMCRA regulatory authority pass judgment on the
adequacy of that description or on the adequacy of the steps that the
applicant proposes to take.
In addition, the absolute nature of the ``will not adversely
affect'' language of existing 30 CFR 816.57(a)(1) and 817.57(a)(1) is
inconsistent with paragraphs (b)(10)(B)(i) and (24) of section 515 of
the Act, both of which provide that surface coal mining operations must
be conducted to meet the requirements of those paragraphs ``to the
extent possible'' using the ``best technology currently available.''
The appropriate standard under section 515(b)(24) is minimization of
adverse
[[Page 48903]]
impacts on fish, wildlife, and related environmental values, not
absolute avoidance of all adverse effects.
As discussed more fully in Part III.C. of this preamble, the
preamble to the existing stream buffer zone rules (``the 1983
preamble'') recognizes that the protection afforded by those rules need
not be absolute. It acknowledges that some adverse impacts on hydrology
and fish, wildlife, and related environmental values are unavoidable
because of the nature of surface coal mining operations. Furthermore,
the 1983 preamble states that ``OSM recognizes that some surface mining
activities can be conducted within 100 feet of a perennial or an
intermittent stream without causing significant adverse impacts on the
hydrologic balance and related environmental values,'' thus implying
that some adverse impacts would occur. 48 FR 30313, col. 1, June 30,
1983, emphasis added. Similarly, ``final Sec. 816.57 is intended to
protect significant biological values in streams.'' Id., col. 3,
emphasis added. And, with respect to stream diversions, the 1983
preamble specifies that--
Alteration of streams may have adverse aquatic and ecological
impacts on both diverted stream reaches and other downstream areas
with which they merge. However, final Sec. 816.57(a) will minimize
these impacts * * *.
Id. at 30315, col. 1, emphasis added.
Our proposed removal of the requirement in existing 30 CFR
816.57(a)(1) and 817.57(a)(1) for a finding concerning applicable State
or Federal water quality standards would not authorize activities that
would constitute or result in a violation of State or Federal water
quality standards. Section 702(a)(2) of SMCRA provides that nothing in
SMCRA may be construed as superseding, amending, modifying, or
repealing the Clean Water Act, its implementing regulations, State laws
enacted pursuant to the Clean Water Act, or other Federal laws relating
to preservation of water quality. In addition, our regulations at 30
CFR 816.42 and 817.42 require that discharges of water from disturbed
areas ``be made in compliance with all applicable State and Federal
water quality laws and regulations.'' We seek comment on whether we
should amend 30 CFR 816.42 and 817.42, which currently address only
discharges of water, to include a paragraph specifying, for
informational purposes, that discharges of dredged or fill materials in
waters of the United States must comply with all applicable State and
Federal requirements.
D. Section 780.35: Disposal of Excess Spoil From Surface Mines
For the reasons discussed in Part IV of this preamble, we propose
to revise 30 CFR 780.35 by adding several new requirements (in
paragraphs (a)(1) through (4)) for permit applications for operations
that propose to generate excess spoil. First, under proposed paragraph
(a)(1), each application for an operation that would generate excess
spoil must include a demonstration, prepared to the satisfaction of the
regulatory authority, that the operation has been designed to minimize
the volume of excess spoil to the extent possible, thus ensuring that
as much spoil as possible is returned to the mined-out area. The
demonstration must take into consideration applicable regulations
concerning restoration of the approximate original contour, safety,
stability, and environmental protection and the needs of the proposed
postmining land use. Some or all of those factors may limit the amount
of spoil that can be returned to the 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 will
need to revisit the demonstration to determine whether it must be
revised to reflect the needs and attributes of the postmining land use
that is finally approved.
Second, proposed paragraph (a)(2) requires that the application
include a demonstration that the designed maximum cumulative volume of
all proposed excess spoil fills within the permit area is no larger
than the capacity needed to accommodate the anticipated cumulative
volume of excess spoil that the operation will generate.
The goal of both requirements is to minimize fill footprints and
thus minimize disturbances of forest, streams, and riparian vegetation,
consistent with the requirement in sections 515(b)(24) and 516(b)(11)
of SMCRA to minimize disturbances of and adverse impacts to fish,
wildlife, and related environmental values to the extent possible using
the best technology currently available.
