[Federal Register Volume 65, Number 122 (Friday, June 23, 2000)]
[Notices]
[Pages 39178-39191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15898]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement


Fall Creek Falls, Tennessee, Lands Unsuitable for Surface Coal 
Mining and Reclamation Operations; Availability of Record of Decision 
and Statement of Reasons

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

ACTION: Notice of availability of record of decision and the statement 
of reasons on the petition to declare certain lands in Fall Creek 
Falls, Tennessee, unsuitable for surface coal mining.

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SUMMARY: The Secretary of Interior has reached a decision on a petition 
to designate certain areas as unsuitable for

[[Page 39179]]

surface coal mining operations in Fall Creek Falls, Bledsoe and Van 
Buren Counties, Tennessee

ADDRESSES: Copies of the decision and the statement of reasons for the 
decision may be obtained from the Assistant Director, Program Support, 
Office of Surface Mining Reclamation and Enforcement (OSM), 1951 
Constitution Avenue, HDQ01, Washington, D.C. 20240, or Beverly Brock, 
Supervisor, Technical Group, Knoxville Field Office, 530 Gay Street, 
SW, Suite 500, Knoxville, Tennessee 37902.

FOR FURTHER INFORMATION CONTACT: Beverly Brock, Office of Surface 
Mining Reclamation and Enforcement, Knoxville Field Office, 530 Gay 
Street, SW, Suite 500, Knoxville, Tennessee 37902; telephone (865) 545-
4103, extension 146; or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The petition was submitted to OSM on July 
14, 1995, by Save Our Cumberland Mountains and Tennessee Citizens for 
Wilderness Planning to designate 85,588 acres of land lying in the 
watershed and viewshed of the Fall Creek Falls State Park and Natural 
Area, Bledsoe and Van Buren Counties, Tennessee, as unsuitable for all 
types of surface coal mining operations. OSM determined the petition to 
be complete on October 5, 1995, and initiated evaluation of the 
petition allegations.
    The petition was filed in accordance with Section 522 of the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA) and the 
implementing regulations at 30 CFR 942.764. The petitioners had five 
primary allegations: (1) Reclamation is not technologically and 
economically feasible; (2) mining the area would affect fragile or 
historic lands which could result in significant damage to important 
historic, cultural, scientific, or esthetic values; (3) mining the area 
would affect renewable resource lands which could result in a 
substantial loss or reduction in long-range productivity of water 
supply or of food or fiber products; (4) mining would affect natural 
hazard lands which could substantially endanger life and property; and 
(5) mining the area would be incompatible with existing State or local 
and use plans or programs.
    Pursuant to 30 CFR 942.764, OSM analyzed the allegations of the 
petition and on June 18, 1998, held a public hearing. OSM filed the 
final petition evaluation document/environmental impact statement (PED/
EIS) for the Fall Creek Falls petition with the Environmental 
Protection Agency (EPA) on February 24, 2000. The EPA subsequently 
published the notice of availability on March 3, 2000 (5 FR 11575).
    A copy of the decision signed by the Secretary of Interior appears 
as an appendix to this notice. Additional copies of the decision are 
available at no cost from the offices listed above under ADDRESSES OSM 
has sent copies of this document to all interested parties of record.
    Prior Federal Register notices on the Fall Creek Falls 
unsuitability petition were the notice of intent to prepare an EIS 
published in the Federal Register dated November 3, 1995 (60 FR 55815) 
and the notice of availability of the draft combined PED/EIS dated May 
1, 1998 (63 FR 24192).

    Dated: June 13, 2000.
Allen D. Klein,
Director, Appalachian Regional Coordinating Center.

Appendix: Copy of Letter of Decision and Record of Decision and 
Statement of Reasons

Letter of Decision

Designation of Certain Lands in the Watershed of Fall Creek Falls 
State Park, Tennessee, as Unsuitable for Surface Coal Mining 
Operations

    Pursuant to Section 522 of the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA) [30 U.S.C. 1272], the Office of Surface 
Mining (OSM) was petitioned by 49 citizens, Save Our Cumberland 
Mountains, and Tennessee Citizens for Wilderness Planning to designate 
the watershed and viewshed of Fall Creek Falls State Park and Natural 
Area in Van Buren and Bledsoe Counties, Tennessee, as unsuitable for 
all types of surface coal mining operations.
    In accordance with Section 522(d) of SMCRA [30 U.S.C. 1272(d)] and 
Section 102 (2)(C) of the National Environmental Policy Act of 1969 
(NEPA) [42 U.S.C. 4332(2))(C)], the OSM's Knoxville Field Office (KFO) 
prepared a detailed Petition Evaluation Document/Environmental Impact 
Statement (PED/EIS). The PED/EIS analyzed the petitioners' allegations, 
the potential coal resources of the petition area, the demand for coal 
resources, the impacts of such designation on the environment, and the 
economy, and alternative actions available to the decision maker.
    I have considered the information in the Fall Creek Falls 
administrative record, including but not limited to the petition and 
exhibits, information obtained by KFO, analysis of the petitioners' 
allegations and the environmental impacts of the alternative actions 
contained in the final PED/EIS, written comments received on the draft 
and final PED/EIS's and oral comments received at the public hearing. 
Based on the analysis of the information contained in the Fall Creek 
Falls administrative record and presented in the final PED/EIS, I have 
reached the following decision, as set out in the Record of Decision 
and Statement of Reasons.
    (1) I am exercising my discretion to designate Fall Creek Falls 
State Park and Natural Area and the Cane Creek, Falls Creek, and Meadow 
Creek watersheds as unsuitable for all types of surface coal mining 
operations in accordance with 30 U.S.C. Sec. 1272(a)(3)(A) and (B) and 
30 CFR 762.11(b)(1) and (b)(2).
    (2) I am exercising my discretion to designate the Piney Creek 
watershed as unsuitable for surface coal mining operations; provided, 
that a surface coal mining operation may be permitted only in the upper 
portions of the watershed if a portion of the proposed operation 
includes previously mined areas and the permit applicant demonstrates 
that water quality in receiving streams will not be degraded.
    (3) I am not designating any lands within the Dry Fork watershed as 
unsuitable for surface coal mining operations.
    Copies of this decision will be sent to all parties involved in 
this proceeding. The decision will become effective on the date of the 
signing of the Record of Decision and Statement of Reasons. An appeal 
of this decision must be filed within 60 days from the date below in 
the United States District Court for the Eastern District of Tennessee, 
as required by Section 526(a)(1) of SMCRA [30 U.S.C. Sec. 1276(a)(1)].

    Dated: June 17, 2000.
Bruce Babbitt,
Secretary of the Interior.

Petition To Designate Certain Lands Around Fall Creek Falls, 
Tennessee as Unsuitable for Surface Coal Mining Operations

Record of Decision and Statement of Reasons

I. Introduction

    In response to a petition filed by 49 citizens, Save Our Cumberland 
Mountains, and Tennessee Citizens for Wilderness Planning, I have 
decided to designate Fall Creek Falls State Park and selected 
watersheds within the petition area, in Van Buren and Bledsoe Counties, 
Tennessee, as unsuitable for surface coal mining operations, with one 
limited exception as discussed below. The following is a discussion of 
the reasons supporting my decision.

[[Page 39180]]

II. Legal Backgound

    Section 522(c) of the Surface Mining Control and Reclamation Act of 
1977 (SMCRA) allows any person having an interest that is or may be 
adversely affected to petition to have an area designated unsuitable 
for surface coal mining operations. Under Section 504 of SMCRA, the 
Secretary of the Interior is responsible for designating lands in 
Tennessee as unsuitable. The Secretary of the Interior has delegated to 
the Director of the Office of Surface Mining (OSM) the authority to 
make a final decision on lands unsuitable petitions except for noncoal 
mining [216 DM.1.1].
    The SMCRA regulatory program for Tennessee is set out at 30 CFR 
Part 942. Under that program, OSM is the regulatory authority for 
Tennessee. Specific criteria and procedures for processing a petition 
to designate non-Federal lands in Tennessee are incorporated by 
reference in 30 CFR 942.762 and 942.764. Those sections incorporate the 
criteria set out in 30 CFR Part 762 and the procedures set out in 30 
CFR Part 764. OSM has complied with these provisions in reaching its 
decision on the Fall Creek Falls petition.
    SMCRA provides that the regulatory authority shall designate an 
area unsuitable if it determines that reclamation pursuant to the 
requirements of SMCRA is not technologically and economically feasible 
[Section 522(a)(2)]. The regulatory authority may designate any area 
unsuitable if such operations will (1) be incompatible with existing 
State or local land use plans or programs [Section 522(a)(3)(A)]; (2) 
affect fragile or historic lands in which such operations could result 
in significant damage to important historic, cultural, scientific, and 
esthetic values and natural systems [Section 522(a)(3)(B)]; (3) affect 
renewable resource lands in which such operations could result in a 
substantial loss or reduction of long-range productivity of water 
supply or of food or fiber products [Section 522(a)(3)(C)]; or (4) 
affect natural hazard lands in which such operations could 
substantially endanger life and property [Section 522(a)(3)(D)].
    The petition in this case proposes that designation of the Fall 
Creek Falls petition area be made on the basis of the criteria of 
Sections 522(a)(2) and 522(a)(3)(A), (B), (C) and (D). The petition 
contains numerous factual allegations and documentation to support the 
petitioners' claims that the area should be designated under the 
mandatory and discretionary criteria.

