[Federal Register Volume 72, Number 164 (Friday, August 24, 2007)]
[Proposed Rules]
[Pages 48890-48926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16629]



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Part VIII





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 780, 784, 816, and 817



Excess Spoil, Coal Mine Waste, and Buffers for Waters of the United 
States; Proposed Rule

  Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 780, 784, 816, and 817

RIN 1029-AC04


Excess Spoil, Coal Mine Waste, and Buffers for Waters of the 
United States

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

ACTION: Proposed rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are proposing to amend our regulations concerning stream buffer 
zones, stream diversions, siltation structures, impoundments, and the 
creation and disposal of excess spoil and coal mine waste. Among other 
things, this proposed rule would require that surface coal mining 
operations be designed to minimize the creation of excess spoil and the 
adverse environmental impacts of fills constructed to dispose of excess 
spoil and coal mine waste. It would apply the buffer requirement to all 
waters of the United States, not just perennial and intermittent 
streams. The rule would clearly specify the activities to which that 
requirement does and does not apply and the limitations on conducting 
activities within the buffer, either under a variance or an exception. 
It also would specify requirements to protect aquatic and other 
resources when an activity is conducted under either a variance or an 
exception.

DATES: Electronic or written comments: We will accept written comments 
on the proposed rule on or before October 23, 2007.
    Public hearings: If you wish to testify at a public hearing, you 
must submit a request before 4:30 p.m., Eastern time, on September 24, 
2007. We will hold a public hearing only if there is sufficient 
interest. Hearing arrangements, dates and times, if any, will be 
announced in a subsequent Federal Register notice. If you are a 
disabled individual who needs reasonable accommodation to attend a 
public hearing, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT.

ADDRESSES: You may submit comments, identified by docket number 1029-
AC04. by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
The proposed rule is listed under the agency name ``OFFICE OF SURFACE 
MINING RECLAMATION AND ENFORCEMENT.''
     Mail/Hand-Delivery/Courier: Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, Room 252 SIB, 1951 
Constitution Avenue, NW., Washington, DC 20240. Please identify the 
comments as pertaining to RIN 1029-AC04.
    You may submit a request for a public hearing on the proposed rule 
to the person and address specified under FOR FURTHER INFORMATION 
CONTACT. If you are disabled and require special accommodation to 
attend a public hearing, please contact the person listed under FOR 
FURTHER INFORMATION CONTACT.
    If you are commenting on the information collection aspects of this 
proposed rule, please submit your comments to the Office of Management 
and Budget, Office of Information and Regulatory Affairs, Attention: 
Interior Desk Officer, via e-mail to [email protected], or via 
facsimile to 202-365-6566.
    You may review the draft environmental impact statement for this 
proposed rule online at http://www.regulations.gov. At that internet 
address, the document is listed under ``Office of Surface Mining 
Reclamation and Enforcement.'' You may also review the draft 
environmental impact statement at any of the following locations:

Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, Room 101 SIB, 1951 Constitution Avenue, NW., Washington, DC 
20240, 202-208-4264.
Office of Surface Mining Reclamation and Enforcement, Appalachian 
Regional Office, Three Parkway Center, Pittsburgh, PA 15220, 412-937-
2909.
Office of Surface Mining Reclamation and Enforcement, Mid-Continent 
Regional Office, Alton Federal Bldg., 501 Belle Street, Rm 216, Alton, 
IL 62002, 618-463-6460.
Office of Surface Mining Reclamation and Enforcement, Western Regional 
Office, 1999 Broadway, Suite 3320, Denver, CO 80201-6667, 303-844-1401.

