Proposed Rule: Surface and Underground Coal Mining Activities: Excess Spoil and Coal Mine Waste Minimization and Stream Buffer Zones For U.S. Waters

Friday,
August 24, 2007
Part VIII
Department of the
Interior
Office of Surface Mining Reclamation and
Enforcement
30 CFR Parts 780, 784, 816, and 817

Excess Spoil, Coal Mine Waste, and
Buffers for Waters of the United States;
Proposed Rule
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48890 Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Proposed Rules
DEPARTMENT OF THE INTERIOR • Mail/Hand-Delivery/Courier: Office II. Why is there a need to construct fills in
of Surface Mining Reclamation and streams in connection with coal mining?
Office of Surface Mining Reclamation Enforcement, Administrative Record, III. Why are we proposing to revise our
and Enforcement stream buffer zone rules?
Room 252 SIB, 1951 Constitution
A. What does SMCRA say about surface
Avenue, NW., Washington, DC 20240. coal mining operations in or near
30 CFR Parts 780, 784, 816, and 817 Please identify the comments as streams?
pertaining to RIN 1029–AC04. B. What provisions of SMCRA form the
RIN 1029–AC04
You may submit a request for a public basis for the existing stream buffer zone
Excess Spoil, Coal Mine Waste, and hearing on the proposed rule to the rules?
person and address specified under FOR C. What is the history of the existing
Buffers for Waters of the United States stream buffer zone rules?
FURTHER INFORMATION CONTACT. If you
AGENCY: Office of Surface Mining are disabled and require special D. How have the existing stream buffer
zone rules been interpreted?
Reclamation and Enforcement, Interior. accommodation to attend a public IV. Why are we proposing to revise our rules
ACTION: Proposed rule. hearing, please contact the person listed concerning excess spoil?
under FOR FURTHER INFORMATION V. Why are we proposing to revise our rules
SUMMARY: We, the Office of Surface CONTACT. concerning coal mine waste?
Mining Reclamation and Enforcement If you are commenting on the VI. How are we proposing to revise our
(OSM), are proposing to amend our information collection aspects of this existing rules?
regulations concerning stream buffer proposed rule, please submit your A. Sections 780.14 and 784.23: Operation
zones, stream diversions, siltation comments to the Office of Management Plan: Maps and Plans
structures, impoundments, and the B. Sections 780.25 and 784.16:
and Budget, Office of Information and
Reclamation Plan: Siltation Structures,
creation and disposal of excess spoil Regulatory Affairs, Attention: Interior Impoundments, Refuse Piles, and Coal
and coal mine waste. Among other Desk Officer, via e-mail to Mine Waste Impounding Structures
things, this proposed rule would require oira_docket@omb.eop.gov, or via C. Sections 780.28 and 784.28: Activities in
that surface coal mining operations be facsimile to 202–365–6566. or Adjacent to Waters of the United
designed to minimize the creation of You may review the draft States
excess spoil and the adverse environmental impact statement for this D. Section 780.35: Disposal of Excess Spoil
environmental impacts of fills proposed rule online at http:// from Surface Mines
constructed to dispose of excess spoil www.regulations.gov. At that internet E. Section 784.19: Disposal of Excess Spoil
from Underground Mines
and coal mine waste. It would apply the address, the document is listed under F. Sections 816.11 and 817.11: Signs and
buffer requirement to all waters of the ‘‘Office of Surface Mining Reclamation Markers
United States, not just perennial and and Enforcement.’’ You may also review G. Sections 816.43 and 817.43: Diversions
intermittent streams. The rule would the draft environmental impact H. Sections 816.46 and 817.46: Siltation
clearly specify the activities to which statement at any of the following Structures
that requirement does and does not locations: I. Sections 816.57 and 817.57: Activities in
apply and the limitations on conducting Office of Surface Mining Reclamation or Adjacent to Waters of the United
activities within the buffer, either under States
and Enforcement, Administrative J. Sections 816.71 and 817.71: General
a variance or an exception. It also would Record, Room 101 SIB, 1951 Requirements for Disposal of Excess
specify requirements to protect aquatic Constitution Avenue, NW., Spoil
and other resources when an activity is Washington, DC 20240, 202–208– K. What does the phrase ‘‘to the extent
conducted under either a variance or an 4264. possible’’ mean in these rules?
exception. Office of Surface Mining Reclamation L. What does the phrase ‘‘best technology
DATES: Electronic or written comments: and Enforcement, Appalachian currently available’’ mean in these rules?
We will accept written comments on the Regional Office, Three Parkway VII. Are we considering any alternatives to
Center, Pittsburgh, PA 15220, 412– this proposed rule?
proposed rule on or before October 23,
A. No Action Alternative
2007. 937–2909. B. Alternative 1: Preferred Alternative
Public hearings: If you wish to testify Office of Surface Mining Reclamation C. Alternative 2: January 7, 2004, Proposed
at a public hearing, you must submit a and Enforcement, Mid-Continent Rule
request before 4:30 p.m., Eastern time, Regional Office, Alton Federal Bldg., D. Alternative 3: Change Only the Excess
on September 24, 2007. We will hold a 501 Belle Street, Rm 216, Alton, IL Spoil Regulations
public hearing only if there is sufficient 62002, 618–463–6460. E. Alternative 4: Change Only the Stream
interest. Hearing arrangements, dates Office of Surface Mining Reclamation Buffer Zone Regulations
and times, if any, will be announced in and Enforcement, Western Regional VIII. How do I submit comments on the
Office, 1999 Broadway, Suite 3320, proposed rule?
a subsequent Federal Register notice. If
Denver, CO 80201–6667, 303–844– IX. Procedural Matters and Required
you are a disabled individual who needs Determinations
reasonable accommodation to attend a 1401.
public hearing, please contact the FOR FURTHER INFORMATION CONTACT: I. How does this rule relate to the
person listed under FOR FURTHER Dennis G. Rice, Office of Surface Mining proposed rule published on January 7,
INFORMATION CONTACT. Reclamation and Enforcement, U.S. 2004?
ADDRESSES: You may submit comments, Department of the Interior, 1951 On January 7, 2004 (69 FR 1036), we
identified by docket number 1029– Constitution Avenue, NW., Washington, published a proposed rule to amend our
AC04. by any of the following methods: DC 20240. Telephone: 202–208–2829. E- excess spoil, stream buffer zone, and
• Federal eRulemaking Portal: http:// mail address: drice@osmre.gov. stream diversion regulations. The
www.regulations.gov. The proposed rule SUPPLEMENTARY INFORMATION: preamble to that proposed rule contains
is listed under the agency name an extensive discussion of the purpose
‘‘OFFICE OF SURFACE MINING Table of Contents and need for the proposed rule and
RECLAMATION AND I. How does this rule relate to the proposed pertinent background information. We
ENFORCEMENT.’’ rule published on January 7, 2004? will not fully repeat that information in
Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Proposed Rules 48891
this preamble, but we will supplement A nationwide survey of all coal the approximate original contour and
that information as appropriate. mining permits issued between October reclaiming the face-up area once the
On February 26, 2004 (69 FR 8899), 1, 2001, and June 30, 2005, found that mine closes permanently is excess spoil.
we announced the schedule and those permits included a total of 1,612 Should such excess spoil exist, it would
arrangements for five hearings on the excess spoil fills, of which 1,589 (98.6 be placed in fills on adjacent hillsides
proposed rule, and extended the time percent) are located in the central or in adjoining valleys. Underground
allowed for receipt of comments by 30 Appalachian coalfields. Specifically, mining operations also may involve the
days until April 7, 2004. On March 30, most of the fills approved in those excavation of non-coal waste rock from
2004, we held public hearings in permits are located in Kentucky (1,079), underground tunnels. The waste rock,
Harriman, Tennessee; Hazard, West Virginia (372), and Virginia (125), which we define as underground
Kentucky; Charleston, West Virginia; with 13 approved in Tennessee. The development waste, is typically brought
Pittsburgh, Pennsylvania; and remaining fills approved during that to the surface and placed in fills.
Washington, DC. Approximately 200 time are located in Alaska, Alabama, Activities associated with coal
people testified at the five hearings. We Ohio, Pennsylvania, and Washington. preparation plants also may result in the
received approximately 32,000 written This survey is discussed in greater filling of some stream segments. These
comments. Numerous commenters detail in the draft environmental impact plants clean coal by removing
asked us to consider other alternatives statement (DEIS) that accompanies this impurities, especially ash,
to the proposed rule. Some commenters proposed rule. You may review the incombustible rock, and sulfur. They
also asked that we prepare an DEIS for this proposed rule online at create large quantities of coal processing
environmental impact statement (EIS) http://www.regulations.gov. At that waste, including both a very fine
on the proposed action. internet address, the document is listed fraction, which is often suspended in
under ‘‘Office of Surface Mining water in a semi-liquid form (slurry) and
On June 16, 2005 (70 FR 35112), we
Reclamation and Enforcement.’’ A a coarse fraction (refuse). Coal
announced our intent to prepare an EIS
notice announcing the availability of the processing waste normally is placed in
on the proposed rule changes. We also
DEIS was published in this edition of disposal sites near the plant. The slurry
stated that we intended to consider
the Federal Register. That notice also is usually impounded behind dams
additional alternatives and to publish a
lists OSM offices and public libraries in constructed of coarse refuse in a valley
new proposed rule to coincide with the
Kentucky, Tennessee, Virginia, and adjacent to the plant.
release of a draft EIS. The proposed rule The previously mentioned survey of
West Virginia where you may review
that we are publishing today reflects all coal mining permits issued between
the DEIS.
that decision and replaces the proposed The central Appalachian coalfields October 1, 2001, and June 30, 2005,
rule published on January 7, 2004. are characterized by highly eroded indicates that coal mining activities
II. Why is there a need to construct fills plateaus, dissected by numerous authorized by those permits will
in streams in connection with coal narrow, deeply incised valleys with directly affect about 535 miles of
mining? steep side slopes. In this region, even streams nationwide, of which 324 miles
small valleys may contain intermittent (60.6 percent) are in the central
Most fill material placed in streams in and perennial streams. For example, in Appalachian coalfields. Based on data
connection with coal mining is a result a study conducted in West Virginia, the from the West Virginia permits, we
of the need to dispose of excess spoil United States Geological Survey found estimate that approximately two-thirds
generated by mining operations that, on average, perennial streams of the 324 miles will be permanently
conducted in areas consisting of steep begin in watersheds as small as 40.8 covered by excess spoil fills and coal
slopes and narrow valleys. To remove acres and intermittent streams in mine waste disposal facilities. Most of
coal by surface mining methods, the watersheds as small as 14.5 acres. See the remaining miles of stream directly
formerly solid rock strata overlying the Katherine S. Paybins, Flow Origin, affected by mining operations should
coal seam must be broken up into Drainage Area, and Hydrologic experience only temporary adverse
fragments and excavated. The broken Characteristics for Headwater Streams environmental impacts, chiefly as a
rock fragments (referred to as spoil) are in Mountaintop Coal-Mining Region of result of mining through those streams.
separated by numerous voids, resulting Southern West Virginia, Water In those cases, the streams are diverted
in a significant increase in volume over Resources Investigations Report 02– and relocated while the mining
the volume of solid rock in place before 4300, U.S. Geological Survey, 2003, p. 1. operation proceeds through the
mining. The increase in volume varies Consequently, the construction of streambed. When mining is completed,
considerably depending upon the nature excess spoil fills in those valleys often the stream is restored to its original
of the rock and the mining method, but involves burying the upper reaches of location unless the relocation is
the industry average is about 25 percent. perennial and intermittent streams. permanent.
Returning all spoil to the mined-out area Underground mines also may result in A further description of the existing
in steep-slope terrain would create the filling of some stream segments. environment of the central Appalachian
highly unstable conditions and in most Rock and other overburden materials coalfields can be found in the draft and
cases is physically impossible. removed as part of the cut made to final environmental impact statements
Consequently, some spoil must be expose the coal seam into which the issued in 2003 and 2005, respectively,
permanently placed outside the mined- mine entries and ventilation shafts are by the U.S. Environmental Protection
out area in engineered fills. The most driven normally are used to construct an Agency (EPA), the U.S. Army Corps of
economically feasible disposal areas are adjoining bench upon which mine Engineers, the U.S. Fish and Wildlife
the upper reaches of valleys adjacent to offices, parking lots, equipment, and Service, OSM, and the West Virginia
the mine. As defined in 30 CFR 701.5, other support facilities are located. This Department of Environmental
spoil not needed to restore the process is referred to as ‘‘facing up’’ the Protection. The draft EIS, which the
approximate original contour and mine. Any material removed as part of final EIS incorporates by reference,
disposed of in locations other than the the face-up operation that is not used to contains the bulk of that description.
mined-out area is considered ‘‘excess construct the bench or placed in The draft EIS is entitled ‘‘Mountaintop
spoil.’’ temporary storage for use in restoring Mining/Valley Fills in Appalachia Draft
Programmatic Environmental Impact interpretation of the stream buffer zone a performance standard. At present, the
Statement’’ (EPA 9–03–R–00013, EPA rules and to ensure that regulatory buffer zone rules are part of the
Region 3, June 2003) and is available at authorities, mine operators, other performance standards in subchapter K.
http://www.epa.gov/region3/mtntop/ governmental entities, landowners, and We are proposing to move portions of
eis.htm. The final EIS, which is entitled citizens all can have a common those rules to new sections 780.28 and
‘‘Mountaintop Mining/Valley Fills in understanding of what the stream buffer 784.28, which would be part of the
Appalachia Final Programmatic zone rules do and do not require, permitting requirements of subchapter
Environmental Impact Statement’’ (EPA consistent with underlying statutory G.
9–03–R–05002, EPA Region 3, October authority. The history of the existing stream
2005), is available at http:// As discussed below, two Federal buffer zone rules, their statutory basis,
www.epa.gov/region3/mtntop/pdf/mtm- appellate court decisions are relevant to and the impetus for our proposed rule
vf_fpeis_full-document.pdf. our reconsideration of the 1983 stream changes are discussed at length below.
According to the draft EIS referenced buffer zone rules. One of those decisions A detailed rationale for our proposed
in the preceding paragraph, concluded that SMCRA does not changes to the existing buffer zone rules
approximately 5,700 excess spoil fills prohibit placement of excess spoil in appears in Parts VI.C. and VI.I. of this
were approved between 1985 and 2001 waters of the United States. It further preamble.
in the central Appalachian coalfields. recognized that section 515(b)(22) of
A. What does SMCRA say about surface
These fills, if constructed, would cover SMCRA contemplated the placement of
coal mining operations in or near
approximately 724 miles of intermittent excess spoil in such waters. The other
streams?
and perennial streams, which is about decision reversed contrary district court
1.2 percent of the approximately 59,000 decisions on other grounds (lack of SMCRA contains three references to
miles of intermittent and perennial jurisdiction under the Eleventh streams, two references to watercourses,
streams within the central Appalachian Amendment to the U.S. Constitution) and several provisions that indirectly
coal fields (EPA 9–03–R–00013, Chapter without reaching the merits of the refer to activities in or near streams.
IV.B–2 and Table III.K–8). district court’s holding on the Section 507(b)(10) requires that
The draft EIS, as incorporated into the applicability of the stream buffer zone permit applications include ‘‘the name
final EIS, also contains the following rules. Nevertheless, we believe that both of the watershed and location of the
statements regarding actual and the public and the regulated community surface stream or tributary into which
projected impacts: would best be served by revising the surface and pit drainage will be
• ‘‘Impacts (including valley fills and 1983 stream buffer zone rules to clearly discharged.’’ However, this provision
other permit features) * * * based on specify the scope of their applicability. has no relevance to mining-related
ten years (1992–2002) of permit The revisions that we are proposing activities in or near streams or to the
footprints were 1,208 miles (2.05%) of today represent an attempt to minimize existing or proposed buffer zone rules.
the 58,998 stream miles in the EIS study disputes and misunderstandings Section 515(b)(18) requires that
area.’’ (EPA 9–03–R–00013, Chapter associated with application of the surface coal mining and reclamation
IV.B–1) existing rules. The revised rules operations ‘‘refrain from the
• ‘‘If valley fill construction distinguish between those situations in construction of roads or other access
continued at this historical rate which maintenance of an undisturbed ways up a stream bed or drainage
documented in the Fill Inventory for the buffer between mining and reclamation channel or in such proximity to such
next seventeen years (2003–2020), an activities and waters of the United channel so as to seriously alter the
additional 724 miles (for a total of 2.4%) States constitutes the best technology normal flow of water.’’
could be impacted.’’ (EPA 9–03–R– currently available to implement the Section 516(c) requires the regulatory
00013, Chapter IV.B–2) underlying statutory provisions authority to suspend underground coal
• ‘‘If that rate (for permit footprints) (sections 515(b)(10)(B)(i) and (24) and mining under permanent streams if an
continued for another 10 years, a total 516(b)(9)(B) and (11) of SMCRA) and imminent danger to inhabitants exists.
of 4.10% would be impacted by 2013.’’ those situations in which maintenance However, this provision is not relevant
(EPA 9–03–R–00013, Chapter IV.B–1) of a buffer is neither feasible nor to a discussion of the stream buffer zone
appropriate because the activities rules because, in response to litigation
III. Why are we proposing to revise our concerning the 1983 version of 30 CFR
inherently involve placement of fill
stream buffer zone rules? 817.57, we stipulated that ‘‘this
material in waters of the United States.
In regulating surface coal mining Examples of the latter category of regulation is directed only to
operations, OSM and State regulatory activities include mining through disturbance of surface lands by surface
authorities have historically applied the streams and the construction of excess activities associated with underground
1983 stream buffer zone rules in 30 CFR spoil fills, refuse piles, slurry mining.’’ In re: Permanent Surface
816.57 and 817.57 in a manner that impoundments, and in-stream Mining Regulation Litigation II-Round
allows excess spoil fills, refuse piles, sedimentation ponds. Those activities II, 21 ERC 1725, 1741, footnote 21
coal mine waste impoundments, and are governed by other regulations. (D.D.C. 1984).
sedimentation ponds to be located in We are also proposing changes to Section 515(b)(22)(D) provides that
perennial and intermittent streams better conform the rule language to the sites selected for the disposal of excess
under certain circumstances. However, underlying provisions of SMCRA and to spoil must ‘‘not contain springs, natural
as discussed below, there has been expand the scope of the rule to include water courses or wet weather seeps
considerable controversy over the all waters of the United States instead unless lateral drains are constructed
proper interpretation of the 1983 rules. of just perennial and intermittent from the wet areas to the main
Some of those interpretations appear to streams as under the existing rules. underdrains in such a manner that
be at odds with the underlying Finally, we are proposing to reorganize filtration of the water into the spoil pile
provisions of the Surface Mining the rules in recognition of the fact that will be prevented.’’ In adopting this
Control and Reclamation Act of 1977 the review and approval of proposals to provision, Congress could have chosen
(SMCRA). Therefore, Federal action is disturb the surface of lands within to exclude perennial and intermittent
needed to end the ambiguity in buffer zones is a permitting action, not streams (or other waters) from the scope
of ‘‘natural water courses,’’ but it did constructed in perennial and manner that protects the safety of
not do so. In addition, the fact that this intermittent streams: downstream residents. There is no
provision of the Act authorizes disposal In order to assure that mine waste indication that Congress intended to
of excess spoil in areas containing impoundments used for the disposal of prohibit construction of those structures
springs and seeps further suggests that liquid or solid waste material from coal in perennial or intermittent streams.
Congress did not intend to prohibit mines are constructed or have been Finally, sections 515(b)(11) and
placement of excess spoil in perennial constructed so as to safeguard the health and 516(b)(4) of the Act govern the
or intermittent streams. Springs and welfare of downstream populations, H.R. 2 construction of coal refuse piles that are
seeps constitute groundwater gives the Army Corps of Engineers a role in not used as dams or embankments.
determining the standards for construction, While those paragraphs do not mention
discharges. To the extent that those modification and abandonment of these
discharges provide intermittent or constructing refuse piles in
impoundments. * * *
continuous flow in a channel, they are Thus, the corps’ experience and expertise watercourses, neither do they prohibit
included within the scope of our in the area of design, construction, such construction. Because of the
definitions in 30 CFR 701.5 of maintenance, et cetera, which were utilized similarity of those piles to excess spoil
‘‘intermittent stream’’ and ‘‘perennial for carrying out the congressionally fills, the regulations implementing
stream,’’ respectively. The definition of authorized surveys of mine waste sections 515(b)(11) and 516(b)(4)
‘‘intermittent stream,’’ which is based embankments in West Virginia following the incorporate language similar to that of
disastrous failure of the mine waste section 515(b)(22)(D) for the
upon technical literature, includes any impoundments on Buffalo Creek, is to be
‘‘stream or reach of a stream that is construction of excess spoil disposal
applied in order to prevent similar accidents
below the local water table for at least facilities. Specifically, the regulations at
in the future.
some part of the year, and obtains its 30 CFR 816.83 (a)(1) and 817.83(a)(1)
H. Rep. No. 95–218; at 125 (April 22, 1977)
flow from both surface runoff and allow the construction of non-
(emphasis added).
ground water discharge.’’ Furthermore, impounding coal refuse piles on areas
Section 515(f) provides that— containing springs, natural or man-made
the U.S. Court of Appeals for the Fourth
Circuit cited section 515(b)(22) as the The Secretary, with the written watercourses, or wet weather seeps if
basis for its statement that ‘‘it is beyond concurrence of the Chief of Engineers, shall the design includes diversions and
establish within one hundred and thirty-five underdrains. Not all areas containing
dispute that SMCRA recognized the
days from the date of enactment, standards springs, watercourses, or wet-weather
possibility of placing excess spoil and criteria regulating the design, location,
material in waters of the United States seeps are waters of the United States,
construction, operation, maintenance, but some are, which means that refuse
even though those materials do not have enlargement, modification, removal, and
a beneficial purpose.’’ Kentuckians for piles may be constructed in streams or
abandonment of new and existing coal mine
the Commonwealth, Inc. v. Rivenburgh, waste piles referred to in section 515(b)(13) other waters of the United States.
317 F.3d 425, 443 (4th Cir. 2003). and section 516(b)(5). B. What provisions of SMCRA form the
Section 515(c)(4)(D) provides that, in Sections 515(b)(13) and 516(b)(5) basis for the existing stream buffer zone
approving a permit application for a concern ‘‘all existing and new coal mine rules?
mountaintop removal operation, the waste piles consisting of mine wastes, Paragraphs (b)(10)(B)(i) and (24) of
regulatory authority must require that tailings, coal processing wastes, or other section 515 of SMCRA provide the basis
‘‘no damage will be done to natural liquid and solid wastes and used either for the existing stream buffer zone rule
watercourses.’’ The regulations temporarily or permanently as dams or at 30 CFR 816.57, which applies to
implementing this provision clarify that embankments.’’ (Emphasis added.) surface mining activities. Section
the prohibition applies only to natural Sections 515(f), 515(b)(13), and 515(b)(10)(B)(i) requires that surface
watercourses ‘‘below the lowest coal 516(b)(5) do not specifically mention coal mining operations be conducted so
seam mined.’’ See 30 CFR 824.11(a)(9). streams or watercourses. However, the as to prevent the contribution of
However, section 515(c)(4)(E) of the Act reference to dams and embankments, additional suspended solids to
specifies that ‘‘all excess spoil material the requirement for the concurrence of streamflow or runoff outside the permit
not retained on the mountaintop shall the U.S. Army Corps of Engineers (for area to the extent possible using the best
be placed in accordance with the its expertise in dam construction and technology currently available. Section
provisions of subsection (b)(22) of this flood control), and the legislative 515(b)(24) requires that surface coal
section.’’ By including this proviso, history documenting that the 1972 mining and reclamation operations be
Congress recognized that not all excess Buffalo Creek flood was the driving conducted to minimize disturbances to
spoil generated by mountaintop removal force behind adoption of those SMCRA and adverse impacts on fish, wildlife,
operations could be retained on benches provisions demonstrate that Congress and related environmental values ‘‘to
or placed within the mined-out area. was aware that coal mine waste the extent possible using the best
And by cross-referencing section impoundments had been constructed in technology currently available.’’
515(b)(22), Congress authorized perennial and intermittent streams in Paragraphs (b)(9)(B) and (11) of
placement of excess spoil from the past and would be constructed there section 516 of SMCRA form the basis for
mountaintop removal operations in in the future. Furthermore, the fact that the existing stream buffer zone rule at
natural watercourses, provided all all three paragraphs specifically apply 30 CFR 817.57, which applies to surface
requirements of section 515(b)(22) are to both new and existing structures activities associated with underground
met. As discussed in Part II of this (rather than to just existing structures) mines. Those section 516 provisions are
preamble, in the steep-slope terrain of implies that new structures would and substantively equivalent to paragraphs
central Appalachia, excess spoil could be built in streams under SMCRA. (b)(10)(B)(i) and (24) of section 515 of
typically can most feasibly be placed in As mentioned in the legislative history, SMCRA, respectively, except that
valley fills. Congress’ intent was to prevent a section 516(b)(9)(B) also includes the
In addition, the legislative history of recurrence of the Buffalo Creek provisions found in section
section 515(f) of SMCRA indicates that impoundment failure and to ensure that 515(b)(10)(E) regarding the avoidance of
Congress anticipated that coal mine all coal mine waste impoundments channel deepening or enlargement.
waste impoundments would be either are or have been constructed in a Therefore, in the remainder of this
preamble, we generally refer only to the stream diversion regulations], unless the and to add a requirement for a finding
section 515 paragraphs, with the regulatory authority specifically authorizes that the proposed mining activities will
understanding that, unless otherwise surface mining activities closer to or through not cause or contribute to a violation of
such a stream upon finding— applicable State or Federal water quality
indicated, references to those
(1) That the original stream channel will be
paragraphs should be read as including restored; and standards and will not adversely affect
their section 516 counterparts. (2) During and after the mining, the water the environmental resources of the
quantity and quality from the stream section stream.
C. What is the history of the existing The preamble reiterates the general
within 100 feet of the surface mining
stream buffer zone rules? rationale for adoption of a stream buffer
activities shall not be adversely affected.
SMCRA and Its Legislative History (b) The area not to be disturbed shall be zone rule that we specified in the
designated a buffer zone and marked as preamble to the 1979 rules. It identifies
SMCRA does not establish or require specified in § 816.11.
a buffer zone for streams or other the reason for replacing the biological
(c) A stream with a biological community community threshold with the
waters. In 1972, the U.S. House of shall be determined by the existence in the
Representatives passed a bill (H.R. 6482) intermittent stream threshold as a
stream at any time of an assemblage of two
that included a flat prohibition on or more species of arthropods or molluscan
matter of improving the ease of
mining within 100 feet of any ‘‘body of animals which are: administration and eliminating the
water, stream, pond, or lake to which (1) Adapted to flowing water for all or part possibility of applying the rule to
the public enjoys use and access, or of their life cycle; ephemeral streams and other relatively
other private property.’’ This (2) Dependent upon a flowing water insignificant water bodies:
habitat; The biological-community standard was
prohibition appeared in the counterpart (3) Reproducing or can reasonably be
to what is now section 522(e) of the Act. confusing to apply since there are areas with
expected to reproduce in the water body ephemeral surface waters of little biological
However, the bill never became law and where they are found; and or hydrologic significance which, at some
the provision did not appear in (4) Longer than 2 millimeters at some stage time of the year, contain a biological
subsequent versions of SMCRA of the part of their life cycle spent in the community as defined by previous
legislation. flowing water habitat. § 816.57(c). Thus, much confusion arose
The counterpart regulation for when operators attempted to apply the
Initial Regulatory Program previous rule’s standards to springs, seeps,
underground mining at 30 CFR 817.57
As part of the regulations was identical except that it substituted ponding areas, and ephemeral streams. While
implementing the initial regulatory some small biological communities which
the term ‘‘surface operations and contribute to the overall production of
program under SMCRA, we adopted the facilities’’ for ‘‘surface mining
concept of a 100-foot buffer zone around downstream ecosystems will be excluded
activities’’ and clearly indicated that the from special buffer-zone protection under
intermittent and perennial streams as a restrictions were limited to ‘‘surface final § 816.57(a), the purposes of Section
means ‘‘to protect stream channels from areas.’’ 515(b)(24) of the Act will best be achieved by
abnormal erosion’’ from nearby upslope The preamble to the 1979 rules providing a buffer zone for those streams
mining activities. See 30 CFR explains that the purpose of the revised with more significant environmental-
715.17(d)(3) and 42 FR 62652 resource values.
rules was to implement sections
(December 13, 1977). The regulation 515(b)(10) and (24) of the Act. 44 FR 48 FR 30313, June 30, 1983. The
reads as follows: 15176, March 13, 1979. It states that preamble further states that ‘‘[i]t is
No land within 100 feet of an intermittent ‘‘[b]uffer zones are required to protect impossible to conduct surface mining
or perennial stream shall be disturbed by streams from the adverse effects of without disturbing a number of minor
surface coal mining and reclamation sedimentation and from gross natural streams, including some which
operations unless the regulatory authority disturbance of stream channels,’’ but contain biota’’ and that ‘‘surface coal
specifically authorizes surface coal mining mining operations will be permissible as
and reclamation operations through such a that ‘‘if operations can be conducted
stream. The area not to be disturbed shall be within 100 feet of a stream in an long as environmental protection will be
designated a buffer zone and marked as environmentally acceptable manner, afforded to those streams with more
specified in § 715.12. they may be approved.’’ Id. In addition, significant environmental-resource
The rule does not specify the it states that ‘‘[t]he 100-foot limit is value.’’ Id. It further provides that the
conditions under which the regulatory based on typical distances that should revised rules ‘‘also recognize that
authority may authorize operations be maintained to protect stream intermittent and perennial streams
within the buffer zone. channels from sedimentation,’’ but that, generally have environmental-resource
