[Federal Register Volume 70, Number 115 (Thursday, June 16, 2005)]
[Notices]
[Pages 35112-35116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11926]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement


Notice of Intent To Prepare an Environmental Impact Statement

SUMMARY: Pursuant to the National Environmental Policy Act of 1969 
(NEPA), we, the Office of Surface Mining Reclamation and Enforcement 
(OSM), plan to prepare an environmental impact statement (EIS) to 
analyze the effects of possibly revising our regulations pertaining to 
excess spoil generation and disposal and stream buffer zones. On 
January 7, 2004, we published in the Federal Register proposed changes 
to regulations regarding excess spoil disposal, the stream buffer zone, 
and corresponding changes to the stream diversion regulations. We have 
subsequently determined that preparation of an EIS would be an 
appropriate mechanism to fully assess alternative approaches to these 
specific proposed actions and their potential impacts. By this notice, 
we are announcing our intent to prepare an EIS on this rulemaking 
initiative and are asking for your help in identifying the significant 
issues and specific

[[Page 35113]]

alternatives related to the proposed action.

DATES: Electronic or written comments: We must receive your written 
comments by 4 p.m. eastern standard time on August 15, 2005, to ensure 
consideration in the preparation of the draft EIS.

ADDRESSES: You may mail or hand carry comments to: ``EIS Scoping SBZ 
Rulemaking Comments'' c/o OSM Appalachian Region, 3 Parkway Center, 
Pittsburgh, Pennsylvania 15220, or you may send comments via electronic 
mail to: [email protected].
    See the SUPPLEMENTARY INFORMATION section for a list of potential 
public meeting places. Public meetings will only be held if a 
sufficient number of people request a meeting by contacting the person 
listed below in the section FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: David Hartos, Physical Scientist, OSM 
Appalachian Region, 3 Parkway Center, Pittsburgh, Pennsylvania 15220; 
telephone: (412) 937-2909 or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Why Is OSM Initiating Rulemaking?
    A. Why Is OSM Initiating Rulemaking To Minimize the Adverse 
Environmental Effects From Excess Spoil Fill Construction?
    B. Why Is OSM Proposing To Revise Its Stream Buffer Zone 
Regulation?
II. What Alternatives Have We Identified?
    A. ``No Action'' Alternative.
    B. Strengthening the Excess Spoil Requirements.
    C. Clarifying the Stream Buffer Zone Requirements.
III. What Are the Potential Issues Associated With the Action?
IV. How Will the NEPA Process Integrate With the Rulemaking Process?
V. How Can I Suggest What Issues and Alternatives the EIS Will 
Examine?

I. Why Is OSM Initiating Rulemaking?

    We are considering rulemaking to address issues regarding excess 
spoil fills and to clarify the stream buffer zone requirements. For a 
more in depth discussion of reasons for initiating rulemaking, we refer 
the reader to the January 7, 2004, Federal Register (69 FR at 1036).