FOR FURTHER INFORMATION CONTACT: Dennis G. Rice, Office of Surface 
Mining Reclamation and Enforcement, U.S. Department of the Interior, 
1951 Constitution Avenue, NW., Washington, DC 20240. Telephone: 202-
208-2829. E-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. How does this rule relate to the proposed rule published on 
January 7, 2004?
II. Why is there a need to construct fills in streams in connection 
with coal mining?
III. Why are we proposing to revise our stream buffer zone rules?
    A. What does SMCRA say about surface coal mining operations in 
or near streams?
    B. What provisions of SMCRA form the basis for the existing 
stream buffer zone rules?
    C. What is the history of the existing stream buffer zone rules?
    D. How have the existing stream buffer zone rules been 
interpreted?
IV. Why are we proposing to revise our rules concerning excess 
spoil?
V. Why are we proposing to revise our rules concerning coal mine 
waste?
VI. How are we proposing to revise our existing rules?
    A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans
    B. Sections 780.25 and 784.16: Reclamation Plan: Siltation 
Structures, Impoundments, Refuse Piles, and Coal Mine Waste 
Impounding Structures
    C. Sections 780.28 and 784.28: Activities in or Adjacent to 
Waters of the United States
    D. Section 780.35: Disposal of Excess Spoil from Surface Mines
    E. Section 784.19: Disposal of Excess Spoil from Underground 
Mines
    F. Sections 816.11 and 817.11: Signs and Markers
    G. Sections 816.43 and 817.43: Diversions
    H. Sections 816.46 and 817.46: Siltation Structures
    I. Sections 816.57 and 817.57: Activities in or Adjacent to 
Waters of the United States
    J. Sections 816.71 and 817.71: General Requirements for Disposal 
of Excess Spoil
    K. What does the phrase ``to the extent possible'' mean in these 
rules?
    L. What does the phrase ``best technology currently available'' 
mean in these rules?
VII. Are we considering any alternatives to this proposed rule?
    A. No Action Alternative
    B. Alternative 1: Preferred Alternative
    C. Alternative 2: January 7, 2004, Proposed Rule
    D. Alternative 3: Change Only the Excess Spoil Regulations
    E. Alternative 4: Change Only the Stream Buffer Zone Regulations
VIII. How do I submit comments on the proposed rule?
IX. Procedural Matters and Required Determinations

I. How does this rule relate to the proposed rule published on January 
7, 2004?

    On January 7, 2004 (69 FR 1036), we published a proposed rule to 
amend our excess spoil, stream buffer zone, and stream diversion 
regulations. The preamble to that proposed rule contains an extensive 
discussion of the purpose and need for the proposed rule and pertinent 
background information. We will not fully repeat that information in

[[Page 48891]]

this preamble, but we will supplement that information as appropriate.
    On February 26, 2004 (69 FR 8899), we announced the schedule and 
arrangements for five hearings on the proposed rule, and extended the 
time allowed for receipt of comments by 30 days until April 7, 2004. On 
March 30, 2004, we held public hearings in Harriman, Tennessee; Hazard, 
Kentucky; Charleston, West Virginia; Pittsburgh, Pennsylvania; and 
Washington, DC. Approximately 200 people testified at the five 
hearings. We received approximately 32,000 written comments. Numerous 
commenters asked us to consider other alternatives to the proposed 
rule. Some commenters also asked that we prepare an environmental 
impact statement (EIS) on the proposed action.
    On June 16, 2005 (70 FR 35112), we announced our intent to prepare 
an EIS on the proposed rule changes. We also stated that we intended to 
consider additional alternatives and to publish a new proposed rule to 
coincide with the release of a draft EIS. The proposed rule that we are 
publishing today reflects that decision and replaces the proposed rule 
published on January 7, 2004.

