[Federal Register Volume 69, Number 4 (Wednesday, January 7, 2004)]
[Proposed Rules]
[Pages 1036-1048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-266]



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Part IV





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 780, 816, and 817



Surface Coal Mining and Reclamation Operations; Excess Spoil; Stream 
Buffer Zones; Diversions; Proposed Rule

  Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 780, 816, and 817

RIN 1029-AC04


Surface Coal Mining and Reclamation Operations; Excess Spoil; 
Stream Buffer Zones; Diversions

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

ACTION: Proposed rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are proposing to amend our regulations to accomplish two basic 
goals: Minimizing the adverse environmental effects stemming from the 
construction of excess spoil fills; and clarifying the circumstances in 
which mining activities, such as the construction of excess spoil 
fills, may be allowed within the stream buffer zone (SBZ), i.e., within 
100 feet of a perennial or intermittent stream. By these changes, we 
intend to clarify our program requirements and reduce the regulatory 
uncertainty concerning these matters. These changes will also reduce 
conflicts and improve consistency between regulation under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA) and regulation under 
the Clean Water Act (CWA).
    More specifically, we intend to minimize the environmental effects 
from excess spoil fill construction by requiring that the coal operator 
demonstrate to the satisfaction of the regulatory authority that, to 
the extent possible, the volume of excess spoil is minimized; excess 
spoil fills associated with a mine are designed to be no larger than 
needed to accommodate the anticipated volume of excess spoil from that 
mine; alternative configurations for excess spoil disposal, including 
alternative sizes, numbers and locations of fill are considered; and 
the proposed excess spoil disposal plan minimizes, to the extent 
possible, adverse impacts to the prevailing hydrologic balance, fish, 
wildlife, and related environmental values.
    We also propose to amend the regulation commonly referred to as the 
SBZ rule to more closely align with its basis in SMCRA and our 
experience in implementing the rule. These changes will require the 
applicant to demonstrate, to the satisfaction of the regulatory 
authority, that the mining operation has been designed, to the extent 
possible, to minimize impacts on hydrology, fish and wildlife, and 
related environmental values and to prevent additional contributions of 
sediment to streams prior to allowing mining within 100 feet of a 
perennial or intermittent stream. We intend to revise rule language 
that is evidently confusing, has given rise to divergent, conflicting 
interpretations, has led to litigation, and has raised concern over 
restrictions that are not required by SMCRA and that might conflict 
with regulations under the CWA.
    Finally, we propose to amend our stream diversion regulation to 
comport with the proposed changes to the SBZ rule.

DATES: Electronic or written comments: We will accept written comments 
on the proposed rule until 5 p.m., Eastern Time, on March 8, 2004.
    Public hearings: Anyone wishing to testify at a public hearing must 
submit a request on or before 5 p.m., Eastern Time, on January 28, 
2004. Because we will hold a public hearing at a particular location 
only if there is sufficient interest, hearing arrangements, dates and 
times, if any, will be announced in a subsequent Federal Register 
notice. Any disabled individual who needs special accommodation to 
attend a public hearing should contact the person listed under FOR 
FURTHER INFORMATION CONTACT.

ADDRESSES: If you wish to comment, you may submit your comments on this 
proposed rule by one of three methods. You may mail or hand carry 
comments to the Office of Surface Mining Reclamation and Enforcement, 
Administrative Record, Room 101, 1951 Constitution Avenue, NW., 
Washington, DC 20240, or you may send comments via electronic mail to 
[email protected].
    If you wish to comment on the information collection aspects of 
this proposed rule, you may submit your comments to the Office of 
Management and Budget, Office of Information and Regulatory Affairs, 
Attention: Interior Desk Officer, via e-mail to [email protected], or via facsimile to 202-365-6566.
    You may submit a request for a public hearing orally or in writing 
to the person and address specified under FOR FURTHER INFORMATION 
CONTACT. The address, date and time for any public hearing held will be 
announced before the hearing. Any disabled individual who requires 
special accommodation to attend a public hearing should also contact 
the person listed under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: David G. Hartos, Office of Surface 
Mining Reclamation and Enforcement, U.S. Department of the Interior, 3 
Parkway Center, Pittsburgh, PA 15220; Telephone: 412-937-2909. E-mail 
address: [email protected]. Additional information concerning this rule 
and related documents may be found on our home page on the internet at 
http://www.osmre.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
    A. Why Is OSM Initiating Rulemaking To Minimize the Adverse 
Environmental Effects Stemming From the Construction of Excess Spoil 
Fills?
    B. Why Is OSM Proposing To Revise Its Stream Buffer Zone 
Regulation?
    1. Evolving SBZ Rule Controversy
    2. SBZ Regulatory Background
    C. Reference Materials
II. Discussion of the Proposed Rules
    A. Reclamation Plan (Sec.  780.18(b)(3))
    B. Disposal of Excess Spoil (Sec. Sec.  780.35 and 816.71)
    C. Stream Buffer Zones (Sec.  816.57/817.57)
    D. Diversion of Perennial and Intermittent Streams (Sec.  
816.43(b)/817.43(b))
III. How Do I Submit Comments on the Proposed Rule?
IV. Procedural Matters and Required Determinations
    A. Executive Order 12866--Regulatory Planning and Review
    B. Executive Order 13211--Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use
    C. Regulatory Flexibility Act
    D. Small Business Regulatory Enforcement Fairness Act
    E. Unfunded Mandates
    F. Executive Order 12630--Takings
    G. Executive Order 13132--Federalism
    H. Executive Order 12988--Civil Justice Reform
    I. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    J. Paperwork Reduction Act
    K. National Environmental Policy Act
    L. Clarity of this Regulation

I. Introduction

    When coal is mined by surface mining methods, rock and soil that 
overlie the coal must be removed and stored temporarily outside of the 
immediate mining area. The rock is broken as it is removed, and the 
broken rock is referred to as ``spoil.'' Because the broken rock 
incorporates voids and air, spoil is less dense than undisturbed rock; 
so the volume of spoil removed during mining becomes greater than the 
volume of rock that was in place prior to mining. After coal removal, 
the mine operator returns the spoil to the mined-out area for 
reclamation.
    The operator grades the spoil so that it closely resembles the pre-
mining topography. We refer to this as returning

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the reclaimed mine to the approximate original contour, or simply AOC. 
Under certain circumstances, by obtaining the necessary approvals, the 
mine operator may get a waiver from the AOC requirement that allows the 
operator to grade the backfilled spoil to a shape capable of supporting 
an alternative postmining land use.
    Regardless of whether an operator reclaims the mine to AOC or 
shapes it to support an alternative postmining land use, there are 
situations, particularly in steep terrain, where the volume of spoil is 
more than sufficient and more than is technically feasible to return to 
the mined-out area when reclaiming the site. Surplus spoil material 
disposed of in locations other than the mined-out area, except for 
material used to blend spoil with surrounding terrain in achieving AOC 
in non-steep slope areas, is referred to as ``excess spoil''.
    In Appalachia, on steep terrain, the mine operator may place the 
excess spoil either in adjacent valleys or on previously mined sites. 
Our rules at 30 CFR 816.71-74 provide flexibility in design and 
construction of several types of steep-slope fills: ``valley'', ``head-
of-hollow'', and ``durable rock''. Valley and head-of-hollow fills are 
limited by definition in 30 CFR 701.5 to steep slope areas (valley side 
slopes of greater than 20 degrees or valley profile [stream] gradient 
of greater than 10 degrees). Durable rock fills are not limited to 
steep slopes, but in practice have been the most common fill 
construction technique in steep slope areas.
    Surface coal mining activities other than excess spoil fills may 
also involve disturbance of stream channels. Coal deposits underlie 
many streams at shallow depths, and mining activities routinely divert 
and relocate a watercourse to remove the coal.
    Underground mining development involves excavating rock and soil on 
the surface to expose the coal seam and to provide access for people, 
equipment, and ventilation for the underground mining operation. This 
process is referred to as ``facing up.'' In steep terrain, excavated 
material from these ``face-up'' areas may result in small fills if the 
excavation is limited to providing coal seam access, or larger fills if 
facilities such as miners' bathhouses, office buildings, coal storage 
or coal preparation areas are needed. Some face-up fills are 
constructed on valley hillsides, and other face-up fills must be placed 
in adjacent valleys. Underground mining may also involve excavating 
non-coal waste rock underground. Because underground mining typically 
brings this waste rock material to the surface, the mine operator 
typically constructs fills to accommodate the material.
    The mine operator may have to place fill in small streams adjacent 
to the preparation facility or within embankments or impoundments, in 
order to dispose of coal waste from the cleaning and preparation of 
coal. Similarly, the operator of a preparation facility may need an 
impoundment in an adjacent stream valley for withdrawal of cleaning 
process water. In order to minimize sedimentation and comply with CWA 
or State effluent standards, an operator of a surface or underground 
coal mine may need to place sediment control structures or ponds in 
streams below the mine.
    Because of such mining necessities, SMCRA and the implementing 
regulations on protecting the hydrologic balance and on other subjects, 
recognize that certain stream impacts may be necessary during coal 
mining. However, such impacts must be carefully and thoughtfully 
evaluated, planned for, and minimized to assure the environment is 
protected during and after mining. See SMCRA sections 102(d) and 
507(b). The rule proposal described below is consistent with this 
approach. It would clarify and supplement existing requirements and 
require a permit applicant to provide relevant information and analysis 
concerning mine planning and design to minimize environmental impacts.

A. Why Is OSM Initiating Rulemaking To Minimize the Adverse 
Environmental Effects Stemming From the Construction of Excess Spoil 
Fills?