while the 100-foot standard provides a values worthy of protection under
Permanent Regulatory Program (1979 simple rule for enforcement purposes, Section 515(b)(24) of the Act.’’ Id. at
Rules) ‘‘site-specific variation should be made 30312. In addition, the preamble notes
The original version of the permanent available when the regulatory authority that ‘‘[a]lthough final § 816.57 is
program regulations, as published on has an objective basis for either intended to protect significant biological
March 13, 1979, included more increasing or decreasing the width of values in streams, the primary objective
extensive stream buffer zone rules at 30 the buffer zone.’’ Id. of the rule is to provide protection for
CFR 816.57 (for surface mining the hydrologic balance and related
Permanent Regulatory Program environmental values of perennial and
operations) and 817.57 (for underground Revisions (1983 Rules)
mining operations). Specifically, the intermittent streams.’’ Id. at 30313. It
1979 version of section 816.57 reads as In 1983, we revised the stream buffer further states that ‘‘[t]he 100-foot limit is
follows: zone rules to delete the requirement that used to protect streams from
the original stream channel be restored, sedimentation and help preserve
(a) No land within 100 feet of a perennial to replace the biological community
stream or a stream with a biological
riparian vegetation and aquatic
community determined according to criterion for determining which non- habitats.’’ Id. at 30314.
paragraph (c) below shall be disturbed by perennial streams must be protected We also stated that we removed the
surface mining activities, except in under the rule with a requirement for requirement to restore the original
accordance with §§ 816.43–816.44 [the protection of all intermittent streams, stream channel in deference to the
stream channel diversion requirements of one square mile as intermittent. This mining activities through or within the
of 30 CFR 816.43 and 817.43 and to part of the definition is the aspect that buffer zone for a perennial or
clarify that there does not have to be a was litigated and upheld for its clarity intermittent stream only if the activities
stream diversion for mining to occur of application. However, the second part are minor incursions. They argued that
inside the buffer zone. Id. of the definition includes all streams the rule did not allow substantial
Finally, the preamble states that we and stream segments that are below the segments of the stream to be buried
added the finding concerning ‘‘other local water table for part of the year and underneath excess spoil fills or other
environmental resources of the stream’’ that derive at least part of their flow mining-related structures. On October
to clarify ‘‘that regulatory authorities from groundwater discharge. This part 20, 1999, the district court ruled in favor
will be allowed to consider factors other of the definition has been much more of the plaintiffs on this point, holding
than water quantity and quality in difficult to apply in practice. In fact, that the stream buffer zone rule applies
making buffer-zone determinations’’ and some States use biological criteria for to all segments of a stream, including
‘‘to provide a more accurate reflection of making that determination. those segments within the footprint of
the objectives of Sections 515(b)(10) and Industry also challenged 30 CFR an excess spoil fill, not just to the
515(b)(24) of the Act.’’ Id. at 30316. 817.57(a) to the extent that it included stream as a whole. The court also stated
Revised 30 CFR 816.57 (1983) reads as all underground mining activities. that the construction of fills in perennial
follows: However, industry withdrew its or intermittent streams is inconsistent
(a) No land within 100 feet of a perennial challenge when the Secretary stipulated with the language of 30 CFR
stream or an intermittent stream shall be that the rule would apply only to 816.57(a)(1), which provides that the
disturbed by surface mining activities, unless surface lands and surface activities regulatory authority may authorize
the regulatory authority specifically associated with underground mining. surface mining activities within a
authorizes surface mining activities closer to, See footnote 21, id. at 1741. stream buffer zone only after finding
or through, such a stream. The regulatory
D. How have the existing stream buffer that the proposed activities ‘‘will not
authority may authorize such activities only
upon finding that— zone rules been interpreted? adversely affect the water quantity and
(1) Surface mining activities will not cause quality or other environmental
Historically, we and the State
or contribute to the violation of applicable resources of the stream.’’ See Bragg v.
regulatory authorities have applied the
State or Federal water quality standards, and Robertson, 72 F. Supp. 2d 642, 660–663
will not adversely affect the water quantity
1983 stream buffer zone rules as
(S.D. W. Va., 1999).
and quality or other environmental resources allowing the placement of excess spoil
fills, refuse piles, slurry impoundments, The U.S. Court of Appeals for the
of the stream; and Fourth Circuit ultimately reversed the
(2) If there will be a temporary or and sedimentation ponds in intermittent
permanent stream-channel diversion, it will and perennial streams. However, as district court on other grounds (lack of
comply with § 816.43. discussed at length in the preamble to jurisdiction under the Eleventh
(b) The area not to be disturbed shall be the January 7, 2004 proposed rule (69 Amendment to the U.S. Constitution)
designated as a buffer zone, and the operator FR 1038–1042), there has been without reaching the merits of the
shall mark it as specified in § 816.11. considerable controversy over the district court’s holding on the
We revised the stream buffer zone proper interpretation of both the Clean applicability of the stream buffer zone
rule for underground mining at 30 CFR Water Act and the 1983 rules as they rule. Bragg v. West Virginia Coal
817.57 in identical fashion except for apply to the placement of fill material Association, 248 F.3d 275, 296 (4th Cir.
substitution of the term ‘‘underground in and near perennial and intermittent 2001), cert. denied, 534 U.S. 1113
mining activities’’ for ‘‘surface mining streams. Some interpretations of our (2002).
activities.’’ 1983 rules appear to be at odds with the In a different case, the same district
The National Wildlife Federation underlying provisions of SMCRA. court stated that SMCRA and the stream
challenged this regulation as being We first placed our interpretation of buffer zone rule do not authorize
inconsistent with sections 515(b)(10) the 1983 stream buffer zone rules in disposal of overburden in streams:
and (24) of the Act, primarily because it writing in a document entitled ‘‘SMCRA contains no provision
deleted the biological community ‘‘Summary Report—West Virginia authorizing disposal of overburden
threshold for stream protection. Permit Review—Vandalia Resources, waste in streams, a conclusion further
However, the court rejected that Inc. Permit No. S–2007–98.’’ According supported by the buffer zone rule.’’
challenge, finding without elaboration to our annual oversight reports for West Kentuckians for the Commonwealth,
that the ‘‘regulation is not in conflict Virginia for 1999 and 2000, that Inc. v. Rivenburgh, 204 F. Supp. 2d 927,
with either section 515(b)(10) or document stated that the stream buffer 942 (S.D. W. Va. 2002).
515(b)(24).’’ In re: Permanent Surface zone rule does not apply to the footprint The U.S. Court of Appeals for the
Mining Regulation Litigation II—Round of a fill placed in a perennial or Fourth Circuit subsequently rejected the
II, 21 ERC 1725, 1741–1742 (D.D.C. intermittent stream as part of a surface district court’s interpretation, stating
1984). coal mining operation. On June 4, 1999, that ‘‘SMCRA does not prohibit the
The court also noted that the in West Virginia Highlands Conservancy discharge of surface coal mining excess
Secretary had properly justified the rule v. Babbitt, Civ. No. 1:99CV01423 spoil in waters of the United States.’’
change on the grounds that the previous (D.D.C.), the plaintiffs challenged the Kentuckians for the Commonwealth,
rule was confusing and difficult to validity of that document, alleging that Inc. v. Rivenburgh, 317 F.3d 425, 442
apply without protecting areas of little it constituted rulemaking in violation of (4th Cir. 2003). The court further stated
biological significance. Unfortunately, the Administrative Procedure Act. In an that ‘‘it is beyond dispute that SMCRA
the new criterion (intermittent streams) order filed September 23, 1999, the recognizes the possibility of placing
has proven as difficult to apply as the court approved an unopposed motion to excess spoil material in waters of the
biological community standard that it dismiss the case as moot. United States even though those
replaced. The definition of ‘‘intermittent In a lawsuit filed in the U.S. District materials do not have a beneficial
stream’’ in 30 CFR 701.5 has two parts, Court for the Southern District of West purpose.’’ Id. at 443.
separated by an ‘‘or.’’ The first part Virginia in July 1998, plaintiffs asserted The court explained the basis for its
defines all streams with a drainage area that the stream buffer zone rule allows statements as follows:
Section 515(b)(22)(D) of SMCRA authorizes to, and adverse impacts on, fish, mentioned in sections 515(b)(24) and
mine operators to place excess spoil material wildlife, and related environmental 516(b)(11) of SMCRA.
in ‘‘springs, natural water courses or wet values to the extent possible, using the
weather seeps’’ so long as ‘‘lateral drains are
We are proposing these rule changes
constructed from the wet areas to the main
best technology currently available. to improve the analysis of permit
underdrains in such a manner that filtration Section 515(b)(24) applies to the applications and permitting decisions
of the water into the spoil pile will be disposal of excess spoil both by its own under SMCRA. We recognize that
prevented.’’ 30 U.S.C. § 1265(b)(22)(D). In terms and through section 515(b)(22)(I), SMCRA itself does not require an
addition, § 515(b)(24) requires surface mine which requires that the placement of analysis of alternatives. However, we
operators to ‘‘minimize disturbances and excess spoil meet ‘‘all other provisions believe that the alternatives analysis
adverse impacts of the operation on fish, of this Act.’’ that we propose to require is a
wildlife, and related environmental values,
and achieve enhancement of such resources The proposed rules (see the reasonable means of implementing
where practicable,’’ implying the placement discussion of specific rule changes in sections 515(b)(24) and 516(b)(11) of
of fill in the waters of the United States. 30 Part VI of this preamble) require that SMCRA. Those provisions of the law
U.S.C. § 1265(b)(24). It is apparent that surface coal mining operations be require that surface coal mining and
SMCRA anticipates the possibility that designed to minimize the creation of reclamation operations be conducted in
excess spoil material could and would be excess spoil to the extent possible. They a manner that minimizes disturbances
placed in waters of the United States, and to, and adverse impacts on, fish,
this fact cannot be juxtaposed with § 404 of
also specify that the maximum
the Clean Water Act to provide a clear intent cumulative design volume of all wildlife, and related environmental
to limit the term ‘‘fill material’’ to material proposed excess spoil fills within the values to the extent possible, using the
deposited for a beneficial primary purpose. permit area must be no larger than the best technology currently available.
Id. at 443. capacity needed to accommodate the The addition of requirements for an
anticipated cumulative volume of alternatives analysis and selection of the
The preamble to the proposed rule
excess spoil that the operation will alternative with the least overall adverse
that we published on January 7, 2004,
contains additional discussion of generate. These requirements should environmental impact (to the extent
litigation and related matters arising reduce the adverse environmental possible) also may facilitate the
from the 1983 stream buffer zone rules. impacts of the operation by minimizing coordinated processing of coal mining
See especially Part I.B.1. at 69 FR 1038– the amount of land and waters disturbed permit applications in accordance with
1040. to construct excess spoil fills. The a memorandum of understanding
proposed rules further require that the entitled ‘‘Memorandum of
IV. Why are we proposing to revise our permit application include an analysis Understanding among the U.S. Army
rules concerning excess spoil? of the environmental impacts of a Corps of Engineers, the U.S. Office of
The environmental impacts of fills reasonable range of alternatives for Surface Mining, the U.S. Environmental
and other structures associated with the disposal of excess spoil, including Protection Agency, and the U.S. Fish
disposal of excess spoil from surface variations in the number, size, location, and Wildlife Service for the Purpose of
coal mining operations, and of coal and configuration of proposed fills. The Providing Concurrent and Coordinated
mine waste, have been the subject of analysis must consider impacts on both Review and Processing of Surface Coal
controversy, largely because they terrestrial and aquatic ecosystems. To Mining Applications Proposing
involve the filling of substantial the extent possible, the applicant must Placement of Dredged and/or Fill
portions of stream valleys, especially in select the alternative with the least Material in Waters of the United States,’’
central Appalachia. This controversy overall adverse environmental impact, which took effect February 8, 2005. For
has highlighted the need to ensure that including adverse impacts on water example, Nationwide Permits 21, 49,
excess spoil creation is minimized to quality and aquatic ecosystems. The and 50, which authorize placement of
the extent possible, and that, to the proposed rule clarifies that an excess spoil and coal mine waste in
extent possible, excess spoil and coal alternative is possible if it is capable of waters of the United States as part of
mine waste disposal facilities are being done after consideration of cost, surface coal mining operations, are
located and designed to minimize logistics, and available technology, and predicated upon issuance of a SMCRA
adverse impacts on the hydrologic that the least costly alternative may not permit or participation in an integrated
balance, streams and other aquatic be selected at the expense of permitting process. See 72 FR 11092,
resources, fish, wildlife, and related environmental protection solely on the 11184 and 11191, March 12, 2007. A
environmental values. basis of cost. If another alternative person seeking authorization under one
Our existing regulations pertaining to considered would be more of these nationwide permits must
the disposal of excess spoil primarily environmentally protective than the submit a preconstruction notification to
focus on ensuring that fills are safe and alternative selected by the applicant, the the U.S. Army Corps of Engineers
stable. To complement the proposed application must demonstrate, to the (Corps). The Corps then must review the
rule changes concerning buffers for satisfaction of the regulatory authority, notification and issue a decision on
waters of the United States, we propose that implementation of the more whether the proposed activities lie
to revise our excess spoil rules by environmentally protective alternative within the scope of the nationwide
adding several requirements focused on is not possible. In addition, when permit or whether an individual permit
environmental considerations, construction of the excess spoil fill is necessary under section 404 of the
including minimization of the adverse would involve placement of excess spoil Clean Water Act. While an alternatives
environmental impacts of fill in waters of the United States, the analysis is not listed as a required
construction in waters of the United proposed rule specifies certain factors element of the preconstruction
States. The proposed rule changes that must be considered as part of the notification that must be submitted to
would implement, in part, the evaluation of environmental impacts to the U.S. Army Corps of Engineers under
requirement at section 515(b)(24) of ensure adequate assessment of impacts Nationwide Permits 21, 49, and 50, we
SMCRA that surface coal mining and on water quality and aquatic believe that such an analysis may assist
reclamation operations be conducted in ecosystems, which are among the the Corps in evaluating preconstruction
a manner that minimizes disturbances ‘‘related environmental values’’ notifications that involve construction
of an excess spoil fill, refuse pile, or constructed larger than necessary to waters of ecological significance.
slurry impoundment. accommodate the anticipated excess Consequently, to minimize the
The addition of these requirements to spoil, which resulted in the unnecessary environmental impacts of those
our rules is consistent with section disturbance of additional land. structures on fish, wildlife, and related
102(d) of SMCRA, which provides that Kentucky, Virginia and West Virginia environmental values to the extent
one of the purposes of SMCRA is to worked with us to develop enhanced possible using the best technology
assure that surface coal mining guidance on material balance currently available, as required by
operations are conducted so as to determinations, spoil management, and sections 515(b)(24) and 516(b)(11) of
protect the environment. In addition, approximate original contour SMCRA, we are proposing to revise our
the proposed additions are consistent determinations to correct these coal mine waste disposal rules in a
with section 102(f) of SMCRA, which problems to the extent feasible under manner similar to the proposed changes
provides that another purpose of the existing regulations. We also to the excess spoil rules by requiring
SMCRA is to strike a balance between developed guidance for use under the consideration of other methods of
protection of the environment and the Tennessee Federal regulatory program. handling coal mine waste, an analysis of
Nation’s need for coal as an essential In most cases, the regulatory authorities alternative locations for coal mine waste
energy source. The rule changes that we in those states have adopted policies disposal facilities, and, to the extent
are proposing today would not prohibit based on that guidance for use in possible, selection of the alternative
coal production. If the creation of excess reviewing permit applications. with the least overall adverse
spoil as part of a surface coal mining Adopting regulations that clearly environmental impact.
operations is unavoidable, the proposed establish limits on excess spoil
rules would not prevent construction of Additional Proposed Changes to
generation and fill capacity and that
the fills needed to accommodate the Permitting Rules Concerning Coal Mine
require an analysis of alternatives when
excess spoil. Instead, the rules that we Waste
selecting locations and designs for fills
are proposing are intended to ensure would reinforce the basis for those On September 26, 1983 (48 FR 44006),
that surface coal mining operations are policies, strengthen the enforceability of we revised the definitions and
planned and conducted in a manner decisions based on those policies, and performance standards in our
that minimizes adverse environmental provide national consistency by regulations relating to coal mine waste
impacts from the construction of fills for ensuring that certain basic requirements to be more consistent with the
the disposal of excess spoil. Section will be applied nationwide, including in terminology used by the Mine Safety
201(c)(2) of SMCRA, 30 U.S.C. those states that have not adopted and Health Administration (MSHA). As
1211(c)(2), which directs the Secretary policies. We also believe that the we stated at 48 FR 44009, col. 1, ‘‘[i]t is
of the Interior to publish and environment, the public, and the undesirable to have two regulatory
promulgate such rules and regulations regulated community would best be programs for the same subject that
as may be necessary to carry out the served by the adoption of national contain conflicting standards or which
purposes and provisions of SMCRA, regulations to clarify environmental use fundamentally different
provides additional authority for the considerations concerning the terminology.’’
adoption of these rule changes. generation and disposal of excess spoil. Among other things, we adopted
Since the mid-1990s, the extent of We also are taking this opportunity to definitions of three new terms in 30 CFR
excess spoil fill construction in central propose to consolidate most fill design 701.5. ‘‘Coal mine waste’’ is defined as
Appalachia has been controversial, and permitting requirements in the ‘‘coal processing waste and
especially when fills bury stream permit application regulations at 30 CFR underground development waste.’’
segments. As part of our oversight 780.35 and 784.19, rather than splitting ‘‘Impounding structure’’ is defined as ‘‘a
activities, we conducted studies in 1999 them between those regulations and the dam, embankment, or other structure
in Kentucky, Virginia, and West performance standards at 30 CFR 816.71 used to impound water, slurry, or other
Virginia to determine how State and 817.71, as they are at present. In liquid or semi-liquid material.’’ ‘‘Refuse
regulatory authorities were addition, we are proposing to revise pile’’ is defined as ‘‘a surface deposit of
administering SMCRA regulatory those rules to be more consistent with coal mine waste that does not impound
programs regarding restoration of plain language principles, to eliminate water, slurry, or other liquid or semi-
approximate original contour. From our redundancies, and to remove liquid material.’’ The latter two terms
review of permit files and reclaimed inconsistencies between the are consistent with the terminology of
mines, we determined that, typically, performance standards and the MSHA’s rules. ‘‘Refuse pile’’ replaces
some of the spoil placed in excess spoil permitting requirements. We invite the term ‘‘coal processing waste bank’’
fills could have been retained on or comment on whether further changes previously used in our rules, while
returned to mined-out areas. See ‘‘An would be useful or desirable in ‘‘impounding structure’’ incorporates all
Evaluation of Approximate Original achieving these goals. structures that our rules previously
Contour and Postmining Land Use in referred to as coal processing waste
Kentucky’’ (OSM, September 1999); ‘‘An V. Why are we proposing to revise our dams or embankments.
Evaluation of Approximate Original rules concerning coal mine waste? In concert with the new definition of
Contour Variances and Postmining Land As noted in the first paragraph of Part coal mine waste, we revised our
Uses in Virginia’’ (OSM, September IV of this preamble, our reasons for performance standards at 30 CFR
1999); and ‘‘Final Report: An Evaluation proposing revisions to our coal mine 817.71–817.74 to eliminate the language
of Approximate Original Contour and waste disposal rules are similar to the that combined underground
Postmining Land Use in West Virginia’’ reasons for which we are proposing development waste with excess spoil for
(OSM, May 1999). changes to our excess spoil disposal purposes of performance standards for
In many instances, we found that the rules. In steep-slope areas, coal mine underground mines. Because the
permit application overestimated the waste disposal facilities are similar to definition of coal mine waste includes
anticipated volume of excess spoil that excess spoil fills in that they are often underground development waste, we
the operation would produce. In placed in valleys containing perennial revised our rules to specify that the
addition, fills were designed and and intermittent streams and other disposal of underground development
waste is subject to the performance 30 CFR 77.216–1 consists solely of paragraph (a)(2) of sections 780.25 and
standards for refuse piles (30 CFR signage requirements and does not 784.16 and redesignate the remainder of
817.83) rather than the performance include any design requirements. that paragraph as paragraph (a)(2)(i).
standards for the disposal of excess Consequently, there is no purpose in The last sentence of existing paragraph
spoil that applied under the old rules. cross-referencing 30 CFR 77.216–1 in (a)(2) would be redesignated as
However, we did not revise our our permitting rules. The cross- paragraph (a)(2)(ii). Existing
permitting requirements in a similar reference to 30 CFR 77.216–2, which subparagraphs (a)(2)(i) through (iv)
fashion at that time. We are taking this contains design requirements for would be redesignated as subparagraphs
opportunity to propose to modify our impoundments and impounding (a)(2)(ii)(A) through (D). We propose to
regulations in 30 CFR parts 780 and 784 structures, would remain. make these redesignations because the
to harmonize those rules with the 1983 last sentence of existing paragraph (a)(2)
changes to the definitions and VI. How are we proposing to revise our and existing subparagraphs (i) through
performance standards concerning coal existing rules? (iv) apply to all structures meeting the
mine waste. In essence, we are A. Sections 780.14 and 784.23: criteria of 30 CFR 77.216(a), while the
proposing to replace references to coal Operation Plan: Maps and Plans remainder of existing paragraph (a)(2)
processing waste banks and coal applies only to those impoundments
processing waste dams and We propose to revise 30 CFR
that meet the Class B or C criteria (now
embankments with references to refuse 780.14(b)(11) and 784.23(b)(10) by
the Significant Hazard Class or High
piles and coal mine waste impounding replacing the terms ‘‘coal processing Hazard Class criteria, respectively) for
structures, respectively. waste bank’’ and ‘‘coal processing waste dams in the U.S. Department of
Also, because the definition of coal dam and embankment’’ with ‘‘refuse Agriculture publication Technical
mine waste, as adopted on September pile’’ and ‘‘coal mine waste impounding Release No. 60, ‘‘Earth Dams and
26, 1983, includes both coal processing structure’’ to employ terminology Reservoirs.’’
waste and underground development consistent with the definitions and We propose to revise redesignated
waste, we are proposing to restructure performance standards that we adopted paragraph (a)(2)(i) of these sections to
the permitting regulations to take this September 26, 1983. See Part V of this update the incorporation by reference of
change into account. In particular, 30 preamble for a more detailed U.S. Department of Agriculture
CFR 784.19, which is currently entitled explanation. publication ‘‘Earth Dams and
‘‘Underground Development Waste,’’ In addition, we propose to replace the Reservoirs,’’ Technical Release No. 60
even though it refers to the disposal of references to sections 780.35(c) and (210–VI–TR60, October 1985), by
both underground development waste 816.71(b) in existing section 780.14(c) replacing the reference to the October
and excess spoil, would be retitled with a reference to section 780.35 to be 1985 edition with a reference to the
‘‘Disposal of Excess Spoil.’’ The consistent with other changes that we superseding July 2005 edition.
language of that section also would be are proposing to those rules, including Consistent with the terminology in the
revised to eliminate references to moving the design certification newer edition, we propose to replace
underground development waste, which requirement of existing section references to Class B or C dam criteria
would instead be regulated under the 816.71(b) to section 780.35(b). In similar with references to Significant Hazard
refuse pile provisions of revised 30 CFR fashion, we are proposing to delete the Class or High Hazard Class criteria,
784.16, consistent with the 1983 reference in existing section 784.23(c) to respectively. (The actual criteria remain
changes to the performance standards. section 817.71(b) because we are unchanged.) The newer publication is
The new language of 30 CFR 784.19 proposing to move the design not available from the National
would parallel the language of 30 CFR certification provisions of existing Technical Information Service, but is
780.35 (the permit application section 817.71(b) to section 784.19(b). available online from the Natural
requirements for the disposal of excess There is no need for a replacement Resources Conservation Service (the
spoil generated by surface mining cross-reference because section successor to the Soil Conservation
activities), which the existing rule 784.23(c) already cross-references Service). Consequently, we propose to
incorporates by reference. Adding section 784.19 in its entirety. delete the ordering information
specific language in place of the cross- B. Sections 780.25 and 784.16: pertinent to the National Technical
reference to section 780.35 would make Information Service and replace it with
Reclamation Plan: Siltation Structures,
this rule consistent with the pattern the URL (Web address) at which the
Impoundments, Refuse Piles, and Coal
established in most of our other rules for publication may be reviewed and from
Mine Waste Impounding Structures
surface and underground mines (i.e., the which it may be downloaded without
provisions for surface and underground We propose to revise the heading and charge. We also propose to update the
mines are in separate parts, but are contents of sections 780.25 and 784.16 address and location of our
nearly identical except for cross- by replacing the terms ‘‘coal processing administrative record room and to
references and the type of operation to waste bank’’ and ‘‘coal processing waste update the URL information (Web
which they apply). In addition, adding dam and embankment’’ with ‘‘refuse address) for the National Archives and
specific language in place of the cross- pile’’ and ‘‘coal mine waste impounding Records Administration.
reference to section 780.35 would allow structure.’’ With these changes, our To improve clarity and consistency
the incorporation of cross-references to permitting requirements concerning with other regulations, we propose to
the appropriate underground mining coal mine waste will employ revise paragraph (c)(2) by replacing the
performance standards in part 817 terminology consistent with the term ‘‘Mine Safety and Health
rather than having to use the existing definitions and performance standards Administration’’ with a citation to 30
cross-references in 30 CFR 780.35 to the for coal mine waste that we adopted CFR 77.216(a), which contains the
surface mining performance standards September 26, 1983. See Part V of this MSHA impoundment criteria to which
in part 816. preamble for a more detailed paragraph (c)(2) refers. As revised,
We are also proposing to delete the explanation. paragraph (c)(2) requires that plans for
cross-references to 30 CFR 77.216–1 in To improve clarity, we propose to impoundments meeting MSHA criteria
30 CFR 780.25(e) and 784.16(e) because remove the last sentence of existing comply with MSHA’s impoundment
design requirements at 30 CFR 77.216– performed under paragraph (d)(1)(i)(B) accordance with a memorandum of
2. We are proposing to delete the include an evaluation of the short-term understanding entitled ‘‘Memorandum
existing requirement that those plans and long-term impacts of each of Understanding among the U.S. Army
also comply with 30 CFR 77.216–1. The alternative on the aquatic ecosystem, Corps of Engineers, the U.S. Office of
deleted requirement is not germane to both individually and on a cumulative Surface Mining, the U.S. Environmental
permit applications and plans because it basis. The analysis also must consider Protection Agency, and the U.S. Fish
contains signage requirements that impacts on the physical, chemical, and and Wildlife Service for the Purpose of
apply only to impoundments that biological characteristics of downstream Providing Concurrent and Coordinated
already exist or are under construction. flows, including seasonal variations in Review and Processing of Surface Coal
We also propose to combine existing temperature and volume, changes in Mining Applications Proposing
paragraph (d), which addresses coal stream turbidity or sedimentation, the Placement of Dredged and/or Fill
processing waste banks, and existing degree to which the coal mine waste Material in Waters of the United States,’’
paragraph (e), which addresses coal may introduce or increase which took effect February 8, 2005. For
processing waste dams and contaminants, the effects on aquatic example, the information and analysis
embankments, into a substantially organisms, and the extent to which submitted under the proposed rule may
revised paragraph (d), and to wildlife is dependent upon those assist the Corps of Engineers in its
redesignate paragraph (f) as paragraph organisms. review of preconstruction notifications
(e). The last paragraph also would be In addition, if the applicant must submitted under Nationwide Permits
revised to reflect plain language prepare an analysis of alternatives for 21, 49, or 50, or, if an individual permit
principles and to include classification the proposed refuse pile or coal mine is needed under section 404 of the Clean
terminology consistent with the 2005 waste impoundment or impounding Water Act, compliance with the Section
edition of NRCS Technical Release No. structure under 40 CFR 230.10, which 404(b)(1) Guidelines at 40 CFR part 230
60, as discussed in the context of the sets forth requirements for individual concerning placement of dredged or fill
proposed changes to 30 CFR permits for placement of fill material in materials in waters of the United States.
780.25(a)(2)(i). waters of the United States under The provisions in the proposed rule
Proposed paragraph (d)(1) contains section 404 of the Clean Water Act, that would allow the applicant to select
new general requirements for all proposed paragraph (d)(1)(ii) provides an alternative other than the most
structures constructed of or impounding that the application may initially environmentally protective alternative if
coal mine waste; i.e., refuse piles and include a copy of that analysis in lieu implementation of the most
slurry impoundments. Subparagraph of the analysis of alternatives required environmentally protective alternative
(d)(1)(i)(A) provides that the application under proposed paragraph (d)(1)(i)(B). is not possible are consistent with
must identify a reasonable range of The regulatory authority must then paragraphs (b)(10)(B)(i) and (24) of
alternative disposal methods and determine the extent to which the Clean section 515 of the Act, both of which