II. Why is there a need to construct fills in streams in connection 
with coal mining?

    Most fill material placed in streams in connection with coal mining 
is a result of the need to dispose of excess spoil generated by mining 
operations conducted in areas consisting of steep slopes and narrow 
valleys. To remove coal by surface mining methods, the formerly solid 
rock strata overlying the coal seam must be broken up into fragments 
and excavated. The broken rock fragments (referred to as spoil) are 
separated by numerous voids, resulting in a significant increase in 
volume over the volume of solid rock in place before mining. The 
increase in volume varies considerably depending upon the nature of the 
rock and the mining method, but the industry average is about 25 
percent. Returning all spoil to the mined-out area in steep-slope 
terrain would create highly unstable conditions and in most cases is 
physically impossible. Consequently, some spoil must be permanently 
placed outside the mined-out area in engineered fills. The most 
economically feasible disposal areas are the upper reaches of valleys 
adjacent to the mine. As defined in 30 CFR 701.5, spoil not needed to 
restore the approximate original contour and disposed of in locations 
other than the mined-out area is considered ``excess spoil.''
    A nationwide survey of all coal mining permits issued between 
October 1, 2001, and June 30, 2005, found that those permits included a 
total of 1,612 excess spoil fills, of which 1,589 (98.6 percent) are 
located in the central Appalachian coalfields. Specifically, most of 
the fills approved in those permits are located in Kentucky (1,079), 
West Virginia (372), and Virginia (125), with 13 approved in Tennessee. 
The remaining fills approved during that time are located in Alaska, 
Alabama, Ohio, Pennsylvania, and Washington. This survey is discussed 
in greater detail in the draft environmental impact statement (DEIS) 
that accompanies this proposed rule. You may review the DEIS for this 
proposed rule online at http://www.regulations.gov. At that internet 
address, the document is listed under ``Office of Surface Mining 
Reclamation and Enforcement.'' A notice announcing the availability of 
the DEIS was published in this edition of the Federal Register. That 
notice also lists OSM offices and public libraries in Kentucky, 
Tennessee, Virginia, and West Virginia where you may review the DEIS.
    The central Appalachian coalfields are characterized by highly 
eroded plateaus, dissected by numerous narrow, deeply incised valleys 
with steep side slopes. In this region, even small valleys may contain 
intermittent and perennial streams. For example, in a study conducted 
in West Virginia, the United States Geological Survey found that, on 
average, perennial streams begin in watersheds as small as 40.8 acres 
and intermittent streams in watersheds as small as 14.5 acres. See 
Katherine S. Paybins, Flow Origin, Drainage Area, and Hydrologic 
Characteristics for Headwater Streams in Mountaintop Coal-Mining Region 
of Southern West Virginia, Water Resources Investigations Report 02-
4300, U.S. Geological Survey, 2003, p. 1. Consequently, the 
construction of excess spoil fills in those valleys often involves 
burying the upper reaches of perennial and intermittent streams.
    Underground mines also may result in the filling of some stream 
segments. Rock and other overburden materials removed as part of the 
cut made to expose the coal seam into which the mine entries and 
ventilation shafts are driven normally are used to construct an 
adjoining bench upon which mine offices, parking lots, equipment, and 
other support facilities are located. This process is referred to as 
``facing up'' the mine. Any material removed as part of the face-up 
operation that is not used to construct the bench or placed in 
temporary storage for use in restoring the approximate original contour 
and reclaiming the face-up area once the mine closes permanently is 
excess spoil. Should such excess spoil exist, it would be placed in 
fills on adjacent hillsides or in adjoining valleys. Underground mining 
operations also may involve the excavation of non-coal waste rock from 
underground tunnels. The waste rock, which we define as underground 
development waste, is typically brought to the surface and placed in 
fills.
    Activities associated with coal preparation plants also may result 
in the filling of some stream segments. These plants clean coal by 
removing impurities, especially ash, incombustible rock, and sulfur. 
They create large quantities of coal processing waste, including both a 
very fine fraction, which is often suspended in water in a semi-liquid 
form (slurry) and a coarse fraction (refuse). Coal processing waste 
normally is placed in disposal sites near the plant. The slurry is 
usually impounded behind dams constructed of coarse refuse in a valley 
adjacent to the plant.
    The previously mentioned survey of all coal mining permits issued 
between October 1, 2001, and June 30, 2005, indicates that coal mining 
activities authorized by those permits will directly affect about 535 
miles of streams nationwide, of which 324 miles (60.6 percent) are in 
the central Appalachian coalfields. Based on data from the West 
Virginia permits, we estimate that approximately two-thirds of the 324 
miles will be permanently covered by excess spoil fills and coal mine 
waste disposal facilities. Most of the remaining miles of stream 
directly affected by mining operations should experience only temporary 
adverse environmental impacts, chiefly as a result of mining through 
those streams. In those cases, the streams are diverted and relocated 
while the mining operation proceeds through the streambed. When mining 
is completed, the stream is restored to its original location unless 
the relocation is permanent.
    A further description of the existing environment of the central 
Appalachian coalfields can be found in the draft and final 
environmental impact statements issued in 2003 and 2005, respectively, 
by the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps 
of Engineers, the U.S. Fish and Wildlife Service, OSM, and the West 
Virginia Department of Environmental Protection. The draft EIS, which 
the final EIS incorporates by reference, contains the bulk of that 
description. The draft EIS is entitled ``Mountaintop Mining/Valley 
Fills in Appalachia Draft