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

* * * * *
    Mining operations that generate large amounts of excess spoil to be 
disposed of outside the coal extraction area may cover significant 
areas over and around stream reaches, especially in mountainous areas. 
Such fills may have a variety of effects on stream reaches and related 
environmental values. As discussed below, available information 
indicates that in some cases, more land is disturbed for the disposal 
of excess spoil outside the coal extraction area than is necessary. 
Existing regulations do not specifically address in detail the size and 
configuration or environmental effects of excess spoil. Therefore, OSM 
anticipates that the purpose of this action would be to provide 
regulatory guidance to ensure that fills are no larger than necessary 
to accommodate anticipated excess spoil, and to address the adverse 
environmental effects of excess spoil disposal, particularly impacts on 
streams, consistent with the underlying authority and purposes of 
SMCRA.
    In SMCRA section 515(b)(3), Congress recognized the importance of 
returning mine spoil to the mined area as an integral part of 
reclamation, but Congress also recognized that there are situations 
where this may not be desirable or possible (30 U.S.C. 1265(b)(3)). 
This statutory provision requires that all surface coal mining and 
reclamation operations ``backfill, compact (where advisable to ensure 
stability or to prevent leaching of toxic materials), and grade in 
order to restore the approximate original contour [AOC] of the land'' 
except for mountaintop mining operations pursuant to SMCRA section 
515(c), for which an alternative post mining land use requires a level 
or gently rolling contour. 30 U.S.C. 1265(b)(3). Section 515(b)(3) also 
provides for exceptions to the AOC requirement in situations when it 
may not be possible to return all the spoil to the mined area because 
the volume of overburden is large relative to the thickness of coal. In 
those situations, the operator is required to demonstrate that ``due to 
volumetric expansion the amount of overburden and other spoil and waste 
material is more than sufficient to restore the approximate original 
contour.'' Id. The operator is also required to ``backfill, grade, and 
compact (where advisable) the excess overburden and other spoil and 
waste materials to attain the lowest possible grade but not more than 
the angle of repose,'' in order to ``achieve an ecologically sound land 
use compatible with the surrounding region'' and to prevent slides, 
erosion, and water pollution. Id.
    Evidence that Congress anticipated excess spoil is further 
illustrated by section 515(b)(22) of SMCRA, 30 U.S.C. 1265(b)(22). In 
this provision, Congress imposed specific controls for the disposal of 
excess spoil to assure mass stability and to prevent mass movement and 
erosion. Among the various controls, section 515(b)(22)(D) requires 
that the excess spoil disposal area ``not contain springs, natural 
water courses, or wet weather seeps unless lateral drains are 
constructed from the wet areas to the main underdrains,'' to prevent 
filtration of water into the spoil pile. Section 515(b)(22)(I) requires 
that all other provisions of SMCRA be met.
    SMCRA also sets out special requirements for spoil handling for 
steep-slope surface coal mining. Section 515(d)(1), 30 U.S.C. 
1265(d)(1), requires that, ``no * * * spoil material * * * be placed on 
the downslope below the bench or mining cut: Provided, That spoil 
material in excess of that required for the reconstruction of the 
approximate original contour under the provisions of paragraph 
515(b)(3) or 515(d)(2) shall be permanently stored pursuant to section 
515(b)(22).''
    Since the early 1970's, large-scale surface mining has become a 
more prevalent means of coal extraction, especially in the 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 this terrain and relatively wet climate, even the upper 
reaches of valleys may include stream channels or watercourses with 
continual (perennial) or intermittent flow. Most excess spoil fills 
occur in the steep terrain of the central Appalachian coal region. 
Excess spoil fills also occur occasionally in other parts of the United 
States where surface coal mining is conducted in steep terrain.
    In 1998, we conducted studies in Kentucky, Virginia and West 
Virginia. When we examined permit files and reclaimed mines, we found 
it difficult to distinguish between the topography of mines backfilled 
and graded to achieve the approximate original contour (AOC) and the 
topography of mines that were granted a variance from the AOC 
requirement. We also found that there were no clear differences in the 
number and size of the excess spoil fills associated with these mines, 
although we anticipated that non-AOC mines would 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.
    In addition, we found that, in many instances, coal mine operators 
were overestimating the anticipated volume of excess spoil. As a 
result, we

[[Page 35114]]

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 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. We are considering changes to 
strengthen our regulatory requirements to address the adverse 
environmental effects of spoil disposal, particularly impacts on 
streams, stemming from the construction of excess spoil fills.

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

    There are highly contradictory views on the application of the 
existing SBZ rule, which have been reflected in litigation; and OSM 
believes there may be a need to clarify the SBZ rule, consistent with 
SMCRA. Therefore, OSM anticipates that the purpose of this action would 
be to clarify the requirements of the SBZ rule consistent with 
underlying authority in SMCRA, the purposes of SMCRA and the SBZ rule, 
and the legislative history of SMCRA; and to improve regulatory 
stability.
    Recent litigation has brought to light widely divergent opinions on 
how our stream buffer zone regulatory requirements should be 
interpreted. These opinions cause confusion and uncertainty among State 
and Federal regulatory agencies responsible for coal mining as well as 
the coal industry and the public.
    The courts have expressed different opinions relating to the 
interpretation of the stream buffer zone regulation. For example, the 
District Court for the Southern District of West Virginia effectively 
concluded that under the stream buffer zone rule, excess spoil fill 
cannot be allowed in any segment of an intermittent or perennial stream 
because the fill will cause adverse effects in that stream segment and 
violate water quality standards. Bragg v. Robertson (Bragg), Civ. No. 
2:98-0636, Memorandum Opinion and Order at 43-47 (S.D. W. Va., October 
20, 1999).
    The court stated:

    When valley fills are permitted in intermittent and perennial 
streams, they destroy those stream segments. The normal flow and 
gradient of the stream is now buried under millions of cubic yards 
of excess spoil waste material, an extremely adverse effect. If 
there are fish, they cannot migrate. If there is any life form that 
cannot acclimate to life deep in a rubble pile, it is eliminated. No 
effect on related environmental values is more adverse than 
obliteration. Under a valley fill, the water quantity of the stream 
becomes zero. Because there is no stream, there is no water quality.

Id. at 43.
    This opinion regarding the stream buffer zone regulation was later 
overturned by the 4th Circuit on jurisdictional grounds without 
addressing the merits. In a separate case, the District Court for the 
Southern District of West Virginia discussed its view that under SMCRA, 
excess spoil fill is not allowed in streams. In that case, the 4th 
Circuit rejected the district court's view:

    Indeed, it is beyond dispute that SMCRA recognizes the 
possibility of placing excess spoil material in waters of the United 
States. 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, Sec.  515(b)(24) requires 
surface mine operators to ``minimize disturbances and adverse 
impacts of the operation on fish, wildlife, and related 
environmental values, and achieve enhancement of such resources 
where practicable,'' implying the placement of fill in the waters of 
the United States. 30 U.S.C. Sec.  1265(b)(24). It is apparent that 
SMCRA anticipates the possibility that excess spoil material could 
and would be placed in waters of the United States'.

Kentuckians for the Commonwealth v. Rivenburgh, (Rivenburgh) No. 02-
1736 (Sept. 23, 2002) 317 F.3d at 443.
    These are examples of the conflicting views that have been 
expressed related to interpretation of the existing stream buffer zone 
rule. We believe it is important to ensure that our regulations are 
clear and understood.
    History of the Stream Buffer Zone Rule: There are no provisions in 
SMCRA requiring establishment or protection of a stream buffer zone. 
With the exception of roads and access ways (see 30 U.S.C.1265(b)(18)), 
SMCRA does not prohibit mining activities within or near streams. OSM 
promulgated a stream buffer zone rule initially as an interim 
regulatory program provision to establish a ``vegetative filter strip'' 
of undisturbed land ``to protect stream channels from abnormal 
erosion'' from nearby upslope mining activities. 42 FR 62652 (December 
13, 1977). That interim program regulation, which is still in effect, 
requires only that the regulatory authority approve all incursions into 
the stream buffer zone.
    When we published our permanent program regulations in the Federal 
Register on March 13, 1979, we included a revised stream buffer zone 
rule and explained that the stream buffer zone concept was a means to 
implement various SMCRA provisions, particularly, sections 515(b)(10) 
and 515(b)(24) [30 U.S.C. 1265(b)(10) and (24)]. 44 FR 15176 (March 13, 
1979). Section 515(b)(10)(B)(i) of SMCRA requires that mining 
operations ``minimize the disturbances to the prevailing hydrologic 
balance at the mine-site and in associated offsite areas and to the 
quality and quantity of water in surface and ground water systems'' by 
preventing, ``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 section also 
requires that operations minimize downstream water quality and quantity 
impacts using several measures. Section 515(b)(24) of SMCRA requires 
operations ``to the extent possible using the best technology currently 
available'' to ``minimize disturbances and adverse impacts of the 
operation on fish, wildlife, and related environmental values.'' These 
standards are consistent with the other requirements of SMCRA to 
minimize impacts within the mining permit area and prevent material 
damage to the hydrologic balance offsite (e.g., downstream). For 
example, section 1260(b)(3) requires:

    No permit or revision application shall be approved unless the 
application affirmatively demonstrates and the regulatory authority 
finds in writing on the basis of the information set forth in the 
application or from information otherwise available which will be 
documented in the approval, and made available to the applicant, 
that the assessment of the probable cumulative impact of all 
anticipated mining in the area on the hydrologic balance has been 
made by the regulatory authority and the proposed operation thereof 
has been designed to prevent material damage to hydrologic balance 
outside permit area.