alternative locations for any proposed Water Act analysis satisfies the require use of the best technology
refuse piles or coal mine waste analytical requirements of proposed currently available to achieve the
impoundments and impounding paragraph (d)(1). When OSM is the requirements of those sections ‘‘to the
structures. Subparagraph (d)(1)(i)(B) regulatory authority, we will coordinate extent possible.’’ The proposed rule
provides that the application must with the Corps of Engineers in clarifies that an alternative is possible if
include an analysis of the viability and conducting any necessary analysis of it is capable of being done after
environmental impacts (both terrestrial alternatives under the National consideration of cost, logistics, and
and aquatic) of each alternative Environmental Policy Act. available technology, and that the least
identified. Subparagraph (d)(1)(i)(C) The rationale for these new costly alternative may not be selected at
requires that the applicant select the requirements is set forth in Parts III, IV, the expense of environmental protection
alternative that would have the least and V of this preamble. In essence, the solely on the basis of cost. See also the
overall adverse environmental impact, new requirements would, in part, discussion of the meaning of ‘‘to the
including adverse impacts on water implement section 515(b)(24) of extent possible’’ in Part VI.K. of this
quality and aquatic ecosystems, to the SMCRA, which provides that surface preamble, as well as the meaning of
extent possible. The proposed rule coal mining and reclamation operations ‘‘best technology currently available’’ in
clarifies that an alternative is possible if must use the best technology currently Part VI.L. of this preamble. We seek
it is capable of being done after available to minimize disturbances to comment on whether this approach is
consideration of cost, logistics, and and adverse impacts on fish, wildlife, an appropriate interpretation of the
available technology, and that the least and related environmental values to the phrase ‘‘to the extent possible’’ in
costly alternative may not be selected at extent possible. The new requirements SMCRA.
the expense of environmental protection would achieve this goal by requiring Proposed paragraph (d)(2) provides
solely on the basis of cost. If another that the permit applicant demonstrate that each application for an operation
alternative considered would be more that the proposed operation has been that will generate or dispose of coal
environmentally protective than the designed to minimize adverse impacts mine waste must describe the steps to
alternative selected by the applicant, the on land and waters and that be taken to avoid or, if avoidance is not
application must demonstrate, to the environmental factors have been taken possible, to minimize the adverse
satisfaction of the regulatory authority, into consideration when locating and environmental impacts that may result
that implementation of the more designing the refuse pile or coal mine from the construction of refuse piles and
environmentally protective alternative waste impoundment. coal mine waste impoundments and
is not possible. We are proposing these rule changes impounding structures. This
When construction of the proposed to improve the analysis of permit requirement applies to construction,
refuse pile or coal mine waste applications and permitting decisions maintenance, and reclamation of the
impoundment would involve placement under SMCRA. However, the addition of alternative selected under paragraph
of coal mine waste in waters of the these provisions also may facilitate (d)(1)(i)(C). It also would implement, in
United States, proposed paragraph achieving the coordinated processing of part, the sedimentation prevention
(d)(1)(ii) requires that the analysis coal mining permit applications in requirements of sections 515(b)(10)(B)(i)
and 516(b)(9)(B) of SMCRA and the fish, authority may authorize activities on the Water Act. In effect, under the proposed
wildlife, and related environmental surface of lands within 100 feet of a rule, permit applicants must receive a
value protection requirements of perennial or intermittent stream only jurisdictional determination from the
sections 515(b)(24) and 516(b)(11) of upon finding that the activities will not Corps of Engineers before the SMCRA
SMCRA. cause or contribute to the violation of permitting process can be completed if
Proposed paragraph (d)(3) is applicable State or Federal water quality there is any question as to whether the
substantively identical to existing standards and will not adversely affect proposed permit area includes or is
paragraph (d). We propose to delete the the water quantity and quality or other adjacent to any waters that may be
cross-reference to section 816.84 in environmental resources of the stream. waters of the United States.
existing section 780.25(d) and the cross- Paragraph (a) of the proposed rules We seek comment on the impact of
reference to section 817.84 in existing provides that sections 780.28 and this change on the administration of
section 784.16(d) because proposed 784.28 apply to applications to conduct SMCRA regulatory programs and,
sections 780.25(d)(3) and 784.16(d)(3), activities in waters of the United States whether the benefits (increased
like existing sections 780.25(d) and or on the surface of lands near waters environmental protection and
784.16(d), pertain only to refuse piles, of the United States to the extent that consistency with the Clean Water Act)
not to the coal mine waste impounding those waters are regulated under the outweigh any problems identified. We
structures to which sections 816.84 and Clean Water Act. This paragraph reflects will carefully evaluate all comments
817.84 apply. the fact that, under 30 CFR 816.57(a) received before deciding whether to
Proposed paragraph (d)(4) is and 817.57(a), we propose to prohibit adopt the rule as proposed or retain the
substantively identical to existing disturbance of the surface of lands scope of the existing rules, which apply
paragraph (e). We propose to delete the within 100 feet of all waters of the to perennial and intermittent streams.
cross-reference to section 816.83 in United States, not just perennial and We are not soliciting comment on the
existing section 780.25(e) and the cross- intermittent streams as under existing interpretation of the term ‘‘waters of the
reference to section 817.83 in existing 30 CFR 816.57 and 817.57. Sections United States’’ under the Clean Water
section 784.16(e) because proposed 515(b)(10)(B)(i) and (24) and Act. That issue lies outside the scope of
sections 780.25(d)(4) and 784.16(d)(4), 516(b)(9)(B) and (11) of SMCRA, which
this rulemaking.
like existing sections 780.25(e) and form the basis for the existing stream
784.16(e), pertain only to coal mine Proposed section 780.28(b) specifies
buffer zone rules, are not limited to
waste impoundments and impounding that the maps prepared under 30 CFR
preventing or minimizing adverse
structures, not to the refuse piles to impacts on perennial and intermittent 779.25, 780.14 or 780.21(b)(2) must
which sections 816.83 and 817.83 streams. The change that we are show all waters of the United States that
apply. In addition, we propose to delete proposing recognizes that waters such are located either within the proposed
the requirement in existing sections as lakes, ponds, and wetlands also may permit area or within the adjacent area,
780.25(e) and 784.16(e) that each plan have value for fish, wildlife, and related as that term is defined at 30 CFR 701.5.
for an impounding structure comply environmental resources and that Proposed section 784.28(b) contains
with 30 CFR 77.216–1, which contains sedimentation and sediment-laden identical requirements for underground
MSHA requirements for signage for runoff from mine sites could degrade mining operations, with the substitution
existing impoundments and that value. However, we do not of cross-references to 30 CFR 783.25,
impoundments under construction. anticipate that this change in 784.23, and 784.14(b)(2), respectively.
There is no reason to retain this cross- terminology will result in a significant Both rules also require that the maps
reference because the referenced expansion in the applicability of our delineate all lands within the proposed
requirement is not relevant to rules because the vast majority of waters permit area that are within 100 feet,
preparation of plans or permit that may be affected by surface coal measured horizontally, of any waters of
applications for proposed mining and reclamation operations are the United States. This requirement is
impoundments. perennial and intermittent streams. intended to ensure that the maps
Proposed paragraph (e) is If we ultimately adopt this proposal, submitted with the permit application
substantively identical to existing both the SMCRA regulatory authority include sufficient detail about waters of
paragraph (f). Consistent with the and permit applicants would no longer the United States within the proposed
terminology in the July 2005 edition of be able to use or rely upon the permit area and the adjacent area to
Technical Release No. 60, we propose to definitions of ‘‘perennial stream’’ and determine what lands within the
replace references to Class B or C dam ‘‘intermittent stream’’ in 30 CFR 701.5 proposed permit area are potentially
criteria with references to Significant to determine when the prohibitions of subject to the prohibition under 30 CFR
Hazard Class or High Hazard Class 30 CFR 816.57(a) and 817.57(a) apply. 816.57(a) or 817.57(a). The 100 feet
criteria, respectively. The actual criteria Permit applicants may request a must be measured from the ordinary
remain unchanged. jurisdictional determination from the high water mark of the stream or other
U.S. Army Corps of Engineers before waters of the United States, consistent
C. Sections 780.28 and 784.28: submitting a SMCRA permit application with the Corps of Engineers’ practices
Activities in or Adjacent to Waters of the in situations in which there is a for establishing jurisdictional limits for
United States question as to whether waters within or waters of the United States. For
Proposed sections 780.28 and 784.28 adjacent to the proposed permit area are wetlands without an ordinary high
contain permitting requirements waters of the United States under the water mark, the 100 feet must be
specific to waters of the United States, Clean Water Act. Similarly, we measured in a manner consistent with
as regulated under the Clean Water Act, anticipate that the SMCRA regulatory the Corps’ practices for wetland
33 U.S.C. 1311, 1362, and activities authority would consult and coordinate delineations under the Clean Water Act.
within or adjacent to those waters. with the Corps of Engineers in See the online version of the 1987
Among other things, they would replace situations in which there is a question ‘‘Corps of Engineers Wetlands
the existing stream buffer zone rules at as to whether waters within or adjacent Delineation Manual’’ (https://
30 CFR 816.57(a)(1) and 817.57(a)(1), to the proposed permit area are waters www.nwo.usace.army.mil/html/od-rne/
which provide that the regulatory of the United States under the Clean 87-manual.pdf), which includes
updates subsequent to the original streamflow or to runoff outside the take to procure those authorizations.
January 1987 publication date. permit area to the extent possible; and This provision would in part implement
Paragraph (b) of proposed sections (ii) Minimize disturbances and section 508(a)(9) of SMCRA, which
780.28 and 784.28 establishes adverse impacts on fish, wildlife, and requires that each permit application
requirements for requesting a variance related environmental values to the include ‘‘the steps to be taken to comply
from the prohibition in 30 CFR extent possible. with applicable air and water quality
816.57(a) and 817.57(a) on surface Paragraph (e) of proposed sections laws and regulations * * *.’’ It also is
activities that would disturb the surface 780.28 and 784.28 provides that, if the intended to facilitate coordination of
of lands within 100 feet, measured permit applicant proposes to conduct permitting activities under SMCRA and
horizontally, of any waters of the United any surface mining activities (or, for the Clean Water Act.
States. Under paragraph (c), the permit underground mines, surface activities) Paragraph (f)(2) of proposed sections
application must describe any measures that are not subject to the prohibition in 780.28 and 784.28 specifies that, if the
that would be implemented in lieu of 30 CFR 816.57(a) or 817.57(a), the permit application meets all applicable
maintaining the 100-foot buffer, application must demonstrate, and the requirements of subchapter G (the
including the extent of any lesser buffer regulatory authority must find, that, to permitting regulations), the regulatory
to be maintained, and explain how the the extent possible, the operation will authority will process the permit
proposed measures constitute the best utilize the best technology currently application and may issue the permit
technology currently available to— available in accordance with 30 CFR before the applicant obtains all
(1) Prevent the contribution of 816.41(d) and 816.97(a) [or, for necessary authorizations under the
additional suspended solids to underground mines, 30 CFR 817.41(d) Clean Water Act, 33 U.S.C. 1251 et seq.
streamflow or runoff outside the permit and 817.97(a)], as required by 30 CFR This arrangement may facilitate the
area to the extent possible; and 780.16(b) and 780.21(h) [or, for Corps of Engineers review of any
(2) Minimize disturbances and underground mines, 30 CFR 784.21(b) preconstruction notification submitted
adverse impacts on fish, wildlife, and and 784.14(g)]. The regulations at 30 by the permit applicant with respect to
related environmental values to the CFR 816.41(d) and 817.41(d) require, in any proposed placement of fill material
extent possible. relevant part, that mining operations in waters of the United States.
Paragraph (c) would not apply to the prevent, to the extent possible using the Nationwide Permits 21, 49, and 50, as
activities listed in proposed 30 CFR best technology currently available, issued by the Corps, apply only if the
816.57(b) and 817.57(b) because those additional contribution of suspended SMCRA permit has already been issued
activities are exempt from the solids to streamflow outside the permit or if the application is being processed
prohibition in 30 CFR 816.57(a) and area. They implement, in part, the as part of an integrated permit
817.57(a). Therefore, the applicant does sedimentation prevention requirements processing procedure. See 72 FR 11092,
not need a variance to conduct them in of sections 515(b)(10)(B)(i) and 11184, and 11191, March 12, 2007.
or within 100 feet of waters of the 516(b)(9)(B) of SMCRA, respectively. For informational purposes, proposed
United States. However, the applicant The regulations at 30 CFR 816.97(a) and paragraph (f)(2) also provides that the
will need to make the demonstration 817.97(a) require, in relevant part, that, permittee may not initiate any activities
required under proposed paragraph (e) to the extent possible using the best for which Clean Water Act authorization
of 30 CFR 780.28 and 784.28 and the technology currently available, mining or certification is required until that
regulatory authority will need to make operations minimize disturbances and authorization or certification is
the findings required under that adverse impacts on fish, wildlife, and obtained. We seek comment on whether
paragraph before approving a permit related environmental values. They this provision should remain
that authorizes those activities. See Part implement, in part, the fish and wildlife informational or whether we should
VI.I. of this preamble for a request for protection requirements of sections revise our rules to require inclusion of
comment on whether the list of 515(b)(24) and 516(b)(11) of SMCRA, this provision as a SMCRA permit
activities in proposed 30 CFR 816.57(b) respectively. The regulations at 30 CFR condition, which would mean that the
and 817.57(b) is sufficiently 780.21(h) and 784.14(g) require that prohibition on initiation of activities
comprehensive to include all activities each permit application include a before obtaining all necessary Clean
that inherently occur in waters of the hydrologic reclamation plan designed to Water Act authorizations and
United States or whether additional implement, among other things, the certifications would be independently
rules are needed to address activities requirements of 30 CFR 816.41(d) and enforceable under SMCRA.
that are not included in either paragraph 817.41(d), respectively. The regulations Proposed 30 CFR 780.28(c) and (d)
(a) or (b) of those sections. at 30 CFR 780.16(b) and 784.21(b) and 784.28(c) and (d) would replace the
Paragraph (d) of proposed sections require that each permit application requirement in existing 30 CFR
780.28 and 784.28 specifies that, before include a fish and wildlife protection 816.57(a) and 817.57(a) that the
approving any measures proposed and enhancement plan designed to regulatory authority make the finding
under paragraph (c), the regulatory implement the requirements of 30 CFR specified in paragraph (a)(1) of those
authority must determine that the 816.97(a) and 817.97(a), respectively. rules before authorizing activities that
measures— Paragraph (f) of proposed sections would disturb the surface of lands
(1) Would be no less effective in 780.28 and 784.28 summarizes the within 100 feet of a perennial or
meeting the requirements of the relationship between SMCRA intermittent stream. The rationale for
regulatory program than the prohibition permitting actions and Clean Water Act this change appears in Part III of this
in 30 CFR 816.57(a) or 817.57(a) on requirements. Paragraph (f)(1) provides preamble and in the following
disturbance of the surface of lands that every permit application must discussion of how the proposed rule
within 100 feet of waters of the United identify the authorizations that the changes would better implement the
States; and applicant anticipates will be needed statutory provisions underlying the
(2) Constitute the best technology under sections 401, 402, and 404 of the existing stream buffer zone rules.
currently available to— Clean Water Act, 33 U.S.C. 1341, 1342, The first SMCRA provision
(i) Prevent the contribution of and 1344, and describe the steps that underlying the existing stream buffer
additional suspended solids to the permit applicant has taken or will zone rules is section 515(b)(10)(B)(i),
which, in context, provides that the lesser buffer, or the use of a technique ground water systems. However, that
performance standards adopted under that does not involve the maintenance language does not stand alone as an
SMCRA must require that surface coal of any buffer, whenever the permit independent requirement. Instead,
mining and reclamation operations— applicant demonstrates that a lesser when read in its entirety, section
(10) minimize the disturbances to the buffer or the use of alternative mining 515(b)(10) provides that the requirement
prevailing hydrologic balance at the mine- or reclamation techniques would for minimization of disturbances to
site and in associated offsite areas and to the constitute the best technology currently water quality and quantity must be
quality and quantity of water in surface and available to (1) prevent the contribution achieved by implementation of the
ground water systems both during and after of additional suspended solids to measures and techniques described in
surface coal mining operations and during streamflow or runoff outside the permit subparagraphs (A) through (F) of section
reclamation by— area to the extent possible, and (2) 515(b)(10). Similarly, section 516(b)(9)
(A) * * * minimize disturbances to and adverse provides that the requirement for
(B)(i) conducting surface coal mining impacts on fish, wildlife, and related minimization of disturbances to water
operations so as to prevent, to the extent
possible using the best technology currently
environmental values to the extent quantity must be achieved by
available, additional contributions of possible. The latter two requirements implementation of subparagraphs (A)
suspended solids to streamflow, or runoff correspond to the two statutory and (B) of section 516(b)(9).
outside the permit area, but in no event shall requirements that have historically been In addition, sections 515(b)(10)(B)(i)
contributions be in excess of requirements set described as the basis for the existing and 516(b)(9)(B) refer only to the
by applicable State or Federal law. stream buffer zone rules and their prevention of additional contributions
* * * * * predecessors. Under the proposed rules, of suspended solids. While those
the regulatory authority also would have paragraphs provide that contributions of
The second provision, section suspended solids to streamflow must
to first find that the proposed
515(b)(24), requires that surface coal not be in excess of requirements set by
techniques would be no less effective in
mining and reclamation operations be meeting the requirements of the applicable State or Federal law, they do
conducted in a manner that— regulatory program than the prohibition not mention any other water quality
to the extent possible using the best in 30 CFR 816.57(a) or 817.57(a) on parameter. Therefore, that provision by
technology currently available, minimize[s] activities that would disturb the surface itself does not authorize the required
disturbances and adverse impacts of the of lands within 100 feet of waters of the finding in existing 30 CFR 816.57(a)(1)
operation on fish, wildlife, and related United States. and 817.57(a)(1) that we propose to
environmental values, and achieve[s]
Our proposed approach also is remove. Furthermore, the SMCRA
enhancement of such resources where
practicable. consistent with the definition of ‘‘best regulatory authority is not necessarily in
technology currently available’’ at 30 the best position to determine whether
The common thread in both CFR 701.5. In relevant part, the a proposed activity will cause or
provisions is the requirement for use of definition provides that, ‘‘[w]ithin the contribute to a violation of applicable
the best technology currently available constraints of the permanent program, State or Federal water quality standards
to achieve the requirements of those the regulatory authority shall have the for any parameter. Those standards and
provisions to the extent possible. discretion to determine the best parameters are established and
The existing stream buffer zone rules technology currently available on a implemented under the authority of the
at 30 CFR 816.57 and 817.57 manifest case-by-case basis, as authorized by the Clean Water Act (33 U.S.C. 1251 et seq.),
an assumption that maintenance of an Act and this chapter.’’ not SMCRA, and are sometimes
undisturbed 100-foot buffer around In concert with this change, we administered by an agency other than
perennial and intermittent streams is propose to remove the provision in the SMCRA regulatory authority. Under
the best technology currently available existing 30 CFR 816.57(a)(1) and 30 CFR 780.18(b)(9) and 784.13(b)(9),
to achieve the sediment control and fish 817.57(a)(1) that specifies that, before the SMCRA permit application must
and wildlife protection requirements of authorizing an activity closer than 100 include a description of the steps to be
sections 515(b)(10)(B)(i) and (24) with feet to a perennial or intermittent taken to comply with the requirements
respect to those streams. However, that stream, the regulatory authority must of the Clean Air Act (42 U.S.C. 7401 et
specificity is inconsistent with the find that the activity will not cause or seq.), the Clean Water Act (33
concept of best technology currently contribute to the violation of applicable U.S.C.1251 et seq.), and other applicable
available, which is inherently flexible, State or Federal water quality standards air and water quality laws and
as discussed below. Appropriate and will not adversely affect the water regulations, but there is no requirement
measures may vary from site to site and quantity and quality or other that the SMCRA regulatory authority
may change over time in concert with environmental resources of the stream. pass judgment on the adequacy of that
advances in technology and scientific That requirement has no direct description or on the adequacy of the
knowledge. counterpart in either section steps that the applicant proposes to
Therefore, we propose to revise our 515(b)(10)(B)(i) or section 515(b)(24) of take.
rules to allow the regulatory authority to SMCRA, which, as previously In addition, the absolute nature of the
modify the prohibition on disturbances discussed, are the two provisions of ‘‘will not adversely affect’’ language of
to the surface of land within 100 feet of SMCRA that form the basis for the existing 30 CFR 816.57(a)(1) and
waters of the United States. That buffer zone rules. 817.57(a)(1) is inconsistent with
modification would apply in situations We acknowledge that the introductory paragraphs (b)(10)(B)(i) and (24) of
in which the applicant proposes (and language of sections 515(b)(10) and section 515 of the Act, both of which
the regulatory authority approves) 516(b)(9) of SMCRA provides that provide that surface coal mining
alternative methods of implementing performance standards for surface coal operations must be conducted to meet
the requirement to use the best mining operations must include a the requirements of those paragraphs
technology currently available to the requirement for the minimization of ‘‘to the extent possible’’ using the ‘‘best
extent possible. Under proposed 30 CFR disturbances to the quality and quantity technology currently available.’’ The
780.28(c) and (d) and 784.28(c) and (d), (or, in the case of section 516(b)(9), just appropriate standard under section
the regulatory authority may approve a the quantity) of water in surface and 515(b)(24) is minimization of adverse
impacts on fish, wildlife, and related D. Section 780.35: Disposal of Excess size, location, and configuration of
environmental values, not absolute Spoil From Surface Mines proposed fills to ensure consideration of
avoidance of all adverse effects. For the reasons discussed in Part IV a reasonable range of alternatives and
As discussed more fully in Part III.C. of this preamble, we propose to revise potential environmental impacts. For
of this preamble, the preamble to the 30 CFR 780.35 by adding several new example, depending on the topography
existing stream buffer zone rules (‘‘the requirements (in paragraphs (a)(1) and geology of the area, the analysis
1983 preamble’’) recognizes that the through (4)) for permit applications for could compare the impacts of
protection afforded by those rules need operations that propose to generate constructing a few large excess spoil
not be absolute. It acknowledges that excess spoil. First, under proposed fills versus a greater number of small
some adverse impacts on hydrology and paragraph (a)(1), each application for an fills. In addition, the quality of the
fish, wildlife, and related environmental receiving waters must be taken into
operation that would generate excess
values are unavoidable because of the consideration in that it may be
spoil must include a demonstration,
nature of surface coal mining environmentally preferable to
prepared to the satisfaction of the
concentrate fills and their impacts in
operations. Furthermore, the 1983 regulatory authority, that the operation
watersheds with the lowest water
preamble states that ‘‘OSM recognizes has been designed to minimize the
quality, to the extent that it is possible
that some surface mining activities can volume of excess spoil to the extent
to do so.
be conducted within 100 feet of a possible, thus ensuring that as much When the disposal method would
perennial or an intermittent stream spoil as possible is returned to the involve placement of excess spoil in
without causing significant adverse mined-out area. The demonstration waters of the United States, proposed
impacts on the hydrologic balance and must take into consideration applicable paragraph (a)(3)(ii) requires that the
related environmental values,’’ thus regulations concerning restoration of the analysis performed under paragraph
implying that some adverse impacts approximate original contour, safety, (a)(3)(i) include an evaluation of the
would occur. 48 FR 30313, col. 1, June stability, and environmental protection short-term and long-term impacts of
30, 1983, emphasis added. Similarly, and the needs of the proposed each alternative on the aquatic
‘‘final § 816.57 is intended to protect postmining land use. Some or all of ecosystem, both individually and on a
significant biological values in streams.’’ those factors may limit the amount of cumulative basis. The analysis must
Id., col. 3, emphasis added. And, with spoil that can be returned to the mined- consider impacts on the physical,
respect to stream diversions, the 1983 out area, especially the requirements chemical, and biological characteristics
preamble specifies that— related to safety, stability, and of downstream flows, including
Alteration of streams may have adverse postmining land use. Also, if the seasonal variations in temperature and
aquatic and ecological impacts on both regulatory authority does not approve volume, changes in stream turbidity or
diverted stream reaches and other the proposed postmining land use, the sedimentation, the degree to which the
downstream areas with which they merge. applicant and the regulatory authority excess spoil may introduce or increase
However, final § 816.57(a) will minimize will need to revisit the demonstration to contaminants, the effects on aquatic
these impacts * * *. determine whether it must be revised to organisms, and the extent to which
Id. at 30315, col. 1, emphasis added. reflect the needs and attributes of the wildlife is dependent upon those
postmining land use that is finally organisms.
Our proposed removal of the approved. Proposed paragraph (a)(3)(ii) also
requirement in existing 30 CFR Second, proposed paragraph (a)(2) provides that, if the applicant must
816.57(a)(1) and 817.57(a)(1) for a requires that the application include a prepare an analysis of alternatives for
finding concerning applicable State or demonstration that the designed the proposed excess spoil fill under 40
Federal water quality standards would maximum cumulative volume of all CFR 230.10, which sets forth
not authorize activities that would proposed excess spoil fills within the requirements for individual permits for
constitute or result in a violation of permit area is no larger than the placement of fill material in waters of
State or Federal water quality standards. capacity needed to accommodate the the United States under section 404 of
Section 702(a)(2) of SMCRA provides anticipated cumulative volume of the Clean Water Act, 33 U.S.C. 1344, the
that nothing in SMCRA may be excess spoil that the operation will application may initially include a copy
construed as superseding, amending, generate. of that analysis in lieu of the analysis of
modifying, or repealing the Clean Water The goal of both requirements is to alternatives required under proposed
Act, its implementing regulations, State minimize fill footprints and thus paragraph (a)(3). The regulatory
laws enacted pursuant to the Clean minimize disturbances of forest, authority then must determine the
Water Act, or other Federal laws relating streams, and riparian vegetation, extent to which the Clean Water Act
to preservation of water quality. In consistent with the requirement in analysis satisfies the requirement for an
addition, our regulations at 30 CFR sections 515(b)(24) and 516(b)(11) of analysis of alternatives under paragraph
816.42 and 817.42 require that SMCRA to minimize disturbances of (a)(3). When OSM is the regulatory
discharges of water from disturbed areas and adverse impacts to fish, wildlife, authority, we will coordinate with the
‘‘be made in compliance with all and related environmental values to the Corps of Engineers in conducting any
applicable State and Federal water extent possible using the best necessary analysis of alternatives under
quality laws and regulations.’’ We seek technology currently available. the National Environmental Policy Act.
comment on whether we should amend Third, proposed paragraph (a)(3)(i) Proposed paragraph (a)(3)(iii)
30 CFR 816.42 and 817.42, which provides that each application must specifies that, to the extent possible, the
currently address only discharges of include a description of all excess spoil applicant must select the alternative
water, to include a paragraph disposal alternatives considered and an that would have the least overall
specifying, for informational purposes, analysis of the environmental impacts of adverse environmental impact,
that discharges of dredged or fill those alternatives. The analysis must including adverse impacts on water
materials in waters of the United States consider impacts to both terrestrial and quality and aquatic ecosystems. If
must comply with all applicable State aquatic ecosystems. The alternatives another alternative considered would be
and Federal requirements. must vary with respect to the number, more environmentally protective than
the alternative selected by the applicant, technology currently available,’’ affected in the event that the full design
the application must demonstrate, to the respectively. We seek comment on capacity of the fill is not needed because
satisfaction of the regulatory authority, whether this approach is an appropriate of changes in mining plans or other
that implementation of the more interpretation of the phrase ‘‘to the reasons. We seek comment on whether
environmentally protective alternative extent possible’’ in sections this approach should be incorporated
is not possible. The rule clarifies that an 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), into the rule language.
alternative is possible if it is capable of and 516(b)(11) of SMCRA. We also propose to substantially
being done after consideration of cost, We are proposing these rule changes reorganize and revise 30 CFR 780.35 for
logistics, and available technology, and to improve the analysis of permit clarity and to incorporate permitting
that the least costly alternative may not applications and permitting decisions requirements that are currently found in
be selected at the expense of under SMCRA. However, these changes 30 CFR 816.71, which contains the
environmental protection solely on the also may facilitate achieving the performance standards for excess spoil
basis of cost. coordinated processing of coal mining disposal.
The alternative selected need not permit applications in accordance with Proposed paragraph (a)(5) requires