    Section 201(c)(2) of SMCRA, 30 U.S.C. 1211(c)(2), directs the 
Secretary of the Interior (the Secretary), acting through OSM, to 
publish and promulgate such rules and regulations as may be necessary 
to carry out the purposes and provisions of SMCRA. Section 501(b) of 
SMCRA, 30 U.S.C. 1251(b), directs the Secretary to ``promulgate and 
publish in the Federal Register regulations covering a permanent 
regulatory procedure for surface coal mining and reclamation operations 
performance standards.'' The implementing OSM regulations are codified 
at 30 CFR Chapter VII.
    Since the early 1970's, large-scale surface mining has become a 
more prevalent means of coal extraction in the central Appalachian 
coalfields. Most surface coal mining in the mountainous terrain of 
central Appalachian coalfields unavoidably generates excess spoil. This 
excess spoil is often placed in the upper reaches of valleys adjacent 
to the mine. In the Appalachian coalfields, even the upper reaches of 
valleys may contain stream channels or watercourses with continual 
(perennial) or intermittent flow. For example, the United States 
Geologic Survey studied a sample of streams in West Virginia and found 
that, on average, perennial streams may begin in watersheds of 40.8 
acres and intermittent streams in watersheds of 14.5 acres. [Paybins, 
2003, p.1 (citations in this preamble to the reference materials listed 
at I.C. of the preamble, are set out in brackets)].
    An OSM inventory of fills in the central Appalachian coalfields 
(eastern Kentucky, Tennessee, southwestern Virginia and southern West 
Virginia) identified about 5700 excess spoil fills constructed between 
1985 and 2001. [U.S. Environmental Protection Agency (USEPA), 2003, p. 
III. K-15] Spoil from these fills covered approximately 1.2 percent of 
the small streams (724 of the estimated 59,000 miles of streams) in the 
inventory region. [Ibid, p. III. K-47] OSM has estimated that, without 
changes in production or mining technology, excess spoil fills may 
potentially impact an additional 724 stream miles in the next seventeen 
years. [Ibid, p. IV. B-2].
    As the population and the cumulative surface extent of surface 
mines and excess spoil fills have increased, so have the concerns 
regarding the adverse environmental effects from the construction of 
excess spoil fills. In the summer of 1998, the West Virginia Highlands 
Conservancy--an environmental organization--and several citizens filed 
suit in Federal court against the West Virginia Division of 
Environmental Protection (WVDEP) alleging that the State was not 
administering its SMCRA-based coal regulatory program in compliance 
with State requirements. Bragg v. Robertson (Bragg), Civ. No. 2:98-0636 
(S.D.W. Va.).
    In addition to suing the WVDEP, the plaintiffs in Bragg sued the 
U.S. Army Corps of Engineers (USCOE) concerning its implementation of 
CWA Section 404 in the permitting of excess spoil fills. Among other 
issues, plaintiffs argued that the USCOE should have been individually 
permitting excess spoil fills rather than issuing authorizations under 
its nationwide permits (NWP) process. Coal mining activities affecting 
``waters of the United States'' are subject to applicable requirements 
of CWA Section 404. The USCOE is the primary Federal authority 
responsible for issuing Section 404 permits, which may be either NWP or 
individual permits (IP). The USCOE uses the NWP process for coal mining 
activities that have less than a minimal impact on aquatic

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resources--both individually and cumulatively.
    In December 1998, the parties reached an agreement, which addressed 
all outstanding counts directed at the USCOE in Bragg. Pursuant to the 
settlement agreement, in February 1999 OSM, the U.S. Fish and Wildlife 
Service (USFWS), USEPA, USCOE, and WVDEP initiated preparation of a 
draft programmatic environmental impact statement (EIS) under the 
National Environmental Policy Act (NEPA).
    The agencies designed the EIS to consider developing agency 
policies, guidance, and coordinated agency decision-making processes to 
minimize the adverse effects stemming from mountaintop mining/valley 
fills in the Appalachian coalfields. The agencies released the draft 
EIS for public comment on May 29, 2003.
    While work towards finalizing that EIS continues, we recognized the 
need to revise and clarify our national rules to address environmental 
effects from the construction of excess spoil fills.\1\ We are moving 
forward with this rule to expeditiously address concerns regarding the 
construction of excess spoil fills and regulatory uncertainty regarding 
our stream buffer zone regulations.
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    \1\ The December 23, 1998, settlement agreement between the 
plaintiffs and the defendants in Bragg led to the initiation of the 
EIS. Paragraph 21 of that agreement states: ``* * * Nothing in this 
Settlement Agreement shall be construed to limit or modify the 
Federal Agencies' discretion to alter, amend, or revise from time to 
time any actions taken by them pursuant to this Settlement Agreement 
or to promulgate superseding regulations.''
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    As part of our oversight activities and separate from the EIS, we 
conducted studies in Kentucky, Virginia and West Virginia to determine 
how the regulatory authorities were administering SMCRA programs 
regarding AOC and postmining land use requirements. [USDOI-OSM, May 
1999; USDOI-OSM, September 1999; USDOI-OSM, May 2000] When we examined 
permit files and reclaimed mines, we found it difficult to distinguish 
between the reclamation configuration of mines that were not to be 
reclaimed to AOC and the reclamation configuration of mines that were 
to be reclaimed to AOC. There were no clear differences in the number 
and size of the excess spoil fills, although we anticipated that non-
AOC mines would typically have larger or more numerous fills. We 
determined that typically, coal mine operators could have retained more 
spoil on mined-out areas under applicable AOC requirements than they 
were actually retaining.
    We also found that, in many instances, coal mine operators were 
overestimating the anticipated volume of excess spoil. As a result, we 
concluded that coal companies were designing fills larger than 
necessary to accommodate the anticipated excess spoil. Where fills are 
larger than needed, more land outside the coal extraction area is 
disturbed than is necessary. We attributed these problems, in part, to 
inadequate regulatory guidance. Therefore, we recommended that each 
regulatory authority work with us to develop enhanced guidance on 
material balance determinations, spoil management, and AOC. Kentucky, 
Virginia and West Virginia have developed such guidance; we also 
developed such guidance for the Tennessee Federal program. We continue 
to review the implementation and effectiveness of this guidance.
    Most excess spoil is attributed to surface mining in the steep 
terrain of the central Appalachian coalfields, and we commend Kentucky, 
Virginia and West Virginia for their improvements in addressing AOC and 
the volume of excess spoil. However, we believe there is also a need to 
revise the national regulations concerning excess spoil placement, 
because surface mining throughout the country may generate excess 
spoil. Our existing regulations pertaining to excess spoil fill 
construction are primarily focused on ensuring that fills are safe and 
stable. However, these regulations, with minor exceptions, do not 
explicitly address how the applicants must demonstrate consideration 
and minimization of the environmental effects of fill construction.
    Existing regulatory requirements primarily address the need to 
ensure that excess spoil fills are not subject to erosion, are stable, 
and do not cause landslides or washouts. However, SMCRA section 
515(b)(22)(I) requires that operators place all excess spoil material 
so that all other provisions of SMCRA are met. Under this requirement, 
hydrologic balance, water quality, revegetation, and other performance 
standards must be addressed in excess spoil design and construction 
plans.
    Accounting for the volume of excess spoil material is standard 
engineering practice in mine design, and is clearly envisioned by 
section 515(b)(3) of SMCRA. Concerning thick overburden, this section 
requires the operator to demonstrate that, due to volumetric expansion 
of the overburden and other spoil and waste material, more than 
sufficient material is available to reclaim the site to AOC. In 
response to a comment on the proposed rule adopted in 1983 on thick 
overburden performance standards, at 30 CFR 816.105, we stated:

    In a thick-overburden situation the operator must meet all of 
the performance standards of the rules except that the operator, 
after achieving AOC, may exceed the AOC requirement. The amount of 
excess overburden is a site-specific condition and easily 
documented. Therefore, each permit application requesting 
consideration under this section should be evaluated by the 
regulatory authority.

48 FR 23365, (May 24, 1983.)
    For all of the above reasons, we believe that national rulemaking 
is needed to make explicit the requirements that the volume of excess 
spoil be minimized by returning as much mine spoil to the mined out 
area as possible, and that excess spoil fills be designed and 
constructed to minimize the adverse effects to the hydrologic balance, 
fish, wildlife, and other environmental resources.