    On June 30, 1983, we revised the stream buffer zone rule to include 
several changes. First, the 1983 stream buffer zone rule applies to 
intermittent and perennial streams, rather than

[[Page 35115]]

streams with a biological community. Second, it allows permanent 
diversion of stream flow. Third, it adds requirements for findings that 
the mining activities will not cause or contribute to violations of 
applicable water quality standards and will not adversely affect other 
environmental resources of the stream (in addition to the finding 
concerning effect on water quality and quantity required in the 1979 
rule). Finally, it does not retain the phrase from the 1979 rule 
expressly limiting the required finding concerning adverse effects, to 
the section of stream within 100 feet of the mining activities.
    The current Federal stream buffer zone rule has been in effect 
since August 1, 1983, and State regulatory programs include similar 
requirements. Neither OSM nor the State regulatory authorities have 
interpreted or implemented the stream buffer zone rule to prohibit 
either placement of excess spoil fills or other surface mining 
activities within the stream buffer zone. Under the various Federal and 
State regulatory programs, an operator may conduct a coal mining 
activity closer than 100 feet from an intermittent or perennial stream, 
if the operator demonstrates that the activity would meet the 
conditions set forth in 30 CFR 816/817.57 for a stream buffer zone 
waiver. Regulatory authorities have approved many mining activities, 
including excess spoil fill construction in stream buffer zones, 
because they met all applicable regulatory requirements.

II. What Alternatives Have We Identified?

    For ease of consideration by the public in scoping this EIS, we 
will be discussing changes to the excess spoil and stream buffer zone 
regulations separately. However, changes to these regulations will not 
necessarily be analyzed separately since changes to one regulation may 
affect the other.
    We will consider only those non-substantive word changes to the 
stream diversion rule that are necessary for consistency with any 
excess spoil and stream buffer zone changes; therefore, in this EIS, we 
will not consider alternatives to those changes in the stream diversion 
rule.

A. ``No Action'' Alternative

    NEPA requires us to consider the ``no action'' alternative which 
would result in no changes to the excess spoil and stream buffer zone 
regulations as they currently exist in the Federal program.

B. Strengthening the Excess Spoil Requirements

    We are considering changes to the excess spoil regulations that 
would add the following: Require the applicant to demonstrate that the 
volume of excess spoil generated has been minimized, that fills would 
be no larger than necessary, and to submit alternative spoil disposal 
plans in order to identify the plan that minimizes adverse 
environmental effects.

C. Clarifying the Stream Buffer Zone Requirements

    We are considering revising the stream buffer zone regulation at 30 
CFR 816.57 and 817.57 to clarify under which circumstances the 
regulatory authority can allow surface coal mining activities within 
100 feet of an intermittent or perennial stream. We will consider a 
clarification that would closely follow our historic interpretation and 
implementation of the current stream buffer zone rule.

III. What Are the Potential Issues Associated With the Action?

    As a general matter, we will analyze issues such as the effects of 
the alternatives on the hydrologic balance, streams, fish and wildlife 
habitat, and compliance with the Clean Water Act. We may consider 
additional issues that may be identified during scoping.

IV. How Will the NEPA Process Integrate With the Rulemaking Process?

    Section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C), and the 
regulations of the Council on Environmental Quality implementing NEPA, 
40 CFR parts 1500 through 1508, require us to take a ``hard look'' at 
the consequences of any major Federal action we undertake that may 
significantly affect the quality of the human environment We have 
decided that the NEPA process is applicable to this rulemaking and 
intend to analyze the impacts of our proposed action and reasonable 
alternatives that we will consider. We anticipate that the rulemaking 
and NEPA processes will proceed as follows.
    After we complete the initial stages of scoping and identify the 
reasonable rulemaking alternatives for analysis, we will prepare a 
draft EIS that will include our ``preferred alternative.'' Upon release 
of the draft EIS, we anticipate publishing a notice of proposed 
rulemaking consistent with the preferred alternative, unless we select 
a preferred alternative that makes rulemaking unnecessary. The public 
comment periods for the draft EIS and proposed rule will run 
concurrently for 60 days. Once the public comment period closes and 
comments are considered, OSM will publish a final EIS. After a minimum 
of 30 days following release of a final EIS, OSM will publish a 
combined final rule and a record of decision unless OSM decides to 
adopt the ``no action'' alternative.