necessarily be the one with the least a memorandum of understanding that each application for an operation
adverse impact to aquatic ecosystems. entitled ‘‘Memorandum of that proposes to generate excess spoil
Under 40 CFR 230.10(a), which is part Understanding among the U.S. Army include maps and cross-section
of the Clean Water Act Section 404(b)(1) Corps of Engineers, the U.S. Office of drawings showing the location of all
Guidelines, no discharge of dredged or Surface Mining, the U.S. Environmental proposed disposal sites and structures.
fill material may be permitted if there is Protection Agency, and the U.S. Fish It also requires that fills be located on
a practicable alternative to the proposed and Wildlife Service for the Purpose of the most moderately sloping and
discharge that would have less adverse Providing Concurrent and Coordinated naturally stable areas available, unless
impact to the aquatic ecosystem, ‘‘so Review and Processing of Surface Coal the regulatory authority approves a
long as the alternative does not have Mining Applications Proposing different location based upon the
other significant adverse environmental Placement of Dredged and/or Fill alternatives analysis under proposed
consequences.’’ In other words, if the Material in Waters of the United States,’’ paragraph (a)(3) or other factors, taking
alternative with the least adverse impact which took effect February 8, 2005. For into account other requirements of the
to the aquatic ecosystem has other example, the information and analysis Act and regulations. When possible, fills
significant adverse environmental that the permit applicant must submit must be placed upon or above a natural
impacts, the Clean Water Act rules under the proposed rule may assist the terrace, bench, or berm if that location
allow selection of a different alternative. Corps of Engineers in its review of would provide additional stability and
Parts III and IV of this preamble preconstruction notifications submitted prevent mass movement.
explain how the requirements that we under Nationwide Permits 21, 49, or 50, The requirement for maps and cross-
are proposing in paragraph (a)(3) are or, if an individual permit is needed section drawings currently appears in
consistent with SMCRA. In essence, the under section 404 of the Clean Water the first sentence of existing 30 CFR
new requirements would, in part, Act, compliance with the Section 780.35(a), while the fill location
implement sections 515(b)(24) and 404(b)(1) Guidelines at 40 CFR part 230 requirements in proposed paragraph
516(b)(11) of SMCRA, which provide concerning placement of dredged or fill (a)(5) are currently found in existing 30
that surface coal mining and materials in waters of the United States. CFR 816.71(c). We believe that those
reclamation operations must use the Fourth, proposed paragraph (a)(4) location requirements are more logically
best technology currently available to provides that each application must included as part of the planning and
minimize disturbances to and adverse include a description of the steps that design requirements in the permitting
impacts on fish, wildlife, and related the permit applicant proposes to take to regulations rather than as part of the
environmental values to the extent avoid adverse environmental impacts performance standards. In addition, we
possible. The new requirements would that may result from the construction of propose to modify the requirement in
achieve this goal by requiring that the fills or, if avoidance is not possible, to the existing rule that fills be located on
permit applicant take environmental minimize those impacts. This the most moderately sloping and
factors into consideration when locating requirement applies to construction, naturally stable areas available. The
and designing excess spoil fills and by maintenance, and reclamation of the proposed rule allows the regulatory
requiring that the permit applicant alternative selected under proposed authority to approve different locations,
demonstrate that the proposed operation paragraph (a)(3). It also would based upon the analysis of alternatives
has been designed using the best implement, in part, the sedimentation required under proposed paragraph
technology currently available to prevention requirements of sections (a)(3) and other relevant factors. This
minimize adverse environmental 515(b)(10)(B)(i) and 516(b)(9)(B) of change is needed to ensure that the
impacts to land and waters and related SMCRA and the fish, wildlife, and analysis of alternatives and
environmental values to the extent related environmental value protection consideration of environmental impacts
possible. The phrase ‘‘to the extent requirements of sections 515(b)(24) and are a meaningful part of the site
possible,’’ which appears in the 516(b)(11) of SMCRA. We anticipate selection process. The proposed change
statutory provisions underlying these that the steps mentioned in proposed is consistent with section 515(b)(22)(E)
proposed rules, connotes an element of paragraph (a)(4) would include of SMCRA, which requires that excess
both economic and technological provisions in the operation plan to spoil be placed ‘‘upon the most
feasibility, although we do not interpret require that, when consistent with moderate slope among those upon
that phrase as authorizing selection of prudent engineering practice and which, in the judgment of the regulatory
the least expensive alternative at the applicable regulatory requirements, authority, the spoil could be placed in
expense of environmental protection excess spoil placement begin at the compliance with all the requirements of
solely on the basis of cost. See Parts highest elevation of the planned fill and the Act.’’ One of the requirements of the
VI.K. and VI.L. of this preamble for proceed down the valley to the toe of Act is the provision in section
further discussion of the meaning of ‘‘to the fill, thus minimizing both impacts to 515(b)(24) specifying that surface coal
the extent possible’’ and ‘‘best waters of the United States and the area mining and reclamation operations must
be conducted so as to minimize accordance with the requirements of 30 consistent with the 1983 rule changes to
disturbances to and adverse impacts on CFR 816.71–816.74. This requirement the definitions and performance
fish, wildlife, and related environmental corresponds to a similar provision in standards relating to coal mine waste.
values to the extent possible, using the existing 30 CFR 780.35(a). However, the The new language of section 784.19 is
best technology currently available. existing rule requires plans for the identical to the language of proposed 30
Implementation of that requirement may ‘‘removal, if appropriate, of the site and CFR 780.35, which establishes permit
entail placement of spoil on slopes other structures.’’ Because excess spoil fills application requirements for the
than the most moderate ones available. are permanent, it is not appropriate to disposal of excess spoil generated by
Proposed paragraph (a)(6) requires include plans for their removal in the surface mining activities, except that
that an application for an operation that application. Consequently, we propose cross-references to the surface mining
would generate excess spoil include to replace the requirement for plans for performance standards in part 816 are
detailed design plans for each excess removal of the fills with a requirement replaced by cross-references to the
spoil disposal structure, prepared in for plans for their reclamation, which underground mining performance
accordance with the requirements of would consist of final site preparation standards in part 817. In that respect,
sections 780.35 and 816.71 through and revegetation consistent with the the proposed rule is similar to existing
816.74. These requirements correspond approved postmining land use. section 784.19, which incorporates the
to the first sentence of existing section Proposed paragraph (a)(9) combines requirements of section 780.35 by cross-
780.35(a), with the addition of a cross- overlapping requirements of existing 30 reference.
reference to section 780.35 in CFR 780.35(c) and 816.71(d)(2)
F. Sections 816.11 and 817.11: Signs
recognition of the proposed revisions to concerning application and design
and Markers
that section. The first sentence of requirements for keyway cuts or rock-
existing section 780.35(a) also includes toe buttresses. We are not proposing any Existing 30 CFR 816.57(b) and
a requirement for appropriate maps and substantive changes. 817.57(b) require that the operator mark
cross-section drawings, which we Proposed paragraph (b) requires that buffer zones for perennial and
propose to move to section 780.35(a)(5). the application include a certification intermittent streams. However, that
Proposed paragraph (a)(6) also includes by a qualified registered professional requirement also appears in 30 CFR
a requirement to design the fill and engineer experienced in the design of 816.11(e) and 817.11(e). We believe that
appurtenant structures using current earth and rock fills that the design of all this requirement is more logically
prudent engineering practices and any fills and appurtenant structures meets placed in sections 816.11 and 817.11,
additional design criteria established by the requirements of 30 CFR 780.35. This because the title for those sections
the regulatory authority. This requirement currently appears in the identifies them as pertaining to signs
requirement is not new. It currently second sentence of existing 30 CFR and markers. Therefore, we propose to
appears in the first sentence of existing 816.71(b)(1). We propose to move it to consolidate our buffer zone marking
30 CFR 816.71(b)(1). We propose to section 780.35 consistent with our effort requirements in sections 816.11(e) and
move it to 30 CFR 780.35(a)(6) because to consolidate design requirements in 817.11(e). We also propose to revise
it is a design requirement, not a the permitting rules rather than splitting those paragraphs to be consistent with
performance standard. them between the permitting rules and other proposed changes to the existing
Proposed paragraph (a)(7) requires the performance standards. We are not stream buffer zone rules. As revised,
that the application include the results proposing any substantive changes to proposed section 816.11(e) provides that
of a geotechnical investigation of each this provision. the boundaries of any buffer to be
proposed excess spoil disposal site, maintained between surface mining
E. Section 784.19: Disposal of Excess activities and waters of the United
with the exception of those sites at
Spoil From Underground Mines
which spoil will be placed only on a States in accordance with 30 CFR
pre-existing bench under 30 CFR Existing 30 CFR 784.19 applies the 780.28 and 816.57(a) must be clearly
816.74. This requirement currently same fill construction requirements to marked to avoid disturbance by surface
appears in existing section 780.35(b). both underground development waste mining activities. Similarly, proposed
The proposed rule retains the existing and excess spoil. However, on section 817.11(e) provides that the
requirements for the contents of the September 26, 1983 (48 FR 44006), we boundaries of any buffer to be
geotechnical investigation. Currently adopted rules that classify underground maintained between surface activities
located at 30 CFR 780.35(b)(1) through development waste as coal mine waste, and waters of the United States in
(5), these requirements appear as 30 which means that fills constructed of accordance with 30 CFR 784.28 and
CFR 780.35(a)(7)(i) through (v) in the underground development waste must 817.57(a) must be clearly marked to
proposed rule. We also propose to shift adhere to the requirements for refuse avoid disturbance by surface operations
the requirement to conduct sufficient piles instead of those applicable to and facilities resulting from or in
foundation investigations from existing excess spoil fills. Consequently, we connection with an underground mine.
30 CFR 816.71(d)(1) to 30 CFR propose to revise section 784.19 to We are not proposing any substantive
780.35(a)(7). This shift is consistent apply only to the disposal of excess changes to sections 816.11(e) and
with our effort to consolidate design spoil, consistent with the revised 817.11(e).
requirements in the permitting rules definitions and performance standards
rather than splitting them between the that we adopted on September 26, 1983. G. Sections 816.43 and 817.43:
permitting rules and the performance For the same reason, we propose to Diversions
standards. The foundation investigation replace the current section title, Existing 30 CFR 816.43(b)(1) and
is an element of the geotechnical ‘‘Underground Development Waste,’’ 817.43(b)(1) provide that the regulatory
investigation. with ‘‘Disposal of Excess Spoil.’’ We authority may approve diversion of
Proposed paragraph (a)(8) requires also propose to eliminate all references perennial and intermittent streams
that each application include plans for to underground development waste within the permit area after making the
the construction, operation, because that waste would instead be finding relating to stream buffer zones
maintenance, and reclamation of all regulated under the refuse pile that the diversion will not adversely
excess spoil disposal structures (fills) in provisions of revised section 784.16, affect the water quantity and quality and
related environmental resources of the minimize adverse impacts to the (aggrading). A natural channel is not
stream. The referenced finding is the hydrologic balance within the permit stable in the sense that a concrete,
second part of the finding in existing 30 and adjacent areas.’’ Furthermore, trapezoidal channel is stable. Depending
CFR 816.57(a)(1) and 817.57(a)(1). paragraph (a)(2)(iii) requires that all on the stream type, a natural channel
We propose to replace this finding diversions be designed, located, may meander, eroding and depositing
with a provision that is more consistent constructed, maintained, and used to sediment at natural rates as part of its
with the underlying provisions of prevent, to the extent possible, using the dynamic equilibrium. The channel must
SMCRA. Specifically, sections best technology currently available, pass the water and sediment that it
515(b)(10), 515(b)(24), 516(b)(9), and additional contributions of suspended receives downstream, and the channel
516(b)(11) of SMCRA do not establish a solids to streamflow outside the permit must maintain a connection to the
‘‘will not adversely affect’’ standard. area.’’ The language of that paragraph stream’s floodplain. The new provisions
Section 515(b)(10) requires that surface closely resembles the language of are consistent with sections 515(b)(24)
coal mining and reclamation operations sections 515(b)(10)(B)(i) and and 516(b)(11) of SMCRA, which
be conducted to ‘‘minimize the 516(b)(9)(B) of the Act, which are two of require use of the best technology
disturbances to the prevailing the statutory provisions underlying the currently available to minimize adverse
hydrologic balance at the mine site and existing stream buffer zone rules. impacts to fish, wildlife, and other
in associated offsite areas and to the The last sentence of existing environmental values to the extent
quality and quantity of water in surface paragraph (a)(3) of 30 CFR 816.43 and possible.
and ground water systems both during 817.43 pertains only to stream-channel We seek comment on whether the
and after surface coal mining operations diversions. Therefore, we propose to proposed revisions to 30 CFR 816.43(b)
and during reclamation.’’ Section move that sentence to paragraph (b) of and 817.43(b) are sufficient to meet the
516(b)(9), which pertains to sections 816.43 and 817.43 because requirements of SMCRA, or whether we
underground coal mining operations, those sections contain all other should also revise our permitting rules
contains similar language with the performance standards that pertain only to include a requirement for submission
exception that it does not mention water to stream-channel diversions. We of alternatives and an analysis of the
quality. Sections 515(b)(24) and propose to insert the sentence as environmental impacts of each
516(b)(11) require that surface coal paragraph (b)(4) of sections 816.43 and alternative whenever the applicant
mining and reclamation operations be 817.43 and to redesignate existing proposes to mine through waters of the
conducted to ‘‘minimize disturbances paragraph (b)(4) as paragraph (b)(5). United States or divert perennial or
and adverse impacts of the operation on The last sentence in paragraph (a)(3)
intermittent streams. The requirements
fish, wildlife, and related environmental of the existing rules requires that a
would be similar to the corresponding
values’’ ‘‘to the extent possible using the permanent stream-channel diversion or
a stream channel reclaimed after the requirements for excess spoil fills and
best technology currently available.’’ As
removal of a temporary diversion be coal mine waste disposal facilities in
demonstrated by these quotes, SMCRA
designed and constructed so as to proposed 30 CFR 780.25(d)(1) and
establishes a minimization standard
restore or approximate the premining 780.35(a)(3) for surface mines or
rather than an absolute ‘‘will not
characteristics of the original stream 784.16(d)(1) and 784.19(a)(3) for
adversely affect’’ standard with respect
channel, including the natural riparian underground mines. We anticipate that
to disturbance of the hydrologic balance
vegetation, to promote the recovery and alternatives would vary with respect to
and adverse impacts on fish, wildlife,
and related environmental values. enhancement of the aquatic habitat. In the number of stream segments diverted,
Consequently, we propose to revise new paragraph (b)(4), we propose to the length of segments diverted,
paragraph (b) of 30 CFR 816.43(b)(1) and revise that sentence to specify that a diversion design, construction
817.43(b)(1) to provide that the permanent stream-channel diversion or technique, location of the diversion, and
regulatory authority may approve the a stream channel reclaimed after the whether the diversion is temporary or
diversion of perennial and intermittent removal of a temporary diversion must permanent. We invite comment on
streams within the permit area if the be designed and constructed using whether these alternatives are consistent
diversion is located, designed, natural channel design techniques so as with SMCRA and whether there are
constructed, and maintained using the to restore or approximate the premining other alternatives that should be
best technology currently available to characteristics of the original stream considered.
minimize adverse impacts to fish, channel, including the natural riparian Finally, we propose to redesignate
wildlife, and related environmental vegetation and the natural hydrological existing paragraph (b)(4) of sections
values to the extent possible. This characteristics of the original stream, to 816.43 and 817.43 as paragraph (b)(5)
provision is consistent with sections promote the recovery and enhancement and revise that paragraph to require that
515(b)(24) and 516(b)(11) of SMCRA. of the aquatic habitat and to minimize a qualified registered professional
Nothing in this proposed rule should be adverse alteration of stream channels on engineer certify the design and
construed as superseding the and off the site, including channel construction of all stream-channel
performance standards for the deepening or enlargement, to the extent restorations. The existing rule applies
protection of fish, wildlife, and related possible. that requirement only to diversions of
environmental values in 30 CFR 816.97 The new language concerning natural perennial and intermittent streams. We
and 817.97 or the related permitting channel design and adverse alteration of are proposing the additional
requirements at 30 CFR 780.16 and stream channels would reinforce and requirement because stream-channel
784.21. clarify the meaning of the existing restorations are equally significant in
No counterpart to sections 515(b)(10) requirement to restore or approximate terms of stability and environmental
or 516(b)(9) is necessary because the premining characteristics of the concerns; i.e., reconstructed stream
paragraph (a)(1) of 30 CFR 816.43 and original stream. The goals of natural channels should be safe and stable and
817.43, which applies to diversions of channel design include creating a should approximate premining
all types, including stream-channel stream channel that will maintain the conditions regardless of whether the
diversions, already provides that ‘‘[a]ll equilibrium of a natural stream, neither channel is a diversion or a restoration of
diversions shall be designed to downcutting (degrading) nor filling in the original channel.
H. Sections 816.46 and 817.46: Siltation for clarity and consistency. Revised this change, please refer to Part VI.C. of
Structures sections 816.57 and 817.57 would this preamble.
Paragraph (b)(2) of existing 30 CFR include only performance standards. As
2. Proposed Paragraph (a)
816.46 and 817.46 requires that all discussed in Part VI.C. of this preamble,
we propose to extensively revise the We propose to revise paragraph (a) of
surface drainage from the disturbed area
permitting elements of the existing 30 CFR 816.57 and 817.57 to specify
be passed through a siltation structure
stream buffer zone rules and move them that the permittee or operator may not
before leaving the permit area. In
to new sections 780.28 and 784.28. conduct surface activities that would
essence, that paragraph prescribes
We propose to delete the provision in disturb the surface of land within 100
siltation structures (sedimentation
ponds and other treatment facilities existing 30 CFR 816.57(a)(2) and feet, measured horizontally, of waters of
with point-source discharges) as the best 817.57(a)(2) that requires the regulatory the United States unless the permit
technology currently available for authority to make a finding that any authorizes the disturbance under
sediment control. However, existing proposed temporary or permanent section 780.28 or 784.28 or unless the
paragraph (b)(2) was struck down upon stream-channel diversion will comply activities are allowed under proposed
judicial review because the court found with 30 CFR 816.43 or 817.43. We find 30 CFR 816.57(b) or 30 CFR 816.57(b).
that the preamble to the rulemaking in this provision to be unnecessary We propose to retain the 100-foot buffer
which it was adopted did not articulate because the obligation to comply with requirement in paragraph (a) of the
a sufficient basis for the rule under the the stream-channel diversion existing rules, but all other provisions of
Administrative Procedure Act. The requirements of section 816.43 or 817.43 existing paragraph (a) would be
court stated that the preamble did not is independent of any cross-reference in modified, deleted, or moved to 30 CFR
adequately discuss the benefits and section 816.57(a)(2) or 817.57(a)(2). 780.28 and 784.28 (see Part VI.C. of this
We also propose to delete existing preamble).
drawbacks of siltation structures and
paragraph (b) of sections 816.57 and
alternative sediment control methods 3. Proposed Paragraph (b)
817.57, which provides that the area not
and did not enable the court ‘‘to discern
to be disturbed must be designated as a Proposed paragraph (b) provides that
the path taken by [the Secretary] in
buffer zone and marked as specified in the prohibition in paragraph (a) does not
responding to commenters’ concerns’’
30 CFR 816.11 or 817.11. This deletion apply to the following activities:
that siltation structures in the West are (1) Mining through waters of the
is not a substantive change because the
not the best technology currently
requirement to mark the area to be left United States;
available. See In re: Permanent Surface (2) Placement of bridge abutments,
undisturbed also appears in 30 CFR
Mining Regulation Litigation II, Round culverts, or other structures in or near
816.11(e) and 817.11(e), which we are
III, 620 F. Supp. 1519, 1566–1568 waters of the United States to facilitate
proposing to revise for clarity and
(D.D.C. July 15, 1985). crossing of those waters;
On November 20, 1986 (51 FR 41961), consistency as discussed in Part VI.F. of
this preamble. Some commenters have (3) Construction of sedimentation
we suspended the rules struck down by pond embankments in waters of the
the court. To avoid any confusion that requested that the language proposed for
deletion be retained because it functions United States; and
may result from the continuing (4) Construction of excess spoil fills
publication of those rules in the Code of as a de facto definition of ‘‘buffer zone.’’
We do not see the need to do so in view and coal mine waste disposal facilities
Federal Regulations, we are proposing in waters of the United States.
to remove paragraph (b)(2) of 30 CFR of the reduced usage of the term ‘‘buffer
zone’’ in the revised rules and the fact Proposed paragraph (b) also specifies,
816.46 and 817.46 and redesignate the for purposes of clarity, that persons
that the term ‘‘buffer’’ has a commonly
remaining paragraphs of those sections conducting the activities listed in
understood meaning for which no
accordingly. This action would paragraphs (b)(1) through (4) must
regulatory definition is needed because
supersede the 1986 suspension of comply with all other applicable
the rules do not use the term in any
paragraph (b)(2) of those regulations. requirements of the regulatory program.
manner that would deviate from the
Sections 816.45 and 817.45, which Paragraph (b)(1) further emphasizes that
dictionary definition. However, we seek
remain unchanged by this rule, set forth mining through waters of the United
comment on whether a formal
various measures and techniques that States must comply with the
regulatory definition of buffer or buffer
may constitute the best technology requirements of 30 CFR 816.43(b) or
zone would be useful.
currently available for sediment control, We propose to revise 30 CFR 780.28, 817.43(b) if the mining involves the
although applicants and regulatory 784.28, 816.57, and 817.57 to apply to temporary or permanent diversion of a
authorities are not limited to those all waters of the United States, not just perennial or intermittent stream.
measures and techniques. to perennial and intermittent streams as Paragraph (b)(2) emphasizes that the
I. Sections 816.57 and 817.57: Activities in existing 30 CFR 816.57 and 817.57. placement of bridge abutments, culverts,
in or Adjacent to Waters of the United We are proposing this change because or other structures to facilitate the
States waters other than perennial and crossing of waters of the United States
intermittent streams may be of must comply with the road design,
1. General Description of Proposed significant value to fish and wildlife and construction, and maintenance
Changes thus should be protected in accordance requirements of 30 CFR 816.150 and
We propose to extensively revise and with the requirements of sections 816.151 or, for railroad spurs, with the
reorganize 30 CFR 816.57 and 817.57 for 515(b)(24) and 516(b)(11) of SMCRA. support facility requirements of 30 CFR
the reasons discussed in Parts III and The proposed change also better 816.181. For underground mining
VI.C. of this preamble and further harmonizes the SMCRA regulatory operations, the appropriate cross-
explained below. The existing stream program with regulatory programs references are 30 CFR 817.150, 817.151,
buffer zone rules at 30 CFR 816.57(a) under the Clean Water Act, especially and 817.181, respectively. Paragraph
and 817.57(a) contain both permitting the section 404 regulatory program, (b)(3) emphasizes that construction of
requirements and performance which governs placement of dredged sedimentation pond embankments in
standards. The rules that we are and fill materials into waters of the waters of the United States must comply
proposing today would separate the two United States. For further discussion of with the requirements of 30 CFR
816.45(a) or 817.45(a). Paragraph (b)(4) or permanently diverted in accordance However, the concept of a buffer zone
emphasizes that excess spoil fills must with 30 CFR 816.43 or 817.43. as the best technology currently
comply with the requirements of 30 CFR (3) Placement of bridge abutments, available is best suited to activities in
816.71(a) and (f) or 817.71(a) and (f). It culverts, or other structures in or near the first category because those
also provides a reminder that coal mine waters of the United States to facilitate activities do not require disturbance of
waste disposal facilities must comply crossing those waters. the streambed or other waters or
with the pertinent requirements of 30 (4) Construction of sedimentation immediately adjacent lands. By contrast,
CFR 816.81(a), 816.83(a), and 816.84, or, pond embankments in waters of the all activities in the other four categories
for underground mining operations, 30 United States. These embankments necessarily occur within or immediately
CFR 817.81(a), 817.83(a), and 817.84, usually provide temporary sediment adjacent to the streambed or other
respectively. control. They must be removed unless waters, which means that an
Specifying the activities to which the the regulatory authority approves their undisturbed buffer between those
prohibition on disturbance does not retention as permanent impoundments activities and the stream or other waters
apply should reduce the confusion that as part of the postmining land use. inherently cannot be maintained.
has sometimes arisen regarding (5) Activities that permanently fill Consequently, paragraphs (b)(1) through
implementation of the existing stream portions of a stream channel or other (4) of proposed 30 CFR 816.57 and
buffer zone rules (see Part III.C. of this waters of the United States; i.e., 817.57 exempt those four categories of
preamble). We intend that the list of construction of excess spoil fills or coal activities from the prohibition in
activities in paragraph (b) include, mine waste disposal facilities in waters paragraph (a) on disturbance of the
among other things, the universe of of the United States. buffer zone.
activities that inherently involve Neither SMCRA nor the Clean Water Instead, proposed 30 CFR 780.28(d)
placement of fill material into waters of Act precludes any of the activities listed and 784.28(d) provide that the permit
the United States as part of surface coal above, provided the activities comply applicant must demonstrate (and the
mining and reclamation operations. We with all applicable requirements of regulatory authority must find) that
invite comment on whether the list those laws and their implementing other measures and techniques will
meets this goal and, if not, how any regulations. Part III.A. of this preamble meet the requirement to use the best
other activities that involve placement explains the extent to which either technology currently available to
of fill material into waters of the United SMCRA or its legislative history prevent offsite sedimentation and to
States as part of surface coal mining and contemplates the activities listed above. minimize adverse impacts to fish,
reclamation operations should be Specifically, section 515(b)(22)(D) wildlife, and related environmental
regulated under SMCRA with respect to mentions the construction of excess values. Paragraph (c) of proposed 30
this rule. Paragraph (a) applies to all spoil fills in areas containing natural CFR 816.57 and 817.57 also includes
activities within 100 feet of waters of watercourses, springs, and wet-weather provisions reiterating that the permittee
the United States except to the extent seeps. In addition, the legislative history must comply with all other permitting
that those activities also appear in of SMCRA indicates that Congress requirements and performance
paragraph (b). Paragraph (b) is intended anticipated the continued construction standards relating to implementation of
to include all activities that inherently of coal mine waste impoundments in the statutory requirements underlying
occur in waters of the United States, as streams. As discussed in Part III.C. of this proposed rule and the existing
well as some that inherently occur near this preamble, Congress, in developing stream buffer zone rules.
those waters. We seek comment on the legislation that ultimately became SMCRA does not specifically
whether additional rules are needed to SMCRA, specifically considered and contemplate every activity listed in
address activities that may not included rejected inclusion of an absolute paragraphs (b)(1) through (4) of the
in either paragraph (a) or (b). prohibition on disturbance of land proposed rules. However, as previously
Not all coal mining operations involve within 100 feet of certain waters of the noted, those activities are sometimes
placement of fill material in waters of United States. While we subsequently necessary for the conduct of certain
the United States or disturbance of the adopted stream buffer zone rules as part surface coal mining operations. In those
surface of lands within 100 feet of those of our regulations implementing situations, the purpose of SMCRA as
waters. However, the nature of surface SMCRA, those rules did not operate as expressed in section 102(f) must be
coal mining and reclamation operations an absolute prohibition on disturbance taken into consideration. That
and the topography of the areas within of the buffer zone. In addition, as paragraph specifies that one of the
which those operations occur, as discussed in Part III.D. of this preamble, purposes of SMCRA is to—
discussed in part below and in Part II of we and the states have historically (f) assure that the coal supply essential to the
this preamble, mean that many interpreted the existing stream buffer Nation’s energy requirements, and to its
operations will affect waters of the zone rules as allowing placement of fill economic and social well-being is provided
United States and adjacent areas. In material in waters of the United States, and strike a balance between protection of
general, there are five classes of subject to approval of that placement the environment and agricultural
activities that may take place in or near under the Clean Water Act. The rules productivity and the Nation’s need for coal
waters of the United States as part of that we are proposing today would as an essential source of energy.
surface coal mining and reclamation remove any lingering ambiguity Under section 201(c)(2), we have the
operations: regarding this interpretation. authority to publish ‘‘such rules and
(1) Activities adjacent to, but not in, The existing stream buffer zone rules regulations as may be necessary to carry
waters of the United States. Common effectively prescribe maintenance of a out the purposes and provisions of this
examples of those activities include 100-foot undisturbed zone between Act.’’