Third, proposed paragraph (a)(3)(i) provides that each application
must include a description of all excess spoil disposal alternatives
considered and an analysis of the environmental impacts of those
alternatives. The analysis must consider impacts to both terrestrial
and aquatic ecosystems. The alternatives must vary with respect to the
number, size, location, and configuration of proposed fills to ensure
consideration of a reasonable range of alternatives and potential
environmental impacts. For example, depending on the topography and
geology of the area, the analysis could compare the impacts of
constructing a few large excess spoil fills versus a greater number of
small fills. In addition, the quality of the receiving waters must be
taken into consideration in that it may be environmentally preferable
to concentrate fills and their impacts in watersheds with the lowest
water quality, to the extent that it is possible to do so.
When the disposal method would involve placement of excess spoil in
waters of the United States, proposed paragraph (a)(3)(ii) requires
that the analysis performed under paragraph (a)(3)(i) include an
evaluation of the short-term and long-term impacts of each alternative
on the aquatic ecosystem, both individually and on a cumulative basis.
The analysis must consider impacts on the physical, chemical, and
biological characteristics of downstream flows, including seasonal
variations in temperature and volume, changes in stream turbidity or
sedimentation, the degree to which the excess spoil may introduce or
increase contaminants, the effects on aquatic organisms, and the extent
to which wildlife is dependent upon those organisms.
Proposed paragraph (a)(3)(ii) also provides that, if the applicant
must prepare an analysis of alternatives for the proposed excess spoil
fill under 40 CFR 230.10, which sets forth requirements for individual
permits for placement of fill material in waters of the United States
under section 404 of the Clean Water Act, 33 U.S.C. 1344, the
application may initially include a copy of that analysis in lieu of
the analysis of alternatives required under proposed paragraph (a)(3).
The regulatory authority then must determine the extent to which the
Clean Water Act analysis satisfies the requirement for an analysis of
alternatives under paragraph (a)(3). When OSM is the regulatory
authority, we will coordinate with the Corps of Engineers in conducting
any necessary analysis of alternatives under the National Environmental
Policy Act.
Proposed paragraph (a)(3)(iii) specifies that, to the extent
possible, the applicant must select the alternative that would have the
least overall adverse environmental impact, including adverse impacts
on water quality and aquatic ecosystems. If another alternative
considered would be more environmentally protective than
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the alternative selected by the applicant, the application must
demonstrate, to the satisfaction of the regulatory authority, that
implementation of the more environmentally protective alternative is
not possible. The rule clarifies that an alternative is possible if it
is capable of being done after consideration of cost, logistics, and
available technology, and that the least costly alternative may not be
selected at the expense of environmental protection solely on the basis
of cost.
The alternative selected need not necessarily be the one with the
least adverse impact to aquatic ecosystems. Under 40 CFR 230.10(a),
which is part of the Clean Water Act Section 404(b)(1) Guidelines, no
discharge of dredged or fill material may be permitted if there is a
practicable alternative to the proposed discharge that would have less
adverse impact to the aquatic ecosystem, ``so long as the alternative
does not have other significant adverse environmental consequences.''
In other words, if the alternative with the least adverse impact to the
aquatic ecosystem has other significant adverse environmental impacts,
the Clean Water Act rules allow selection of a different alternative.
Parts III and IV of this preamble explain how the requirements that
we are proposing in paragraph (a)(3) are consistent with SMCRA. In
essence, the new requirements would, in part, implement sections
515(b)(24) and 516(b)(11) of SMCRA, which provide that surface coal
mining and reclamation operations must use the best technology
currently available to minimize disturbances to and adverse impacts on
fish, wildlife, and related environmental values to the extent
possible. The new requirements would achieve this goal by requiring
that the permit applicant take environmental factors into consideration
when locating and designing excess spoil fills and by requiring that
the permit applicant demonstrate that the proposed operation has been
designed using the best technology currently available to minimize
adverse environmental impacts to land and waters and related
environmental values to the extent possible. The phrase ``to the extent
possible,'' which appears in the statutory provisions underlying these
proposed rules, connotes an element of both economic and technological
feasibility, although we do not interpret that phrase as authorizing
selection of the least expensive alternative at the expense of
environmental protection solely on the basis of cost. See Parts VI.K.
and VI.L. of this preamble for further discussion of the meaning of
``to the extent possible'' and ``best technology currently available,''
respectively. We seek comment on whether this approach is an
appropriate interpretation of the phrase ``to the extent possible'' in
sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), and 516(b)(11) of
SMCRA.
We are proposing these rule changes to improve the analysis of
permit applications and permitting decisions under SMCRA. However,
these changes also may facilitate achieving the coordinated processing
of coal mining permit applications in accordance with a memorandum of
understanding entitled ``Memorandum of Understanding among the U.S.