III. Events

    The petition area encompasses the watersheds of Piney Creek, Falls 
Creek, and Meadow Creek, and portions of Cane Creek and Dry Fork 
watersheds. The petition area is approximately 85,588 acres, located in 
Bledsoe and Van Buren Counties, Tennessee.
    The Fall Creek Falls unsuitability petition was submitted to OSM's 
Knoxville Field Office (KFO) on July 14, 1995, by 49 citizens and two 
organizations, Save Our Cumberland Mountains and Tennessee Citizens for 
Wilderness Planning. KFO determined the petition to be complete on 
October 5, 1995, and initiated evaluation of the petition allegations.
    Because the decision on this petition may have a major effect on 
the quality of the human environment, KFO decided to prepare a combined 
petition evaluation document (PED) and environmental impact statement 
(EIS). A notice of intent to prepare a draft PED/EIS, including a 
request for public participation in determining the scope of the issues 
to be addressed, was published in the November 3, 1995, Federal 
Register (60 FR 55815) and in the November 15, 1995, Tennessee 
Administrative Record. It was also mailed to all persons with an 
identifiable ownership interest in the petition area and interested 
State and Federal agencies. A scoping meeting was held on December 5, 
1995, at Fall Creek Falls State Park. Approximately 180 persons 
attended the scoping meeting, 25 of whom presented oral comments.
    By the close of the scoping comment period, on January 26, 1996, 
KFO had received 49 scoping comment letters. In determining the scope 
of the PED/EIS, KFO considered all comments contained in the public 
record for the petition and the proposed PED/EIS.
    KFO announced the availability of the draft PED/EIS and requested 
public comments in the May 1, 1998 Federal Register (63 FR 24192) and 
in local newspapers. In these notices and newspaper advertisements, KFO 
also gave notice of the June 18, 1998, public hearing. KFO provided 
three public comment periods on the draft: May 1 to July 30, 1998; 
August 21 to September 16, 1998; and January 29 to April 29, 1999.
    Approximately 350 persons attended the June 18, 1998 hearing, and 
45 persons presented oral comments. During the comment period, 606 
letters provided written comments on the draft PED/EIS. All comments 
were considered in the final PED/EIS.
    The notice of availability of the final PED/EIS was published in 
the Federal Register on March 3, 2000 (65 FR 11575 and 11604); in the 
Tennessee Administrative Record on March 15, 2000; and in seven local 
or major newspapers across the State. Governing regulations at 40 CFR 
1506.10(b)(2) require that no decision on the petition be made until 30 
days after the PED/EIS is made available to the public. This prescribed 
wait period was extended to May 3, 2000 (65 FR 15921, March 24, 2000).

IV. The Petition

    The Fall Creek Falls Lands Unsuitable for Mining petition contained 
five primary allegations, with numerous factual allegations and 
suballegations. The petition is printed in Appendix B of the final PED/
EIS. The five primary allegations in the petition are summarized as 
follows: (1) Mining the area would affect fragile or historic lands 
which could result in significant damage to important historic, 
cultural, scientific, or esthetic values; (2) mining the area would 
affect renewable resource lands which could result in a substantial 
loss or reduction in long-range productivity of water supply or of food 
or fiber products; (3) mining would affect natural hazard lands which 
could substantially endanger life and property; (4) mining the area 
would be incompatible with existing State or local land use plans or 
programs; and (5) reclamation is not technologically and economically 
feasible.

V. Decision Alternatives

    KFO evaluated several decision alternatives ranging from 
designating all lands in the petition area unsuitable for all surface 
coal mining operations (the proposed action in the Petition) to not 
designating any of the lands in the area as unsuitable for surface coal 
mining operations (alternative 1). Other alternatives considered 
included not designating any of the lands in the area as unsuitable, 
but requiring an environmental impact statement for any surface coal 
mining operation proposed in the area (alternative 2), the ``No 
Action'' alternative (alternative 4), and various options for 
designating only parts of the area as unsuitable for all or certain 
types of surface coal mining operations (alternative 3). The options 
considered under alternative 3 included designating portions of the 
area as unsuitable for certain types of coal mining operations based on 
the presence of acid-forming materials or based on mining method 
(alternative 3a), designating selected coal resources within the area 
as unsuitable for certain

[[Page 39181]]

types of surface coal mining operations (alternative 3b), and 
designating selected watersheds within the area as unsuitable for 
certain types of surface coal mining operations (alternative 3c, the 
preferred alternative). The full text discussion of the petition 
decision alternatives and their environmental impacts is found in 
Chapter V of the final PED/EIS. The rationale for selection of 
alternative 3c as the preferred alternative is discussed at length in 
Section VII of this document.
    Arguably, the environmentally preferable alternative is the 
proposed action, which is to designate all lands within the petition 
area as unsuitable for surface coal mining operations. This would 
provide the maximum level of environmental protection for the petition 
area, because no mining activities could occur within the petition 
area, regardless of the likelihood of environmental impacts. However, 
as outlined in this Record of Decision and Statement of Reasons, I have 
determined that there would be significant benefits from remining in 
the headwaters of the Piney Creek watershed, and that remining 
operations would be unlikely to affect the natural resources of the 
Park. I have also determined that surface coal mining operations in Dry 
Fork watershed would be unlikely to have any significant effect on the 
Park's surface resources.
    I have also considered the purposes set out in SMCRA Section 102. I 
have concluded that this decision best balances all of these purposes, 
including those set out in Sections 102(a), (d), (f), (h), and (m). 
These sections state that ``it is the purpose of this Act to--(a) 
establish a nationwide program to protect society and the environment 
from the adverse effects of surface coal mining operations; * * * (d) 
assure that surface coal mining operations are so conducted as to 
protect the environment; * * * (f) assure that the coal supply 
essential to the Nation's energy requirements, and to its economic and 
social well-being is provided and strike a balance between protection 
of the environment and agricultural productivity and the Nation's need 
for coal as an essential source of energy; * * * (h) promote the 
reclamation of mined areas left without adequate reclamation prior to 
the enactment of this Act and which continue, in their unreclaimed 
condition, to substantially degrade the quality of the environment, 
prevent or damage the beneficial use of land or water resources, or 
endanger the health or safety of the public; * * * and (m) wherever 
necessary, exercise the full reach of Federal constitutional powers to 
insure the protection of the public interest through effective control 
of surface coal mining operations.'' Further, this decision best 
implements the requirements of Section 522(a), for the reasons set out 
below. The preferred alternative provides for designation of the Falls 
Creek, Meadow Creek and Cane Creek watersheds, the lower reaches of the 
Piney Creek watershed, and the Park as unsuitable for mining. This 
alternative provides the environmental protections needed for the 
fragile resources of the Fall Creek Falls State Park and for the Park's 
land use plans and program.
    The preferred alternative allows mining in the headwaters of the 
Piney Creek watershed, which has been extensively impacted by 
unreclaimed or unregulated surface coal mining operations. A mining 
operation would be required to include remining of previously mining-
impacted areas. This alternative would provide significant potential 
benefits to Piney Creek watershed through reclamation of mining-
impacted lands, restoration of stream biological communities and over-
all improvements to water quality in the Piney Creek watershed. 
Allowing mining in the Dry Fork watershed is not predicted to have any 
significant impacts on the Park's fragile surface resources or land use 
plans and programs because Dry Fork subsides underground during low 
flow six miles before it reaches the Park boundaries and reemerges 
approximately six miles north of the Park. Mining in the Dry Fork 
watershed also is predicted to have little or no impact on the ground 
water systems of Dry Fork and the Park. This is because the waters of 
Dry Fork undergo beneficial chemical changes as the creek flows 
underground into the karst system. That system neutralizes any acidic 
changes that might have occurred from contact with any mining-impacted 
waters of the upper reaches of the Dry Fork watershed, where the coal 
reserves are located. Thus, allowing mining and remining of the upper 
reaches of the Dry Fork watershed would have similar beneficial effects 
on the environment as in the upper reaches of the Piney Creek 
watershed, i.e., restoration of stream biological communities, over-all 
improvements to water quality in the Dry Fork watershed, etc. Thus, the 
preferred alternative provides protection to the Park's fragile 
resources and land use plans and program and allows restoration of 
mine-impacted areas in the upper reaches of the Piney Creek and Dry 
Fork watersheds. Approximately 6.58 million tons of coal in the Dry 
Fork watershed and 8 million tons in the Piney Creek watershed would be 
available for extraction to help meet energy demands with no 
significant risk to the Park's resources. Under the preferred 
alternative, no mining could occur in the lower portions of the Piney 
Creek watershed closer to the Park where risk of impact on the Park is 
greater. In the headwaters of the Piney Creek watershed, mining would 
be allowed only on a case-by-case basis when the operation includes 
areas previously disturbed by mining and the applicant demonstrates the 
water quality will not be degraded, and that impacts from previous 
mining will be mitigated.
    The analyses in the PED/EIS predict that should there be a failure 
of a mining operation in the headwaters of Piney Creek, degraded stream 
conditions are likely to dissipate before reaching Park boundaries, 
causing no significant impact on the Park's water quality. Thus, the 
preferred alternative protects the fragile resources of the Park, 
minimizes the likelihood of conflict with the State's land use plans 
for the Park, and provides for restoration and reclamation of the 
mining-impacted lands and waters of the watersheds.