spoil and topsoil storage and the mining activities and streams as the best Proposed paragraph (b) of 30 CFR
construction or use of roads or technology currently available to fulfill 816.57 and 817.57 is intended to strike
buildings. the sediment control and fish and the balance to which section 102(f)
(2) Mining through streams and other wildlife protection requirements of refers. First, it facilitates energy
waters of the United States, with the sections 515(b)(10)(B)(i), 515(b)(24), production by providing an exception
original stream being either temporarily 516(b)(9)(B), and 516(b)(11) of SMCRA. from the prohibition on conducting
activities that would disturb the surface during road construction. All mine structures are also located in perennial
of lands within 100 feet of waters of the access and haul roads, whether primary streams. Accordingly, OSM believes these
United States. Second, it facilitates or not, must comply with 30 CFR cases require thorough examination.
Therefore, the regulations have been
environmental protection by limiting 816.150(b) or 817.150(b). Those modified to permit construction of
the exception to those activities that are regulations include language similar to sedimentation ponds in perennial streams
essential to the conduct of surface coal the sedimentation control and fish and only with approval by the regulatory
mining operations and by requiring that wildlife protection requirements of authority.
operations availing themselves of the sections 515(b)(10)(B)(i), 515(b)(24), 44 FR 15159–60, March 13, 1979.
exception adopt other measures to 516(b)(9)(B), and 516(b)(11) of SMCRA.
In short, sedimentation ponds must be
comply with the sedimentation control Also, under our existing regulations,
constructed where there is sufficient
and fish and wildlife protection support facilities, which may include
storage capacity, which, in narrow
requirements of SMCRA. railroads, must comply with 30 CFR
The preceding paragraphs set forth valleys lacking natural terraces, usually
816.181 and 817.181. Paragraph (b) of
the basis and purpose of proposed means in the stream.
30 CFR 816.181 and 817.181 includes A letter dated March 1, 2006, from
paragraph (b). We are providing language similar to the sedimentation Benjamin Grumbles, Assistant
additional descriptions and discussion control and fish and wildlife protection Administrator of the Environmental
of each proposed exception below. To requirements of sections Protection Agency, to John Paul
the extent that the discussion identifies 515(b)(10)(B)(i), 516(b)(9)(B), 515(b)(24), Woodley, Assistant Secretary of the
selected other SMCRA regulatory and 516(b)(11) of SMCRA. Army (Civil Works), confirms that this
requirements that apply to those
Proposed paragraph (b)(3): practice also is acceptable under the
activities or structures, the listing of
applicable regulatory requirements is by Sedimentation pond embankments in Clean Water Act for surface coal mining
no means exhaustive. waters of the United States operations in the Appalachian
Mountains. It further states that, under
Proposed Paragraph (b)(1): Mining Both the 1979 and 1983 versions of
the Clean Water Act, the stream segment
Through Waters of the United States our permanent regulatory program
between the mining activity (the toe of
regulations prohibit the placement of
Mining through waters of the United the fill, in the situation addressed by the
sedimentation ponds in perennial
States is an activity that we propose to letter) and the sedimentation pond will
streams unless approved by the
categorize as exempt from the be considered part of the treatment
regulatory authority. See 30 CFR
prohibition on disturbance of the system, not waters of the United States.
816.46(a)(2) (1979) and 816.46(c)(1)(ii)
surface of lands within 100 feet of The sedimentation pond must be
(1983). However, the preamble to the
waters of the United States because it is constructed as close to the toe of the fill
1979 rules explains that construction of
not possible to maintain an undisturbed as practicable to minimize temporary
sedimentation ponds in streams
buffer around the original waters when adverse environmental impacts
typically is a necessity in steep-slope
mining through a stream or other waters associated with construction and
mining conditions:
of the United States. The permittee must operation of the waste treatment system.
comply with the requirements of 30 CFR Sedimentation ponds must be constructed As a condition of approval, the Corps
prior to any disturbance of the area to be also requires that the stream segment be
816.43(b) or 817.43(b) if the mining
drained into the pond and as near as possible restored as soon as the mining operation
involves the permanent or temporary to the area to be disturbed. [Citation omitted.]
diversion of a perennial or intermittent Generally, such structures should be located
is completed and the pond is no longer
stream. Part VI.G. of this preamble out of perennial streams to facilitate the needed for treatment purposes. At that
explains how we propose to revise 30 clearing, removal and abandonment of the time, the stream segment will once
CFR 816.43 and 817.43 to incorporate pond. Further, locating ponds out of again be classified as waters of the
provisions corresponding to those of perennial streams avoids the potential that United States. However, under SMCRA,
existing 30 CFR 816.57(a)(1) and flooding will wash away the pond. However, the pond may be retained as a
817.57(a)(1) and how those provisions, under design conditions, ponds may be permanent impoundment if approved
as revised, in combination with existing constructed in perennial streams without by the regulatory authority in
harm to public safety or the environment. accordance with the criteria in 30 CFR
provisions of 30 CFR 816.43 and 817.43, Therefore, the final regulations authorize the
better reflect the statutory provisions regulatory authority to approve construction
816.49(b) or 817.49(b).
underlying the existing stream buffer of ponds in perennial streams on a site-
We believe that the existing rules at
zone rules. specific basis to take into account 30 CFR 816.46(c)(1)(ii) and
topographic factors. [Citation omitted.] 817.46(c)(1)(ii), can be applied in a
Proposed Paragraph (b)(2): Structures manner consistent with the March 1,
for Crossing Waters of the United States * * * * *
Commenters suggested allowing 2006, letter from the Environmental
Our existing regulations at 30 CFR construction of sedimentation ponds in Protection Agency discussed above. In
816.151(d)(6) and 817.151(d)(6) contain intermittent and perennial streams. Because particular, 30 CFR 816.46(c)(1)(ii) and
standards governing the types of of the physical, topographic, or geographical 817.46(c)(1)(ii) require that all
structures that primary mine roads may constraints in steep-slope mining areas, the sedimentation ponds be placed as near
use to cross perennial and intermittent valley floor is often the only possible location as possible to the disturbed area that
streams. Any low-water crossings must for a sediment pond. Since the valleys are they serve. We interpret this provision
be designed, constructed and steep and quite narrow, dams must be high as meaning that sedimentation ponds
and must be continuous across the entire
maintained to prevent erosion of the valley in order to secure the necessary
collecting runoff from excess spoil fills
structure or the streambed and storage. must be constructed as close to the toe
additional contributions of suspended of the fill as possible. We also believe
* * * * *
solids to streamflow. Sections The Office recognizes that mining and
that application of the existing rules in
816.151(c)(2) and 817.151(c)(2) prohibit other forms of construction are presently this manner will properly implement
the use of stream fords for primary roads undertaken in very small perennial streams. the intent of Congress in enacting
unless they are approved by the Many Soil Conservation Service (SCS) [now SMCRA, as expressed in section 102(f)
regulatory authority as temporary routes the Natural Resources Conservation Service] of the Act, which provides that one of
the purposes of the Act is to strike a applicant must select the alternative 5. Proposed Paragraph (d)
balance between energy production and with the fewest overall adverse Proposed paragraph (d) of 30 CFR
environmental protection. However, we environmental impacts or demonstrate, 816.57 and 817.57 provides that a
seek comment on whether it would be to the satisfaction of the regulatory permittee may not initiate any activities
appropriate or helpful to revise those authority, why implementation of that under paragraph (b); i.e., activities
rules by replacing the term ‘‘perennial alternative is not possible. exempt from the prohibition on
streams’’ with ‘‘waters of the United disturbance of the surface of lands
States’’ or whether we should more 4. Proposed Paragraph (c)
within 100 feet of waters of the United
clearly specify the conditions under States, until the permittee obtains all
Proposed paragraph (c) of 30 CFR
which the regulatory authority may necessary certifications and
approve placement of sedimentation 816.57 provides that the activities listed
in paragraph (b); i.e., activities exempt authorizations under sections 401, 402,
ponds in perennial streams or other
from the prohibition on disturbance of and 404 of the Clean Water Act, 33
waters of the United States.
the surface of lands within 100 feet of U.S.C. 1341, 1342, and 1344. As with
Proposed Paragraph (b)(4): Construction waters of the United States, must proposed paragraph (c), proposed
of Excess Spoil Fills and Coal Mine comply with paragraphs (b)(10)(B)(i) paragraph (d) does not impose any new
Waste Disposal Facilities in Waters of and (b)(24) of section 515 of the Act and requirements. We are including it as a
the United States the regulations implementing those reminder that, under paragraphs (a) and
Part III of this preamble explains the provisions of the Act. Those regulations (a)(2) of section 702 of SMCRA, nothing
rationale for this exemption. As include the requirement in 30 CFR in SMCRA (and, by extension,
discussed in Parts IV, VI.B., VI.D., VI.E., 816.41(d)(1) that surface mining regulations adopted under SMCRA) may
and VI.J., we are proposing to revise our be construed as superseding, amending,
activities be conducted according to the
rules to require that, to the extent modifying, or repealing the Clean Water
plan approved under 30 CFR 780.21(h)
possible using the best technology Act or any state or federal rules adopted
and that earth materials, ground-water
currently available, operations be under the Clean Water Act.
discharges, and runoff be handled in a As discussed in Part VI.C. of this
designed and constructed to minimize manner that prevents, to the extent
both the creation of excess spoil and the preamble, we seek comment on whether
possible using the best technology a similar provision in proposed 30 CFR
adverse environmental impacts that may currently available, additional
result from excess spoil and coal mine 780.28(f) and 784.28(f) should remain
contributions of suspended solids to informational or whether we should
waste disposal facilities. Proposed 30
streamflow outside the permit area; and revise our rules to require inclusion of
CFR 780.35(a) and 784.19(a) require the
applicant to demonstrate to the otherwise prevents water pollution. this provision as a SMCRA permit
satisfaction of the regulatory authority They also include the requirement in 30 condition, which would mean that the
that the operation has been designed to CFR 816.45(a) that appropriate sediment prohibition on initiation of activities
minimize the generation of excess spoil control measures be designed, before obtaining all necessary Clean
to the extent possible, taking into constructed, and maintained using the Water Act authorizations and
consideration applicable regulations best technology currently available to certifications would be independently
concerning approximate original prevent, to the extent possible, enforceable under SMCRA.
contour restoration, safety, stability, and additional contributions of sediment to
J. Sections 816.71 and 817.71: General
environmental protection and the needs streamflow or to runoff outside the
Requirements for Disposal of Excess
of the proposed postmining land use. permit area. And they include the
Spoil
Under the proposed rules, the applicant requirement in 30 CFR 816.97(a) that
also must demonstrate that the designed the operator must, to the extent possible We propose to revise paragraph (a) of
maximum cumulative volume of all using the best technology currently 30 CFR 816.71 and 817.71 by adding
excess spoil fills proposed for the available, minimize disturbances and subparagraph (a)(4) to implement, in
operation is no larger than needed to adverse impacts on fish and wildlife part, the requirements of sections
accommodate the anticipated volume of and related environmental values and 515(b)(24) and 516(b)(11) of the Act.
excess spoil that the operation will achieve enhancement of those resources Sections 515(b)(24) and 516(b)(11)
generate. In addition, the proposed rules where practicable. Proposed paragraph require that surface coal mining and
require that the applicant analyze the (c) of 30 CFR 817.57 includes virtually reclamation operations be conducted to
environmental impacts of a reasonable identical requirements with the ‘‘minimize disturbances and adverse
range of alternatives for excess spoil exception that it refers to paragraphs impacts of the operation on fish,
disposal facilities, including varying the (b)(9) and (11) of section 516 of SMCRA wildlife, and related environmental
size, number, configuration, and in place of the references to section 515, values’’ ‘‘to the extent possible using the
location of fills. The applicant must and it replaces references to the surface best technology currently available.’’
select the alternative with the least The new subparagraph requires that
mining regulations in parts 780 and 816
overall adverse environmental impact or excess spoil be placed in designated
with references to the corresponding
demonstrate, to the satisfaction of the disposal areas within the permit area in
underground mining regulations in
regulatory authority, why a controlled manner to minimize
parts 784 and 817.
implementation of that alternative is not disturbances to and adverse impacts on
possible. Proposed paragraph (c) does not fish, wildlife, and related environmental
With respect to coal mine waste, impose any new requirements. We are values to the extent possible using the
proposed 30 CFR 780.25(d) and including it to reiterate for best technology currently available. We
784.16(d) require that the applicant informational purposes that an activity seek comment on whether the addition
consider and evaluate the viability and that is exempt from the prohibition on of this performance standard would be
environmental impacts of a reasonable disturbance of the surface of lands a meaningful addition to our rules or
range of disposal methods and within 100 feet of waters of the United whether its requirements are effectively
alternative locations for refuse piles and States is not exempt from other subsumed within the permitting
coal mine waste impoundments. The requirements of the regulatory program. requirements in proposed 30 CFR
780.35 and 784.19 and the provisions of Finally, we propose to remove 30 CFR we are proposing today include similar
proposed 30 CFR 816.71(c) and 817.71(k), which provides that spoil language because they are based upon
817.71(c). resulting from face-up operations for those provisions of the Act. Given the
We are not proposing any changes to underground coal mine development wide array of circumstances to which
subparagraph (a)(1) of existing 30 CFR may be placed at drift entries as part of these requirements apply and the
816.71 and 817.71. That subparagraph is a cut-and-fill structure if that structure paucity of legislative history, we have
the counterpart to sections 515(b)(10) is less than 400 feet in length and is elected not to propose a definition of the
and 516(b)(9) of SMCRA, which require designed in accordance with 30 CFR phrase ‘‘to the extent possible’’ as part
in relevant part that surface coal mining 817.71. We propose to remove this of this rulemaking (although, as
and reclamation operations be paragraph because most spoil excavated discussed below, we propose to clarify
conducted to minimize disturbances to as part of face-up operations and used that in the context of the analysis of
the prevailing hydrologic balance at the to construct a mine bench is not excess alternatives for excess spoil fills, refuse
minesite and in associated offsite areas. spoil. As defined in 30 CFR 701.5, piles, and coal mine waste
As previously discussed in Parts VI.D. excess spoil consists of spoil material impoundments, the term requires
and VI.E. of this preamble, we propose disposed of in a location outside the consideration of cost, logistics, and
to move paragraphs (b)(1) (design mined-out area, but it does not include technology). Instead, we and the State
certification), (c) (location), and (d)(1) spoil needed to achieve restoration of regulatory authorities will continue to
(foundation investigations) of existing the approximate original contour. In determine the meaning of that phrase on
30 CFR 816.71 and 817.71 to 30 CFR most cases, spoil used to construct the a case-by-case basis in a manner
780.35 and 784.19 as part of our effort bench for an underground mine will consistent with section 102(f) of
to place provisions that are solely later be used to reclaim the face-up area SMCRA. That section of the Act
design considerations and requirements when the underground mine is finished. provides that one of the purposes of
in our permitting regulations rather than That is, the bench will be regraded to SMCRA is to ‘‘assure that the coal
in the performance standards. We also cover the mine entry and eliminate any supply essential to the Nation’s energy
propose to delete the last sentence of highwall once mining is completed and requirements and to its economic and
paragraph (d)(2) of existing 30 CFR the bench is no longer needed for mine social well-being is provided and strike
816.71 and 817.71, which requires a offices, parking lots, equipment storage, a balance between protection of the
stability analysis for rock toe buttresses conveyor belts, and other mining-related environment and agricultural
and keyway cuts, because it duplicates purposes. Consequently, this paragraph productivity and the Nation’s need for
requirements included in both existing of the regulations does not belong in a coal as an essential source of energy.’’
section devoted to disposal of excess In addition, section 515(b)(1) of
and proposed 30 CFR 780.35 and
spoil. SMCRA requires that surface coal
784.19. Consequently, proposed 30 CFR
We are not proposing to move these mining operations be conducted ‘‘so as
816.71(d) and 817.71(d) would consist
requirements to another part of our rules to maximize the utilization and
only of the first sentence of existing
because we do not find it necessary to conservation of the solid fuel resource
paragraph (d)(2); i.e., it would require
impose the design requirements for being recovered so that reaffecting the
that keyway cuts or rock-toe buttresses
excess spoil fills (which are permanent land in the future through surface coal
be constructed to ensure fill stability
structures) on temporary spoil storage mining can be minimized.’’ We believe
when the slope in the disposal area structures and support facilities, such as that the ‘‘to the extent possible’’ clause
exceeds either 2.8h:1v (36 percent) or the benches to which 30 CFR 817.71(k) in paragraphs (b)(10)(B)(i) and (24) of
any lesser slope designated by the applies. Nor do we find it necessary or section 515 of SMCRA serves in part to
regulatory authority based on local appropriate to limit these benches to allow balancing the environmental
conditions. 400 feet in length. Bench length and protection requirements of those
We propose to redesignate paragraph configuration are more appropriately paragraphs with the maximum coal
(b)(2) of existing 30 CFR 816.71 and determined by operational, topographic, recovery performance standard in
817.71 as paragraph (b) of those sections geologic, and other site-specific section 515(b)(1).
and to expand its provisions to require considerations. However, the regulatory Nothing in this discussion should be
that the fill not only be designed to authority has the right to impose design construed as meaning that the
attain a minimum static safety factor of and construction requirements on a regulatory authority may approve use of
1.5 as the existing rules require, but that case-by-case basis when it determines a less environmentally protective
the fill actually be constructed to attain that those requirements are a necessary technique or alternative solely because
that safety factor. This change is prerequisite to making the permit an applicant pleads poverty or argues
consistent with section 515(b)(22)(A) of application approval findings specified that use of a less environmentally
the Act, which requires that all excess in 30 CFR 773.15. We seek comment on damaging technique or alternative
spoil be placed in a way that ensures (1) whether this approach is adequate to would be more costly. To do so would
mass stability and prevents mass accomplish the purposes and be inconsistent with both the language
movement. requirements of SMCRA, (2) whether we and purpose of sections 515(b)(10)(B)(i),
We propose to add a new paragraph should codify the preceding sentence 515(b)(24), 516(b)(9)(B), and 516(b)(11)
(c) to 30 CFR 816.71 and 817.71 to concerning the right of the regulatory of SMCRA, all of which also require use
require that the permittee construct the authority to impose requirements, or (3) of the ‘‘best technology currently
fill in accordance with the design and whether more specific rules are needed available.’’ Specifically, those
plans submitted under 30 CFR 780.35 or or appropriate. provisions of the Act specify that their
784.19 and approved as part of the requirements must be achieved ‘‘to the
permit. This provision would K. What does the phrase ‘‘to the extent extent possible using the best
emphasize that fills must be built on the possible’’ mean in these rules? technology currently available.’’ Persons
sites selected under section 780.35 or The requirements of sections considering a potential coal mining
784.19 in a manner consistent with the 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), operation may include the costs of
designs submitted under those sections and 516(b)(11) of SMCRA apply ‘‘to the adopting particular technologies as one
and approved as part of the permit. extent possible.’’ Most of the rules that factor in determining what is possible
although they may not reject an of our rules. Our review indicates that measures that may be employed to
environmentally protective alternative 40 CFR 230.70 through 230.75 would accomplish the sediment control
solely on the basis of cost. Similarly, as have relatively little relevance to surface requirements of paragraph (a).
part of its responsibility to balance coal coal mining and reclamation operations, At one time, paragraph (b)(2) of 30
production with environmental but we invite comment on whether CFR 816.46 and 817.46 prescribed
protection, the regulatory authority incorporation of those Clean Water Act siltation structures (sedimentation
should not rely solely upon cost rules would be appropriate. ponds and other treatment facilities
considerations in determining the with point-source discharges) as the best
meaning of ‘‘to the extent possible.’’ L. What does the phrase ‘‘best technology currently available for
Proposed 30 CFR 780.25(d)(1), technology currently available’’ mean in sediment control. However, that
780.35(a)(3), 780.16(d)(1), and these rules? paragraph was struck down upon
784.19(a)(3), require that permit Our regulations at 30 CFR 701.5 judicial review because the court found
applicants conduct an analysis of define ‘‘best technology currently that we did not articulate a sufficient
alternatives for excess spoil fills and available’’ to mean— basis for the rule under the
coal mine waste disposal structures. equipment, devices, systems, methods, or Administrative Procedure Act. In
Those rules provide that, to the extent techniques which will (a) prevent, to the particular, the court held that the
possible, permit applicants must select extent possible, additional contributions of preamble to the rulemaking did not
the alternative that would have the least suspended solids to stream flow or runoff adequately discuss the benefits and
overall adverse environmental impact. outside the permit area, but in no event result drawbacks of siltation structures and
The interpretation of ‘‘possible’’ in contributions of suspended solids in alternative sediment control methods
required under those proposed rules is excess of requirements set by applicable State and did not enable the court ‘‘to discern
or Federal laws; and (b) minimize, to the
similar to the way that the term extent possible, disturbances and adverse
the path taken by [the Secretary] in
‘‘practicable’’ is applied under 40 CFR impacts on fish, wildlife and related responding to commenters’’ concerns’’
230.10(a)(2) for purposes of section 404 environmental values, and achieve that siltation structures in the West are
of the Clean Water Act. That is, the enhancement of those resources where not the best technology currently
proposed rules state that an alternative practicable. The term includes equipment, available. See In re: Permanent Surface
is possible if it is capable of being done devices, systems, methods, or techniques Mining Regulation Litigation II, Round
after consideration of cost, logistics, and which are currently available anywhere as III, 620 F. Supp. 1519, 1566–1568
available technology. The rules further determined by the Director, even if they are (D.D.C. July 15, 1985). Consequently, on
not in routine use. The term includes, but is
clarify that the least costly alternative not limited to, construction practices, siting
November 20, 1986 (51 FR 41961), we
may not be selected under this standard requirements, vegetative selection and suspended the regulations that the court
at the expense of environmental planting requirements, animal stocking struck down.
protection solely on the basis of cost. requirements, scheduling of activities and On November 13, 1990 (55 FR 47430–
We recognize that the proposed design of sedimentation ponds in accordance 47435), we proposed to revise 30 CFR
clarification is subjective and we invite with 30 CFR parts 816 and 817. Within the 816.45, 817.45, 816.46(b)(2), and
comment on whether it could or should constraints of the permanent program, the 817.46(b)(2) to reestablish siltation
be made more objective. regulatory authority shall have the discretion structures as the best technology
On January 7, 2004, 69 FR 1036, 1047, to determine the best technology currently currently available for sediment control
available on a case-by-case basis, as
we proposed to adopt a similar phrase on surface coal mining and reclamation
authorized by the Act and this chapter.
(‘‘to the maximum extent possible’’) as operations in areas receiving more than
part of 30 CFR 780.18(b)(3). Several We are not proposing to revise that 26 inches of average annual
commenters suggested that we replace definition. It is a definition that clearly precipitation. Regulatory authorities in
‘‘possible’’ with ‘‘practicable’’ or embraces a wide range of activities, areas with less than that amount of
‘‘technologically and economically including those that may not be in precipitation would have been able to
feasible.’’ Other commenters stated that routine use, if the regulatory authority specify alternative sediment control
the proposed language was too vague, determines they are currently available measures as the best technology
but they did not provide suggested and will work. As such, it is sufficiently currently available through the program
replacement language. flexible to include new techniques amendment process. Most commenters
In this proposed rule, we are not developed over time that were not opposed that approach and we never
proposing any of the previous contemplated or in use at the time the adopted the proposed rule, in part
commenters’ suggestions for several definition was promulgated. Similarly, because it could have inhibited the
reasons. First, ‘‘possible’’ is the term it is sufficiently flexible to include development and implementation of
used in the pertinent sections of techniques that are not contemplated or new and innovative practices to control
SMCRA. Therefore, it is the term that in use today. Consequently, we cannot sediment. We decided that the
should be used in the regulations state with specificity what measures regulatory authority should retain the
implementing those sections of the Act. would constitute the best technology discretion to determine what sediment
Second, the replacement language currently available in all situations. control practices constitute the best
suggested by several commenters is no Our regulations at 30 CFR 816.45 and technology currently available. Our
less vague or more specific than 817.45 address sediment control decision not to adopt the 1990 proposed
‘‘possible.’’ However, we acknowledge measures and requirements for all rule meant that the 1986 suspension
that a more specific approach might be surface coal mining and reclamation remained in place. As part of this
desirable and we welcome additional operations. Paragraph (a)(1) of those proposed rule, we are proposing to
suggestions on how we could define the sections reiterates the requirements of remove the suspended rules to
phrase ‘‘to the extent possible.’’ sections 515(b)(10)(B)(i) and minimize the potential for confusion on
We also received a comment 516(b)(9)(B) of SMCRA concerning the part of persons reading the Code of
suggesting that, to reduce ambiguity, we prevention of additional contributions Federal Regulations.
propose to incorporate 40 CFR 230.70 of suspended solids to streamflow or In addition to the definition of best
through 230.75 (part of the Clean Water runoff outside the permit area. technology currently available in 30
Act Section 404(b)(1) Guidelines) as part Paragraph (b) of those rules lists various CFR 701.5 and the sediment control
regulations at 30 CFR 816.45 and 817.45 related permitting requirements at 30 this preamble with respect to proposed
discussed above, the legislative history CFR 780.16 and 784.21 apply to all 30 CFR 780.35(a)(4), for example.
of section 515(b)(15)(B)(i) of SMCRA aspects of surface coal mining and
VII. Are we considering any
provides some guidance as to what reclamation operations, including those
alternatives to this proposed rule?
measures Congress considered to be the activities that would not be subject to
best technology currently available at the prohibition on disturbance of the Yes. The draft environmental impact
that time to control sedimentation from surface of lands within 100 feet of statement for this proposed rule
minesites: waters of the United States under our includes an analysis of five rulemaking
Similarly, technology exists to prevent proposed revisions to 30 CFR 816.57 alternatives, which are summarized
increased sediment loads resulting from and 817.57. below. The proposed rule that we are
mining from reaching streams outside the The preamble to 30 CFR 816.97(a) and publishing today reflects Alternative 1,
permit area. Sediment or siltation control 817.97(a) states that those rules ‘‘allow which is our preferred alternative.
systems are generally designed on a mine-by- an operator to consult any technical However, we invite comment on
mine basis which could involve several whether we should adopt all or part of
drainage areas or on a small-drainage-area authorities on conservation methods to
assure their compliance with the the other alternatives or variants thereof
basis which may serve several mines. There
are a number of different measures that when statutory requirement for use of the best in lieu of all or part of the proposed
applied singly or in combination can remove technology currently available.’’ 48 FR rule.
virtually all sediment or silt resulting from 30317, June 30, 1983. We anticipate that A. No Action Alternative
the mining operation. A range of individual State and Federal fish and wildlife, land
siltation control measures includes: erosion management, and conservation agencies Under this alternative, we would not
and sediment control structures, chemical
will be a useful resource in assisting the adopt any new or revised rules. The
soil stabilizers, mulches, mulch blankets, and current regulations applicable to excess
special control practices such as adjusting permittee and the regulatory authority
in determining the best technology spoil generation, coal mine waste
the timing and sequencing of earth disposal, fill construction, and stream
movement, pumping drainage, and currently available under 30 CFR
establishing vegetative filter strips. 780.16, 784.21, 816.97(a), and 817.97(a). buffer zones would remain unchanged.
H.R. Rep. No. 95–218 at 114 (April 22, 1977). For example, the Bureau of Land B. Alternative 1: Preferred Alternative
Furthermore, in Directive TSR–3, Management within the U.S. This is the alternative that we are
‘‘Sediment Control Using the Best Department of the Interior has proposing to adopt in this proposed
Technology Currently Available,’’ dated developed best management practices rule. In short, under this alternative, we
November 2, 1987, we state that we relating to stream crossings (see http:// would revise our rules to—
anticipate ‘‘that in most cases www.blm.gov/wo/st/en/prog/energy/ • Require the permit applicant to
sedimentation ponds or some other oil_and_gas/ demonstrate that the operation has been
siltation structure will be BTCA [the best_management_practices/ designed to minimize the volume of
best technology currently available]’’ for technical_information.html) and the excess spoil to the extent possible.
sedimentation control. Finally, the Utah Division of Oil, Gas and Mining • Require that excess spoil fills be
preamble to the 1990 proposed rule lists has published ‘‘The Practical Guide to designed and constructed to be no larger
numerous literature resources Reclamation in Utah’’ (see https:// than needed to accommodate the
concerning the best technology fs.ogm.utah.gov/PUB/MINES/ anticipated volume of excess spoil that
currently available for sedimentation Coal_Related/RecMan/ the proposed operation will generate.
control. See the footnotes at 55 FR Reclamation_Manual.pdf). Chapter 2 of • Require that permit applicants for
47431–47433, November 13, 1990. The the latter document discusses stream operations that would generate excess
preamble notes that ‘‘[t]he effectiveness restoration and streambank spoil develop various alternative excess
of specific practices may be restricted to bioengineering. spoil disposal plans in which the size,
specific areas and be dependent upon Other measures that might constitute numbers, configuration, and locations of
variables such as geomorphology, best technology currently available for the fills vary; submit an analysis of the
hydrology, climate and engineering both sedimentation control and environmental impacts of those
design.’’ Id. at 47342, col. 1. minimization of adverse impacts to fish, alternatives; and select the alternative
As previously noted, SMCRA does not wildlife, and related environmental with the least overall adverse
limit use of the term ‘‘best technology values include analysis of alternatives environmental impact or demonstrate to
currently available’’ to the sediment during the mine planning process; the satisfaction of the regulatory
control requirements of sections mining and reclamation techniques, and authority why implementation of that
515(b)(10)(B)(i) and 516(b)(9)(B). facility construction and operational alternative is not possible.
Sections 515(b)(24) and 516(b)(11) of considerations. In some cases, the best • Require that excess spoil fills be
SMCRA also require use of the best technology currently available may constructed in accordance with the
technology currently available to consist primarily of minimizing the plans approved in the permit and in a
minimize disturbances and adverse amount of land and waters affected. We manner that minimizes disturbances to
impacts on fish, wildlife, and related anticipate that the analysis of and adverse impacts on fish, wildlife,
environmental values. Sections alternatives and site selection and related environmental values to the
515(b)(24) and 516(b)(11) are primarily requirements of 30 CFR 780.25(d), extent possible, using the best
implemented by 30 CFR 816.97 and 784.16(d), 780.35(a), and 784.19(a) technology currently available.
817.97, which reiterate and expand would be the primary means of • Require that permit applicants for
upon the statutory requirement to use demonstrating use of the best operations that would include coal mine
the best technology currently available technology currently available for waste disposal structures identify
to protect and enhance (where disposal of excess spoil and coal mine alternative disposal methods and
practicable) fish, wildlife, and related waste, although construction alternative locations for any disposal
environmental values. Like the other methodology and mining and structures; analyze the viability and
regulations discussed in this part of the reclamation techniques also may be environmental impacts of each
preamble, those requirements and the significant, as discussed in Part VI.D. of alternative; and select the alternative
with the least overall adverse quality standards,’’ by replacing the changes that we are proposing. In
environmental impact or demonstrate to phrase ‘‘adversely affect’’ with particular, we invite comment on the
the satisfaction of the regulatory ‘‘significantly degrade,’’ and by extent to which our rules can or should
authority why implementation of that replacing the phrase ‘‘of the stream’’ incorporate broad references to Clean
alternative is not possible. with ‘‘of the waters outside the permit Water Act requirements and use Clean
• Revise the stream buffer zone rules area.’’ In addition, this variant would Water Act terminology in place of
to apply to all waters of the United add a new finding that would require SMCRA terminology. We also invite
States and modify the permit minimization of disturbances and comment on whether and how our
application requirements accordingly; adverse impacts on fish, wildlife, and preferred alternative and this variant
identify those activities that are not other related environmental values of differ in terms of impact on the ability
subject to the prohibition on conducting the waters to the extent possible using of proposed surface coal mining and
mining and reclamation activities on the the best technology currently available. reclamation operations to qualify for a
surface of lands within 100 feet of Under the variant, the revised rule at nationwide permit under section 404 of
waters of the United States; consolidate 30 CFR 816.57 would read as follows: the Clean Water Act.
and revise requirements for stream- (a) Except as provided in paragraph (b) of
channel diversions in 30 CFR 816.43 C. Alternative 2: January 7, 2004,
this section, no land within 100 feet of waters Proposed Rule
and 817.43, and replace the existing of the United States may be disturbed by
findings regarding stream water quantity surface mining activities. Under this alternative, we would
and quality and State and Federal water (b) The regulatory authority may revise our regulations in a manner
quality standards with language that specifically authorize surface mining similar to that set forth in our January
better correlates with the underlying activities closer to, or through, waters of the
7, 2004, proposed rule (69 FR 1036). In
provisions of SMCRA (paragraphs United States only upon finding that those
activities— essence, the changes to our excess spoil
(b)(10)(B)(i) and (24) of section 515 and regulations would be generally
paragraphs (b)(9)(B) and (11) of section (1) Would not cause or contribute to the
violation of applicable State or Federal water analogous to the changes described in
516). quality standards, as indicated by issuance of Alternative 1, but we would not make
At the suggestion of one of the a certification under section 401 of the Clean similar changes to our coal mine waste
agencies with which we consulted in Water Act or a permit under section 402 or disposal rules. With respect to the
developing our proposed rule, we also 404 of the Clean Water Act; stream buffer zone rules, we would
seek comment on a variant of this (2) Would not significantly degrade the retain the prohibition on disturbance of
alternative, which, like the proposed water quantity or quality or other
land within 100 feet of a perennial or
rule, would revise the buffer zone rule environmental resources of the waters
outside the permit area; and intermittent stream, but alter the
to apply to all waters of the United
(3) Would minimize disturbances and findings that the regulatory authority
States, not just to perennial and
adverse impacts on fish, wildlife, and other must make before granting a variance to
intermittent streams. Like the proposed
related environmental values of the waters to this requirement. The revised rule
rule, it would eliminate paragraph (a)(2)
the extent possible using the best technology would replace the Clean Water Act-
of existing 30 CFR 816.57 and 817.57, currently available. oriented findings in the existing rule
which contains a requirement for a
Apart from its expansion to include with a requirement that the regulatory
finding that stream-channel diversions
will comply with 30 CFR 816.43 or all waters of the United States, this authority find in writing that the
817.43. This finding is unnecessary variant would largely preserve the status activities will, to the extent possible,
because the referenced rules already quo in terms of application of the use the best technology currently
apply to all diversions, not just to existing stream buffer zone rules. The available to prevent additional
stream-channel diversions. Also, as in revised rule language would be more contributions of suspended solids to the
the proposed rule, paragraph (b) of consistent than the existing rule section of stream within 100 feet
existing 30 CFR 816.57 and 817.57, language with the historical application downstream of the mining activities,
which requires that buffer zones be of the 1983 stream buffer zone rules and and outside the area affected by mining
marked, would be deleted and merged related appellate court decisions, which activities; and minimize disturbances
with our other signs and markers we discussed earlier in Part III.D. of this and adverse impacts on fish, wildlife,
requirements at 30 CFR 816.11(e) and preamble. The change from ‘‘adversely and other related environmental values
817.11(e). affect’’ to ‘‘significantly degrade’’ would of the stream.
However, the variant otherwise would replace language of uncertain Under this alternative, the revised
retain much of the existing stream buffer provenance with language similar to rule would apply to all activities.
zone rule language at 30 CFR 816.57(a) that found in the regulations at 40 CFR Persons seeking to conduct surface
and 817.57(a), with several 230.10(c) implementing section 404 of mining activities (or, for underground
modifications. The first modification the Clean Water Act, which pertains to mines, surface activities) on the surface
would revise paragraph (a)(1), which placement of dredged or fill materials in of lands within the buffer of protected
currently requires that the regulatory waters of the United States. The waters would have to seek and obtain a
authority find that the ‘‘mining proposed new finding in paragraph variance from the regulatory authority
activities will not cause or contribute to (a)(3) would reiterate the requirements in all cases. There would be no
the violation of applicable State or of section 515(b)(24) of SMCRA. categorical exceptions for certain
Federal water quality standards, and This variant would include numerous activities as there are under Alternative
will not adversely affect the water references to Clean Water Act-related 1.
quantity and quality or other procedures and terminology. It would