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Programmatic Environmental Impact Statement'' (EPA 9-03-R-00013, EPA 
Region 3, June 2003) and is available at http://www.epa.gov/region3/mtntop/eis.htm. The final EIS, which is entitled ``Mountaintop Mining/
Valley Fills in Appalachia Final Programmatic Environmental Impact 
Statement'' (EPA 9-03-R-05002, EPA Region 3, October 2005), is 
available at http://www.epa.gov/region3/mtntop/pdf/mtm-vf_fpeis_full-document.pdf.
    According to the draft EIS referenced in the preceding paragraph, 
approximately 5,700 excess spoil fills were approved between 1985 and 
2001 in the central Appalachian coalfields. These fills, if 
constructed, would cover approximately 724 miles of intermittent and 
perennial streams, which is about 1.2 percent of the approximately 
59,000 miles of intermittent and perennial streams within the central 
Appalachian coal fields (EPA 9-03-R-00013, Chapter IV.B-2 and Table 
III.K-8).
    The draft EIS, as incorporated into the final EIS, also contains 
the following statements regarding actual and projected impacts:
     ``Impacts (including valley fills and other permit 
features) * * * based on ten years (1992-2002) of permit footprints 
were 1,208 miles (2.05%) of the 58,998 stream miles in the EIS study 
area.'' (EPA 9-03-R-00013, Chapter IV.B-1)
     ``If valley fill construction continued at this historical 
rate documented in the Fill Inventory for the next seventeen years 
(2003-2020), an additional 724 miles (for a total of 2.4%) could be 
impacted.'' (EPA 9-03-R-00013, Chapter IV.B-2)
     ``If that rate (for permit footprints) continued for 
another 10 years, a total of 4.10% would be impacted by 2013.'' (EPA 9-
03-R-00013, Chapter IV.B-1)

III. Why are we proposing to revise our stream buffer zone rules?

    In regulating surface coal mining operations, OSM and State 
regulatory authorities have historically applied the 1983 stream buffer 
zone rules in 30 CFR 816.57 and 817.57 in a manner that allows excess 
spoil fills, refuse piles, coal mine waste impoundments, and 
sedimentation ponds to be located in perennial and intermittent streams 
under certain circumstances. However, as discussed below, there has 
been considerable controversy over the proper interpretation of the 
1983 rules. Some of those interpretations appear to be at odds with the 
underlying provisions of the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). Therefore, Federal action is needed to end the 
ambiguity in interpretation of the stream buffer zone rules and to 
ensure that regulatory authorities, mine operators, other governmental 
entities, landowners, and citizens all can have a common understanding 
of what the stream buffer zone rules do and do not require, consistent 
with underlying statutory authority.
    As discussed below, two Federal appellate court decisions are 
relevant to our reconsideration of the 1983 stream buffer zone rules. 
One of those decisions concluded that SMCRA does not prohibit placement 
of excess spoil in waters of the United States. It further recognized 
that section 515(b)(22) of SMCRA contemplated the placement of excess 
spoil in such waters. The other decision reversed contrary district 
court decisions on other grounds (lack of jurisdiction under the 
Eleventh Amendment to the U.S. Constitution) without reaching the 
merits of the district court's holding on the applicability of the 
stream buffer zone rules. Nevertheless, we believe that both the public 
and the regulated community would best be served by revising the 1983 
stream buffer zone rules to clearly specify the scope of their 
applicability.
    The revisions that we are proposing today represent an attempt to 
minimize disputes and misunderstandings associated with application of 
the existing rules. The revised rules distinguish between those 
situations in which maintenance of an undisturbed buffer between mining 
and reclamation activities and waters of the United States constitutes 
the best technology currently available to implement the underlying 
statutory provisions (sections 515(b)(10)(B)(i) and (24) and 
516(b)(9)(B) and (11) of SMCRA) and those situations in which 
maintenance of a buffer is neither feasible nor appropriate because the 
activities inherently involve placement of fill material in waters of 
the United States. Examples of the latter category of activities 
include mining through streams and the construction of excess spoil 
fills, refuse piles, slurry impoundments, and in-stream sedimentation 
ponds. Those activities are governed by other regulations.
    We are also proposing changes to better conform the rule language 
to the underlying provisions of SMCRA and to expand the scope of the 
rule to include all waters of the United States instead of just 
perennial and intermittent streams as under the existing rules. 
Finally, we are proposing to reorganize the rules in recognition of the 
fact that the review and approval of proposals to disturb the surface 
of lands within buffer zones is a permitting action, not a performance 
standard. At present, the buffer zone rules are part of the performance 
standards in subchapter K. We are proposing to move portions of those 
rules to new sections 780.28 and 784.28, which would be part of the 
permitting requirements of subchapter G.
    The history of the existing stream buffer zone rules, their 
statutory basis, and the impetus for our proposed rule changes are 
discussed at length below. A detailed rationale for our proposed 
changes to the existing buffer zone rules appears in Parts VI.C. and 
VI.I. of this preamble.