B. Why Is OSM Proposing To Revise Its Stream Buffer Zone Regulation?

    There is no provision in SMCRA requiring establishment or 
protection of stream buffer zones. We adopted the concept of a ``buffer 
zone'' around intermittent and perennial streams as a means ``to 
protect stream channels from abnormal erosion'' from nearby upslope 
mining activities. 42 FR 62652 (December 13,1977).
1. Evolving Stream Buffer Zone Rule Controversy
    The current Federal SBZ rule has been in effect since June 30, 
1983. State regulatory programs include similar requirements. These SBZ 
requirements were implemented for nearly twenty years before the Bragg 
lawsuit was filed in July 1998. The issues and allegations raised in 
Bragg indicate that there remains considerable misunderstanding 
regarding the meaning of the SBZ regulation at 30 CFR 816.57, 
particularly as it applies to the placement of excess spoil fills 
within and near intermittent and perennial streams.
    In addition to the concerns expressed in Bragg about USCOE 
administration of CWA section 404, the plaintiffs alleged that WVDEP 
violated the West Virginia stream buffer zone rule (38 C.S.R. 2-5.2(a)) 
by approving applications for surface mining permits that disturb 
stream buffer zones, even though the permitted activities could not 
satisfy the applicable criteria for a variance. Plaintiffs argued that 
the Director of WVDEP may grant a variance for surface mining 
activities closer than 100 feet to, or through, an intermittent or 
perennial stream only if he finds that such activities ``will not 
adversely affect the

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normal flow or gradient of the stream, adversely affect fish migration 
or related environmental values, materially damage the water quantity 
or quality of the stream and will not cause or contribute to violations 
of applicable State or Federal water quality standards,'' under 38 
C.S.R. 2-5.2(a). Plaintiffs argued that the State's SBZ rule allows 
surface mining activities ``closer to, or through'' land within 100 
feet of an intermittent or perennial stream only if the activities are 
minor incursions, but not if the activities would bury substantial 
portions of the stream. Plaintiff's December 30, 1998, Amended 
Complaint for Declaratory and Injunctive Relief at 21, filed in Bragg 
supra.
    The plaintiffs also argued that valley fills (excess spoil fills) 
violate the SBZ requirements because such fills bury and destroy 
substantial portions of intermittent or perennial streams. Plaintiffs 
contended that, by their very nature, such fills adversely affect the 
normal flow or gradient of the stream, adversely affect fish migration 
and related environmental values, materially damage the water quantity 
and quality of the stream, and cause or contribute to violations of 
applicable State water quality standards in the segment of the stream 
actually filled. Id. at 21-22.
    In reply to plaintiffs' allegations in Bragg, WVDEP agreed that 
streams should be protected, but stated that the language of the West 
Virginia SBZ rule refers not just to the ``footprint'' of the fill, but 
to the entire stream segment. WVDEP stated that the plaintiffs are 
``myopic'' to think that OSM, in promulgating the SBZ rules, was 
speaking of particular stream segments. WVDEP asserted that the SBZ 
protections apply to a stream's entirety, so that one part of a stream, 
usually the headwaters and upper reaches, may be filled as long as 
stream quantity and quality are not adversely affected downstream. We 
were aware that this had been the State's interpretation for a number 
of years, and we had not taken issue with it.
    In August 1999, USEPA, USCOE, OSM, and WVDEP signed a memorandum of 
understanding (MOU) to clarify the application of the SBZ regulations 
to the placement of excess spoil fills in waters of the United States. 
The agencies agreed that the CWA section 404(b)(1) Guidelines (40 CFR 
Part 230), promulgated by USEPA and used by USCOE in administering the 
CWA section 404 program, contain requirements comparable to the SBZ 
regulations. For example, the Guidelines require, among other things, 
that a discharge shall not be authorized if it will cause or contribute 
to a violation of State water quality standards or result in 
significant degradation of waters of the U.S. (40 CFR 230.10(b) and 
(c)). The MOU states that OSM and WVDEP believe that, if a proposed 
fill is consistent with the requirements of the CWA section 404(b)(1) 
Guidelines and applicable requirements for State certification under 
CWA section 401, the proposed mining operation has satisfied the 
requirements for a buffer zone waiver under SMCRA and WVDEP 
regulations.
    On October 20, 1999, Judge Haden issued a decision in Bragg 
concerning WVDEP implementation of the State SBZ rule (38 C.S.R. 2-
5.2(a)). Judge Haden rejected WVDEP's interpretation that the State SBZ 
rule applies to the stream as a whole, as opposed to a particular 
stream segment. He said that such an interpretation leads to an absurd 
result that miles of stream could be filled and deeply covered with 
rock and dirt, but, if some stretch of water downstream of the fill 
remains undiminished and unsullied, the stream has been protected. He 
went on to say that State and Federal SBZ regulations clearly 
contemplate protecting stream segments.
    The October 20, 1999, decision in Bragg also commented on the 
August 1999 MOU addressing compliance with SBZ waiver requirements. 
Judge Haden concluded that compliance with the CWA 404(b)(1) Guidelines 
is not sufficient to satisfy the SBZ waiver requirements, because the 
Guidelines are more lenient and less protective than the SBZ rule. He 
explained that the Guidelines require that there be no ``significant 
degradation'' of waters of the United States; whereas, the SBZ rule 
requires that the fill ``will not adversely affect'' certain 
environmental values. Judge Haden concluded that the August 1999 MOU 
must be rejected as inconsistent with the statutes it interpreted. 
Accordingly, he held that the MOU is without force or effect on SBZ 
requirements.
    The district court granted summary judgment for the plaintiffs on 
the SBZ issues, and held that the Director of WVDEP has a non-
discretionary duty under the buffer zone rule to deny variances for 
valley fills in intermittent and perennial streams because they 
necessarily adversely affect stream flow, stream gradient, fish 
migration, related environmental values, water quality and quantity, 
and because they violate State and Federal water quality standards. He 
also granted the plaintiffs' motion to permanently enjoin the Director 
of WVDEP from further violations of the non-discretionary duties 
discussed above and from approving any further surface mining permits 
under current law that would authorize placement of excess spoil in 
intermittent and perennial streams for the purpose of waste disposal.
    On October 21, 1999, the Director of WVDEP issued an order that no 
new fill permits would be issued, and no existing fills or permitted 
fills could be advanced. The coal industry and labor officials 
expressed considerable concern about the Bragg decision and the WVDEP 
Director's order, because coal mining necessitates stream disturbance.
    WVDEP and USCOE appealed Judge Haden's October 1999 decision and 
order, and were granted a temporary stay of the order pending a 
decision by the Court of Appeals for the Fourth Circuit. October 29, 
1999, Memorandum Opinion and Order Granting Stay at 5, Bragg supra.
    The U.S. Department of Justice (DOJ) filed a brief on behalf of 
Federal Appellants in the Bragg appeal, which asserted:

    The district court also correctly granted summary judgment on 
Count 3, holding that the burial of substantial portions of 
intermittent or perennial streams in valley fills causes adverse 
environmental impact in the filled stream segments and therefore 
cannot be authorized consistent with the stream buffer zone rule. 
The uncontested evidence demonstrates that the burial of substantial 
portions of intermittent or perennial streams causes adverse 
environmental effects to the filled stream segments, as such fill 
eliminates all aquatic life that inhabited those segments.

    April 17, 2000, Brief for the Federal Appellants at 25, filed in 
Bragg v. Robertson, C.A. No. 99-2683.
    However, DOJ qualified the Government's endorsement of the district 
court's remedy:

    By prohibiting the placement of any excess spoil in intermittent 
or perennial streams, the district court stripped WVDEP of authority 
to approve much more modest spoil disposal activities than those 
challenged by Bragg. The district court's injunction prohibits even 
minor spoil disposal activities that do not involve the filling of 
stream segments. Indeed, the district court's injunction would 
prohibit the placement of even de minimis amounts of excess spoil, 
such as a single rock or handful of dirt, in any intermittent or 
perennial stream. Neither the law nor the evidence presented to the 
district court mandates the conclusion that such spoil disposal 
inevitably causes adverse environmental effects.

    Id. at 45.
    OSM was not a party to the Bragg litigation, and the narrow 
interpretation of the SBZ rule set out in the DOJ brief is not 
consistent with our historic interpretation of SMCRA rules. We are

[[Page 1040]]

aware of no instance in which OSM has interpreted the SBZ rule to 
prohibit mining activities, including excess fill construction, within 
100 feet of intermittent and perennial streams. In fact, in the 
preamble of the 1983 SBZ rule, we recognized that mining would directly 
impact many small streams, especially in Appalachia, but that the SBZ 
rule, along with other requirements, provides the basis for minimizing 
those impacts. 48 FR 30313 (June 30, 1983).
    Nonetheless, because of the DOJ brief, on April 17, 2000, the 
Solicitor of the Department of the Interior and the acting Director of 
OSM sent a letter to the Director of WVDEP informing WVDEP that the 
August 1999 MOU does not represent the Federal government's current 
interpretation of the SBZ rule. The letter stated that the Department 
had reconsidered its position and no longer felt compliance with CWA 
404(b)(1) guidelines and CWA 401 certification equated to compliance 
with the SBZ requirements.
    On May 22, 2000, the acting Director of OSM sent letters to the 
regulatory authorities in Kentucky, Virginia and West Virginia. The 
letters stated that OSM would develop guidance to explain that findings 
made in applying the CWA section 404(b)(1) Guidelines cannot be used as 
a substitute for the finding required to grant a SBZ waiver for the 
disposal of excess spoil in intermittent or perennial streams. The 
letter further advised that the guidance would state that the SBZ 
waiver finding must be applied to each segment of an intermittent or 
perennial stream in which fill will be placed.
    The acting Director of OSM went on to say in the May 22, 2000, 
letter:

    Pending completion and issuance of that guidance, we believe 
that permitting decisions regarding whether an activity is entitled 
to a waiver of the buffer zone requirement must be made on a case-
by-case basis, as a part of the stream buffer zone analysis for 
activities impacting either an intermittent or a perennial stream. 
This analysis must consider all factors identified in the approved 
SMCRA program for granting the waiver, including the SBZ regulation 
found at 30 CFR 816.57.