D. Alternative 3: Change Only the
environmental resources of the stream,’’ not as closely reflect the language and
Excess Spoil Regulations
by inserting the clause ‘‘as indicated by requirements of the underlying
issuance of a certification under section provisions of SMCRA as would the Under this alternative, we would
401 of the Clean Water Act or a permit proposed rule. We seek comment on the revise our excess spoil regulations as
under section 402 or 404 of the Clean benefits and drawbacks of this variant as described in Alternative 1. We would
Water Act’’ after ‘‘State or Federal water contrasted with the buffer zone rule not revise our coal mine waste disposal
rules or the stream buffer zone If you wish to testify at a hearing the circumstances in which the
regulations. please contact the person listed in FOR prohibition in the buffer zone rule
FURTHER INFORMATION CONTACT, either applies. The revisions are not expected
E. Alternative 4: Change Only the
orally or in writing, by 4:30 p.m., to have an adverse economic impact on
Stream Buffer Zone Regulations
Eastern time, on September 24, 2007. If states and Indian tribes or the regulated
Under this alternative, we would no one expresses an interest in testifying industry.
revise our stream buffer zone at a hearing by that date, we will not Some of the regulatory changes will
regulations as described in Alternative hold a hearing. If only one person result in an increase in the costs and
1. We would not revise our excess spoil expresses an interest, we will hold a burdens placed on coal operators and
or coal mine waste disposal regulations. public meeting rather than a hearing. primacy states. We preliminarily
We will place a summary of the public estimate that the total annual cost
VIII. How do I submit comments on the increase for operators would be
proposed rule? meeting in the docket for this
rulemaking. approximately $240,500, while the total
General Guidance The public hearing will continue on annual cost increase for primacy states
the specified date until all persons would be approximately $24,200. These
We will review and consider all increases are a result of the requirement
comments that we receive, but the most scheduled to speak have been heard. If
you are in the audience and have not to document the analyses and findings
helpful comments and the ones most required by the revised rules. The cost
likely to influence the final rule are been scheduled to speak but wish to do
so, you will be allowed to testify after increases will principally affect those
those that include citations to and coal operators and states (Kentucky,
analyses of SMCRA, its legislative the scheduled speakers. We will end the
hearing after all persons scheduled to Virginia, and West Virginia) located in
history, its implementing regulations, the steep-slope terrain of the central
case law, other pertinent Federal laws or speak and persons present in the
audience who wish to speak have been Appalachian coalfields, where the bulk
regulations, technical literature, or other of excess spoil is generated. Because all
relevant publications or that involve heard. To assist the transcriber and
ensure an accurate record, we request, if regulatory authorities in the
personal experience. Your comments Appalachian coalfields have
should reference a specific portion of possible, that each person who testifies
at a public hearing provide us with a implemented policies to minimize the
the proposed rule or preamble, be volume of excess spoil disposed of
confined to issues pertinent to the written copy of his or her testimony.
Public meeting: We may hold a public outside the mined-out area, we expect
proposed rule, explain the reason for no significant additional costs of
any recommended change or objection, meeting in place of a public hearing if
there is only limited interest in a implementing these regulatory changes
and include supporting data when other than those associated with the
appropriate. hearing. If you wish to meet with us to
discuss the proposed rule, you may alternatives analysis required for the
Please include the rule identification disposal of excess spoil and coal mine
number ‘‘RIN 1029–AC04’’ at the request a meeting by contacting the
person listed under FOR FURTHER waste. Because of the preliminary
beginning of all written comments. We nature of this assessment, the agency
INFORMATION CONTACT. All meetings will
will log all comments that are received will conduct a more comprehensive
prior to the close of the comment period be open to the public and, if
appropriate, we will post notice of the analysis to assess the effect of this rule
into the docket for this rulemaking; for the final rule stage. We request
however, we cannot ensure that meetings. We will include a written
summary of the meeting in the docket comments, specifically studies or data,
comments received after the close of the that would inform the agency on the
comment period (see DATES) or at for this rulemaking.
effects of this rule.
locations other than those listed above IX. Procedural Matters and Required b. This rule would not create a serious
(see ADDRESSES) will be included in the Determinations inconsistency or otherwise interfere
docket for this rulemaking or considered with an action taken or planned by
in the development of a final rule. A. Executive Order 12866—Regulatory
Planning and Review another agency.
Public Availability of Comments c. This rule would not alter the
This proposed rule is considered a budgetary effects of entitlements, grants,
Before including your address, phone ‘‘significant regulatory action’’ under user fees, or loan programs or the rights
number, or other personal identifying Executive Order 12866 and is subject to or obligations of their recipients.
information in your comment, you review by the Office of Management and
should be aware that your entire Budget (OMB) because it may raise B. Executive Order 13211—Actions
comment—including your personal novel legal or policy issues, as Concerning Regulations That
identifying information—may be made discussed in the preamble. Significantly Affect Energy Supply,
publicly available at any time. While With respect to other determinations Distribution, or Use
you can ask us in your comment to required under Executive Order 12866— This proposed rule is not considered
withhold your personal identifying a. This rule would not have an annual a significant energy action under
information from public review, we effect of $100 million or more on the Executive Order 13211. The revisions
cannot guarantee that we will be able to economy. It would not adversely affect contained in this proposed rule would
do so. in a material way the economy, not have a significant effect on the
productivity, competition, jobs, the supply, distribution, or use of energy.
Public Hearings environment, public health or safety, or
C. Regulatory Flexibility Act
We will hold a public hearing on the state, local, or tribal governments or