A. What does SMCRA say about surface coal mining operations in or near 
streams?

    SMCRA contains three references to streams, two references to 
watercourses, and several provisions that indirectly refer to 
activities in or near streams.
    Section 507(b)(10) requires that permit applications include ``the 
name of the watershed and location of the surface stream or tributary 
into which surface and pit drainage will be discharged.'' However, this 
provision has no relevance to mining-related activities in or near 
streams or to the existing or proposed buffer zone rules.
    Section 515(b)(18) requires that surface coal mining and 
reclamation operations ``refrain from the construction of roads or 
other access ways up a stream bed or drainage channel or in such 
proximity to such channel so as to seriously alter the normal flow of 
water.''
    Section 516(c) requires the regulatory authority to suspend 
underground coal mining under permanent streams if an imminent danger 
to inhabitants exists. However, this provision is not relevant to a 
discussion of the stream buffer zone rules because, in response to 
litigation concerning the 1983 version of 30 CFR 817.57, we stipulated 
that ``this regulation is directed only to disturbance of surface lands 
by surface activities associated with underground mining.'' In re: 
Permanent Surface Mining Regulation Litigation II-Round II, 21 ERC 
1725, 1741, footnote 21 (D.D.C. 1984).
    Section 515(b)(22)(D) provides that sites selected for the disposal 
of excess spoil must ``not contain springs, natural water courses or 
wet weather seeps unless lateral drains are constructed from the wet 
areas to the main underdrains in such a manner that filtration of the 
water into the spoil pile will be prevented.'' In adopting this 
provision, Congress could have chosen to exclude perennial and 
intermittent streams (or other waters) from the scope