Army Corps of Engineers, the U.S. Office of Surface Mining, the U.S.
Environmental Protection Agency, and the U.S. Fish and Wildlife Service
for the Purpose of Providing Concurrent and Coordinated Review and
Processing of Surface Coal Mining Applications Proposing Placement of
Dredged and/or Fill Material in Waters of the United States,'' which
took effect February 8, 2005. For example, the information and analysis
that the permit applicant must submit under the proposed rule may
assist the Corps of Engineers in its review of preconstruction
notifications submitted under Nationwide Permits 21, 49, or 50, or, if
an individual permit is needed under section 404 of the Clean Water
Act, compliance with the Section 404(b)(1) Guidelines at 40 CFR part
230 concerning placement of dredged or fill materials in waters of the
United States.
Fourth, proposed paragraph (a)(4) provides that each application
must include a description of the steps that the permit applicant
proposes to take to avoid adverse environmental impacts that may result
from the construction of fills or, if avoidance is not possible, to
minimize those impacts. This requirement applies to construction,
maintenance, and reclamation of the alternative selected under proposed
paragraph (a)(3). It also would implement, in part, the sedimentation
prevention requirements of sections 515(b)(10)(B)(i) and 516(b)(9)(B)
of SMCRA and the fish, wildlife, and related environmental value
protection requirements of sections 515(b)(24) and 516(b)(11) of SMCRA.
We anticipate that the steps mentioned in proposed paragraph (a)(4)
would include provisions in the operation plan to require that, when
consistent with prudent engineering practice and applicable regulatory
requirements, excess spoil placement begin at the highest elevation of
the planned fill and proceed down the valley to the toe of the fill,
thus minimizing both impacts to waters of the United States and the
area affected in the event that the full design capacity of the fill is
not needed because of changes in mining plans or other reasons. We seek
comment on whether this approach should be incorporated into the rule
language.
We also propose to substantially reorganize and revise 30 CFR
780.35 for clarity and to incorporate permitting requirements that are
currently found in 30 CFR 816.71, which contains the performance
standards for excess spoil disposal.
Proposed paragraph (a)(5) requires that each application for an
operation that proposes to generate excess spoil include maps and
cross-section drawings showing the location of all proposed disposal
sites and structures. It also requires that fills be located on the
most moderately sloping and naturally stable areas available, unless
the regulatory authority approves a different location based upon the
alternatives analysis under proposed paragraph (a)(3) or other factors,
taking into account other requirements of the Act and regulations. When
possible, fills must be placed upon or above a natural terrace, bench,
or berm if that location would provide additional stability and prevent
mass movement.
The requirement for maps and cross-section drawings currently
appears in the first sentence of existing 30 CFR 780.35(a), while the
fill location requirements in proposed paragraph (a)(5) are currently
found in existing 30 CFR 816.71(c). We believe that those location
requirements are more logically included as part of the planning and
design requirements in the permitting regulations rather than as part
of the performance standards. In addition, we propose to modify the
requirement in the existing rule that fills be located on the most
moderately sloping and naturally stable areas available. The proposed
rule allows the regulatory authority to approve different locations,
based upon the analysis of alternatives required under proposed
paragraph (a)(3) and other relevant factors. This change is needed to
ensure that the analysis of alternatives and consideration of
environmental impacts are a meaningful part of the site selection
process. The proposed change is consistent with section 515(b)(22)(E)
of SMCRA, which requires that excess spoil be placed ``upon the most
moderate slope among those upon which, in the judgment of the
regulatory authority, the spoil could be placed in compliance with all
the requirements of the Act.'' One of the requirements of the Act is
the provision in section 515(b)(24) specifying that surface coal mining
and reclamation operations must
[[Page 48905]]
be 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. Implementation
of that requirement may entail placement of spoil on slopes other than
the most moderate ones available.
Proposed paragraph (a)(6) requires that an application for an
operation that would generate excess spoil include detailed design
plans for each excess spoil disposal structure, prepared in accordance
with the requirements of sections 780.35 and 816.71 through 816.74.
These requirements correspond to the first sentence of existing section
780.35(a), with the addition of a cross-reference to section 780.35 in
recognition of the proposed revisions to that section. The first
sentence of existing section 780.35(a) also includes a requirement for
appropriate maps and cross-section drawings, which we propose to move
to section 780.35(a)(5). Proposed paragraph (a)(6) also includes a
requirement to design the fill and appurtenant structures using current
prudent engineering practices and any additional design criteria
established by the regulatory authority. This requirement is not new.