proposed rule only if we receive a communities. The revisions contained The Department of the Interior
request to do so from more than one in the rule are intended to (1) minimize certifies that this proposed rule would
person. We will announce the time, the adverse environmental impacts not have a significant economic impact
date, and address for any hearing in the stemming from the construction of on a substantial number of small entities
Federal Register at least 7 days before excess spoil fills and coal mine waste under the Regulatory Flexibility Act (5
the hearing. impoundments and fills, and (2) clarify U.S.C. 601 et seq.). For the reasons
previously stated, the revisions would I. Executive Order 13175—Consultation of the Act and regulatory program.
not be expected to have an adverse and Coordination With Indian Tribal Without this information, OSM and
economic impact on the regulated Governments state regulatory authorities could not
industry including small entities. We have evaluated the potential approve permit applications for
Further, the rule would produce no effects of this proposed rule on federally underground coal mines and related
adverse effects on competition, recognized Indian tribes and have facilities.
employment, investment, productivity, determined that its provisions would Bureau Form Number: None.
innovation, or the ability of United not have substantial direct effects on the Frequency of Collection: Once.
States enterprises to compete with Description of Respondents:
relationship between the Federal
foreign-based enterprises in domestic or Applicants for underground coal mine
Government and Indian tribes or on the
export markets. permits and state regulatory authorities.
distribution of power and
Total Annual Respondents: 62
D. Small Business Regulatory responsibilities between the Federal
applicants and 24 state regulatory
Enforcement Fairness Act Government and Indian tribes.
authorities.
This proposed rule is not a major rule J. Paperwork Reduction Act Total Annual Burden Hours: 21,761.
under 5 U.S.C. 804(2), the Small In accordance with 44 U.S.C. 3507(d), Non-Labor Cost Burden: $612,106.
Business Regulatory Enforcement we have submitted the information 30 CFR Parts 816 and 817
Fairness Act. For the reasons stated collection and recordkeeping
Title: Permanent Program
above, the proposed rule would not— requirements of 30 CFR parts 780, 784,
Performance Standards—Surface and
a. Have an annual effect on the 816, and 817 to OMB for review and
Underground Mining Activities.
economy of $100 million or more. approval. OMB Control Number: 1029–0047.
b. Cause a major increase in costs or 30 CFR Part 780 Summary: Sections 515 and 516 of the
prices for consumers, individual Title: Surface Mining Permit Surface Mining Control and
industries, Federal, state, or local Applications—Minimum Requirements Reclamation Act of 1977 provides that
government agencies, or geographic for Reclamation and Operation Plan. permittees conducting coal mining and
regions. OMB Control Number: 1029–0036. reclamation operations shall meet all
c. Have significant adverse effects on Summary: Sections 507 and 508 of the applicable performance standards of the
competition, employment, investment, Act contain permit application regulatory program approved under the
productivity, innovation, or the ability requirements for surface coal mining Act. The information collected is used
of U.S.-based enterprises to compete activities, including a requirement that by the regulatory authority in
with foreign-based enterprises. the application include an operation monitoring and inspecting surface coal
and reclamation plan. The regulatory mining activities to ensure that they are
E. Unfunded Mandates conducted in compliance with the
authority uses this information to
This proposed rule would not impose determine whether the proposed surface requirements of the Act.
an unfunded mandate on state, local, or coal mining operation will achieve the Bureau Form Number: None.
tribal governments or the private sector environmental protection requirements Frequency of Collection: Once, on
of more than $100 million per year. The of the Act and regulatory program. occasion, quarterly and annually.
rule would not have a significant or Without this information, OSM and Description of Respondents: Coal
unique effect on state, tribal, or local state regulatory authorities could not mine operators, permittees, permit
governments or the private sector. A approve permit applications for surface applicants, and state regulatory
statement containing the information coal mines and related facilities. authorities.
required by the Unfunded Mandates Bureau Form Number: None. Total Annual Respondents: 4,764
Reform Act (2 U.S.C. 1534) is not Frequency of Collection: Once. permittees and 24 state regulatory
required. Description of Respondents: authorities.
Applicants for surface coal mining Total Annual Burden Hours:
F. Executive Order 12630—Takings permits and state regulatory authorities. 1,039,351.
Total Annual Respondents: 232 Non-Labor Cost Burden: $371,046.
Because of the nature of the rules that Comments are invited on:
would be revised, the proposed rule applicants and 24 state regulatory
authorities. (a) Whether the proposed collection of
would not have significant takings information is necessary for SMCRA
implications. Total Annual Burden Hours: 168,871.
Non-Labor Cost Burden: $2,424,900. regulatory authorities to implement
G. Executive Order 13132—Federalism their responsibilities, including whether
30 CFR Part 784 the information will have practical
For the reasons discussed above, the Title: Underground Mining Permit utility.
proposed rule would not have Applications—Minimum Requirements (b) The accuracy of our estimate of the
significant federalism implications. for Reclamation and Operation Plan. burden of the proposed collection of
Consequently, there is no need to OMB Control Number: 1029–0039. information.
prepare a federalism assessment. Summary: Among other things, (c) Ways to enhance the quality,
H. Executive Order 12988—Civil Justice section 516(d) of SMCRA, 30 U.S.C. utility, and clarity of the information to
Reform 1266(d), in effect requires applicants for be collected.
permits for underground coal mines to (d) Ways to minimize the burden of
The Office of the Solicitor for the prepare and submit an operation and collection on the respondents.
Department of the Interior has reclamation plan for coal mining Under the Paperwork Reduction Act,
determined that this proposed rule activities as part of the application. The we must obtain OMB approval of all
would not unduly burden the judicial regulatory authority uses this information and recordkeeping
system and that it meets the information to determine whether the requirements. No person is required to
requirements of sections 3(a) and 3(b)(2) plan will achieve the reclamation and respond to an information collection
of the Executive Order. environmental protection requirements request unless the form or regulation
requesting the information has a (2) Does the proposed rule contain 3. Section 780.10 is revised to read as
currently valid OMB control (clearance) technical language or jargon that follows:
number. These numbers appear in interferes with its clarity?
sections 780.10, 784.10, 816.10, and (3) Does the format of the proposed § 780.10 Information collection.
817.10 of 30 CFR parts 780, 784, 816, rule (grouping and order of sections, use In accordance with 44 U.S.C. 3501 et
and 817, respectively. To obtain a copy of headings, paragraphing, etc.) aid or seq., the Office of Management and
of our information collection clearance reduce its clarity? Budget (OMB) has approved the
requests, contact John A. Trelease at (4) Would the rule be easier to information collection requirements of
(202) 208–2783 or by e-mail at understand if it were divided into more this part and assigned clearance number
jtrelease@osmre.gov. but shorter sections (a ‘‘section’’ appears 1029–0036. Sections 507 and 508 of
By law, OMB must respond to us in bold type and is preceded by the SMCRA contain permit application
within 60 days of publication of this symbol ‘‘§ ’’ and a numbered heading; requirements for surface coal mining
proposed rule, but it may respond as for example, ‘‘§ 780.14 Operation plan: activities, including a requirement that
soon as 30 days after publication. Maps and plans.’’)? the application include an operation
Therefore, to ensure consideration by (5) Is the description of the proposed and reclamation plan. The regulatory
OMB, you must send comments rule in the SUPPLEMENTARY INFORMATION authority uses this information to
regarding these burden estimates or any part of this preamble helpful in determine whether the proposed surface
other aspect of these information understanding the proposed rule? coal mining operation will achieve the
collection and recordkeeping (6) What else could we do to make the environmental protection requirements
requirements by September 24, 2007 to proposed rule easier to understand? of the Act and regulatory program.
the Office of Management and Budget, Send a copy of any comments that Without this information OSM and state
Office of Information and Regulatory concern how we could make this regulatory authorities could not approve
Affairs, Attention: Interior Desk Officer, proposed rule easier to understand to: permit applications for surface coal
via e-mail to Office of Information and Regulatory mines and related facilities. Persons
OIRA_DOCKET@omb.eop.gov, or via Affairs, Department of the Interior, intending to conduct such operations
facsimile to (202) 395–6566. Also, send Room 7229, 1849 C Street, NW., must respond to obtain a benefit. A
a copy of your comments to John A. Washington, DC 20240. You may also Federal agency may not conduct or
Trelease, Office of Surface Mining e-mail the comments to this address: sponsor, and you are not required to
Reclamation and Enforcement, 1951 Exsec@ios.doi.gov. respond to, a collection of information
Constitution Ave., NW., Room 202 SIB, unless it displays a currently valid OMB
List of Subjects
Washington, DC 20240, or electronically control number.
to jtrelease@osmre.gov. You may still 30 CFR Part 780 4. Amend § 780.14 by revising
send comments on the proposed Reporting and recordkeeping paragraphs (b)(11) and (c) to read as
rulemaking to us until 4:30 p.m., requirements, Surface mining. follows:
Eastern time, on October 23, 2007. § 780.14 Operation plan: Maps and plans.
30 CFR Part 784
K. National Environmental Policy Act * * * * *
Reporting and recordkeeping
(b) * * *
We have prepared a draft requirements, Underground mining.
(11) Locations of each siltation
environmental impact statement (DEIS) 30 CFR Part 816 structure, permanent water
for the proposed rule in accordance impoundment, refuse pile, and coal
with the National Environmental Policy Environmental protection, Reporting
and recordkeeping requirements, mine waste impoundment for which
Act. You may review the DEIS for this plans are required by § 780.25 of this
proposed rule online at http:// Surface mining.
part, and the location of each fill for the
www.regulations.gov. At that internet 30 CFR Part 817 disposal of excess spoil for which plans
address, the document is listed under are required under § 780.35 of this part.
‘‘Office of Surface Mining Reclamation Environmental protection, Reporting
and recordkeeping requirements, (c) Except as provided in
and Enforcement.’’ A notice announcing §§ 780.25(a)(2), 780.25(a)(3), 780.35,
the availabiltiy of the DEIS was Underground mining.
816.73(c), 816.74(c), and 816.81(c) of
published in this edition of the Federal Dated: August 3, 2007.
this chapter, cross-sections, maps, and
Register. That notice also lists OSM C. Stephen Allred, plans required under paragraphs (b)(4),
offices and public libraries in Kentucky, Assistant Secretary, Land and Minerals (5), (6), (10), and (11) of this section
Tennessee, Virginia, and West Virginia Management. must be prepared by, or under the
where you may review the DEIS. We For the reasons set forth in the direction of, and certified by a qualified
will complete a final environmental preamble, the Department proposes to registered professional engineer, a
impact statement and make a finding on amend 30 CFR parts 780, 784, 816, and professional geologist, or, in any state
the significance of any potential impacts 817 as set forth below. that authorizes land surveyors to
before we publish a final rule. prepare and certify cross-sections, maps,
PART 780—SURFACE MINING PERMIT and plans, a qualified, registered,
L. Clarity of This Regulation
APPLICATIONS—MINIMUM professional land surveyor, with
Executive Order 12866 requires each REQUIREMENTS FOR RECLAMATION assistance from experts in related fields
agency to write regulations that are easy AND OPERATION PLAN such as landscape architecture.
to understand. We invite your 5. Amend § 780.25 as follows:

comments on how to make this 1. The authority citation for part 780
continues to read as follows: A. Revise the section heading,
proposed rule easier to understand, paragraph (a) introductory text,
including answers to questions such as Authority: 30 U.S.C. 1201 et seq. and 16 paragraph (a)(1) introductory text, and
the following: U.S.C. 470 et seq. paragraph (a)(2);
(1) Are the requirements in the 2. The part heading is revised to read B. In paragraph (c)(2), remove the
proposed rule clearly stated? as set forth above. words ‘‘the size or other criteria of the
Mine Safety and Health (B) Include any geotechnical analysis of alternatives for the proposed
Administration’’ and add in their place investigation, design, and construction impoundment or refuse pile under 40
the words ‘‘the criteria in § 77.216(a) of requirements for the structure; CFR 230.10, you may initially include a
this title’’, and remove the citation (C) Describe the operation and copy of that analysis in lieu of the
‘‘§§ 77.216–1 and 77.216–2’’ and add in maintenance requirements for each analysis of alternatives required under
its place ‘‘§ 77.216–2’’; structure; and paragraph (d)(1)(i)(B) of this section.
C. Revise paragraph (d); (D) Describe the timetable and plans The regulatory authority will determine
D. Remove paragraph (e), redesignate to remove each structure, if appropriate. the extent to which that analysis
paragraph (f) as paragraph (e), and * * * * * satisfies the requirements of paragraph
revise paragraph (e). (d) Coal mine waste impoundments (d)(1) of this section.
and refuse piles—(1) Analysis of (2) Avoidance and minimization of
The revisions to paragraphs (a), (d), adverse environmental impacts.
and (e) read as follows: alternatives and environmental impacts.
(i) If you, the permit applicant, propose Describe the steps that you will take to
§ 780.25 Reclamation plan: Siltation to generate or dispose of coal mine avoid the adverse environmental
structures, impoundments, and refuse waste as part of your operation, you impacts that may result from the
piles. must— construction of refuse piles or coal mine
(a) General. Each application must (A) Identify a reasonable range of waste impoundments or, if avoidance is
include a general plan and a detailed alternative disposal methods and not possible, the steps that you will take
design plan for each proposed siltation alternative locations for any proposed to minimize those impacts.
refuse piles or coal mine waste (3) Design requirements for refuse
structure, impoundment, and refuse pile
impoundments. piles. Refuse piles must be designed to
within the proposed permit area.
(B) Include an analysis of the viability comply with the requirements of
(1) Each general plan must— §§ 816.81 and 816.83 of this chapter.
and environmental impacts of each
* * * * * (4) Design requirements for
alternative identified. You must
(2)(i) Impoundments meeting the consider impacts on both terrestrial and impoundments and impounding
criteria for Significant Hazard Class or aquatic ecosystems. structures. (i) Impounding structures
High Hazard Class (formerly Class B or (C) To the extent possible, select the constructed of or intended to impound
C) dams in ‘‘Earth Dams and alternative with the least overall adverse coal mine waste must be designed to
Reservoirs,’’ Technical Release No. 60 environmental impact, including comply with the requirements of
(210–VI–TR60, July 2005), published by adverse impacts on water quality and §§ 816.81 and 816.84 of this chapter.
the U.S. Department of Agriculture, (ii) The plan for each structure that
aquatic ecosystems. An alternative is
Natural Resources Conservation Service, meets the criteria of § 77.216(a) of this
possible if it is capable of being done
must comply with the requirements of title must comply with the requirements
after consideration of cost, logistics, and
this section for structures that meet the of § 77.216–2 of this title.
available technology. This provision (iii) Each plan for a coal mine waste
criteria in § 77.216(a) of this title. does not authorize selection of the least
Technical Release No.60 (TR–60) is impoundment must contain the results
costly alternative at the expense of of a geotechnical investigation to
hereby incorporated by reference. The environmental protection solely on the
Director of the Federal Register determine the structural competence of
basis of cost. If you propose to select an the foundation that will support the
approves this incorporation by reference alternative other than the one that
in accordance with 5 U.S.C. 552(a) and proposed impounding structure and the
provides the most environmental impounded material. An engineer or
1 CFR part 51. You may review and protection, you must demonstrate, to the
download the incorporated document engineering geologist must plan and
satisfaction of the regulatory authority, supervise the geotechnical investigation.
from the Natural Resources why implementation of the more
Conservation Service’s Web site at In planning the investigation, the
environmentally protective alternative engineer or geologist must—
http://www.info.usda.gov/scripts/ is not possible.
lpsiis.dll/TR/TR_210_60.htm. You may (A) Determine the number, location,
(ii) For every alternative under and depth of borings and test pits using
inspect a copy of this document as part paragraph (d)(1)(i)(A) of this section that
of the docket that we, the Office of current prudent engineering practice for
would involve placement of coal mine the size of the impoundment and the
Surface Mining Reclamation and waste in waters of the United States, the
Enforcement, maintain at 1951 impounding structure, the quantity of
analysis required under paragraph material to be impounded, and
Constitution Avenue, NW., Washington, (d)(1)(i)(B) of this section must include
DC 20240. You also may inspect a copy subsurface conditions.
an evaluation of the short-term and (B) Consider the character of the
of this document at the National long-term impacts on the aquatic
Archives and Records Administration overburden and bedrock, the proposed
ecosystem, both individually and on a abutment sites for the impounding
(NARA). For information on the cumulative basis. In evaluating
availability of this material at NARA, structure, and any adverse geotechnical
alternatives subject to this paragraph, conditions that may affect the particular
call 202–741–6030 or go to http:// you must consider impacts on the
www.archives.gov/federal-register/cfr/ impoundment.
physical, chemical, and biological (C) Identify all springs, seepage, and
ibr-locations.html. characteristics of downstream flows, groundwater flow observed or
(ii) Each detailed design plan for a including seasonal variations in anticipated during wet periods in the
structure that meets the criteria in temperature and volume, changes in area of the proposed impoundment.
§ 77.216(a) of this title must— stream turbidity or sedimentation, the (D) Consider the possibility of
(A) Be prepared by, or under the degree to which the coal mine waste mudflows, rock-debris falls, or other
direction of, and certified by a qualified may introduce or increase landslides into the impoundment or
registered professional engineer with contaminants, the effects on aquatic impounded material.
assistance from experts in related fields organisms, and the extent to which (e) If the structure meets the
such as geology, land surveying, and wildlife is dependent upon those Significant Hazard Class or High Hazard
landscape architecture; organisms. If you have prepared an Class criteria for dams in TR–60 or
meets the criteria of § 77.216(a) of this measures proposed under paragraph (c) authority, that the operation has been
title, each plan under paragraphs (b), (c), of this section, the regulatory authority designed to minimize, to the extent
and (d) of this section must include a must determine that those measures— possible, the volume of excess spoil that
stability analysis of the structure. The (1) Would be no less effective in the operation will generate, thus
stability analysis must include, but not meeting the requirements of the ensuring that spoil is returned to the
be limited to, strength parameters, pore regulatory program than the prohibition mined-out area to the extent possible,
pressures, and long-term seepage in § 816.57(a) of this chapter on taking into consideration applicable
conditions. The plan also must contain disturbance of the surface of lands regulations concerning restoration of the
a description of each engineering design within 100 feet of waters of the United approximate original contour, safety,
assumption and calculation with a States; and stability, and environmental protection
discussion of each alternative (2) Constitute the best technology and the needs of the proposed
considered in selecting the specific currently available to— postmining land use.
design parameters and construction (i) Prevent the contribution of (2) Capacity demonstration. A
methods. additional suspended solids to demonstration that the designed
6. Add § 780.28 to read as follows: streamflow or runoff outside the permit maximum cumulative volume of all
area to the extent possible; and proposed excess spoil fills within the
§ 780.28 Activities in or adjacent to waters (ii) Minimize disturbances and permit area is no larger than the
of the United States. adverse impacts on fish, wildlife, and capacity needed to accommodate the
(a) Applicability. This section applies related environmental values to the anticipated cumulative volume of
to applications to conduct activities in extent possible. excess spoil that the operation will
waters of the United States or on the (e) Requirements for activities not generate, as approved by the regulatory
surface of lands within 100 feet of subject to prohibition on disturbance. authority under paragraph (a)(1) of this
waters of the United States to the extent For activities not subject to the section.
that those waters are regulated under prohibition in § 816.57(a) of this (3) Analysis of alternatives and
the Clean Water Act, 33 U.S.C. 1311, chapter, if you propose to conduct any environmental impacts. (i) A
1362. surface mining activities in waters of the description of all alternatives
(b) Mapping requirements. Maps United States or that would disturb the considered for disposal of the amount of
prepared under §§ 779.25, 780.14, or surface of lands within 100 feet of excess spoil determined under
780.21(b)(2) of this chapter must waters of the United States, your paragraphs (a)(1) and (2) of this section
identify and delineate all— application must demonstrate, and the and an analysis of the environmental
(1) Waters of the United States within regulatory authority must find, that, to impacts of those alternatives. You must
the proposed permit area. the extent possible, you will utilize the consider impacts on both terrestrial and
(2) Waters of the United States within best technology currently available in aquatic ecosystems. The alternatives
the adjacent area, as that term is defined accordance with §§ 816.41(d) and must vary with respect to the number,
in § 701.5 of this chapter. 816.97(a) of this chapter, as required by size, location, and configuration of
(3) Lands within the proposed permit §§ 780.16(b) and 780.21(h) of this part. proposed fills to ensure consideration of
area that lie within 100 feet, measured (f) Relationship to the Clean Water a reasonable range of alternatives and
horizontally, of any waters of the United Act. (1) In all cases, your application potential environmental impacts.
States. must identify the authorizations and (ii) For every alternative under
(c) Application requirements for certifications that you anticipate will be paragraph (a)(3)(i) of this section that
variance from prohibition on needed under sections 401, 402, and would involve placement of excess spoil
disturbance. If you propose to conduct 404 of the Clean Water Act, 33 U.S.C. in waters of the United States, the
an activity that is subject to the 1341, 1342, and 1344, and describe the analysis required under that paragraph
prohibition of § 816.57(a) of this chapter steps that you have taken or will take to must include an evaluation of the short-
on the surface of any lands delineated procure those authorizations and term and long-term impacts on the
under paragraph (b)(3) of this section, certifications. aquatic ecosystem, both individually
your application must describe any (2) The regulatory authority will and on a cumulative basis. In evaluating
measures that you propose to process your application and may issue alternatives subject to this paragraph,
implement in lieu of maintaining a 100- the permit before you obtain all you must consider impacts on the
foot undisturbed buffer between surface necessary authorizations and physical, chemical, and biological
mining activities and waters of the certifications under the Clean Water characteristics of downstream flows,
United States, including the extent of Act, 33 U.S.C. 1251 et seq., provided including seasonal variations in
any lesser buffer that you propose to your application meets all applicable temperature and volume, changes in
maintain between surface mining requirements of subchapter G of this stream turbidity or sedimentation, the
activities and waters of the United chapter. However, you may not initiate degree to which the excess spoil may
States, and explain how the proposed any activities for which Clean Water Act introduce or increase contaminants, the
measures constitute the best technology authorization or certification is required effects on aquatic organisms, and the
currently available to— until you obtain all necessary extent to which wildlife is dependent
(1) Prevent the contribution of authorizations and certifications. upon those organisms. If you have
additional suspended solids to 7. Revise § 780.35 to read as follows: prepared an analysis of alternatives
streamflow or runoff outside the permit under 40 CFR 230.10, you may initially
area to the extent possible; and § 780.35 Disposal of excess spoil. submit a copy of that analysis with your
(2) Minimize disturbances and (a) If you, the permit applicant, application in lieu of the analysis of
adverse impacts on fish, wildlife, and propose to generate excess spoil as part alternatives required by paragraph
related environmental values to the of your operation, your application must (a)(3)(i) of this section. The regulatory
extent possible. include the following items— authority will determine the extent to
(d) Approval requirements for (1) Demonstration of minimization of which that analysis satisfies the
variance from prohibition on excess spoil. A demonstration, prepared analytical requirements of paragraph
disturbance. Before approving any to the satisfaction of the regulatory (a)(3)(i) of this section.
(iii) To the extent possible, you must the fill and appurtenant structures. The § 784.10 Information collection.
select the alternative with the least information submitted must include— In accordance with 44 U.S.C. 3501 et
overall adverse environmental impact, (i) The character of the bedrock and seq., the Office of Management and
including adverse impacts on water any adverse geologic conditions in the Budget (OMB) has approved the
quality and aquatic ecosystems. An proposed disposal area. information collection requirements of
alternative is possible if it is capable of (ii) A survey identifying all springs, this part and assigned clearance number
being done after consideration of cost, seepage, and groundwater flow observed 1029–0039. Collection of this
logistics, and available technology. This or anticipated during wet periods in the information is required under section
provision does not authorize selection area of the proposed disposal site. 516(d) of SMCRA, which in effect
of the least costly alternative at the (iii) A survey of the potential effects requires applicants for permits for
expense of environmental protection underground coal mines to prepare and
of subsidence of subsurface strata as a
solely on the basis of cost. If another submit an operation and reclamation
result of past and future mining
alternative considered under paragraph plan for coal mining activities as part of
operations.
(a)(3)(i) of this section would be more the application. The regulatory
environmentally protective than the (iv) A technical description of the
rock materials to be utilized in the authority uses this information to
alternative you selected, you must determine whether the plan will achieve
demonstrate, to the satisfaction of the construction of disposal structures
containing rock chimney cores or the reclamation and environmental
regulatory authority, that protection requirements of the Act and
implementation of the more underlain by a rock drainage blanket.
regulatory program. Without this
environmentally protective alternative (v) A stability analysis including, but information, OSM and state regulatory
is not possible. not limited to, strength parameters, pore authorities could not approve permit
(4) Avoidance and minimization of pressures, and long-term seepage applications for underground coal
adverse environmental impacts. A conditions. This analysis must be mines and related facilities. Persons
description of the steps that you will accompanied by a description of all intending to conduct such operations
take to avoid the adverse environmental engineering design assumptions and must respond to obtain a benefit. A
impacts that may result from the calculations and the alternatives Federal agency may not conduct or
construction of fills or, if avoidance is considered in selecting the design sponsor, and you are not required to
not possible, the steps that you will take specifications and methods. respond to, a collection of information
to minimize those impacts. (8) Operation and reclamation plans. unless it displays a currently valid OMB
(5) Location. Maps and cross-section Plans for the construction, operation, control number.
drawings showing the location of all maintenance, and reclamation of all 10. Amend § 784.16 as follows:
proposed disposal sites and structures. excess spoil disposal structures in A. Revise the section heading,
You must locate fills on the most accordance with the requirements of paragraph (a) introductory text,
moderately sloping and naturally stable §§ 816.71 through 816.74 of this paragraph (a)(1) introductory text, and
areas available, unless the regulatory chapter. paragraph (a)(2);
authority approves a different location (9) Additional requirements for B. In paragraph (c)(2), remove the
based upon the alternatives analysis keyway cuts or rock-toe buttresses. If words ‘‘the size or other criteria of the
under paragraph (a)(3) of this section or keyway cuts or rock-toe buttresses are Mine Safety and Health
other factors, taking into account other required under § 816.71(d) of this Administration’’ and add in their place
requirements of the Act and this chapter, the number, location, and the words ‘‘the criteria in § 77.216(a) of
chapter. When possible, you must place depth of borings or test pits, which must this title’’, and remove the citation
fills upon or above a natural terrace, be determined according to the size of ‘‘§§ 77.216–1 and 77.216–2’’ and add in
bench, or berm if that location would the spoil disposal structure and its place ‘‘§ 77.216–2’’;
provide additional stability and prevent subsurface conditions. You also must C. Revise paragraph (d);
mass movement. provide the engineering specifications D. Remove paragraph (e), redesignate
(6) Design plans. Detailed design paragraph (f) as paragraph (e), and
used to design the keyway cuts or rock-
plans for each structure, prepared in revise paragraph (e).
toe buttresses. Those specifications
accordance with the requirements of The revisions read as follows:
must be based upon the stability
this section and §§ 816.71 through
analysis required under paragraph
816.74 of this chapter. You must design § 784.16 Reclamation plan: Siltation
(a)(7)(v) of this section. structures, impoundments, and refuse
the fill and appurtenant structures using
current prudent engineering practices (b) Design certification. A qualified piles.
and any additional design criteria registered professional engineer (a) General. Each application must
established by the regulatory authority. experienced in the design of earth and include a general plan and a detailed
(7) Geotechnical investigation. The rock fills must certify that the design of design plan for each proposed siltation
results of a geotechnical investigation of all fills and appurtenant structures structure, impoundment, and refuse pile
each proposed disposal site, with the meets the requirements of this section. within the proposed permit area.
exception of those sites at which spoil (1) Each general plan must—
will be placed only on a pre-existing PART 784—UNDERGROUND MINING
* * * * *
bench under § 816.74 of this chapter. PERMIT APPLICATIONS—MINIMUM (2)(i) Impoundments meeting the
You must conduct sufficient foundation REQUIREMENTS FOR RECLAMATION criteria for Significant Hazard Class or
investigations, as well as any necessary AND OPERATION PLAN High Hazard Class (formerly Class B or
laboratory testing of foundation 8. The authority citation for part 784 C) dams in ‘‘Earth Dams and
material, to determine the design continues to read as follows: Reservoirs,’’ Technical Release No. 60
requirements for foundation stability for (210–VI–TR60, July 2005), published by
Authority: 30 U.S.C. 1201 et seq. and 16
each site. The analyses of foundation the U.S. Department of Agriculture,
U.S.C. 470 et seq.
conditions must take into consideration Natural Resources Conservation Service,
the effect of underground mine 9. Section 784.10 is revised to read as must comply with the requirements of
workings, if any, upon the stability of follows: this section for structures that meet the
criteria in § 77.216(a) of this title. does not authorize selection of the least (iii) Each plan for a coal mine waste
Technical Release No. 60 (TR–60) is costly alternative at the expense of impoundment must contain the results
hereby incorporated by reference. The environmental protection solely on the of a geotechnical investigation to
Director of the Federal Register basis of cost. If you propose to select an determine the structural competence of
approves this incorporation by reference alternative other than the one that the foundation that will support the
in accordance with 5 U.S.C. 552(a) and provides the most environmental proposed impounding structure and the
1 CFR part 51. You may review and protection, you must demonstrate, to the impounded material. An engineer or
download the incorporated document satisfaction of the regulatory authority, engineering geologist must plan and
from the Natural Resources why implementation of the more supervise the geotechnical investigation.
Conservation Service’s Web site at environmentally protective alternative In planning the investigation, the
http://www.info.usda.gov/scripts/ is not possible. engineer or geologist must—
lpsiis.dll/TR/TR_210_60.htm. You may (ii) For every alternative under (A) Determine the number, location,
inspect a copy of this document as part paragraph (d)(1)(i)(A) of this section that and depth of borings and test pits using
of the docket that we, the Office of would involve placement of coal mine current prudent engineering practice for
Surface Mining Reclamation and waste in waters of the United States, the the size of the impoundment and the
Enforcement, maintain at 1951 analysis required under paragraph impounding structure, the quantity of
Constitution Avenue, NW., Washington, (d)(1)(i)(B) of this section must include material to be impounded, and
DC 20240. You also may inspect a copy an evaluation of the short-term and subsurface conditions.
of this document at the National long-term impacts on the aquatic (B) Consider the character of the
Archives and Records Administration ecosystem, both individually and on a overburden and bedrock, the proposed
(NARA). For information on the cumulative basis. In evaluating abutment sites for the impounding
availability of this material at NARA, alternatives subject to this paragraph, structure, and any adverse geotechnical
call 202–741–6030 or go to http:// you must consider impacts on the conditions that may affect the particular
www.archives.gov/federal-register/cfr/ physical, chemical, and biological impoundment.
ibr-locations.html. characteristics of downstream flows, (C) Identify all springs, seepage, and
(ii) Each detailed design plan for a including seasonal variations in groundwater flow observed or
structure that meets the criteria in temperature and volume, changes in anticipated during wet periods in the
§ 77.216(a) of this title must— stream turbidity or sedimentation, the area of the proposed impoundment.
(A) Be prepared by, or under the degree to which the coal mine waste (D) Consider the possibility of
direction of, and certified by a qualified may introduce or increase mudflows, rock-debris falls, or other
registered professional engineer with contaminants, the effects on aquatic landslides into the impoundment or
assistance from experts in related fields organisms, and the extent to which impounded material.
such as geology, land surveying, and wildlife is dependent upon those (e) If the structure meets the
landscape architecture; organisms. If you have prepared an Significant Hazard Class or High Hazard
(B) Include any geotechnical analysis of alternatives for the proposed Class criteria for dams in TR–60 or
investigation, design, and construction impoundment or refuse pile under 40 meets the criteria of § 77.216(a) of this
requirements for the structure; CFR 230.10, you may initially include a chapter, each plan under paragraphs (b),
(C) Describe the operation and copy of that analysis in lieu of the (c), and (d) of this section must include
maintenance requirements for each analysis of alternatives required under a stability analysis of the structure. The
structure; and paragraph (d)(1)(i)(B) of this section. stability analysis must include, but not
(D) Describe the timetable and plans The regulatory authority will determine be limited to, strength parameters, pore
to remove each structure, if appropriate. the extent to which that analysis pressures, and long-term seepage
satisfies the requirements of paragraph conditions. The plan also must contain
* * * * * a description of each engineering design
(d) Coal mine waste impoundments (d)(1) of this section.
assumption and calculation with a
and refuse piles—(1) Analysis of (2) Avoidance and minimization of
discussion of each alternative
alternatives and environmental impacts. adverse environmental impacts.
considered in selecting the specific
(i) If you, the permit applicant, propose Describe the steps that you will take to
design parameters and construction
to generate or dispose of coal mine avoid the adverse environmental
methods.
waste as part of your operation, you impacts that may result from the
11. Revise § 784.19 to read as follows:
must— construction of refuse piles or coal mine
(A) Identify a reasonable range of waste impoundments or, if avoidance is § 784.19 Disposal of excess spoil.
alternative disposal methods and not possible, the steps that you will take (a) If you, the permit applicant,
alternative locations for any proposed to minimize those impacts. propose to generate excess spoil as part
refuse piles or coal mine waste (3) Design requirements for refuse of your operation, your application must
impoundments. piles. Refuse piles must be designed to include the following items—
(B) Include an analysis of the viability comply with the requirements of (1) Demonstration of minimization of
and environmental impacts of each §§ 817.81 and 817.83 of this chapter. excess spoil. A demonstration, prepared
alternative identified. You must (4) Design requirements for to the satisfaction of the regulatory
consider impacts on both terrestrial and impoundments and impounding authority, that the operation has been
aquatic ecosystems. structures. (i) Impounding structures designed to minimize, to the extent
(C) To the extent possible, select the constructed of or intended to impound possible, the volume of excess spoil that
alternative with the least overall adverse coal mine waste must be designed to the operation will generate, thus
environmental impact, including comply with the requirements of ensuring that spoil is returned to the
adverse impacts on water quality and §§ 817.81 and 817.84 of this chapter. mined-out area to the extent possible,
aquatic ecosystems. An alternative is (ii) The plan for each structure that taking into consideration applicable
possible if it is capable of being done meets the criteria of § 77.216(a) of this regulations concerning restoration of the
after consideration of cost, logistics, and title must comply with the requirements approximate original contour, safety,
available technology. This provision of § 77.216–2 of this title. stability, and environmental protection
and the needs of the proposed of the least costly alternative at the (iii) A survey of the potential effects
postmining land use. expense of environmental protection of subsidence of subsurface strata as a
(2) Capacity demonstration. A solely on the basis of cost. If another result of past and future mining
demonstration that the designed alternative considered under paragraph operations.
maximum cumulative volume of all (a)(3)(i) of this section would be more (iv) A technical description of the
proposed excess spoil fills within the environmentally protective than the rock materials to be utilized in the
permit area is no larger than the alternative you selected, you must construction of disposal structures
capacity needed to accommodate the demonstrate, to the satisfaction of the containing rock chimney cores or
anticipated cumulative volume of regulatory authority, that underlain by a rock drainage blanket.
excess spoil that the operation will implementation of the more (v) A stability analysis including, but
generate, as approved by the regulatory environmentally protective alternative not limited to, strength parameters, pore
authority under paragraph (a)(1) of this is not possible. pressures, and long-term seepage
section. (4) Avoidance and minimization of conditions. This analysis must be
(3) Analysis of alternatives and adverse environmental impacts. A accompanied by a description of all
environmental impacts. (i) A description of the steps that you will engineering design assumptions and
description of all alternatives take to avoid the adverse environmental calculations and the alternatives
considered for disposal of the amount of impacts that may result from the considered in selecting the design
excess spoil determined under construction of fills or, if avoidance is specifications and methods.
paragraphs (a)(1) and (2) of this section not possible, the steps that you will take (8) Operation and reclamation plans.
and an analysis of the environmental to minimize those impacts. Plans for the construction, operation,
impacts of those alternatives. You must (5) Location. Maps and cross-section maintenance, and reclamation of all
consider impacts on both the terrestrial drawings showing the location of all excess spoil disposal structures in
and aquatic ecosystems. The proposed disposal sites and structures. accordance with the requirements of
alternatives must vary with respect to You must locate fills on the most §§ 817.71 through 817.74 of this
the number, size, location, and moderately sloping and naturally stable chapter.
configuration of proposed fills to ensure areas available, unless the regulatory (9) Additional requirements for
consideration of a reasonable range of authority approves a different location keyway cuts or rock-toe buttresses. If
alternatives and potential based upon the alternatives analysis keyway cuts or rock-toe buttresses are
environmental impacts. under paragraph (a)(3) of this section or required under § 817.71(d) of this
(ii) For every alternative under other factors, taking into account other chapter, the number, location, and
paragraph (a)(3)(i) of this section that requirements of the Act and this depth of borings or test pits, which must
would involve placement of excess spoil chapter. When possible, you must place be determined according to the size of
in waters of the United States, the fills upon or above a natural terrace, the spoil disposal structure and
analysis required under that paragraph bench, or berm if that location would subsurface conditions. You also must
must include an evaluation of the short- provide additional stability and prevent provide the engineering specifications
term and long-term impacts on the mass movement. used to design the keyway cuts or rock-
aquatic ecosystem, both individually (6) Design plans. Detailed design toe buttresses. Those specifications
and on a cumulative basis. In evaluating plans for each structure, prepared in must be based upon the stability
alternatives subject to this paragraph, accordance with the requirements of analysis required under paragraph
you must consider impacts on the this section and §§ 817.71 through (a)(7)(v) of this section.
physical, chemical, and biological 817.74 of this chapter. You must design (b) Design certification. A qualified
characteristics of downstream flows, the fill and appurtenant structures using registered professional engineer
including seasonal variations in current prudent engineering practices experienced in the design of earth and
temperature and volume, changes in and any additional design criteria rock fills must certify that the design of
stream turbidity or sedimentation, the established by the regulatory authority. all fills and appurtenant structures
degree to which the excess spoil may (7) Geotechnical investigation. The meets the requirements of this section.
introduce or increase contaminants, the results of a geotechnical investigation of 12. Amend § 784.23 by removing
effects on aquatic organisms, and the each proposed disposal site, with the ‘‘817.71(b),’’ in paragraph (c) and
extent to which wildlife is dependent exception of those sites at which spoil revising paragraph (b)(10) to read as
upon those organisms. If you have will be placed only on a pre-existing follows:
prepared an analysis of alternatives bench under § 817.74 of this chapter.
under 40 CFR 230.10, you may initially You must conduct sufficient foundation § 784.23 Operation plan: Maps and plans.
submit a copy of that analysis with your investigations, as well as any necessary * * * * *
application in lieu of the analysis of laboratory testing of foundation (b) * * *
alternatives required by paragraph material, to determine the design (10) Locations of each siltation
(a)(3)(i) of this section. The regulatory requirements for foundation stability for structure, permanent water
authority will determine the extent to each site. The analyses of foundation impoundment, refuse pile, and coal
which that analysis satisfies the conditions must take into consideration mine waste impoundment for which
analytical requirements of paragraph the effect of underground mine plans are required by § 784.16 of this
(a)(3)(i) of this section. workings, if any, upon the stability of part, and the location of each fill for the
(iii) To the extent possible, you must the fill and appurtenant structures. The disposal of excess spoil for which plans
select the alternative with the least information submitted must include— are required under § 784.19 of this part.
overall adverse environmental impact, (i) The character of the bedrock and * * * * *
including adverse impacts on water any adverse geologic conditions in the 13. Add § 784.28 to read as follows:
quality and aquatic ecosystems. An proposed disposal area.
alternative is possible if it is capable of (ii) A survey identifying all springs, § 784.28 Activities in or adjacent to waters
being done after consideration of cost, seepage, and groundwater flow observed of the United States.
logistics, and available technology. This or anticipated during wet periods in the (a) Applicability. This section applies
provision does not authorize selection area of the proposed disposal site. to applications to conduct activities in
waters of the United States or on the (e) Requirements for activities not to conduct such operations must
surface of lands within 100 feet of subject to prohibition on disturbance. respond to obtain a benefit. A Federal
waters of the United States to the extent For activities not subject to the agency may not conduct or sponsor, and
that those waters are regulated under prohibition in § 817.57(a) of this you are not required to respond to, a
the Clean Water Act, 33 U.S.C. 1311, chapter, if you propose to conduct any collection of information unless it
1362. surface activities in waters of the United displays a currently valid OMB control
(b) Mapping requirements. Maps States or that would disturb the surface number.
prepared under §§ 783.25, 784.14(b)(2), of lands within 100 feet of waters of the 16. In § 816.11, revise paragraph (e) to
or 784.23 of this chapter must identify United States, your application must read as follows:
and delineate all— demonstrate, and the regulatory
authority must find, that, to the extent § 816.11 Signs and markers.
(1) Waters of the United States within
the proposed permit area. possible, you will utilize the best * * * * *
(2) Waters of the United States within technology currently available in (e) Buffer markers. The boundaries of
the adjacent area, as that term is defined accordance with §§ 817.41(d) and any buffer to be maintained between
in § 701.5 of this chapter. 817.97(a) of this chapter, as required by surface mining activities and waters of
(3) Lands within the proposed permit §§ 784.14(g) and 784.21(b) of this part. the United States in accordance with
area that lie within 100 feet, measured (f) Relationship to the Clean Water §§ 780.28 and 816.57 of this chapter
horizontally, of any waters of the United Act. (1) In all cases, your application must be clearly marked to avoid
States. must identify the authorizations and disturbance by surface mining activities.
(c) Application requirements for certifications that you anticipate will be * * * * *
variance from prohibition on needed under sections 401, 402, and 17. In § 816.43, revise paragraphs
disturbance. If you propose to conduct 404 of the Clean Water Act, 33 U.S.C. (a)(3), (b)(1), and (b)(4); and add
an activity that is subject to the 1341, 1342, and 1344, and describe the paragraph (b)(5) to read as follows:
prohibition of § 817.57(a) of this chapter steps that you have taken or will take to
on the surface of any lands delineated procure those authorizations and § 816.43 Diversions.
under paragraph (b)(3) of this section, certifications. (a) * * *
(2) The regulatory authority will (3) You, the permittee or operator,
your application must describe any
process your application and may issue must—
measures that you propose to
the permit before you obtain all (i) Promptly remove temporary
implement in lieu of maintaining a 100-
necessary authorizations and diversions when no longer needed to
foot undisturbed buffer between surface
certifications under the Clean Water achieve the purpose for which they
activities and waters of the United
Act, 33 U.S.C. 1251 et seq., provided were authorized.
States, including the extent of any lesser
your application meets all applicable (ii) Restore the land disturbed by the
buffer that you propose to maintain
requirements of subchapter G of this removal process in accordance with this
between surface activities and waters of
chapter. However, you may not initiate part.
the United States, and explain how the
any activities for which Clean Water Act (iii) Before removing diversions,
proposed measures constitute the best
authorization or certification is required modify or remove downstream water-
technology currently available to—
until you obtain all necessary treatment facilities previously protected
(1) Prevent the contribution of
authorizations and certifications. by the diversion as necessary to prevent
additional suspended solids to
streamflow or runoff outside the permit overtopping or failure of the facilities.
PART 816—PERMANENT PROGRAM (iv) Maintain water-treatment
area to the extent possible; and PERFORMANCE STANDARDS—
(2) Minimize disturbances and facilities as otherwise required.
SURFACE MINING ACTIVITIES
adverse impacts on fish, wildlife, and * * * * *
related environmental values to the 14. The authority citation for part 816 (b) * * *
extent possible. is revised to read as follows: (1) The regulatory authority may
(d) Approval requirements for Authority: 30 U.S.C. 1201 et seq. approve the diversion of perennial or
variance from prohibition on intermittent streams within the permit
15. Section 816.10 is revised to read
disturbance. Before approving any area if the diversion is located,
as follows:
measures proposed under paragraph (c) designed, constructed, and maintained
of this section, the regulatory authority § 816.10 Information collection. using the best technology currently
must determine that those measures— In accordance with 44 U.S.C. 3501 et available to minimize adverse impacts
(1) Would be no less effective in seq., the Office of Management and to fish, wildlife, and related
meeting the requirements of the Budget (OMB) has approved the environmental values to the extent
regulatory program than the prohibition information collection requirements of possible.
in § 817.57(a) of this chapter on this part and assigned clearance number * * * * *
disturbance of the surface of lands 1029–0047. Collection of this (4) A permanent stream-channel
within 100 feet of waters of the United information is required under section diversion or a stream channel reclaimed
States; and 515 of SMCRA, which provides that after the removal of a temporary
(2) Constitute the best technology permittees conducting surface coal diversion must be designed and
currently available to— mining and reclamation operations must constructed using natural channel
(i) Prevent the contribution of meet all applicable performance design techniques so as to restore or
additional suspended solids to standards of the regulatory program approximate the premining
streamflow or runoff outside the permit approved under the Act. The regulatory characteristics of the original stream
area to the extent possible; and authority uses the information collected channel, including the natural riparian
(ii) Minimize disturbances and to ensure that surface mining activities vegetation and the natural hydrological
adverse impacts on fish, wildlife, and are conducted in compliance with the characteristics of the original stream, to
related environmental values to the requirements of the applicable promote the recovery and enhancement
extent possible. regulatory program. Persons intending of the aquatic habitat and to minimize
adverse alteration of stream channels on this part for coal mine waste disposal related environmental values to the
and off the site, including channel facilities. extent possible, using the best
deepening or enlargement, to the extent (c) Additional clarifications. The technology currently available.
possible. activities listed in paragraph (b) of this (b) Static safety factor. The fill must
(5) A qualified registered professional section must comply with paragraphs be designed and constructed to attain a
engineer must certify the design and (b)(10)(B)(i) and (b)(24) of section 515 of minimum long-term static safety factor
construction of all diversions of the Act and the regulations of 1.5. The foundation and abutments of
perennial and intermittent streams and implementing those provisions of the the fill must be stable under all
all stream restorations as meeting the Act, including— conditions of construction.
design and construction requirements of (1) The requirement in § 816.41(d)(1) (c) Compliance with permit. You, the
this section and any design criteria set of this part that surface mining activities permittee or operator, must construct
by the regulatory authority. be conducted according to the plan the fill in accordance with the design
* * * * * approved under § 780.21(h) of this and plans submitted under § 780.35 of
chapter and that earth materials, this chapter and approved as part of the
§ 816.46 [Amended] ground-water discharges, and runoff be permit.
18. In § 816.46, remove paragraph handled in a manner that prevents, to (d) Special requirement for steep-
(b)(2) and redesignate paragraphs (b)(3) the extent possible using the best slope conditions. When the slope in the
through (b)(6) as (b)(2) through (b)(5), technology currently available, disposal area exceeds 2.8h:1v (36
respectively. additional contribution of suspended percent), or any lesser slope designated
19. Revise § 816.57 to read as follows: solids to streamflow outside the permit by the regulatory authority based on
area; and otherwise prevents water local conditions, you, the permittee or
§ 816.57 Hydrologic balance: Activities in operator, must construct keyway cuts
pollution.
or adjacent to waters of the United States.
(2) The requirement in § 816.45(a) that (excavations to stable bedrock) or rock-
(a) Prohibition. You, the permittee or appropriate sediment control measures toe buttresses to ensure fill stability.
operator, may not conduct surface be designed, constructed, and * * * * *
mining activities that would disturb the maintained using the best technology
surface of land within 100 feet, currently available to prevent, to the PART 817—PERMANENT PROGRAM
measured horizontally, of waters of the extent possible, additional contributions PERFORMANCE STANDARDS—
United States, unless— of sediment to streamflow or to runoff UNDERGROUND MINING ACTIVITIES
(1) The permit authorizes you to do so outside the permit area.
under § 780.28 of this chapter; or 21. The authority citation for part 817
(3) The requirement in § 816.97(a) of
(2) The provisions of paragraph (b) of continues to read as follows:
this part that the operator must, to the
this section apply to those activities. extent possible using the best Authority: 30 U.S.C. 1201 et seq.
(b) Exceptions. The prohibition in technology currently available, 22. Section 817.10 is revised to read
paragraph (a) of this section does not minimize disturbances and adverse as follows:
apply to the following surface mining impacts on fish and wildlife and related
activities— environmental values and achieve § 817.10 Information collection.
(1) Mining through waters of the In accordance with 44 U.S.C. 3501 et
enhancement of those resources where
United States. You must comply with seq., the Office of Management and
practicable.
all other applicable requirements of the (d) Clean Water Act requirements. Budget (OMB) has approved the
regulatory program, including the You may not initiate any activities information collection requirements of
requirements of § 816.43(b) of this part under paragraph (b) of this section until this part and assigned clearance number
if the mining involves the permanent or you obtain all necessary certifications 1029–0047. Collection of this
temporary diversion of a perennial or and authorizations under sections 401, information is required under section
intermittent stream. 402, and 404 of the Clean Water Act, 33 516 of SMCRA, which provides that
(2) Placement of bridge abutments, permittees conducting underground
U.S.C. 1341, 1342, and 1344.
culverts, or other structures in or near 20. In § 816.71, revise paragraphs (a) coal mining operations must meet all
waters of the United States to facilitate through (d) to read as follows: applicable performance standards of the
crossing of those waters. You must regulatory program approved under the
comply with all other applicable § 816.71 Disposal of excess spoil: General Act. The regulatory authority uses the
requirements of the regulatory program, requirements. information collected to ensure that
including the requirements of (a) General. You, the permittee or underground mining activities are
§§ 816.150, 816.151, and 816.181 of this operator, must place excess spoil in conducted in compliance with the
part, as appropriate. designated disposal areas within the requirements of the applicable
(3) Construction of sedimentation permit area in a controlled manner to— regulatory program. Persons intending
pond embankments in waters of the (1) Minimize the adverse effects of to conduct such operations must
United States. You must comply with leachate and surface water runoff from respond to obtain a benefit. A Federal
all other applicable requirements of the the fill on surface and ground waters; agency may not conduct or sponsor, and
regulatory program, including the (2) Ensure mass stability and prevent you are not required to respond to, a
requirements of § 816.45(a) of this part. mass movement during and after collection of information unless it
(4) Construction of excess spoil fills construction; displays a currently valid OMB control
and coal mine waste disposal facilities (3) Ensure that the final fill is suitable number.
in waters of the United States. You must for reclamation and revegetation 23. In § 817.11, revise paragraph (e) to
comply with all other applicable compatible with the natural read as follows:
requirements of the regulatory program, surroundings and the approved
including the requirements of postmining land use; and § 817.11 Signs and markers.
§§ 816.71(a) and (f) of this part for (4) Minimize disturbances to and * * * * *
excess spoil fills and the requirements adverse impacts on fish, wildlife, and (e) Buffer zone markers. The
of §§ 816.81(a), 816.83(a), and 816.84 of boundaries of any buffer to be
maintained between surface activities § 817.46 [Amended] handled in a manner that prevents, to
and waters of the United States in 25. In § 817.46, remove paragraph the extent possible using the best
accordance with §§ 784.28 and 817.57 of (b)(2) and redesignate paragraphs (b)(3) technology currently available,
this chapter must be clearly marked to through (b)(7) as (b)(2) through (b)(6), additional contribution of suspended
avoid disturbance by surface operations respectively. solids to streamflow outside the permit
and facilities. 26. Revise § 817.57 to read as follows: area; and otherwise prevents water
* * * * * pollution.
§ 817.57 Hydrologic balance: Activities in (2) The requirement in § 817.45(a) that
24. In § 817.43, revise paragraphs or adjacent to waters of the United States.
(a)(3), (b)(1), and (b)(4); and add appropriate sediment control measures
(a) Prohibition. You, the permittee or be designed, constructed, and
paragraph (b)(5) to read as follows:
operator, may not conduct surface maintained using the best technology
§ 817.43 Diversions. activities that would disturb the surface currently available to prevent, to the
(a) * * * of land within 100 feet, measured extent possible, additional contributions
(3) You, the permittee or operator, horizontally, of waters of the United of sediment to streamflow or to runoff
must— States, unless— outside the permit area.
(i) Promptly remove temporary (1) The permit authorizes you to do so (3) The requirement in § 817.97(a) of
diversions when no longer needed to under § 784.28 of this chapter; or this part that the operator must, to the
achieve the purpose for which they (2) The provisions of paragraph (b) of extent possible using the best
were authorized. this section apply to those activities. technology currently available,
(ii) Restore the land disturbed by the (b) Exceptions. The prohibition in minimize disturbances and adverse
removal process in accordance with this paragraph (a) of this section does not impacts on fish and wildlife and related
part. apply to the following surface environmental values and achieve
(iii) Before diversions are removed, activities— enhancement of those resources where
modify or remove downstream water- (1) Mining through waters of the practicable.
treatment facilities previously protected United States. You must comply with (d) Clean Water Act requirements.
by the diversion as necessary to prevent all other applicable requirements of the You may not initiate any activities
overtopping or failure of the facilities. regulatory program, including the under paragraph (b) of this section until
(iv) Maintain water-treatment requirements of § 817.43(b) of this part you obtain all necessary certifications
facilities as otherwise required. if the mining involves the permanent or and authorizations under sections 401,
temporary diversion of a perennial or 402, and 404 of the Clean Water Act, 33
* * * * *
(b) * * * intermittent stream. U.S.C. 1341, 1342, and 1344.
(2) Placement of bridge abutments, 27. In § 817.71, remove paragraph (k)
(1) The regulatory authority may
culverts, or other structures in or near and revise paragraphs (a) through (d) to
approve the diversion of perennial or
waters of the United States to facilitate read as follows:
intermittent streams within the permit
crossing of those waters. You must
area if the diversion is located,
comply with all other applicable § 817.71 Disposal of excess spoil: General
designed, constructed, and maintained requirements.
requirements of the regulatory program,
using the best technology currently
including the requirements of (a) General. You, the permittee or
available to minimize adverse impacts
§§ 817.150, 817.151, and 817.181 of this operator, must place excess spoil in
to fish, wildlife, and related
part, as appropriate. designated disposal areas within the
environmental values to the extent
(3) Construction of sedimentation permit area in a controlled manner to—
possible.
pond embankments in waters of the (1) Minimize the adverse effects of
* * * * * United States. You must comply with leachate and surface water runoff from
(4) A permanent stream-channel all other applicable requirements of the the fill on surface and ground waters;
diversion or a stream channel reclaimed regulatory program, including the (2) Ensure mass stability and prevent
after the removal of a temporary requirements of § 817.45(a) of this part. mass movement during and after
diversion must be designed and (4) Construction of excess spoil fills construction;
constructed using natural channel and coal mine waste disposal facilities (3) Ensure that the final fill is suitable
design techniques so as to restore or in waters of the United States. You must for reclamation and revegetation
approximate the premining comply with all other applicable compatible with the natural
characteristics of the original stream requirements of the regulatory program, surroundings and the approved
channel, including the natural riparian including the requirements of postmining land use; and
vegetation and the natural hydrological §§ 817.71(a) and (f) of this part for (4) Minimize disturbances to and
characteristics of the original stream, to excess spoil fills and the requirements adverse impacts on fish, wildlife, and
promote the recovery and enhancement of §§ 817.81(a), 817.83(a), and 817.84 of related environmental values to the
of the aquatic habitat and to minimize this part for coal mine waste disposal extent possible, using the best
adverse alteration of stream channels on facilities. technology currently available.
and off the site, including channel (c) Additional clarifications. The (b) Static safety factor. The fill must
deepening or enlargement, to the extent activities listed in paragraph (b) of this be designed and constructed to attain a
possible. section must comply with paragraphs minimum long-term static safety factor
(5) A qualified registered professional (b)(9)(B) and (b)(11) of section 516 of the of 1.5. The foundation and abutments of
engineer must certify the design and Act and the regulations implementing the fill must be stable under all
construction of all diversions of those provisions of the Act, including— conditions of construction.
perennial and intermittent streams and (1) The requirement in § 817.41(d)(1) (c) Compliance with permit. You, the
all stream restorations as meeting the of this part that surface activities be permittee or operator, must construct
design and construction requirements of conducted according to the plan the fill in accordance with the design
this section and any design criteria set approved under § 784.14(g) of this and plans submitted under § 784.19 of
by the regulatory authority. chapter and that earth materials, this chapter and approved as part of the
* * * * * ground-water discharges, and runoff be permit.
(d) Special requirement for steep- by the regulatory authority based on (excavations to stable bedrock) or rock-
slope conditions. When the slope in the local conditions, you, the permittee or toe buttresses to ensure fill stability.
disposal area exceeds 2.8h:1v (36 operator, must construct keyway cuts * * * * *
percent), or any lesser slope designated [FR Doc. E7–16629 Filed 8–23–07; 8:45 am]
BILLING CODE 4310–05–P

Proposed Rule: Surface and Underground Coal Mining Activities: Excess Spoil and Coal Mine Waste Minimization and Stream Buffer Zones For U.S. Waters

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Proposed Rule: Surface and Underground Coal Mining Activities: Excess Spoil and Coal Mine Waste Minimization and Stream Buffer Zones For U.S. Waters

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Friday,

August 24, 2007

30 CFR Parts 780, 784, 816, and 817

examples of those activities include 100-foot undisturbed zone between Act.’’

quantity and quality or other procedures and terminology. It would

We will hold a public hearing on the state, local, or tribal governments or

to understand. We invite your 5. Amend § 780.25 as follows:

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