VI. Findings

    The petitioners presented five primary allegations which mirror the 
five designation criteria of SMCRA Sections 552(a)(2) and (a)(3) and 30 
CFR 762.11(a) and (b)(1) through (b)(4).
    The petitioners also presented numerous allegations of fact and 
sub-allegations of fact in support of the five primary allegations. The 
intervenors presented allegations in rebuttal to the petitioners' five 
primary allegations, the allegations of fact, and the sub-allegations 
of fact. A summary of the petitioners' and the intervenors' allegations 
follows, along with my findings relative to each allegation. The 
primary allegations are presented in the order in which they appear in 
the petition. These findings are based upon all the information 
contained in the public record for this petition.

A. Primary Allegation No. 1--Fragile or Historic Lands

    1. Petition allegation--The petition area should be designated 
unsuitable for surface coal mining operations because mining the area 
would affect fragile or historic lands in which such operations could 
result in significant damage to important historic, cultural, 
scientific, or esthetic values or natural systems.
    a. The petitioners allege that mining within the petition area 
would affect the hydrologic balance of the watersheds which drain into 
the Fall Creek Falls

[[Page 39182]]

State Park and affect the Park's unique hydrologic resources. They 
further allege that the primary reason the Park was set aside was 
because of its waters and water-formed features and that the watershed 
areas outside of the Park are critical to the existence of the Park. 
The petitioners also allege that streams, aquatic life and the falls 
are at risk when mining occurs in the Sewanee coal seam.
    The intervenors allege that the petition area does not meet the 
regulatory definition of ``fragile lands'' and that the petition does 
not provide any supportive evidence that mining in accordance with 
SMCRA would significantly affect the alleged factors identified or 
cause any identified significant damage to these values.
    b. The petitioners allege that changes in water chemistry, changes 
in pH, increases in siltation, and changes in stream flow would result 
in significant damage to the wildlife which depend on the streams as 
habitat and/or sources of drinking water. The petitioners state that 
Cane Creek, which is the principal watercourse through Fall Creek Falls 
State Park, has been designated an environmentally sensitive stream by 
the Tennessee Department of Environment and Conservation (TDEC) and, 
therefore, the petition area qualifies as fragile lands.
    The intervenors allege that the designation of a specified portion 
of Cane Creek as an environmentally sensitive stream by the State does 
not equate to the surrounding host landscape as fragile lands.
    c. The petitioners allege that the presence of endangered species 
qualifies the petition area as fragile lands.
    The intervenors allege that the presence of threatened and 
endangered species in the petition area does not qualify the area as 
fragile lands.
    d. The petitioners allege that Cane Creek, downstream of the Park 
boundary, is a stocked trout stream and cite a letter written by the 
Fish and Wildlife Service stating that Cane Creek is considered the 
best stocked trout stream on the Cumberland Plateau. Further, the 
petitioners allege that untreated water discharging from surface coal 
mining operations would seriously degrade the water quality of Cane 
Creek and would be toxic to stream biota in the vicinity of the outfall 
and for an unknown distance downstream.
    The intervenors allege that: (a) Trout stocking activities occur 
approximately 13 miles downstream from the petition area proper, (b) 
historic water quality data collected from Cane Creek does not support 
the allegation of water degradation as stemming from past surface coal 
mining operations, and (c) advanced mining and reclamation technologies 
are being implemented to significantly minimize and/or prevent off-site 
damage to receiving steams. The intervenors also allege that trout 
stocking in Cane Creek below the Park does not qualify the petition 
area as fragile lands.
    e. The petitioners allege that the presence of caves and cave-
inhabiting species makes the petition area a fragile land. The 
petitioners further allege that mining-induced degradation of Cane 
Creek could also adversely affect the aquatic life in the caves located 
in the Cane Creek gorge as well as the Indiana bat, a Federally-listed 
endangered species, that inhabits caves in the area. The petitioners 
also allege that underground mining usually results in subsidence, 
either planned or unplanned, and that subsidence could alter the flow 
of the groundwater, resulting in the dewatering of streams and, 
consequently, diverting flows from the caves.
    The intervenors allege that the presence of caves, cave-inhabiting 
species, and the occurrence of endangered cave species does not qualify 
the petition area as fragile lands.
    f. The petitioners allege that the presence of rare floral species 
in the petition area qualifies the area as fragile lands. The 
petitioners further allege that off-site effects of surface coal mining 
operations within the petition area could have a severe adverse impact 
on a number of rare floral species.
    The intervenors allege that the presence of threatened and 
endangered species in the petition area does not qualify the area as 
fragile lands.
    g. The petitioners allege that surface coal mining operations would 
access areas that are currently remote and thereby cause adverse 
effects on habitats and wildlife from foot and vehicle travel, 
pollution, and other factors relating to more human contact in the 
area. The petitioners also allege that surface coal mining operations 
in the Cane Creek watershed could have a direct and negative impact on 
TWRA's long-term plans to use the area as turkey and otter habitat.
    The intervenors allege that, for the most part, the entire petition 
area proper is already ``honey-combed'' with multiple access avenues 
and that access requirements stemming from any future mine development 
can utilize the majority of existing roads, power lines, water lines, 
etc., without causing any further significant disturbances to the area. 
The intervenors further allege that SMCRA provides flexibility to 
develop reclaimed areas that are suited to turkey and otter habitats.
    h. The petitioners allege that esthetics are essential to the 
Park's land use plans and that surface coal mining operations outside 
the Park are incompatible with the Fall Creek Falls Strategic 
Management Plan. They allege that surface coal mining operations in the 
petition area would adversely alter the views from Park overlooks and 
adversely affect the visitor's experience.
    The intervenors allege that the existing tree line, undulating 
topography, and the buffer zone around the Park itself provide a 
natural shield for the overlook areas referenced by the petitioners, 
and that surface coal mining operations in the petition area could not 
be seen from the natural overlooks in the Park.
    i. The petitioners allege that surface coal mining operations would 
have an adverse impact on historic lands (i.e., the Trail of Tears) in 
which such operations could result in significant damage to important 
historic lands. The petitioners also allege that there are burial 
mounds and cemeteries within the Park and the petition area that 
require the special protections of designation.
    The intervenors allege that the presence of the Trail of Tears 
within the petition area does not qualify the area as fragile 
(historic) lands because: (1) The location of the Trail of Tears 
comprises an extremely small portion, less than three percent, of the 
petition area and is located in the southern portion of the area; and 
(2) the Trail of Tears does not meet the definition of fragile lands 
because a majority of the Trail parallels or overlies existing roadways 
in the petition area.
    j. The petitioners allege that Park visitors use various sections 
of Cane Creek for swimming and church baptisms and that mining impacts 
on water quantity and quality would adversely affect the cultural 
values of these areas.
    The intervenors allege that Cane Creek water quality is expected to 
at least maintain status quo despite future mining initiatives.
    k. The petitioners allege that noise and dust would affect Park 
visitation, local residents, and users of the Trail of Tears.
    The intervenors allege that the petitioners' comments are not 
supported by fact and only reflect biased opinions in favor of selected 
individual beliefs.
    l. The petitioners allege that the Park is a ``fragile land'' as 
defined in 30 CFR 762.5 and the watersheds of the Park are the 
``essence'' of the term fragile lands. Therefore, the petitioners 
assert that the

[[Page 39183]]