    Neither the brief filed on April 17, 2000, nor the May 22, 2000, 
letter from the acting Director of OSM to certain regulatory 
authorities precludes us from reconsidering those interpretations based 
on the entire record before us, including subsequent developments in 
Bragg and related litigation, and other relevant information and 
analysis.\2\
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    \2\ Positions taken by agencies in briefs submitted in 
litigation are ``entitled to respect * * * to the extent that [they] 
* * * have the `power to persuade,' '' but are not normally entitled 
to the judicial deference given to validly promulgated agency 
regulations. Chevron USA Inc. v. Natural Resources Defense Council, 
Inc., 46 U.S. 837 (1984). See Ball v. Memphis Bar-B-Q Co., 228 F.3d 
360, 365 (4th Cir. 2000) (quoting Christensen v. Harris Co., 529 
U.S. 576, 587 (2000)). Similarly, documents such as opinion letters 
and policy statements from federal officials are not entitled to the 
degree of deference accorded to adopted rules. Id. Agency positions 
in such documents have at most, limited effect as statements of 
agency policy or interpretation. This is particularly so if the 
agency subsequently re-evaluates a matter. See also Appalachian 
Power Co. v. Train, 620 F.2d 1040, 1045-6 (4th Cir. 1980).
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    On April 24, 2001, the Court of Appeals for the Fourth Circuit 
overturned the district court's October 20, 1999, decision in Bragg. 
The court of appeals said that, under the 11th Amendment to the U.S. 
Constitution, the district court did not have jurisdiction to hear the 
case concerning the State's SBZ rule, because of the State's sovereign 
immunity. The appellate decision did not address the merits of the 
plaintiffs' or Federal government's arguments regarding interpretation 
of the SBZ rule. (Bragg v. Robertson, 248 F.3d 275 (4th Cir. 2001).
    In two later opinions, Judge Haden again addressed the relationship 
between the SBZ regulation and the CWA in Kentuckians for the 
Commonwealth, Inc. v. Rivenburgh, reported at 204 F.Supp. 2d 927 and 
206 F. Supp. 2d 782 (S.D. W. Va. 2002). Although neither the SBZ 
regulations nor SMCRA were at issue in the case, Judge Haden concluded 
that:

    In SMCRA, when Congress dealt specifically with surface coal 
mining overburden, it reinforced its plan that fills were 
appropriate where, and only where, they were justified by some 
constructive end use and purpose served by the fill itself. 
Otherwise, such overburden is just waste, to be returned to the mine 
site to recreate the AOC of the landscape mined. SMCRA contains no 
provisions authorizing disposal of overburden waste in streams, a 
conclusion further supported by the stream buffer zone rule.

204 F. Supp. 942.
    These opinions were appealed. The Court of Appeals for the Fourth 
Circuit rejected the district court's comments on the SBZ rule, noting 
that:

    [R]egardless of whether the fill has a beneficial purpose, SMCRA 
does not prohibit the discharge of surface coal mining excess spoil 
in waters of the United States.

    Kentuckians for the Commonwealth, Inc v. Rivenburgh, 317 F. 3d 425, 
442 (4th Cir. 2003).
    The appeals court further stated:

    Indeed, it is beyond dispute that SMCRA recognized the 
possibility of placing excess spoil material in waters of the United 
States even though those materials do not have a beneficial purpose. 
Section 515(b)(22)(D) of SMCRA authorizes mine operators to place 
excess spoil material in ``springs, natural water courses or wet 
weather seeps'' so long as ``lateral drains are constructed from the 
wet areas to the main underdrains in such a manner that filtration 
of the water into the spoil pile will be prevented.'' 30 U.S.C. 
1265(b)(22)(D). In addition, section 515(b)(24) requires surface 
mine operators to ``minimize disturbances and adverse impacts of the 
operation on fish, wildlife, and related environmental values, and 
achieve enhancement of such resources where practicable,'' implying 
the placement of fill in the waters of the United States. 30 U.S.C. 
1265(b)(24). It is clear that SMCRA anticipates the possibility that 
excess spoil material could and would be placed in waters of the 
United States, and the fact cannot be juxtaposed with section 404 of 
the Clean Water Act to provide a clear intent to limit the term 
``fill material'' to material deposited for a beneficial primary 
purpose.

Id. at 443.
    In light of all the questions and concerns that have been raised 
concerning SBZ requirements, we are proposing amendments to the SBZ 
rule to clarify the circumstances in which mining activities such as 
the construction of excess spoil fills may be allowed within the SBZ.
2. SBZ Regulatory Background
    As previously explained, there are no provisions in SMCRA requiring 
establishment or protection of a stream buffer zone. We adopted the 
concept of a ``buffer zone'' around intermittent and perennial streams 
\3\ as a means ``to protect stream channels from abnormal erosion'' 
from nearby upslope mining activities. 42 FR 62652 (December 13, 1977) 
The initial program regulations establishing the SBZ requirements 
provide:

    \3\ The initial regulations defined ``Intermittent or perennial 
streams'' to mean ``a stream or part of a stream that flows 
continuously during all (perennial) or for at least one month 
(intermittent) of a calendar year as a result of ground-water 
discharge or surface runoff.'' 42 FR 62678 (December 13, 1977)
---------------------------------------------------------------------------

    No land within 100 feet of an intermittent or perennial stream 
shall be disturbed by surface coal mining and reclamation operations 
unless the regulatory authority specifically authorizes surface coal 
mining and reclamation operations through such a stream. The area 
not to be disturbed shall be designated a buffer zone and marked as 
specified in Sec.  715.12.

30 CFR 715.17(d)(3).
    The 1977 regulation, which is still in effect, does not specify the 
conditions under which the regulatory authority could waive the SBZ 
requirement. We confirmed in the preamble to the 1977 rule that, ``if 
operations can be conducted within 100 feet of a stream in

[[Page 1041]]

an environmentally acceptable manner, they may be approved.'' 42 FR 
62652 (December 13, 1977).
    We published our permanent program regulations in the Federal 
Register on March 13, 1979. Those regulations retained a revised SBZ 
concept as a means to implement various SMCRA provisions, in 
particular, sections 515(b)(10) and 515(b)(24). 44 FR 15176 (March 13, 
1979). Section 515(b)(10) requires that mining operations ``minimize 
the disturbances to the prevailing hydrologic balance at the mine-site 
and in associated offsite areas' by, among other things, preventing, to 
the extent possible, additional contributions of suspended solids to 
stream flow or runoff outside of the permit area. Section 515(b)(24) 
requires operations to ``minimize disturbances and adverse impacts of 
the operation on fish, wildlife, and related environmental values.''
    We explained in the preamble to the 1979 final rule: ``Buffer zones 
are required to protect streams from adverse effects of sedimentation 
and from gross disturbance of stream channels.'' 44 FR 15176 (March 13, 
1979) The bulk of the discussion in that preamble focused on protecting 
streams from sedimentation. Id. We stated that the SBZ rule ``protects 
stream channels, but contemplates that the regulatory authority may 
allow surface mining activities to be conducted within'' the SBZ. 
``Thus, if operations can be conducted within 100 feet of a stream in 
an environmentally acceptable manner, they may be approved.'' Id.
    The 1979 SBZ rule specified conditions under which the regulatory 
authority could grant an exemption to the SBZ restriction. The 
permanent program rule also replaced the term ``intermittent stream'' 
with ``stream with a biological community.'' The 1979 permanent program 
rule provided that, in order to grant an exemption from the SBZ 
restriction, the regulatory authority had to find:

    (1) That the original stream channel will be restored; and
    (2) During and after the mining, the water quantity and quality 
from the stream section within 100 feet of the surface mining 
activities shall not be adversely affected.

30 CFR 816.57(a).
    It is important to note that the second finding required for 
granting an SBZ waiver requires the regulatory authority to evaluate 
effects on water quantity and quality, not at the location of the 
mining activity, but within 100 feet of the activity. This concept was 
not expressly retained in the 1983 version of the SBZ rule. However, 
the 1983 rule language does not preclude OSM's practice since 1979 of 
not requiring evaluation of effects on the segment of stream directly 
affected by surface mining activities. Instead, when acting on waivers 
for the buffer zone, OSM has required an evaluation of the effects 
anticipated within the stream section within 100 feet downstream of the 
surface mining activities, and outside the area affected by surface 
mining activities.
    On March 30, 1982, our current SBZ regulations were published in 
the Federal Register as proposed rules. 47 FR 13466. We published the 
final regulations over a year later on June 30, 1983. (48 FR 30327). In 
the preamble to the proposed rule in March 1982, we stated that the 
1979 regulations had to be changed because they had proved excessive 
and too confusing to implement. 47 FR 13467. This characterization 
primarily stemmed from the 1979 rule's reference to protecting 
``streams with a biological community,'' but was also based on the 
agency's recognition that the condition for granting an exemption to 
the SBZ restriction--to restore the original stream channel--was too 
impractical. Id.
    The 1983 amendments reinstated use of the term ``intermittent 
stream'' in place of ``streams with a biological community.'' The 
amended regulation also changed the conditions for authorizing an 
exemption to the SBZ restriction, to require that:

    (1) Surface mining activities will not cause or contribute to 
the violation of applicable State or Federal water quality 
standards, and will not adversely affect the water quantity and 
quality or other environmental resources of the stream; and
    (2) If there will be a temporary or permanent stream channel 
diversion, it will comply with Sec.  816.43.