It currently appears in the first sentence of existing 30 CFR
816.71(b)(1). We propose to move it to 30 CFR 780.35(a)(6) because it
is a design requirement, not a performance standard.
Proposed paragraph (a)(7) requires that the application include the
results of a geotechnical investigation of each proposed excess spoil
disposal site, with the exception of those sites at which spoil will be
placed only on a pre-existing bench under 30 CFR 816.74. This
requirement currently appears in existing section 780.35(b). The
proposed rule retains the existing requirements for the contents of the
geotechnical investigation. Currently located at 30 CFR 780.35(b)(1)
through (5), these requirements appear as 30 CFR 780.35(a)(7)(i)
through (v) in the proposed rule. We also propose to shift the
requirement to conduct sufficient foundation investigations from
existing 30 CFR 816.71(d)(1) to 30 CFR 780.35(a)(7). This shift is
consistent with our effort to consolidate design requirements in the
permitting rules rather than splitting them between the permitting
rules and the performance standards. The foundation investigation is an
element of the geotechnical investigation.
Proposed paragraph (a)(8) requires that each application include
plans for the construction, operation, maintenance, and reclamation of
all excess spoil disposal structures (fills) in accordance with the
requirements of 30 CFR 816.71-816.74. This requirement corresponds to a
similar provision in existing 30 CFR 780.35(a). However, the existing
rule requires plans for the ``removal, if appropriate, of the site and
structures.'' Because excess spoil fills are permanent, it is not
appropriate to include plans for their removal in the application.
Consequently, 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 (a)(9) combines overlapping requirements of
existing 30 CFR 780.35(c) and 816.71(d)(2) concerning application and
design requirements for keyway cuts or rock-toe buttresses. We are not
proposing any substantive changes.
Proposed paragraph (b) requires that the application include a
certification by a qualified registered professional engineer
experienced in the design of earth and rock fills that the design of
all fills and appurtenant structures meets the requirements of 30 CFR
780.35. This requirement currently appears in the second sentence of
existing 30 CFR 816.71(b)(1). We propose to move it to section 780.35
consistent with our effort to consolidate design requirements in the
permitting rules rather than splitting them between the permitting
rules and the performance standards. We are not proposing any
substantive changes to this provision.
E. Section 784.19: Disposal of Excess Spoil From Underground Mines
Existing 30 CFR 784.19 applies the same fill construction
requirements to both underground development waste and excess spoil.
However, on September 26, 1983 (48 FR 44006), we adopted rules that
classify 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 those applicable to excess
spoil fills. Consequently, we propose to revise section 784.19 to apply
only to the disposal of excess spoil, consistent with the revised
definitions and performance standards that we adopted on September 26,
1983. For the same reason, we propose to replace the current section
title, ``Underground Development Waste,'' with ``Disposal of Excess
Spoil.'' We also propose to eliminate all references to underground
development waste because that waste would instead be regulated under
the refuse pile provisions of revised section 784.16, consistent with
the 1983 rule changes to the definitions and performance standards
relating to coal mine waste.
The new language of section 784.19 is identical to the language of
proposed 30 CFR 780.35, which establishes permit application
requirements for the disposal of excess spoil generated by surface
mining activities, except that cross-references to the surface mining
performance standards in part 816 are replaced by cross-references to
the underground mining performance standards in part 817. In that
respect, the proposed rule is similar to existing section 784.19, which
incorporates the requirements of section 780.35 by cross-reference.
F. Sections 816.11 and 817.11: Signs and Markers
Existing 30 CFR 816.57(b) and 817.57(b) require that the operator
mark buffer zones for perennial and intermittent streams. However, that
requirement also appears in 30 CFR 816.11(e) and 817.11(e). We believe
that this requirement is more logically placed in sections 816.11 and
817.11, because the title for those sections identifies them as
pertaining to signs and markers. Therefore, we propose to consolidate
our buffer zone marking requirements in sections 816.11(e) and
817.11(e). We also propose to revise those paragraphs to be consistent
with other proposed changes to the existing stream buffer zone rules.
As revised, proposed section 816.11(e) provides that the boundaries of
any buffer to be maintained between surface mining activities and
waters of the United States in accordance with 30 CFR 780.28 and
816.57(a) must be clearly marked to avoid disturbance by surface mining
activities. Similarly, proposed section 817.11(e) provides that the
boundaries of any buffer to be maintained between surface activities
and waters of the United States in accordance with 30 CFR 784.28 and
817.57(a) must be clearly marked to avoid disturbance by surface
operations and facilities resulting from or in connection with an
underground mine. We are not proposing any substantive changes to
sections 816.11(e) and 817.11(e).