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of ``natural water courses,'' but it did not do so. In addition, the 
fact that this provision of the Act authorizes disposal of excess spoil 
in areas containing springs and seeps further suggests that Congress 
did not intend to prohibit placement of excess spoil in perennial or 
intermittent streams. Springs and seeps constitute groundwater 
discharges. To the extent that those discharges provide intermittent or 
continuous flow in a channel, they are included within the scope of our 
definitions in 30 CFR 701.5 of ``intermittent stream'' and ``perennial 
stream,'' respectively. The definition of ``intermittent stream,'' 
which is based upon technical literature, includes any ``stream or 
reach of a stream that is below the local water table for at least some 
part of the year, and obtains its flow from both surface runoff and 
ground water discharge.'' Furthermore, the U.S. Court of Appeals for 
the Fourth Circuit cited section 515(b)(22) as the basis for its 
statement that ``it is beyond dispute that SMCRA recognized the 
possibility of placing excess spoil material in waters of the United 
States even though those materials do not have a beneficial purpose.'' 
Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 
(4th Cir. 2003).
    Section 515(c)(4)(D) provides that, in approving a permit 
application for a mountaintop removal operation, the regulatory 
authority must require that ``no damage will be done to natural 
watercourses.'' The regulations implementing this provision clarify 
that the prohibition applies only to natural watercourses ``below the 
lowest coal seam mined.'' See 30 CFR 824.11(a)(9). However, section 
515(c)(4)(E) of the Act specifies that ``all excess spoil material not 
retained on the mountaintop shall be placed in accordance with the 
provisions of subsection (b)(22) of this section.'' By including this 
proviso, Congress recognized that not all excess spoil generated by 
mountaintop removal operations could be retained on benches or placed 
within the mined-out area. And by cross-referencing section 515(b)(22), 
Congress authorized placement of excess spoil from mountaintop removal 
operations in natural watercourses, provided all requirements of 
section 515(b)(22) are met. As discussed in Part II of this preamble, 
in the steep-slope terrain of central Appalachia, excess spoil 
typically can most feasibly be placed in valley fills.
    In addition, the legislative history of section 515(f) of SMCRA 
indicates that Congress anticipated that coal mine waste impoundments 
would be constructed in perennial and intermittent streams:

    In order to assure that mine waste impoundments used for the 
disposal of liquid or solid waste material from coal mines are 
constructed or have been constructed so as to safeguard the health 
and welfare of downstream populations, H.R. 2 gives the Army Corps 
of Engineers a role in determining the standards for construction, 
modification and abandonment of these impoundments. * * *
    Thus, the corps' experience and expertise in the area of design, 
construction, maintenance, et cetera, which were utilized for 
carrying out the congressionally authorized surveys of mine waste 
embankments in West Virginia following the disastrous failure of the 
mine waste impoundments on Buffalo Creek, is to be applied in order 
to prevent similar accidents in the future.

H. Rep. No. 95-218; at 125 (April 22, 1977) (emphasis added).

    Section 515(f) provides that--

    The Secretary, with the written concurrence of the Chief of 
Engineers, shall establish within one hundred and thirty-five days 
from the date of enactment, standards and criteria regulating the 
design, location, construction, operation, maintenance, enlargement, 
modification, removal, and abandonment of new and existing coal mine 
waste piles referred to in section 515(b)(13) and section 516(b)(5).

    Sections 515(b)(13) and 516(b)(5) concern ``all existing and new 
coal mine waste piles consisting of mine wastes, tailings, coal 
processing wastes, or other liquid and solid wastes and used either 
temporarily or permanently as dams or embankments.'' (Emphasis added.) 
Sections 515(f), 515(b)(13), and 516(b)(5) do not specifically mention 
streams or watercourses. However, the reference to dams and 
embankments, the requirement for the concurrence of the U.S. Army Corps 
of Engineers (for its expertise in dam construction and flood control), 
and the legislative history documenting that the 1972 Buffalo Creek 
flood was the driving force behind adoption of those SMCRA provisions 
demonstrate that Congress was aware that coal mine waste impoundments 
had been constructed in perennial and intermittent streams in the past 
and would be constructed there in the future. Furthermore, the fact 
that all three paragraphs specifically apply to both new and existing 
structures (rather than to just existing structures) implies that new 
structures would and could be built in streams under SMCRA. As 
mentioned in the legislative history, Congress' intent was to prevent a 
recurrence of the Buffalo Creek impoundment failure and to ensure that 
all coal mine waste impoundments either are or have been constructed in 
a manner that protects the safety of downstream residents. There is no 
indication that Congress intended to prohibit construction of those 
structures in perennial or intermittent streams.
    Finally, sections 515(b)(11) and 516(b)(4) of the Act govern the 
construction of coal refuse piles that are not used as dams or 
embankments. While those paragraphs do not mention constructing refuse 
piles in watercourses, neither do they prohibit such construction. 
Because of the similarity of those piles to excess spoil fills, the 
regulations implementing sections 515(b)(11) and 516(b)(4) incorporate 
language similar to that of section 515(b)(22)(D) for the construction 
of excess spoil disposal facilities. Specifically, the regulations at 
30 CFR 816.83 (a)(1) and 817.83(a)(1) allow the construction of non-
impounding coal refuse piles on areas containing springs, natural or 
man-made watercourses, or wet weather seeps if the design includes 
diversions and underdrains. Not all areas containing springs, 
watercourses, or wet-weather seeps are waters of the United States, but 
some are, which means that refuse piles may be constructed in streams 
or other waters of the United States.