    We reaffirmed the basic purpose of the SBZ rule in the preamble to 
the June 30, 1983, amendments: to protect streams from sedimentation 
and from gross disturbances of the stream channel. We said that SBZs 
are effective means, in conjunction with sediment ponds and other 
measures, to prevent excessive sedimentation of streams by runoff from 
disturbed surface areas. We also said that the new rules recognize that 
intermittent and perennial streams have environmental resource values 
worthy of protection under section 515(b)(24) of SMCRA. 48 FR 30312 
(June 30, 1983).
    Several commenters recommended that a new phrase in the March 1982 
proposed rule ``as determined by State or Federal water quality 
standards'' be deleted or clarified. To address the commenters' 
concerns and to eliminate regulatory uncertainty, we adopted the phrase 
``will not cause or contribute to violation of applicable State or 
Federal water quality standards.'' We explained that operators would be 
required to comply with all ``non-Act requirements for water'' 
protection under proposed hydrologic balance protection regulations at 
Sec.  816.41 (Sec.  816.41 was proposed in the Federal Register on June 
25, 1982 (47 FR 27712) and finalized on September 26, 1983 (48 FR 
43956)). While the language of Sec.  816.41 does not specifically state 
that ``operators will be required to comply with all non-Act 
requirements for water,'' it does provide that mining and reclamation 
activities must be conducted to minimize pollution and changes in flow, 
disturbance to the hydrologic balance on site, and to prevent material 
damage off site. Even without this advisory language, an operator must 
comply with all applicable local, State, and Federal permits and other 
requirements for water quality.
    In the preamble to the 1983 final rule, our response to a comment 
indirectly elaborated on the requirement that SMCRA mining operations 
``will not adversely affect the water quantity and quality or other 
environmental resources of the stream.'' We implicitly recognized that 
this condition does not require that ``no adverse'' effects occur, but 
rather requires that these effects be minimized, when we stated:

    Alteration of streams may have adverse aquatic and ecological 
impacts on both diverted stream reaches and other downstream areas. 
However, final Sec.  816.57(a) will minimize these impacts* * *

48 FR 30315 (June 30, 1983).
    Finally, in response to a comment on the 1983 SBZ rule, we 
explained that the clause ``will not adversely affect * * * related 
environmental resources'' was added to the conditions for a SBZ 
exemption to more accurately reflect the objectives of sections 
515(b)(10) and (24) of SMCRA. 48 FR 30316 (June 30, 1983).
    The January 1983 final environmental statement ``OSM-EIS-1: 
Supplement'' provided the NEPA support for the 1983 SBZ rule. The 
following excerpt illustrates our recognition that some small streams 
would be impacted by mining under the revised SBZ rule:

    The draft final regulations on the stream buffer zone (section 
816.57) would provide essentially the same protection to water 
quality of streams as the current regulations. The draft final 
regulations, however, would provide protection to perennial and 
intermittent streams, whereas, the current regulations protect 
perennial streams and streams with a biological community. The

[[Page 1042]]

current definition of ``intermittent stream'' (section 701.5) does 
not include streams draining less than 1 square mile. Those streams 
would not be protected by the buffer zone where they would have been 
protected before. Many such streams are found in the Appalachian 
coal region and support biological communities or serve as fish 
spawning areas. In most cases, impact of mining on those streams 
would be temporary because of the requirement to design and 
construct permanent diversions or stream channels to restore or 
approximate the premining characteristics of the original stream 
channel and natural riparian vegetation (draft final section 
816.41(f)). In some cases, such as small headwater drainages, the 
original stream channel might not be restored. Where this happens, 
the disruption of the stream channel could potentially alter the 
hydrologic balance downstream, with subsequent impacts on fish. 
Requirements to protect the hydrologic balance would tend to limit 
this, and such impacts are not considered significant.

(OSM, 1983, p. IV-37).
    In the 1983 EIS, we went on to discuss the impacts of more 
environmentally protective alternatives to the 1983 SBZ rule:

    OSM could eliminate the exemption from the general stream buffer 
zone requirements (section 816.57), and all mining would be 
prohibited within 100 feet of any perennial or intermittent stream. 
Although this would provide maximum protection to streams, the 
potential impacts on coal recovery could be significant in those 
areas with large coal reserves and extensive water resources.
    OSM could redefine ``intermittent stream'' in current section 
701.5.
    This definition is not being revised under the preferred 
alternative. A broader definition of intermittent stream consistent 
with that of the Army Corps of Engineers' definition would allow 
regulatory authorities to protect smaller streams (those draining 
less than 1 square mile) with buffer zones where necessary. This 
would mitigate the potential impacts identified for the draft final 
regulations on stream buffer zones.

(Ibid, p. IV-83).
    These paragraphs further illustrate that we did not intend the SBZ 
rule as an absolute prohibition of mining in the buffer zone. It also 
shows that we did not anticipate regulatory authorities to apply the 
SBZ to watercourses in small watersheds (less than 1 square mile).
    The 1983 SBZ rule was challenged in U.S. District Court, District 
of Columbia, by both the coal industry and the National Wildlife 
Federation and successfully defended by OSM. In re: Permanent Surface 
Mining Regulation Litigation II, No. 79-1144 [21 ERC 1741-1742] 
(October 1, 1984).

C. Reference Materials

Paybins, Katherine S., Flow Origin, Drainage Area, and Hydrologic 
Characteristics for Headwater Streams in Mountaintop Coal-Mining 
Region of Southern West Virginia, Water Resources Investigations 
Report 02-4300, U.S. Geological Survey. 2003.
Office of Surface Mining Reclamation and Enforcement, Permanent 
Regulatory Program Implementing Section 501(b) of the Surface Mining 
Control and Reclamation Act of 1977, Final Environmental Statement 
OSM-EIS-1, January 1979.
Office of Surface Mining Reclamation and Enforcement, Proposed 
Revisions to the Permanent Program Regulations Implementing Section 
501(b) of the Surface Mining Control and Reclamation Act of 1977, 
Volume 1: Analysis--Revised text and responses to comments, Final 
Environmental Statement OSM--EIS-1: Supplement, January 1983.
U.S. Department of the Interior, Office of Surface Mining, ``An 
Evaluation of Approximate Original Contour and Post-mining Landuse 
in Kentucky'' USOSM Oversight Report, September 1999.
U.S. Department of the Interior, Office of Surface Mining, ``An 
Evaluation of Approximate Original Contour Variances and Postmining 
Land Uses in Virginia'' USOSM Oversight Report, September 1999.
U.S. Department of the Interior, Office of Surface Mining, ``Final 
Report: An Evaluation of Approximate Original Contour and Postmining 
Land Use in West Virginia.'' USOSM Oversight Report, May 1999.
U.S. Environmental Protection Agency, Mountaintop Mining/Valley 
Fills in Appalachia Draft Programmatic Environmental Impact 
Statement, EPA 9-03-R-00013, EPA Region 3, June 2003.

II. Discussion of the Proposed Rules

    For convenience, where the discussion concerns the SBZ regulation 
at 30 CFR 816.57 (surface mining) and 30 CFR 817.57 (underground 
mining), or the regulation pertaining to diversions at 30 CFR 816.43 
(surface mining) and 30 CFR 817.43 (underground mining), these sections 
are cited together in the heading as Sec. Sec.  816.[ ]/817.[ ], but in 
most cases only part 816 is referenced in the text. The changes to 
permitting requirements in part 780 and the performance standards in 
Sec.  816.71 would apply only to surface mines, and corresponding 
changes to the regulations for underground mines are not being 
proposed. We decided not to propose changes to the excess spoil 
regulations applicable to underground mining because the current 
regulations in this regard are satisfactorily working, and the size and 
number of excess spoil fills associated with underground mining are 
small.

A. Reclamation Plan (Sec.  780.18(b)(3))

    Section 780.18(b)(3) requires a permit application to contain a 
plan for backfilling, soil stabilization, compacting and grading, with 
contour or cross-section maps that show the anticipated final surface 
configuration of the proposed permit area, in accordance with the 
applicable performance standards. Authority for this section stems from 
SMCRA sections 507(b)(14), 508(a)(5) and (10), 515(b)(3) through (6), 
(8), (10), (11), (13), (17), and (22).
    In essence, Sec.  780.18(b)(3) requires that the application show 
how all spoil and soil from the mine site will be managed. While excess 
spoil is not specifically discussed, it would certainly be integral to, 
and encompassed by, this plan. Because of the growing concerns 
regarding the volume of excess spoil and the size of excess spoil 
fills, we propose to amend this regulation to require the applicant to 
include sufficient supporting information in the plan to demonstrate, 
to the satisfaction of the regulatory authority, that the applicant has 
taken necessary steps to avoid the generation of excess spoil and has 
minimized the volume of excess spoil to the maximum extent possible. 
Minimizing the volume of excess spoil is fundamentally important to 
ensure that adverse environmental effects stemming from the 
construction of excess spoil fills are minimized.

B. Disposal of Excess Spoil (Sec. Sec.  780.35 and 816.71)

    Section 780.35 requires the operator provide necessary plans 
describing the sites and structures to be used in the disposal of 
excess spoil. Section 780.35(a) states:

    Each application shall contain descriptions, including 
appropriate maps and cross section drawings, of the proposed 
disposal site and design of the spoil disposal structures according 
to 30 CFR 816.71-816.74. * * *

    The authority for Sec.  780.35 is sections 102, 210, 501, 503, 507, 
508, 510, and 515 of SMCRA. Principally, this section establishes the 
overall requirements for a plan for handling excess spoil in compliance 
with the performance standards at section 515(b)(22) of SMCRA. Section 
816.71 establishes the general performance standards to implement 
section 515(b)(22).
    We propose to further strengthen regulations at Sec.  780.35 and 
Sec.  816.71 to more explicitly address the direct impacts associated 
with excess spoil fill construction. In Sec.  780.35, we propose 
requiring that each permit application (for which excess spoil is 
anticipated) contain alternative analyses of the environmental impacts 
of constructing fills in different locations and under different 
configurations, with different sizes and numbers of fills to 
accommodate the excess spoil. OSM anticipates that this analysis will

[[Page 1043]]

address the baseline information collected as part of the permitting 
process, such as fish, wildlife, stream quality, vegetative cover, and 
other information, in order to make an informed, science-based decision 
as to where excess spoil material should be placed to result in the 
least environmental impact. For example, a permit applicant might 
evaluate available alternatives such as placing a fill in either a 
relatively pristine stream or a degraded stream. If all other factors 
were equal, we would expect that the stream with higher water quality 
would be protected. Similarly, we would expect to see an analysis of 
the environmental impacts of each alternative, based on the available 
baseline information typically collected as part of the SMCRA and/or 
CWA section 404 application process. The analysis would discuss how the 
impacts of the alternatives would vary; for example, the impacts of 
constructing fewer large excess spoil fills, compared to the impacts of 
constructing many small fills.
    In Sec.  816.71, we propose to add a requirement in subsection 
(c)(2) to ensure that fills are located so as to minimize, to the 
extent possible, adverse impacts to the prevailing hydrologic balance, 
fish, wildlife, and related environmental values (after considering 
alternative fill locations, sizes, and numbers). In addition, Sec.  
816.71 would be revised to add a required demonstration that cumulative 
volume of fill for an operation is no larger than necessary to 
accommodate the cumulative volume of excess spoil from the operation. 
The purpose of this latter change is to make it clear that operators 
should not design excess spoil fills to be inordinately oversized, and 
to require operators to minimize the area disturbed by spoil fill, in 
relation to the volume of excess spoil disposed. As the operator 
decreases the size of the fill footprint, the operator will reduce the 
extent to which fills cover stream reaches. Decreasing the fill 
footprint will also reduce the area of forest and riparian vegetation 
disturbed.