G. Sections 816.43 and 817.43: Diversions
Existing 30 CFR 816.43(b)(1) and 817.43(b)(1) provide that the
regulatory authority may approve diversion of perennial and
intermittent streams within the permit area after making the finding
relating to stream buffer zones that the diversion will not adversely
affect the water quantity and quality and
[[Page 48906]]
related environmental resources of the stream. The referenced finding
is the second part of the finding in existing 30 CFR 816.57(a)(1) and
817.57(a)(1).
We propose to replace this finding with a provision that is more
consistent with the underlying provisions of SMCRA. Specifically,
sections 515(b)(10), 515(b)(24), 516(b)(9), and 516(b)(11) of SMCRA do
not establish a ``will not adversely affect'' standard. Section
515(b)(10) requires that surface coal mining and reclamation operations
be conducted to ``minimize the disturbances to the prevailing
hydrologic balance at the mine site and in associated offsite areas and
to the quality and quantity of water in surface and ground water
systems both during and after surface coal mining operations and during
reclamation.'' Section 516(b)(9), which pertains to underground coal
mining operations, contains similar language with the exception that it
does not mention water quality. Sections 515(b)(24) and 516(b)(11)
require that surface coal mining and reclamation operations be
conducted to ``minimize disturbances and adverse impacts of the
operation on fish, wildlife, and related environmental values'' ``to
the extent possible using the best technology currently available.'' As
demonstrated by these quotes, SMCRA establishes a minimization standard
rather than an absolute ``will not adversely affect'' standard with
respect to disturbance of the hydrologic balance and adverse impacts on
fish, wildlife, and related environmental values.
Consequently, we propose to revise paragraph (b) of 30 CFR
816.43(b)(1) and 817.43(b)(1) to provide that the regulatory authority
may approve the diversion of perennial and intermittent streams within
the permit area if the diversion is located, designed, constructed, and
maintained using the best technology currently available to minimize
adverse impacts to fish, wildlife, and related environmental values to
the extent possible. This provision is consistent with sections
515(b)(24) and 516(b)(11) of SMCRA. Nothing in this proposed rule
should be construed as superseding the performance standards for the
protection of fish, wildlife, and related environmental values in 30
CFR 816.97 and 817.97 or the related permitting requirements at 30 CFR
780.16 and 784.21.
No counterpart to sections 515(b)(10) or 516(b)(9) is necessary
because paragraph (a)(1) of 30 CFR 816.43 and 817.43, which applies to
diversions of all types, including stream-channel diversions, already
provides that ``[a]ll diversions shall be designed to minimize adverse
impacts to the hydrologic balance within the permit and adjacent
areas.'' Furthermore, paragraph (a)(2)(iii) requires that all
diversions be designed, located, constructed, maintained, and used to
prevent, to the extent possible, using the best technology currently
available, additional contributions of suspended solids to streamflow
outside the permit area.'' The language of that paragraph closely
resembles the language of sections 515(b)(10)(B)(i) and 516(b)(9)(B) of
the Act, which are two of the statutory provisions underlying the
existing stream buffer zone rules.
The last sentence of existing paragraph (a)(3) of 30 CFR 816.43 and
817.43 pertains only to stream-channel diversions. Therefore, we
propose to move that sentence to paragraph (b) of sections 816.43 and
817.43 because those sections contain all other performance standards
that pertain only to stream-channel diversions. We propose to insert
the sentence as paragraph (b)(4) of sections 816.43 and 817.43 and to
redesignate existing paragraph (b)(4) as paragraph (b)(5).
The last sentence in paragraph (a)(3) of the existing rules
requires that a permanent stream-channel diversion or a stream channel
reclaimed after the removal of a temporary diversion be designed and
constructed so as to restore or approximate the premining
characteristics of the original stream channel, including the natural
riparian vegetation, to promote the recovery and enhancement of the
aquatic habitat. In new paragraph (b)(4), we propose to revise that
sentence to specify that a permanent stream-channel diversion or a
stream channel reclaimed after the removal of a temporary diversion
must be designed and constructed using natural channel design
techniques so as to restore or approximate the premining
characteristics of the original stream channel, including the natural
riparian vegetation and the natural hydrological characteristics of the
original stream, to promote the recovery and enhancement of the aquatic
habitat and to minimize adverse alteration of stream channels on and
off the site, including channel deepening or enlargement, to the extent
possible.
The new language concerning natural channel design and