entire petition area which makes up the watershed of the Park should be 
designated under the ``fragile'' criterion.
    The intervenors allege that a designation of the entire watershed 
of the Park as ``fragile lands'' is not supported by fact.
    2. Findings--Fragile and historic lands. Based on the record, and 
for the reasons set out below, I find that surface coal mining 
operations in the Park or in certain watersheds outside the Park would 
affect the fragile lands of the Park and certain other fragile lands in 
the petition area, and could result in significant damage to important 
petition area natural systems and cultural and esthetic values.
a. Fragile Lands in the Petition Area
     Park fragile lands. I find that the Park is fragile land 
because it has important natural, ecologic, and esthetic resources that 
could be significantly damaged by surface coal mining operations.
    The natural and ecologic resources of the Park include the 
following:
     The Park provides valuable habitat for threatened and 
endangered species of fish and wildlife as described in Chapter II, 
Section H of the PED/EIS.
     Cane Creek inside the Park has numerous occurrences of 
stream-dependent threatened and endangered species and esthetic 
resources of high scenic value, forming an environmental corridor 
within the Park which has a concentration of ecologic and esthetic 
features as indicated in Chapter V.B.22 of the PED/EIS.
     The Park is a valuable habitat for rare floral species as 
described in Chapter II, Section H of the PED/EIS.
    The esthetic resources of the Park include Fall Creek Falls, Cane 
Creek Falls, Cane Creek Cascades, Piney Falls, and various viewsheds 
and gorges throughout the Park.
    The Park is an area of high recreational and cultural value due to 
high environmental quality, and is used for recreational, educational 
and religious activities.
     Fragile lands in the petition area outside the Park. I 
find that certain watersheds in the petition area outside the Park are 
fragile lands because of the existence of natural systems within these 
watersheds consisting of streams with high water quality and water 
quantity (Cane, Meadow, and Falls Creek watersheds, and the lower 
reaches of the Piney Creek watershed).
    B. Whether surface coal mining operations will affect fragile 
lands. I find that surface coal mining operations in the Park or in 
certain watersheds outside the Park, would affect the fragile lands of 
the petition area, because of the inherent environmental impacts of 
surface coal mining operations, as addressed in Chapter V, Section F of 
the final PED/EIS. These impacts could potentially damage natural 
systems and cultural and esthetic values within and outside the Park 
during the mining and reclamation phases of surface coal mining 
operations. I find that SMCRA does provide significant environmental 
protection from inherent impacts through its permitting requirements 
and performance standards. Nonetheless, although these impacts might be 
relatively unlikely to cause significant damage, if such damage did 
occur the risk to park resources would be unacceptable.
    Among those inherent impact which may occur in a surface coal 
mining operation in compliance with SMCRA are:
     Removal of wildlife habitat within the mining area,
     Alterations of the soil and geologic structure,
     Elevated levels of total dissolved solids in surface and 
ground water,
     Noise, dust, and vibration, and
     Increased sedimentation to the receiving stream from 
construction of drainage control structures and roads.
    In addition, surface coal mining operations in the Park and certain 
other parts of the petition area could have other impacts on fragile 
lands, as discussed below.
    c. Damage to important natural systems and cultural and esthetic 
values of fragile lands. I find that surface coal mining operations in 
the Park and in certain watersheds of the petition area outside the 
Park would affect these fragile lands and could result in significant 
damage to the important natural systems, cultural values and esthetic 
values of these fragile lands, as described below.
i. Potential Damage to Park Systems and Values
     Important natural systems. Surface coal mining operations 
in the Park or in certain parts of the petition area outside the Park 
could cause significant damage to important natural systems of the 
Park, including:
     Threatened and endangered species of fish and wildlife and 
their habitats in the park.
     The environmental corridor along Cane Creek inside the 
Park, and its ecological and esthetic features.
     The rare floral species and their habitats in the Park.
     Important esthetic values. Surface coal mining operations 
in the Park or in the petition area outside the Park could result in 
significant damage to the important esthetic values of the Park's 
esthetic resources, including Fall Creek Falls, Cane Creek Falls, Cane 
Creek Cascades, Piney Falls, and various overlooks, viewsheds, and 
gorges. Significant damage to these important esthetic resources could 
adversely affect the Park visitors' experience.
     Important cultural values. Surface coal mining operations 
in the Park or in the petition area outside the Park could cause 
significant damage to the important cultural values of the Park, 
including recreational, educational and religious activities.
ii. Potential Damage to Important Natural Systems Outside the Park--
Streams
    The streams of certain watersheds in the petition area outside the 
Park (Cane, Meadow, and Falls Creek watersheds, and the lower reaches 
of the Piney Creek watershed) are important natural systems because 
they are the primary water sources for the unique waters and water-
formed features of the Park and its stream-dependent ecologic 
resources. Surface coal mining operations in these watersheds could 
cause significant long-term damage to these waters and features and 
dependent ecologic resources.
iii. Other Findings--Primary Allegation 1
     Threatened and endangered species outside the Park. I find 
that the record does not demonstrate that the petition area outside the 
Park is a fragile land because of the existence of threatened and 
endangered species of fish and wildlife. Few occurrences of these 
threatened and endangered species have been identified in the petition 
area outside the Park, and those occurrences are scattered throughout 
the watersheds. Only one occurrence has been identified in a location 
of known recoverable coal reserves. Rare floral threatened and 
endangered species have been identified in areas of known coal reserves 
at only two locations in the petition area outside the Park. These two 
locations are in the upper Piney Creek watershed. However, the presence 
of rare floral species at these two locations in the upper Piney Creek 
watershed outside the Park is not sufficient to classify either the 
entire petition area outside the Park or the Piney Creek watershed 
where they are located as an important ecologic system of the petition 
area and as a fragile land. This is in part because SMCRA includes 
protection measures which should, in this case, provide any necessary 
protections for the species at these two locations. Other rare floral

[[Page 39184]]

threatened and endangered species are scattered throughout the 
remaining four watersheds, with few occurrences in the areas in which 
they have been identified. These few occurrences are not in areas of 
known recoverable coal reserves. Concerning the caves and cave habitats 
for threatened and endangered species, I find that the presence of 
caves and potential cave habitats for threatened and endangered species 
in the petition area outside the Park does not justify a determination 
that they are an important natural system. While these caves may be a 
potentially valuable habitat for cave-inhabiting species, there are no 
identified occurrences of cave-inhabiting threatened and endangered 
species in the petition area. Therefore, I find that the recorded does 
not justify a determination that the presence of caves and potential 
cave habitats in the petition area is sufficient to classify the 
petition area as an important ecologic system or as fragile lands.
     Trout fishery. I find that neither the Park nor the 
petition area outside the Park is fragile land because of the existence 
of a trout fisher, located on a section of Cane Creek that is outside 
the petition area and the Park.
     Esthetic values outside the Park. I find that the record 
does not identify esthetic values in the petition area lands outside 
the Park that justify considering them fragile lands. The petition area 
outside the Park does not possess either overlooks, gorges and falls 
like those in Fall Creek Falls State Park, or other significant 
esthetic values that support designation under the fragile lands 
criterion.
     Cultural values outside the Park.
    I find that the record does not demonstrate that the petition area 
outside the Park is fragile land because of cultural values. Cultural 
activities in the petition area outside the Park are limited, because 
the area consists of private land holdings. Typical activities are 
hunting, fishing, camping, swimming, seed gathering, berrying, etc., by 
local residents living in the area. There are no developed recreational 
resources in the petition area outside the Park, and recreation is not 
a primary land use in any of the watersheds outside the Park. Although 
the cultural activities referenced above are no doubt important to 
those living in and near the petition area outside the Park, these 
activities are not unique to these areas, they do not have uncommon 
importance in the region, and they are not due to high environmental 
quality of the lands. Thus, the record does not identify important 
cultural values in the petition area outside the Park that would 
support designation under the fragile lands criterion.
     Terrestrial wildlife. I find that the record does not show 
the presence of terrestrial wildlife that would justify considering the 
Park or the petition area outside the Park to be fragile land. I find 
that the existence in the petition area of habitats for wild turkey and 
otters does not support considering the petition area to be fragile 
lands, for the following reasons. The wild turkey is not a threatened 
or endangered species. Nor has the Park been designated a valuable or a 
critical habitat for turkeys. The State of Tennessee's wild turkey 
stocking program is very successful in the Park, and the turkey 
population is now expanding into the petition area. The turkey stocking 
by the State is for hunting. Concerning otters, I find that otters are 
on the State's threatened and endangered list. However, the record 
shows there have been no occurrences of otters in the Park or in the 
petition area outside the Park. Further, the record documents no other 
valuable habitats for other terrestrial wildlife, and indicates that 
impacts on other terrestrial wildlife from potential surface coal 
mining operations in the petition area would be minor for the following 
reasons. Mobile species typically seek food and shelter elsewhere 
during active mining. Although less mobile species would suffer losses 
during the land clearing phase of an operation, the contemporaneous 
reclamation requirements of SMCRA would mitigate impacts on terrestrial 
wildlife.
     Environmentally sensitive stream. I find that the 
designation of a portion of Cane Creek, and most recently a portion of 
Dry Fork, as tier II (environmentally sensitive) streams is a State 
designation relevant only to the quality of discharge allowed to enter 
these streams. Although some of the criteria evaluated by the State in 
making its stream evaluations are similar to those considered in the 
``unsuitability'' review process, any designation of a resource as 
``fragile land'' must be based on whether surface coal mining 
operations could affect important historic, cultural, scientific or 
esthetic values or natural systems (regardless of any stream 
classification for other purposes) and could cause significant damage. 
As indicated above, I have determined that Cane Creek within the Park 
and in the petition area outside the Park is an important natural 
system which may be affected by surface coal mining operations, and 
that such operations could cause significant damage to this system. As 
indicated below, mining in the Dry Fork watershed is not predicted to 
affect important natural systems or esthetic and cultural values in the 
petition area. The record does not demonstrate that surface coal mining 
operations in the Dry Fork watershed would affect the fragile lands of 
the Park or could cause significant damage to important values or 
systems. The record also does not demonstrate that surface coal mining 
operations in the Dry Fork watershed would be incompatible with the 
State's land use plans and programs. Therefore, the designation of 
these streams as ``environmentally sensitive'' is not germane to the 
determination of whether Cane Creek or Dry Fork, either in the Park or 
in the petition area outside the Park, should be considered as 
``fragile land''.
     Resources and values in Dry Fork. I find that the record 
does not justify designation of Dry Fork under the criterion for 
fragile and historic lands.
    The cave system through which Dry Fork flows may provide valuable 
habitat for cave-inhabiting species which are considered to be 
important ecological resources. However, water quality and quantity 
changes originating in the coal resource areas of the petition area 
would have little effect in the cave areas of the petition area and the 
Park because of the beneficial chemical changes that take place when 
the water enters the cave system. Also, as the areas of major coal 
reserves in this watershed are several miles from the identified cave 
habitats, I find that there is little likelihood that surface 
activities associated with surface coal mining operations, such as 
blasting and clearing vegetative cover, would have a significant 
adverse impact on the habitat of cave species in the petition area.
    There is no evidence in the record that the Dry Fork area contains 
uncommon geologic formations or paleontologic sites. Nor does it 
contain any National Natural Landmarks or areas meeting the definition 
of historic lands based on 30 CFR 762.5. Nor is there any evidence on 
the record relative to it being an environmental corridor containing a 
concentration of ecologic and esthetic features or an area of 
recreational value due to high environmental quality.
    The Dry Fork watershed is the second largest watershed in the 
petition area but it does not provide any surface water to the Park 
except during an extremely heavy precipitation event. Dry Fork subsides 
and flows through the cave systems after it enters Dry Fork Gorge. Dry 
Fork then resurfaces outside the Park and petition area directly into 
Cane Creek. As a result of Dry Fork flowing underground beneath the 
Park, the stream does not have a significant