B. What provisions of SMCRA form the basis for the existing stream 
buffer zone rules?

    Paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA provide 
the basis for the existing stream buffer zone rule at 30 CFR 816.57, 
which applies to surface mining activities. Section 515(b)(10)(B)(i) 
requires that surface coal mining operations be conducted so as to 
prevent the contribution of additional suspended solids to streamflow 
or runoff outside the permit area to the extent possible using the best 
technology currently available. Section 515(b)(24) requires that 
surface coal mining and reclamation operations be conducted to minimize 
disturbances to and adverse impacts on fish, wildlife, and related 
environmental values ``to the extent possible using the best technology 
currently available.''
    Paragraphs (b)(9)(B) and (11) of section 516 of SMCRA form the 
basis for the existing stream buffer zone rule at 30 CFR 817.57, which 
applies to surface activities associated with underground mines. Those 
section 516 provisions are substantively equivalent to paragraphs 
(b)(10)(B)(i) and (24) of section 515 of SMCRA, respectively, except 
that section 516(b)(9)(B) also includes the provisions found in section 
515(b)(10)(E) regarding the avoidance of channel deepening or 
enlargement. Therefore, in the remainder of this

[[Page 48894]]

preamble, we generally refer only to the section 515 paragraphs, with 
the understanding that, unless otherwise indicated, references to those 
paragraphs should be read as including their section 516 counterparts.

C. What is the history of the existing stream buffer zone rules?

SMCRA and Its Legislative History
    SMCRA does not establish or require a buffer zone for streams or 
other waters. In 1972, the U.S. House of Representatives passed a bill 
(H.R. 6482) that included a flat prohibition on mining within 100 feet 
of any ``body of water, stream, pond, or lake to which the public 
enjoys use and access, or other private property.'' This prohibition 
appeared in the counterpart to what is now section 522(e) of the Act. 
However, the bill never became law and the provision did not appear in 
subsequent versions of SMCRA legislation.
Initial Regulatory Program
    As part of the regulations implementing the initial regulatory 
program under SMCRA, we adopted the concept of a 100-foot buffer zone 
around intermittent and perennial streams as a means ``to protect 
stream channels from abnormal erosion'' from nearby upslope mining 
activities. See 30 CFR 715.17(d)(3) and 42 FR 62652 (December 13, 
1977). The regulation reads as follows:

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

    The rule does not specify the conditions under which the regulatory 
authority may authorize operations within the buffer zone.
Permanent Regulatory Program (1979 Rules)
    The original version of the permanent program regulations, as 
published on March 13, 1979, included more extensive stream buffer zone 
rules at 30 CFR 816.57 (for surface mining operations) and 817.57 (for 
underground mining operations). Specifically, the 1979 version of 
section 816.57 reads as follows:

    (a) No land within 100 feet of a perennial stream or a stream 
with a biological community determined according to paragraph (c) 
below shall be disturbed by surface mining activities, except in 
accordance with Sec. Sec.  816.43-816.44 [the stream diversion 
regulations], unless the regulatory authority specifically 
authorizes surface mining activities closer to or through such a 
stream upon finding--
    (1) That the original stream channel will be restored; and
    (2) During and after the mining, the water quantity and quality 
from the stream section within 100 feet of the surface mining 
activities shall not be adversely affected.
    (b) The area not to be disturbed shall be designated a buffer 
zone and marked as specified in Sec.  816.11.
    (c) A stream with a biological community shall be determined by 
the existence in the stream at any time of an assemblage of two or 
more species of arthropods or molluscan animals which are:
    (1) Adapted to flowing water for all or part of their life 
cycle;
    (2) Dependent upon a flowing water habitat;
    (3) Reproducing or can reasonably be expected to reproduce in 
the water body where they are found; and
    (4) Longer than 2 millimeters at some stage of the part of their 
life cycle spent in the flowing water habitat.