C. Stream Buffer Zones (Sec. Sec.  816.57/817.57)

    In order to reduce the regulatory uncertainty regarding the 
interpretation of our SBZ requirements, we propose to revise the 
language that has led to varying interpretations. The proposed language 
aligns more closely with the statutory basis for the SBZ rule. The 
existing SBZ rule for surface mining activities is found at 30 CFR 
816.57. The SBZ rule for underground mining is found at 30 CFR 817.57. 
We are proposing essentially the same changes for both regulations. The 
SBZ rule for surface mining activities provides:

    30 CFR 816.57 Hydrologic balance: Stream buffer zones.
    (a) No land within 100 feet of a perennial stream or an 
intermittent stream shall be disturbed by surface mining activities, 
unless the regulatory authority specifically authorizes surface 
mining activities closer to, or through, such a stream. The 
regulatory authority may authorize such activities only upon finding 
that--
    (1) Surface mining activities will not cause or contribute to 
the violation of applicable State or Federal water quality 
standards, and will not adversely affect the water quantity and 
quality or other environmental resources of the stream; and
    (2) If there will be a temporary or permanent stream-channel 
diversion, it will comply with Sec.  816.43.
    (b) The area not to be disturbed shall be designated as a buffer 
zone, and the operator shall mark it as specified in Sec.  816.11.

    We propose to revise the language of paragraph (a)(1) above by 
requiring two findings by the regulatory authority that would be 
conditions for granting an SBZ waiver. The first finding would be that 
the surface mining activities will ``prevent, to the extent possible 
using best technology currently available (BTCA), additional 
contributions of suspended solids to the stream section within 100 feet 
downstream of the surface mining activity, and outside of the area of 
the surface mining activity.''
    We believe that the first condition comports with a principal goal 
of the SBZ rule that has been stated throughout the history of the 
rule: to protect streams outside of the mining permit area from 
sedimentation. The change would align with the requirement of SMCRA 
section 515(b)(10)(B)(i) that the operation: ``prevent, to the extent 
possible using the best technology currently available, additional 
contributions of suspended solids to stream flow, or runoff outside the 
permit area.'' This change would also make the SBZ rule more consistent 
with other SMCRA regulations, as well as with the CWA. For example, the 
proposed language would be more consistent with 30 CFR 816.41(a), which 
states:

    All surface mining and reclamation activities shall be conducted 
to minimize disturbance to the hydrologic balance within the permit 
and adjacent areas, to prevent material damage to the hydrologic 
balance outside of the permit area * * *

    Further, the proposed change would not affect, but would eliminate 
redundancy with, the requirements of 30 CFR 816.42, which would 
continue to apply to surface mining activities. Section 816.42 requires 
that:

    Discharges of water from areas disturbed by surface mining 
activities shall be made in compliance with applicable State and 
Federal water quality laws and regulations and with effluent 
limitations for coal mining promulgated by the U.S. Environmental 
Protection Agency set forth in 40 CFR 434.

    The change would have no effect on a mining operator's obligation 
to comply with other statutes, such as the CWA. The proposed change is 
intended to avoid the possibility that the SBZ rule could be 
misinterpreted to supersede the CWA by prohibiting an activity because 
of water quality standards that would otherwise be authorized under the 
CWA. Thus, the proposed rule would also be consistent with section 702 
of SMCRA (30 U.S.C. 1292), which requires that nothing in SMCRA ``shall 
be construed as superseding, amending, modifying, or repealing'' the 
CWA or ``any rule or regulation promulgated thereunder.''
    The second condition would require a regulatory authority finding 
that the surface mining activities will ``minimize, to the extent 
possible using BTCA, disturbances and adverse impacts on fish, 
wildlife, and other related environmental values.'' This change more 
closely aligns with SMCRA section 515(b)(24), which provides:

    [T]o the extent possible using the best technology currently 
available, minimize disturbances and adverse impacts of the 
operation on fish, wildlife and related environmental values * * *

    It is virtually impossible to conduct mining activities within 100 
feet of an intermittent or perennial stream without causing some 
adverse impacts, even if those impacts are very small. We believe SMCRA 
recognizes that an absolute standard of ``no adverse impacts'' is 
unattainable. This is reflected in the fact that SMCRA in most cases 
requires the mining operation to minimize, rather than completely 
prevent, adverse environmental impacts. We invite comment on this 
position.
    The history of the rule shows that we recognized some adverse 
impacts would occur at the site of the mining activity in the stream 
buffer zone. For example, in the analyses of the projected impacts 
associated with the 1983 rule, we assumed that streams occurring in 
small watersheds (less than 1 square mile) might be adversely impacted 
by mining, even though we knew that many of these streams would be 
likely to come within the definition of ``intermittent'' or 
``perennial'' streams. Therefore, in this proposed rule, rather than 
prohibiting any adverse impacts, we would require that these impacts be 
minimized to the extent possible using the best technology currently 
available,

[[Page 1044]]

and that operators prevent additional contributions of suspended solids 
to the stream section within 100 feet downstream of the mining 
activity, and outside the area affected by surface mining activities. 
We believe that making these two requirements for findings explicit in 
the rule would provide necessary safeguards for streams consistent with 
the original intent of SMCRA.
    The Federal regulations at 30 CFR 701.5 define ``best technology 
currently available'' to mean:

    * * * equipment, devices, systems, methods, or techniques which 
will (a) prevent, to the extent possible, additional contributions 
of suspended solids to stream flow or runoff outside the permit 
area, but in no event result in contributions of suspended solids in 
excess of requirements set by applicable State or Federal laws; and 
(b) minimize, to the extent possible, disturbances and adverse 
impacts on fish, wildlife and related environmental values, and 
achieve enhancement of those resources where practicable. The term 
includes equipment, devices, systems, methods, or techniques, which 
are currently available anywhere as determined by the Director, even 
if they are not in routine use. The term includes, but is not 
limited to, construction practices, siting requirements, vegetative 
selection and planting requirements, animal stocking requirements, 
scheduling of activities and design of sedimentation ponds in 
accordance with 30 CFR parts 816 and 817. Within the constraints of 
the permanent program, the regulatory authority shall have the 
discretion to determine the best technology currently available on a 
case-by-case basis, as authorized by the Act and this chapter.

    We would expect that the regulatory authority would authorize a 
waiver of the SBZ requirements only if information and analysis in the 
permit application record demonstrates to the satisfaction of the 
regulatory authority that (1) the proposed volume of excess spoil would 
be minimized, (2) proposed excess spoil fills associated with a mine 
would be no larger than needed to accommodate the volume of spoil from 
the mine, and (3) alternative fill locations, sizes, and numbers have 
been analyzed and the proposed excess spoil disposal plan incorporates 
the alternatives that cause the least environmental harm. Further, we 
would expect that the regulatory authority, in performing these reviews 
and making findings, would consider all applications of BTCA that would 
minimize adverse impacts, consistent with the definition of BTCA at 30 
CFR 701.5. This type of analysis complements the ``no practical 
alternative'' requirements for CWA section 404 applicants.
    Although it was vacated on procedural grounds, the opinion rendered 
by the district court in Bragg clearly viewed the SBZ requirements as 
applying restrictions more stringent than those of the CWA section 404 
program. However, in part because of the references to CWA in section 
702 of SMCRA mentioned above, we believe it is appropriate to limit SBZ 
restrictions on placement of fills in streams when those fills are also 
expressly regulated and authorized under section 404 of the CWA. The 
proposed rule also takes into consideration the 1980 decision of the 
District of Columbia Circuit Court of Appeals which held that any 
variances and exemptions under the Federal Water Pollution Control Act 
(now referred to as the CWA) that are applicable to surface coal mining 
operations are substantive elements rather than ``gaps'' in CWA 
authority. Therefore, the 1980 decision held that OSM may not alter 
those requirements by adopting more stringent provisions for surface 
coal mining operations. We invite comment on whether the proposed 
amendments to 30 CFR 816.57 and 817.57 are consistent with the 
requirement in section 702 concerning the interpretation of SMCRA 
relative to CWA.

D. Diversion of Perennial and Intermittent Streams. (Sec. Sec.  
816.43(b) / 817.43(b))

    The current version of the regulation concerning the diversion of 
perennial and intermittent streams at Sec.  816.43(b)(1) refers to the 
findings that the regulatory authority is required to make under the 
SBZ regulations:

    Diversion of perennial and intermittent streams within the 
permit area may be approved by the regulatory authority after making 
the finding relating to the stream buffer zones that the diversion 
will not adversely affect the water quantity and quality and related 
environmental resources of the stream.