[[Page 39185]]

impact on the important natural systems and esthetic and cultural 
values of the Park. Therefore, I find that surface coal mining 
operations in Dry Fork watershed would not affect fragile lands in the 
Park.
    d. Factors in evaluating the risk of significant damage. I find 
that the risks and uncertainties associated with surface coal mining 
operations conducted in the Park and in certain watersheds outside the 
Park could result in adverse impacts causing damage to the fragile 
lands of the Park and those watersheds. When evaluating the risk of 
damage to the Park from a surface coal mining operation, I considered 
the probability that a surface coal mining operation will cause damage 
and the impacts that could result. I find that the record demonstrates 
that there are a number of uncertainties in evaluating the impacts of 
surface coal mining operations in such a large petition area, as 
follows.
     Recoverable coal reserve locations. I find that complete 
information is not available on the location and character of 
recoverable coal reserves, and therefore the nature and degree of risks 
from surface coal mining operations cannot be calculated with 
certainty. The PED/EIS analysis of recoverable coal resource 
information was based on the limited available information. the PED/EIS 
was unable to determine if all coal reserves had been identified. Thus, 
additional coal resources may be present within the Park and petition 
area outside the Park, and any such additional coal resources could 
result in additional uncertainties or risks to the Park. The PED/EIS 
could not determine any such additional uncertainties or risks, and 
thus did not calculate with certainty the level of risk to the Park or 
other protected resources under this designation criterion.
     Location fo acid- and toxic-forming materials. The 
occurrence of potentially acid- and toxic-forming material associated 
with the coal seams of the petition area is generally uncertain, 
nonuniform and discontinuous throughout the petition area. Thus, the 
PED/EIS could not predict with certainty the locations of such 
materials, or the levels of risks to the Park resources under the 
designation criteria.
     Long-term success of AMD predictive and preventive 
techniques. Since the passage of SMCRA in 1977, approximately 205 
permits have been issued in the southern coal fields of Tennessee. The 
majority of these sites have been successfully reclaimed. Eight mines 
or approximately 3.9 percent of the sites permitted have been 
identified as perpetual acid mine drainage (AMD) producers requiring 
long-term treatment. Four of these permits were issued during the 
Interim Program when minimal environmental controls were in place. The 
remaining four were issued between 1984 and 1992, when regulatory 
authorities were making significant changes to enhance prediction and 
prevention techniques for potential AMD production. Regulatory 
authorities, including OSM, are now using improved prediction and 
prevention techniques, and OSM now requires more and better base-line 
data from operators as a basis for analyses. Since 1992, KFO has issued 
nine permits in the southern coal fields, seven of which have developed 
acid/toxic drainage. The permittee(s) contend that these sites will not 
produce toxic drainage once reclamation is complete. These seven sites 
may or may not be long-term producers of AMD. Thus, uncertainties exist 
even with those more recent permits where enhanced prediction 
techniques were used; and several more years of experience with these 
methodologies will be required to verify long-term efficacy in the 
petition area.
     Water quality impacts of non-acid or non-toxic materials. 
Some water quality alterations can result from surface coal mining 
operations in parts of the petition area that do not have acid or toxic 
materials. Alterations can include significant increases in alkalinity, 
total dissolved solids, pH, resuspension of iron from previously 
weathered overburdens or spoils, and generation of manganese. These 
alterations are associated with large-scale disruptions of strata 
interacting with ground and surface waters. Available information is 
not sufficient to predict whether any particular alterations could 
kill, injure, or impair biota in the areas of discharges, or how far 
downstream the impacts would be. However, SMCRA does provide permitting 
requirements and performance standards which should significantly 
mitigate such impacts.
     Operator error. The success of a toxic material handling 
plan (TMHP) is contingent on successful implementation of several 
steps, including: (1) Adequate sampling of the overburden, (2) accurate 
analysis of the overburden materials, (3) adequate design for handling 
the acid- or toxic-material, and (4) effective implementation of the 
TMHP. At any point in these steps, operator error can occur and 
potentially result in the formation of AMD, which could significantly 
impact the water resources of the receiving stream.
    Although some of the impacts listed above may have low 
probabilities of occurring, as discussed in Chapter V of the PED/EIS, I 
find that, if they did occur, the impacts on the Park would be 
significant and possibly severe.
    e. Historic lands--Trail of Tears. I find that the existence of 
segments of the Trail of Tears within the petition area outside the 
Park does not make either the Park or the petition area outside the 
Park a historic land. I find that there are no identified areas that 
have been certified by the National Park Service, nor does the record 
demonstrate that there are any areas that retain enough historic 
character to warrant the additional protection provided by designation 
either in the Park or in the petition area outside the Park. I also 
find that there are no readily identifiable burial mounts or Native 
American artifacts in the Park or in the petition area outside the 
Park. If burial mounds or Native American artifacts were identified in 
the vicinity of a surface coal mining operation, there are a series of 
statutes and rules (Federal and State) that would provide special 
protections for their preservation.
    f. Fragile and historic lands--Summary. In summary, I find that the 
Park is fragile land because of the existence of its important natural 
systems, its ecologic resources (threatened and endangered species and 
their habitats), its cultural values and its esthetic values. I find 
that Cane, Meadow, and Falls Creek watersheds, and the lower reaches of 
the Piney Creek watershed in the petition area outside the Park are 
also fragile lands because these streams of high water quality and 
water quantity are the primary water sources for the waters and water-
formed features of the Park and its stream-dependent ecologic 
resources. I find that surface coal mining operations in the Park or 
these portions of the petition area outside the Park will affect these 
fragile lands.
    I find that surface coal mining operations in the Park or these 
portions of the petition area outside the Park pose an unacceptable 
risk of causing significant damage to the important natural systems and 
cultural and esthetic values of the fragile lands in the Park and the 
petition area outside the Park. Although some risks may have low 
probabilities of occurring, if they did occur the impacts on these 
fragile lands could be significant and long-term.
    I find that the water quality and quantity of the streams entering 
the Park from the Cane Creek, Meadow Creek, and Falls Creek watersheds 
collectively, have a significant influence on the

[[Page 39186]]

Park's natural systems, its ecologic resources, and its cultural and 
esthetic values. I find that the water quality and quantity in the Dry 
Fork watershed have no effect on the Park's surface resources except 
during high flow periods, because the water subsides underground prior 
to entering the Park and re-emerges north of the Park's boundaries.
    I also find that surface coal mining operations in the Crane Creek, 
Meadow Creek, and Falls Creek watersheds, and the lower reaches of the 
Piney Creek watershed, could potentially impact the water quality and/
or quantity of these streams which are essential to the continued 
existence of the unique waters and water-formed features of the Park, 
the natural values of the stream biota in the Park, the threatened and 
endangered species of the Park, and the esthetic values of the Park.
    I find that the fragile lands of the Park would be a risk if an 
operator failed to mitigate unanticipated acid or toxic mine drainage 
from a surface coal mining operation within the Park or within one of 
these watersheds outside the Park, and then abandoned the site without 
an adequate performance bond to threat the acid or toxic mine drainage. 
Although this may be a relatively unlikely occurrence, due to the 
preventive and mitigative requirements of SMCRA, it is an unacceptable 
risk because of the potential impact that untreated acid or toxic mine 
drainage could have on the important natural systems of the petition 
area outside the Park and the important natural systems and esthetic 
and cultural values of the park. Park resources influenced by the Cane 
Creek, Meadow Creek, and Falls Creek watersheds and the lower reaches 
of the Piney Creek watershed, could potentially be damaged. The degree 
of damage would depend on the character, intensity, and duration of the 
untreated acid or toxic mine drainage.
    In addition, the limited drill hole data available to OSM and the 
variability in the occurrence of acid/toxic-forming material in the 
watersheds increases the risk that a permitted surface coal mining 
operation might produce significant amounts of acid/toxic material. And 
even with state-of-the-art-predictive and preventive techniques, a 
permittee may misapply the mining operations or reclamation plan, and 
create AMD. That AMD could impact the important natural systems and 
cultural and esthetic values of the Park as referenced above.