V. How Can I Suggest What Issues and Alternatives the EIS Will Examine?

    In accordance with the Council on Environmental Quality's 
regulations for implementing NEPA, 40 CFR parts 1500 through 1508, OSM 
is soliciting public comments on the scope and significant issues that 
you believe we should address in the EIS. We are specifically asking 
for your opinions as to the feasibility and appropriateness of the 
proposed alternatives discussed above, and any other reasonable 
alternatives that you think should be considered by the EIS. 
Suggestions and information on attendant environmental and economic 
impacts regarding the alternatives are welcome as well.
    Send written comments, including email comments, to OSM at the 
locations listed under the section ADDRESSES.
    Comments should be specific and pertain only to the issues relating 
to the proposals. OSM will include all comments in the administrative 
record for this EIS.
    If you want your name on the mailing list to receive future 
information, please contact the person listed under the section FOR 
FURTHER INFORMATION CONTACT.

Availability of Comments

    OSM will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
OSM will not consider anonymous comments. If individual respondents 
request confidentiality, OSM will honor their requests to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address (except for the city or town) from public review must 
state this prominently at the beginning of their comments and must 
submit their comments by regular mail, not by e-mail. All submissions 
from organizations or businesses and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses will be available for public review in their entirety.

Public Meetings

    We are prepared to hold meetings in five locations. All meetings 
will be structured to be conducive to a high degree of interaction 
among participants

[[Page 35116]]

and meeting facilitators. The primary purpose of these meetings will be 
to bring together interested parties to discuss the scope of the 
proposed action, reasonable alternatives to the proposed action, and 
other significant issues relating to the EIS preparation. We will 
consider other reasonable alternatives that may be suggested in the 
scoping process. The other issues include the identification of impact 
topics, data needs, and national, State, and local concerns that need 
to be considered. If meetings are held, the format will be structured 
to promote interaction among the participants to determine what issues 
and concerns should be addressed by the EIS.
    We have identified five potential locations below where we are 
prepared to conduct public meetings if we receive sufficient interest. 
Please call, write, or email the person listed under the section FOR 
FURTHER INFORMATION CONTACT if you are interested in participating in a 
meeting at the location listed. For logistical reasons and for the 
benefit of the participants, we need to know approximately how many 
participants we can expect at each of the meetings.
     Pittsburgh, Pennsylvania.
     Knoxville, Tennessee.
     Alton, Illinois.
     Denver, Colorado.
     Washington, DC.
    If a meeting is held, we will have some means available to make a 
formal record, which will be made part of the administrative record for 
the EIS. If you have written suggestions regarding issues, 
alternatives, and sources of additional information, we encourage you 
to give us a copy at the meeting. We will consider these written 
comments and also make them part of the record.
    Any disabled individual who needs special accommodation to attend a 
public meeting is encouraged to contact the person listed under FOR 
FURTHER INFORMATION CONTACT.
    If you wish to speak to an OSM representative to discuss the scope 
of the EIS or if you would like to request an additional meeting at a 
location and date that is more convenient to you, please contact the 
person listed under FOR FURTHER INFORMATION CONTACT. We will exercise 
our discretion as to whether additional meetings will be held and the 
form of such meetings. We will announce the details of any future 
meeting in the Federal Register, the OSM Web site (http://www.osmre.gov) and local newspapers as the meetings take form.

    Dated: May 2, 2005.
Sterling J. Rideout,
Assistant Director, Program Support.
[FR Doc. 05-11926 Filed 6-15-05; 8:45 am]
BILLING CODE 4310-05-P