    To comport with the proposed SBZ regulation and to eliminate 
redundancy, we propose to revise the above language by striking the 
words ``that the diversion will not adversely affect the water quantity 
and quality and related environmental resources of the stream.'' As 
noted above, other provisions of SMCRA and the implementing regulations 
address impacts of the mining operation on water quality and quantity.

III. How Do I Submit Comments on the Proposed Rule?

    Electronic or Written Comments: If you submit written comments, 
they should be specific, confined to issues pertinent to the proposed 
rule, and explain the reason for any recommended change(s). We 
appreciate any and all comments, but those most useful and likely to 
influence decisions on a final rule will be those that either involve 
personal experience or include citations to and analyses of SMCRA, its 
legislative history, its implementing regulations, case law, other 
pertinent State or Federal laws or regulations, technical literature, 
or other relevant publications.
    Except for comments provided in an electronic format, you should 
submit three copies of your comments if practicable. We will not 
consider anonymous comments. Comments received after the close of the 
comment period (see DATES) or at locations other than those listed 
above (see ADDRESSES) will not be considered or included in the 
Administrative Record.
    Availability of Comments: Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours at the OSM Administrative Record 
Room (see ADDRESSES). Individual respondents may request that we 
withhold their home address from the rulemaking record. We will honor 
this request to the extent allowable by law. There also may be 
circumstances in which we would withhold from the rulemaking record a 
respondent's identity, to the extent allowed by law. If you wish us to 
withhold your name and/or address, you must state this prominently at 
the beginning of your comment.
    We will make all submissions from organizations or businesses, and 
from individuals identifying themselves as representatives or officials 
of organizations or businesses, available for public inspection in 
their entirety.
    Public hearings: We will hold a public hearing on the proposed rule 
upon request only. The time, date, and address for any hearing will be 
announced in the Federal Register at least 7 days prior to the hearing.
    Any person interested in participating in a hearing should inform 
Mr. David G. Hartos (see FOR FURTHER INFORMATION CONTACT), either 
orally or in writing by 5 p.m., Eastern time, on January 28, 2004. If 
no one has contacted Mr. Hartos to express an interest in participating 
in a hearing by that date, a hearing will not be held. If only one 
person expresses an interest, a public meeting rather than a hearing 
may be held, with the results included in the Administrative Record.
    The public hearing will continue on the specified date until all 
persons scheduled to speak have been heard. If you are in the audience 
and have not

[[Page 1045]]

been scheduled to speak and wish to do so, you will be allowed to speak 
after those who have been scheduled. We will end the hearing after all 
persons scheduled to speak and persons present in the audience who wish 
to speak have been heard. To assist the transcriber and ensure an 
accurate record, we request, if possible, that each person who 
testifies at a public hearing provide us with a written copy of his or 
her testimony.
    Public meeting: If there is only limited interest in a hearing at a 
particular location, a public meeting, rather than a public hearing, 
may be held. Persons wishing to meet with us to discuss the proposed 
rule may request a meeting by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT. All meetings will be open to the public 
and, if possible, notice of the meetings will be posted at the 
appropriate locations listed under ADDRESSES. A written summary of each 
public meeting will be made a part of the administrative record of this 
rulemaking.

IV. Procedural Matters and Required Determinations

A. Executive Order 12866--Regulatory Planning and Review

    This proposed rule is not a ``significant regulatory action'' under 
Executive Order 12866 for the following reasons:
    a. This rule would not have an annual effect of $100 million or 
more on the economy. It would not adversely affect in a material way 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities. As previously stated, the revisions contained in the rule 
are intended to clarify existing requirements to: (1) Minimize the 
adverse environmental effects stemming from the construction of excess 
spoil fills; and (2) reduce regulatory uncertainty concerning the 
circumstances in which mining activities, such as the construction of 
excess spoil fills, may be allowed within 100 feet of a perennial or 
intermittent stream. The revisions are not expected to have an adverse 
economic impact on States and Indian Tribes or the regulated industry.
    Some of the regulatory changes will result in an increase in the 
costs and burdens placed on coal operators and on some primacy States. 
It is estimated that the total annual increase for operators would be 
approximately $240,500, and for the primacy States the total annual 
increase is estimated at approximately $24,200. These increases are due 
to the requirement to document the analyses and findings required by 
these regulatory changes. The estimated increase in costs will likely 
only affect those coal operators and States (Kentucky, Virginia, and 
West Virginia) located in the steep slope terrain of the central 
Appalachian coalfields, where the bulk of excess spoil is generated. 
Because all of the regulatory agencies in the Appalachian coalfields 
have implemented policies to minimize the volume of excess spoil, no 
significant additional costs of implementing these regulatory changes 
are anticipated other than those required to document the strengthened 
requirements to consider all alternative excess spoil construction and 
disposal sites. This rule would not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency.
    b. This rule would not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    c. This rule would not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    d. This rule would clarify existing regulatory requirements and 
does not raise novel legal or policy issues arising from legal 
mandates, Presidential priorities, or the principles set forth in the 
Executive Order.

B. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not considered a significant energy action under 
Executive Order 13211. The revisions contained in this rule would not 
have a significant effect on the supply, distribution, or use of 
energy.

C. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule would not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
For the reasons previously stated, the revisions are not expected to 
have an adverse economic impact on the regulated industry including 
small entities. Further, the rule would produce no adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States enterprises to compete with foreign-based 
enterprises in domestic or export markets.

D. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule, for the 
reasons stated above:
    a. Would not have an annual effect on the economy of $100 million 
or more.
    b. Would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

E. Unfunded Mandates

    This rule would not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule would not have a significant or unique effect on State, 
Tribal, or local governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1534) is not required.

F. Executive Order 12630--Takings

    In accordance with Executive Order 12630, the rule would not have 
significant takings implications.

G. Executive Order 13132--Federalism

    In accordance with Executive Order 13132, the rule would not have 
significant Federalism implications to warrant the preparation of a 
Federalism Assessment for the reasons discussed above.

H. Executive Order 12988--Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule would not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

I. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian Tribes 
and have determined that the proposed revisions pertaining to excess 
spoil and the stream buffer zone would not have substantial direct 
effects on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and

[[Page 1046]]

responsibilities between the Federal Government and Indian Tribes.

J. Paperwork Reduction Act

    In accordance with 44 U.S.C. 3507(d), OSM has submitted the 
information collection and record keeping requirements of 30 CFR parts 
780, 816 and 817 to the Office of Management and Budget (OMB) for 
review and approval.
30 CFR Part 780
    Title: Surface Mining Permit Applications--Minimum Requirements for 
Reclamation and Operation Plan.
    OMB Control Number: 1029-xxx1.
    Summary: Permit application requirements in sections 507(b), 
508(a), 510(b), 515(b) and (d), and 522 of Public Law 95-87 require the 
applicant to submit the operations and reclamation plan for coal mining 
activities. Information collection is needed to determine whether the 
mining and reclamation plan will achieve the reclamation and 
environmental protections pursuant to the Surface Mining Control and 
Reclamation Act. Without this information, Federal and State regulatory 
authorities cannot review and approve permit application requests.
    Bureau Form Number: None.
    Frequency of Collection: Once.
    Description of Respondents: Applicants for surface coal mine 
permits.
    Total Annual Responses: 477.
    Total Annual Burden Hours: 231,671.
    Non-labor Cost Burden: $2,125,220.
30 CFR Parts 816 and 817
    Title: Permanent Program Performance Standards--Surface and 
Underground Mining Activities.
    OMB Control Number: 1029-xxx2.
    Summary: Sections 515 and 516 of the Surface Mining Control and 
Reclamation Act of 1977 provide that permittees conducting surface coal 
mining operations shall meet all applicable performance standards of 
the Act. The information collected is used by the regulatory authority 
in monitoring and inspecting coal mining activities to ensure that they 
are conducted in compliance with the requirements of the Act.
    Bureau Form Number: None.
    Frequency of Collection: Once, on occasion, quarterly and annually.
    Description of Respondents: Surface coal mining operators.
    Total Annual Responses: 186,341.
    Total Annual Burden Hours: 871,140.
    Non-labor Cost Burden: $315,000.
    Comments are invited on:
    (a) Whether the proposed collection of information is necessary for 
the proper performance of OSM and State regulatory authorities, 
including whether the information will have practical utility;
    (b) The accuracy of OSM's estimate of the burden of the proposed 
collection of information;
    (c) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (d) Ways to minimize the burden of collection on the respondents.
    Under the Paperwork Reduction Act, OSM must obtain OMB approval of 
all information and recordkeeping requirements. No person is required 
to respond to an information collection request unless the form or 
regulation requesting the information has a currently valid OMB control 
(clearance) number. These numbers appear in sections 780.10, 816.10, 
and 817.10 of 30 CFR parts 780, 816, and 817, respectively. To obtain a 
copy of OSM's information collection clearance requests, explanatory 
information, and related forms, contact John A. Trelease at (202) 208-
2783 or by e-mail at [email protected].
    By law, OMB must respond to OSM within 60 days of publication of 
this proposed rule, but may respond as soon as 30 days after 
publication. Therefore, to ensure consideration by OMB, you must send 
comments regarding these burden estimates or any other aspect of these 
information collection and recordkeeping requirements by February 6, 
2004, to the Office of Management and Budget, Office of Information and 
Regulatory Affairs, Attention: Interior Desk Officer, via e-mail to 
[email protected], or via facsimile to (202) 395-6566. Also, 
please send a copy of your comments to John A. Trelease, Office of 
Surface Mining Reclamation and Enforcement, 1951 Constitution Ave., 
NW., Room 210-SIB, Washington, DC 20240, or electronically to 
[email protected].