B. Primary Allegation No. 2--Renewable Resource Lands

    1. Petition allegation--The petition area should be designated 
unsuitable for surface coal mining operations because mining the area 
would affect renewable resource lands in which the operations could 
result in a substantial loss or reduction in long-range productivity of 
water supply or of food or fiber products.
    a. The petitioners allege that ground water in the petition area is 
unpredictable and that the inconsistent quality and quantity of ground 
water are natural hazards.
    The intervenors allege that conducting surface coal mining 
operations in the petition area will not result in a substantial loss 
or reduction in long-range productivity of water supply. The 
intervenors also state that the ground waster resources in the petition 
area are predictable and manageable. The intervenors state that a site-
specific determination must be made on current information.
    b. The petitioners allege that pollution from surface coal mining 
operations could make Cane Creek unpotable to hikers because 
contaminants entering the stream from surface coal mining operations 
would result in unacceptable degradation, making it potentially 
unusable as a drinking water supply.
    The intervenors allege that the petitioners have not provided 
documentation which suggests or demonstrates that surface coal mining 
operations will result in a substantial loss or reduction of long-range 
productivity of water supply. The intervenors also allege that 
historical water quality from Cane Creek, based on USGS records, show 
that water quality has not been affected in the watershed despite 
significant previous surface coal mining operations.
    c. The petitioners allege that the petition area is used for 
hunting, fishing, and farming, all of which could be adversely affected 
by changes in water quality or quantity due to surface coal mining 
operations. The petitioners also assert that the area is used by local 
residents for the gathering of berries, seeds for horticultural 
projects, etc., which could be adversely affected by surface coal 
mining operations.
    The intervenors allege that surface coal mining operations in the 
petition area will not result in a substantial loss or reduction in 
long-range productivity of food or fiber products.
    2. Findings--Renewable resource lands. I find that there are 
renewable resource lands in the petition area outside the Park. Also, I 
find that the record demonstrates that surface coal mining operations 
could affect renewable resource lands. However, for the following 
reasons, I find that the record does not demonstrate that surface coal 
mining operations could result in a substantial loss or reduction of 
long-range productivity of water supply or of food or fiber products.
    a. Food and fiber productivity. I find that there are lands in the 
petition area outside the Park that contribute significantly to the 
long-range productivity of food and fiber products. Therefore, I find 
that these lands are renewable resource lands. However, I find that the 
record does not demonstrate that water quality impacts of surface coal 
mining operations on these renewable resource lands would result in a 
substantial loss or reduction of long-range productivity of food or 
fiber products. I find that there have been significant impacts to 
water quality in Dry Fork and in Piney Creek as a result of pre-SMCRA 
mining activities. However, silvicultural property owners have stated 
that fiber production in this area has not been affected by any mining 
impacts to the water. Similarly, the record does not demonstrate that 
agriculture has been affected by the pre-SMCRA mining that occurred in 
the petition area. Both silviculture and agriculture in the petition 
area rely on precipitation as a water source, rather than ground or 
surface water. Therefore, there is little likelihood that production of 
food or fiber products would be significantly damaged by water quality 
impacts of surface coal mining operations.
    b. Water supply productivity. I find that the record does not 
demonstrate that the petition area is renewable resource land because 
of ground water, as ground water in the petition area does not 
contribute significantly to the long-range productivity of water 
supply. Water supplies in the petition area are provided by public 
utilities with water sources outside the petition area. There are a few 
well users scattered throughout the petition area, but those well users 
would have access to public utility water in the event their wells no 
longer produced water acceptably. Likewise, hikers and campers 
occasionally use Cane Creek in the Park as a water source, but the 
incidental or occasional use of a stream as a water supply, does not 
demonstrate that the area contributes significantly to long-range 
productivity of the water supply.

C. Primary Allegation No. 3--Natural Hazard Lands

    1, Petition allegation--The area should be designated unsuitable 
for surface coal mining operations because mining would affect natural 
hazard lands in which such operations could substantially endanger life 
and property.

[[Page 39187]]

    The petitioners allege that mining can increase flooding. They 
allege that a greater than 100-year flood has occurred at Cane Creek in 
the petition area and that construction activities changed the flood-
flow characteristics. They allege that these events demonstrate that 
the petition area is prone to flooding, and that mining could increase 
the danger to life, property, and the environment.
    The intervenors allege that flooding is not a significant issue in 
the petition area. Skyline references the flood hazard mapping of Van 
Buren County prepared by the Department of Housing and Urban 
Development (HUD). Skyline emphasizes that HUD mapping does not show 
flood hazard areas along streams where surface coal mining operations 
would most likely occur in the petition area.
    2. Findings--Natural hazard lands. I find that there are natural 
hazard lands in the petition area as evidenced by the flood prone areas 
shown in the flood hazard maps of HUD for the Cane Creek watershed. 
Also, I find that the record demonstrates that surface coal mining 
operations could affect natural hazard lands, as evidenced by the 
analysis in the PED/EIS that surface coal mining operations could cause 
a five percent increase in previously identified flood levels. However, 
I find that the record does not demonstrate that surface coal mining 
operations could substantially endanger life and property from 
flooding, for the following reasons. The HUD flood hazard maps and 
other available information do not indicate that any structures would 
be substantially endangered by flooding in the Cane Creek watershed 
during a 100-year event as a result of surface coal mining operations. 
All identified structures in the other watersheds are located 
significant distances from the respective creeks. The record does not 
indicate any other respect in which life and property on natural hazard 
lands could be substantially endangered by flooding because of surface 
coal mining operations.

D. Primary Allegation No. 4--Incompatibility With Land Use Plans

    1. Petition allegation--The petition area should be designated 
unsuitable for surface coal mining operations because mining the area 
would be incompatible with existing State or local land use plans or 
programs.
    a. The petitioners allege that the petition area forms the 
watershed of the Park. State regulations provide for the establishment 
of buffer areas to protect Natural Resource Areas, including Natural 
Areas. The Strategic Management Plan for the Park indicates that State 
plans include the purchase of land both upstream and downstream of the 
Park ``to provide adequate protection of Park resources and to give 
defensible boundaries.'' Petitioners allege that allowing mining in the 
watershed would directly under-cut the ability of the State to create 
or maintain a buffer area or to make decisions about appropriate 
activities or land for Park protection.
    The intervenors allege that SMCRA requirements, including the 300 
foot buffer zone [under Section 522(e)(5)] around the Park, provide 
adequate protection to the special features in the Park. The 
intervenors further state that under the Park's original land 
acquisition agreement, sufficient land acreage was incorporated to 
provide a natural, built-in ``buffering'' capacity for its scenic 
landscape and waterfalls. The intervenors conclude that the combined 
acreage of the Park's natural ``buffer'' and the 300 foot buffer zone 
prohibition to mining around the Park's entire boundary is sufficient 
to ensure protection of its natural resources. Therefore, mining in the 
watershed would not directly undercut the State's ability to create or 
maintain a buffer area.
    b. The Petitioners allege that coal truck traffic would affect 
tourist traffic to the Park.
    The intervenors allege that the petitioners provide no proof that 
coal trucks cause damage to the roads and thus constitute a conflict 
with land use plans. The intervenors further allege that coal haulage 
offers an opportunity for jobs which fits into the land use plan and 
that taxes (local, State, and Federal) provide important resources for 
maintenance of the road systems in the land use plans of the petition 
area.
    c. The Petitioners allege that mining would affect the Trail of 
Tears National Historic Trail.
    The intervenors allege that the presence of the Trail of Tears 
within the petition area does not qualify the area as fragile lands 
because: (1) The location of the Trail of Tears comprises an extremely 
small portion, less than 3 percent of the petition area, and is located 
in the southern portion of the area; and (2) the Trail of Tears does 
not meet the definition of fragile land because a majority of the Trail 
parallels or overlies existing roadways in the petition area.
    d. The petitioners allege that the Park is a prime tourist 
attraction in the State of Tennessee and that the State has made 
significant investments in the Park to construct facilities to make 
Fall Creek a resort park.
    The intervenors allege that the petitioners' assertion that mining 
in the area could damage the Park's attractiveness and economic 
viability is merely an opinion and is not supported by facts. 
Therefore, there is no support for the allegation that mining is 
incompatible with existing State or local land use plans or programs.
    e. The Petitioners allege that feature-length films have been made 
in and out of the petition area, and that mining would cause this 
industry not to return.
    The intervenors made no response to this allegation.
    2. Findings--Incompatibility with land use plans. I find that 
surface coal mining operations in the Park or in certain portions of 
the petition area outside the Park would be incompatible with State or 
local land use plans and programs, for the following reasons.
    The existing land use plans and programs do not call for surface 
coal mining operations in the Park. The impacts of fugitive dust and 
noise from surface coal mining operations in or near the Park on the 
recreational values of the Park would impair the recreational use of 
Park land. The visual impacts of surface coal mining operations in the 
Park or in certain parts of the petition area near the Park could have 
a negative impact on Park visitation, thus affecting the economic 
viability of the Park and the surrounding area. The natural systems, 
ecologic resources, cultural resources, and esthetic values of the park 
could be moderately to significantly impacted by surface coal mining 
operations in the Park and in the petition area outside the Park as 
described in the mining scenarios in Chapter V of the PED/EIS.
    These impacts would be in direct conflict with the mission of Fall 
Creek Falls State Park: To preserve and protect the Park and Natural 
Area's unique resources--most importantly its water and water-formed 
features, and to provide visitors with well managed and maintained stay 
use and day use facilities. This mission is the basis for the Park's 
current land use plans and programs. In order to enhance these 
programs, the State has invested significant amounts of State funds in 
the Park to preserve its natural resources and to make it more 
attractive to Park visitors. In turn, the Park has generated revenue 
for the State and the surrounding counties because of its high 
visitation rates and its attractiveness as a feature film location.
    However, for the reasons given below, I find that the record does 
not support the following allegations raised by the petitioners with 
respect to incompatibility of surface coal mining

[[Page 39188]]

operations with State or local land use plans or programs: (1) Mining 
of the area would undercut the ability of the State to maintain a 
buffer zone around the Park. [I find the State has been successful in 
acquiring additional lands around the Park to enhance its protection of 
the Park resources, although the petition area outside the Park has 
been significantly affected by various land uses such as agriculture, 
silviculture and, to a limited degree, by mining. There has been no 
mining in the petition area outside the Park since 1984]. (2) Coal 
trucks damaging roads is inconsistent with land use plans. [I find that 
there is or can be sufficient road maintenance by the State and local 
government to address impacts on roads from coal trucks in surface coal 
mining operations.] (3) Mining near the Trail of Tears is inconsistent 
with land use plans. [I find that since there are no certified segments 
of the Trail of Tears in the petition area, mining near the Trail of 
Tears would not be inconsistent with local land use plans or programs.]
    Similarly, surface coal mining operations in the Dry Fork watershed 
would not be incompatible with the existing land use plans or programs 
for the Park. The largest block of coal reserves in Dry Fork is located 
in the headwater areas of the watershed. This part of the watershed is 
adjacent to the northern portion of the Park where visitation is 
prohibited. Any surface coal mining operations in this area would be 
outside the viewshed of Park visitors and would go undetected by 
tourists entering and leaving the Park because of its distance from 
either the northern or southern entrances of the Park. Therefore, 
because of the lack of demonstrated likely significant damage to Park 
natural systems and esthetic and cultural values, or impact on Park 
visitation, the record does not demonstrate that surface coal mining 
operations in this watershed would be incompatible with existing State 
or local land use plans or programs.

E. Primary Allegations No. 5--Feasibility of Reclamation

    1. Petition allegation--The petition area must be designated 
unsuitable for surface coal mining operations because reclamation is 
not technologically and economically feasible.
    a. The petitioners allege that reclamation of the petition area is 
not technologically and economically feasible because mining the 
Sewanee coal seam consistently leads to acid and toxic drainage despite 
the efforts of OSM and the most diligent mining companies to avoid such 
degradation.
    The intervenors allege that the Sewanee coal seam in and of itself 
is not toxic. They contend that the coal seam and its related 
overburden has variable acid-producing potential and that potential 
does not automatically equate to toxicity. They further contend that 
such materials only become acid-producing under prolonged exposure to 
atmospheric oxidizing conditions and other processes. They further 
allege that mining at the Skyline Coal Company site has demonstrated 
that the Sewanee coal seam and its overburden materials can be handled 
properly to avoid or significantly minimize the production of undesired 
acid conditions. They also contend that the violation history provided 
by the petitioners misrepresents the facts and is often inaccurate.
    b. The petitioners allege that the methods used by the coal 
industry and OSM do not accurately predict acid or toxic mine drainage, 
and that there is no foolproof method for handling acid-forming 
materials. Therefore, the petitioners allege that any mining in the 
watershed would place the streams in the Park at risk of acid mine 
drainage and would conflict with OSM regulations and objectives to 
prevent such occurrences.
    The intervenors allege that reclamation associated with the mining 
of the Sewanee coal seam is technologically and economically feasible 
as demonstrated by the operations at its Big Brush Creek Mine. Skyline 
states that the company has been successful in mining the Sewanee coal 
seam without creating toxic mine drainage as alleged by the 
petitioners. The lack of an adequate technological understanding of the 
geochemical make-up of the overburden associated with the Sewanee coal 
seam and the subsequent deficit of technological know-how in the proper 
handling of the spoil material had led to past mining operations 
causing undesirable acid mine drainage. Intervenors assert that this is 
not the case with more recent technological breakthroughs and 
experiences gained in working with the coal seam. With improved acid-
base accounting techniques that take into account siderite-masking, the 
acid-producing potential of the overburden can be properly 
characterized in advance of mining. Skyline asserts that, with an 
accurate acid-base bank, the combination of mining and reclamation 
technologies has been implemented by Skyline at its Big Brush Creek 
Mine to avoid and/or significantly minimize the generation of acidic 
conditions. Skyline further states that the company has successfully 
mined and reclaimed the disturbed areas economically and at a profit.
    c. The petitioners allege that reclamation is not technologically 
and economically feasible within the petition area because even fully 
regulated mining results in unavoidable impacts.
    The intervenors allege that these types of risks and events pose 
minimal risks to the Fall Creek Falls State Park. They reference storm 
events well over the 10-year, 24-hour interval which have occurred 
within the petition area without having unalterable, long-term impacts 
to the Park.
    They also contend that the environmental protection performance 
standards can and will provide the necessary protection for the Park 
and the petition area.
    2. Findings--Feasibility of reclamation. I find that the record 
does not clearly demonstrate that reclamation of surface coal mining 
operations in the petition area is technologically and economically 
infeasible, as required for designation under the mandatory criterion. 
I find that the presence of the Sewanee coal seam in the petition area 
does not clearly demonstrate that reclamation is technologically and 
economically infeasible. Although the Sewanee coal seam may contain 
acid-and toxic-forming materials, I find that this does not support a 
determination that reclamation of those surface coal mining operations 
involving coal extraction from the Sewanee coal seam is infeasible. The 
history of mining in the southern coal fields where the Sewanee coal 
seam dominates demonstrates that the majority of sites have been 
successfully reclaimed. Only 8 permits out of 205 permits issued since 
1977 when SMCRA was enacted are confirmed AMD producers. Four of these 
permits were issued between 1977 and 1982 when minimal environmental 
controls were in place. The remaining 4 were issued between 1984 and 
1992, when Tennessee and other states were developing ways to enhance 
their predictive techniques in order to accurately identify potential 
AMD producers. Since 1992, enhanced methodologies have been utilized on 
most permits. These predictive and preventive methodologies continue to 
evolve and improve. However, uncertainties exist with some of the more 
recent permits where water quality problems have developed. Several 
more years of experience will be required to determine the overall 
success of the newer methodologies for AMD prediction and prevention 
that were incorporated into these permits, because the success or 
failure of these newer

[[Page 39189]]

methodologies cannot be verified until these sites are in reclamation. 
Nonetheless, I have determined that the record does not clearly 
demonstrate that reclamation is technologically or economically 
infeasible, as required for designation under the mandatory criterion.
    However, as discussed above, the record does demonstrate that 
surface coal mining operations would pose an unacceptable risk to the 
fragile lands of the Park, and that such risks are incompatible with 
Park land use plans and programs. Because the adverse impacts could be 
significant, the risk to the Park is unacceptable.

VII. Decision on Petition--Designation

A. Areas Designated and Basis for Designation

    I am designating the Park and the Cane Creek, Meadow Creek, and 
Falls Creek watersheds as unsuitable for surface coal mining 
operations, including surface activities in connection with underground 
mining operations. I am designating the Piney Creek watershed 
unsuitable for surface coal mining operations, subject to a proviso 
that remining may be permitted in the upper reaches, as described 
below. The selection of the preferred alternative assures that all 
reasonable and practical means to avoid or minimize environmental harm 
have been adopted.
    I have determined that designation is appropriate under the 
following discretionary criteria.
     That surface coal mining operations would affect fragile 
lands in which the operations could result in significant damage to 
important esthetic values and natural systems in accordance with SMCRA 
Section 522(a)(3)(B); and
     That surface coal mining operations would be incompatible 
with existing Park land use plans or programs in accordance with SMCRA 
Section 522(a)(3)(A).
    In summary, my decision to designate portions of the petition areas 
as unsuitable for mining operations is based on (1) the inherent risks 
of surface coal mining operations to fragile lands and (2) the 
uncertainties associated with predicting and preventing impacts of 
surface coal mining operations in such a large area as that of the 
petition area. These risks and uncertainties could result in 
significant adverse and irreversible impacts to the Park's esthetic and 
cultural values, its natural systems, and its ecologic resources, and 
with both its short-term and long-term land use plans and programs.
    I have determined that, if surface coal mining operations were to 
occur on these lands, such operations would pose a significant and 
unacceptable risk to the unique ecological resources, esthetic and 
cultural values, and natural systems of Tennessee's most prestigious 
park and to the natural systems of the Cane Creek, Falls Creek, Meadow 
Creek, and lower reaches of the Piney Creek watersheds. I have also 
determined that such risks and uncertainties are incompatible with the 
Park's land use plans and programs.
    These decisions are based on consideration of the PED/EIS, and of 
the entire administrative record before me [including all comments 
received during the period prescribed by regulation before a decision 
can be made on the final PED/EIS]. That information includes the 
petition; the draft and final petition evaluation documents/
environmental impact statements (PED/EIS); information provided by the 
petitioners; comments in the form of oral testimony at the public 
hearing; and written submissions received during the public comment 
periods which ended April 29, 1999, and the prescribed wait period 
which ended on May 3, 2000, from Federal agencies, State agencies, 
local agencies, and members of the public and industry. The public 
record also includes information from meetings with the petitioners, 
land owners, lease holders, and intervenors, and comments received 
during the prescribed period after publication of the final PED/EIS.
    1. Designation of Park. In the event that the State, as the mineral 
owner of lands within the Fall Creek Falls State Park successfully 
asserted valid existing rights (VER) in accordance with 30 CFR 761.11, 
the State would be able to engage in surface coal mining operations and 
SMCRA Section 522(e), regarding protection of publicly owned parks 
would not prohibit these operations. Therefore, I am exercising my 
discretion to designate Fall Creek Falls State Park as unsuitable for 
mining in accordance with 30 CFR 762.11(b)(1) and (b)(2) along with 
Cane Creek, Falls Creek and Meadow Creek watersheds. Although the State 
has indicated that it has no intent to mine the Park coal reserves, 
such a statement is not legally binding. And theoretically, there may 
be circumstances in which the prohibitions of Section 522(e) would not 
protect all Park lands. Thus, in the vent that VER was demonstrated for 
surface coal mining operations on Park lands, the State would be able 
to engage in surface coal mining operations, and SMCRA Section 522(e), 
regarding protection of publicly owned parks, would not prohibit these 
operations. I also recognize that it may be theoretically possible that 
some portion of the Park's boundaries could be modified so as to remove 
areas from the Park. The conveyance from the United States to Tennessee 
of the core area of the Park required that the conveyed lands be used 
exclusively for public park, recreational and conservation purposes. 
The United States retained a revisionary interest if the State failed 
to comply with this limitation for more than 3 years. The Department 
has never addressed whether allowing coal mining on the conveyed lands 
would violate this condition. Because it might be possible that surface 
coal mining operations or some aspect of surface coal mining operations 
could be allowed, or that the mining could be completed in 3 years or 
less, I am exercising my discretion to designate the Fall Creek Falls 
State Park as unsuitable for surface coal mining operations.
    2. Designation of Piney Creek watershed allowing remining of upper 
reaches. I am designating the upper portions of the Piney Creek 
watershed unsuitable for surface coal mining operations; provided, that 
a surface coal mining operation may be permitted if a portion of the 
operation includes previously mined areas and the permit applicant 
demonstrates that water quality in receiving streams will not be 
degraded. I have determined that, because of where it enters the Park, 
Piney Creek has limited influence on the continued preservation of the 
Park's resources. However, Piney Creek does influence the esthetic 
values associated with Piney Falls within the Park and does contribute 
to some degree, to the continued existence of the unique natural values 
of the Park. Therefore, for the reasons outlined above, designation is 
appropriate. However, I believe permitting remining in the upper 
reaches of this watershed can be appropriate, for the following 
reasons.
    Although there are inherent and unavoidable impacts as well as 
unanticipated events that may occur during surface coal mining and 
reclamation operations, I have determined that potential remining of 
the headwaters of the Piney Creek watershed, which would include the 
reclamation of pre-SMCRA mined lands, could provide benefits that 
outweigh the risks.
    Most of the upper portions of the Piney Creek watershed contain 
pre-SMCRA abandoned mine sites. Allowing surface coal mining operations 
only in those areas in which the water quality could improve as a 
result of