K. National Environmental Policy Act

    We have prepared a draft environmental assessment (EA) of the 
proposed rule in accordance with the National Environmental Policy Act 
of 1969 and have made a tentative determination that this rule will not 
significantly affect the quality of the human environment. It is 
anticipated that a finding of no significant impact (FONSI) will be 
made for the final rule in accordance with Departmental procedures 
under NEPA. The EA is on file in our administrative record at the 
address specified previously (see ADDRESSES). The EA will be completed 
and a finding made on the significance of any resulting impacts before 
we publish the final rule.

L. Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this proposed rule easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the proposed rule 
clearly stated? (2) Does the proposed rule contain technical language 
or jargon that interferes with its clarity? (3) Does the format of the 
proposed rule (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be 
easier to understand if it were divided into more (but shorter) 
sections (A ``section'' appears in bold type and is preceded by the 
symbol ``Sec.  ''and a numbered heading; for example, Sec.  780.18 
Reclamation Plan: General Requirements. (5) Is the description of the 
proposed rule in the SUPPLEMENTARY INFORMATION section of this preamble 
helpful in understanding the proposed rule? (6) What else could we do 
to make the proposed rule easier to understand? Send a copy of any 
comments that concern how we could make this proposed rule easier to 
understand to: Office of Regulatory Affairs, Department of the 
Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. You may 
also e-mail the comments to this address: [email protected].

List of Subjects

30 CFR Part 780

    Reporting and record keeping requirements, Mines, Surface mining, 
Reclamation, Excess Spoil.

30 CFR Part 816

    Environmental protection, Reporting and record keeping 
requirements, Mines, Surface mining, Reclamation, Excess spoil, 
Diversions, Stream buffer zone.

30 CFR Part 817

    Environmental protection, Reporting and record keeping 
requirements, Mines, Underground mining, Reclamation, Excess spoil, 
Diversions, Stream buffer zone.

    Dated: December 19, 2003.
Patricia E. Morrison,
Acting Assistant Secretary, Land and Minerals Management.
    Accordingly, we propose revising 30 CFR parts 780, 816, and 817 as 
set forth below.

[[Page 1047]]

PART 780--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS 
FOR RECLAMATION AND OPERATION PLAN

    1. The authority citation for Part 780 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.
    2. Section 780.10 is revised to read as follows:


Sec.  780.10  Information collection.

    (a) The collections of information contained in Part 780 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-xxx1. Permit application 
requirements in sections 507(b), 508(a), 510(b), 515(b) and (d), and 
522 of the Surface Mining Control and Reclamation Act (Pub. L. 95-87) 
require the applicant to submit the operations and reclamation plan for 
coal mining activities. Information collection is needed to determine 
whether the mining and reclamation plan will achieve required 
reclamation and environmental protection. Without this information, 
Federal and State regulatory authorities cannot review and approve 
permit application requests.
    (b) Public Reporting Burden for this information is estimated to 
average 29 hours per response and non-labor costs of $8,855.00, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Send comments regarding this 
burden estimate or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Information 
Collection Clearance Officer, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Ave., NW., SIB 210, Washington, DC 
20240. Please refer to OMB Control Number 1029-xxx1 in any 
correspondence.
    3. In Sec.  780.18 revise paragraph (b)(3) to read as follows:


Sec.  780.18  Reclamation plan: General requirements.

* * * * *
    (b) * * *
    (3) A plan for backfilling, soil stabilization, compacting, and 
grading, with contour maps or cross sections that show the anticipated 
final surface configuration of the proposed permit area, in accordance 
with 30 CFR 816.102 through 816.107. If excess spoil is anticipated, 
the plan must demonstrate to the satisfaction of the regulatory 
authority that the volume of excess spoil will be minimized to the 
maximum extent possible;
* * * * *
    4. In Sec.  780.35, redesignate paragraphs (b) and (c) as 
paragraphs (c) and (d) and add new paragraph (b) to read as follows:


Sec.  780.35  Disposal of excess spoil.

* * * * *
    (b) Each application shall also describe the steps to be taken to 
minimize the adverse environmental effects stemming from the 
construction of excess spoil fills, and provide analyses of the 
environmental impacts of alternative disposal plans to accommodate the 
volume of excess spoil in which the configurations of fills, including 
fill location, number and size, vary.
* * * * *

PART 816--PERMANENT PROGRAM PERFORMANCE STANDARDS--SURFACE MINING 
ACTIVITIES

    5. The authority citation for Part 816 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.; and sec 115 of Pub. L. 98-
146.

    6. Section 816.10 is revised to read as follows:


Sec.  816.10  Information collection.

    (a) The collections of information contained in Part 816 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-xxx2. The information will be 
used by the regulatory authority to monitor and inspect surface coal 
mining activities to ensure that they are in compliance with the 
Surface Mining Control and Reclamation Act. Response is required to 
obtain a benefit.
    (b) Public Reporting Burden for this information is estimated to 
average 10 hours per response and non-labor costs of $70.00, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Information 
Collection Clearance Officer, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Ave., NW., SIB 210, Washington, DC 
20240. Please refer to OMB Control Number 1029-xxx2 in any 
correspondence.
    7. In Sec.  816.43, revise paragraph (b)(1) to read as follows:


Sec.  816.43  Diversions

* * * * *
    (b) * * *
    (1) The regulatory authority may approve the diversion of perennial 
and intermittent streams within the permit area after making the 
finding required by Sec.  816.57 of this chapter.
* * * * *
    8. In Sec.  816.57, redesignate paragraphs (a)(2) and (b) as (b) 
and (c), respectively and revise paragraph (a) to read as follows:


Sec.  816.57  Hydrologic balance: Stream buffer zones.

    (a) No land within 100 feet of a perennial stream or an 
intermittent stream shall be disturbed by surface mining activities, 
unless the regulatory authority specifically authorizes such activities 
closer to or through the stream. The regulatory authority may authorize 
such activities only upon finding that the activities will, to the 
extent possible, using the best technology currently available--
    (1) Prevent additional contributions of suspended solids to the 
stream section within 100 feet downstream of the surface mining 
activities, and outside of the area affected by surface mining 
activities; and
    (2) Minimize disturbances and adverse impacts on fish, wildlife, 
and other related environmental values of the stream.
* * * * *
    9. In Sec.  816.71 revise paragraphs (a)(2), (a)(3) and (c) and add 
paragraph (a)(4) to read as follows:


Sec.  816.71  Disposal of excess spoil; General requirements.

* * * * *
    (a) * * *
    (2) Ensure mass stability and prevent mass movement during and 
after construction;
    (3) Ensure that the final fill is suitable for reclamation and 
revegetation compatible with the natural surroundings and the approved 
postmining land use; and
    (4) Ensure that the cumulative volume of excess spoil fills is no 
larger than necessary to accommodate the cumulative excess spoil volume 
generated.
* * * * *
    (c) Location. (1) The disposal area shall be located on the most 
moderately sloping and naturally stable areas available, as approved by 
the regulatory authority, and shall be placed, where possible, upon or 
above a natural terrace, bench, or berm, if such placement provides 
additional stability and prevents mass movement; and

[[Page 1048]]

    (2) After considering alternative fill locations and size fills, 
fills must also be located so as to minimize, to the extent possible, 
adverse impacts on the prevailing hydrologic balance, fish, wildlife, 
and related environmental values.
* * * * *

PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND 
MINING ACTIVITIES

    10. The authority citation for Part 817 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    11. Section 817.10 is revised to read as follows:


Sec.  817.10  Information collection.

    (a) The collections of information contained in part 817 have been 
approved by Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-xxx2. The information will be 
used to meet the requirements of 30 U.S.C. 1211, 1251, 1266, and 1309a, 
which provide, among other things, that permittees conducting 
underground coal mining operations will meet the applicable performance 
standards of the Act. The regulatory authority will use this 
information in monitoring and inspecting underground mining activities. 
The obligation to respond is required to obtain a benefit.
    (b) Public reporting burden for this information is estimated to 
average 10 hours per response and non-labor costs of $70.00, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Information 
Collection Clearance Officer, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Ave., NW., SIB 210, Washington, DC 
20240. Please refer to OMB Control Number 1029-xxx2 in any 
correspondence.
    12. In Sec.  817.43, revise paragraph (b)(1) to read as follows:


Sec.  817.43  Diversions.

* * * * *
    (b) * * *
    (1) The regulatory authority may approve the diversion of perennial 
and intermittent streams within the permit area after making the 
finding required by Sec.  817.57 of this chapter.
* * * * *
    13. In Sec.  817.57 redesignate paragraphs (a)(2) and (b) as (b) 
and (c), respectively, and revise paragraph (a) to read as follows:


Sec.  817.57  Hydrologic balance: Stream buffer zones.

    (a) No land within 100 feet of a perennial stream or an 
intermittent stream shall be disturbed by underground mining 
activities, unless the regulatory authority specifically authorizes 
such activities closer to or through, such a stream. The regulatory 
authority may authorize such activities only upon finding that the 
activities will, to the extent possible, using the best technology 
currently available--
    (1) Prevent additional contributions of suspended solids to the 
stream section within 100 feet downstream of the underground mining 
activities, and outside the area affected by the underground mining 
activities; and
    (2) Minimize disturbances and adverse impacts on fish, wildlife, 
and other related environmental values of the stream.
* * * * *
[FR Doc. 04-266 Filed 1-6-04; 8:45 am]
BILLING CODE 4310-05-P