[[Page 39190]]

remining operations would potentially benefit the Park as a fragile 
land. Due to the distance of any potential surface coal mining 
operations from the Park borders or the Park entrances, there would be 
no incompatibility with State or local land use plans or programs if 
remining operations were allowed in the headwaters of the Piney Creek 
watershed.
    The water quality in these headwater reaches has been significantly 
impacted by the pre-SMCRA mining. Currently, Piney Creek proper and 
other headwater tributaries flow through pre-SMCRA mine pits and are 
impacted by acid mine drainage and by increased concentrations of total 
dissolved solids which result in mineralization to the waters of the 
receiving stream. Thus, remining of these abandoned mine lands has the 
potential to improve water quality and therefore, have a beneficial 
effect on resources both within and outside the Park. The remining 
could reclaim the pre-SMCRA mine pits and reconstruct the headwatere 
streams, including riparian habitat. Also, the previously mined and 
unreclaimed land would be returned to a productive use.
    By allowing only remining of previously mined areas in the upper 
reaches of the Piney Creek watershed, I am minimizing any risk to Park 
resources. Water quality improves in the lower reaches of Piney Creek 
as it enters the Park, and should not be compromised by the possibility 
of a mining failure in the lower reaches. Such failure could 
potentially impact the Park's natural systems and cultural and esthetic 
values, and be incompatible with the Park's land use plans and 
programs.

B. Area Not Designated--Dry Fork Watershed

    I am not designating the Dry Fork watershed as unsuitable for 
surface coal mining operations. I am not designating any lands within 
the Dry Fork watershed as unsuitable for surface coal mining operations 
for the following reasons. Dry Fork watershed does not contain the 
natural, ecologic, scientific or esthetic resources that would make it 
a fragile land in accordance with 30 CFR 762.5. It is not a valuable 
habitat for fish or wildlife or for threatened and endangered species 
of animals or plants as demonstrated by the few documented occurrences 
within the watershed. Surface coal mining operations conducted in Dry 
Fork watershed would not affect fragile lands or be incompatible with 
existing State or local land use plans or programs.

C. Other Criteria

    For the reasons discussed above, I have decided that the record 
does not demonstrate that designation is appropriate for any part or 
all of the petition area under the criteria of SMCRA Section 522(a)(2) 
or (3)(C)(D).

VII. Effects of Decision and Future Action

    In accordance with 30 CFR 736.15, OSM is responsible for approving 
or denying applications for proposed surface coal mining operations in 
Tennessee, including the Fall Creek Falls petition area. In accordance 
with these regulations, OSM also administers and maintains an 
enforcement program to assure compliance with SMCRA laws, regulations, 
policies, and procedures. Thus, OSM's permitting and enforcement 
programs mitigate any environmental impacts that might be associated 
with the selection of the preferred alternative. OSM would also require 
compliance with the restrictions placed on surface coal mining 
operations in the headwaters of the Piney Creek watershed and would 
preclude surface coal mining operations in those portions of the 
petition area designated as unsuitable for surface coal mining 
operations.
    Under this decision, OSM would not accept and process applications 
for proposed surface coal mining operations in the Park, in the Cane 
Creek, Meadow Creek and Falls Creek watersheds, and in the lower 
reaches of Piney Creek watershed within the Fall Creek Falls petition 
area outside the Park, except as provided in SMCRA Section 522(a)(6). 
That provision states that:

The requirements of this section shall not apply to lands on which 
surface coal mining operations are being conducted on the date of 
enactment of this Act or under a permit issued pursuant to this Act, 
or where substantial legal and financial commitments in such 
operation were in existence prior to January 4, 1977.

    Concerning the upper reaches of the Piney Creek watershed within 
the Fall Creek Falls petition area, OSM would accept and process 
applications for proposed surface coal mining operations where the 
proposed mining plan includes areas disturbed by pre-SMCRA coal mining, 
and the applicant demonstrates that water quality in the receiving 
streams will not be degraded, and that impacts from the previous mining 
will be mitigated by the proposed surface coal mining operation. All 
other surface coal mining operations would be prohibited.
    OSM's December 17, 1999, final rule on the applicability of Section 
522(e) of SMCRA to subsidence concluded that SMCRA's definition of 
``surface coal mining operations'' at Section 701(28) does not apply to 
subsidence. The rulemaking preamble discusses OSM's conclusions as to 
why the definition includes surface activities in connection with a 
surface coal mine; and surface activities in connection with surface 
operations and surface impacts incident to an underground mine; and 
areas affected by such activities. In brief, under this interpretation 
subsidence is not a surface activity in connection with an underground 
mine and is not an area affected by such surface activity, and 
therefore, is not a surface coal mining operation subject to the 
prohibitions of Section 522(e). OSM expects to act consistent with this 
interpretation in determining which aspects of an underground coal mine 
are prohibited under Section 522 as surface coal mining operations.
    Consistent with this interpretation, I anticipate that OSM will 
interpret the definition of surface coal mining operations at SMCRA 
Section 701(28) to mean: Surface activities in connection with a 
surface coal mine and surface activities in connection with surface 
operations and surface impacts incident to an underground coal mine, 
and areas affected by such surface activities. Under this 
interpretation, designation would prohibit only surface activities and 
areas affected by surface activities as discussed above. Because 
subsidence is not a surface activity, and is not an area affected by 
such surface activity, subsidence would not be considered a ``surface 
coal mining operation.'' Thus, subsidence and other aspects of 
underground coal mining that are not surface activities or areas 
affected by surface activities would not be prohibited on any land 
designated unsuitable for surface coal mining operations pursuant to 
this petition.
    OSM would accept and process applications for surface coal mining 
operations in the Dry Fork watershed of the Fall Creek Falls petition 
area outside the Park in accordance with OSM's conclusion that this 
watershed has no effect on the Park's surface resources.
    A petitioner may seek termination of this designation with respect 
to Cane Creek, Falls Creek, Meadow Creek and Piney Creek watersheds, by 
providing new allegations of fact that support such a termination.

IX. Notification

    Pursuant to 30 CFR 942.764.19 and 40 CFR 1506.6, this ``Record of 
Decision and Statement of Reasons'' is being sent simultaneously by 
certified mail to the petitioners and intervenors and by

[[Page 39191]]

regular mail to every other party to the petition process, including 
affected Indian tribe(s), Federal and State agencies, commenters who 
submitted substantive comments, and all others who have requested it. 
Notification of the availability of the document will be published in 
four local or regional newspapers, the Tennessee Administrative Record, 
and the Federal Register, and will be sent by regular mail to 
landowners in the petition area and to commenters who submitted general 
comments. The document will also be placed on OSM's web page. My 
decision becomes final upon the date of signing this statement. Any 
appeal from this decision must be filed within 60 days from this date 
in the United States District Court for the Eastern District of 
Tennessee, as required by Section 526(a)(1) of SMCRA.

    Dated: June 17, 2000.
Bruce Babbitt,
Secretary of the Interior.
[FR Doc. 00-15898 Filed 6-22-00; 8:45 am]
BILLING CODE 4310-05-M