    The counterpart regulation for underground mining at 30 CFR 817.57 
was identical except that it substituted the term ``surface operations 
and facilities'' for ``surface mining activities'' and clearly 
indicated that the restrictions were limited to ``surface areas.''
    The preamble to the 1979 rules explains that the purpose of the 
revised rules was to implement sections 515(b)(10) and (24) of the Act. 
44 FR 15176, March 13, 1979. It states that ``[b]uffer zones are 
required to protect streams from the adverse effects of sedimentation 
and from gross disturbance of stream channels,'' but that ``if 
operations can be conducted within 100 feet of a stream in an 
environmentally acceptable manner, they may be approved.'' Id. In 
addition, it states that ``[t]he 100-foot limit is based on typical 
distances that should be maintained to protect stream channels from 
sedimentation,'' but that, while the 100-foot standard provides a 
simple rule for enforcement purposes, ``site-specific variation should 
be made available when the regulatory authority has an objective basis 
for either increasing or decreasing the width of the buffer zone.'' Id.
Permanent Regulatory Program Revisions (1983 Rules)
    In 1983, we revised the stream buffer zone rules to delete the 
requirement that the original stream channel be restored, to replace 
the biological community criterion for determining which non-perennial 
streams must be protected under the rule with a requirement for 
protection of all intermittent streams, and to add a requirement for a 
finding that the proposed mining activities will not cause or 
contribute to a violation of applicable State or Federal water quality 
standards and will not adversely affect the environmental resources of 
the stream.
    The preamble reiterates the general rationale for adoption of a 
stream buffer zone rule that we specified in the preamble to the 1979 
rules. It identifies the reason for replacing the biological community 
threshold with the intermittent stream threshold as a matter of 
improving the ease of administration and eliminating the possibility of 
applying the rule to ephemeral streams and other relatively 
insignificant water bodies:

    The biological-community standard was confusing to apply since 
there are areas with ephemeral surface waters of little biological 
or hydrologic significance which, at some time of the year, contain 
a biological community as defined by previous Sec.  816.57(c). Thus, 
much confusion arose when operators attempted to apply the previous 
rule's standards to springs, seeps, ponding areas, and ephemeral 
streams. While some small biological communities which contribute to 
the overall production of downstream ecosystems will be excluded 
from special buffer-zone protection under final Sec.  816.57(a), the 
purposes of Section 515(b)(24) of the Act will best be achieved by 
providing a buffer zone for those streams with more significant 
environmental-resource values.

    48 FR 30313, June 30, 1983. The preamble further states that ``[i]t 
is impossible to conduct surface mining without disturbing a number of 
minor natural streams, including some which contain biota'' and that 
``surface coal mining operations will be permissible as long as 
environmental protection will be afforded to those streams with more 
significant environmental-resource value.'' Id. It further provides 
that the revised rules ``also recognize that intermittent and perennial 
streams generally have environmental-resource values worthy of 
protection under Section 515(b)(24) of the Act.'' Id. at 30312. In 
addition, the preamble notes that ``[a]lthough final Sec.  816.57 is 
intended to protect significant biological values in streams, the 
primary objective of the rule is to provide protection for the 
hydrologic balance and related environmental values of perennial and 
intermittent streams.'' Id. at 30313. It further states that ``[t]he 
100-foot limit is used to protect streams from sedimentation and help 
preserve riparian vegetation and aquatic habitats.'' Id. at 30314.
    We also stated that we removed the requirement to restore the 
original stream channel in deference to the

[[Page 48895]]

stream channel diversion requirements of 30 CFR 816.43 and 817.43 and 
to clarify that there does not have to be a stream diversion for mining 
to occur inside the buffer zone. Id.
    Finally, the preamble states that we added the finding concerning 
``other environmental resources of the stream'' to clarify ``that 
regulatory authorities will be allowed to consider factors other than 
water quantity and quality in making buffer-zone determinations'' and 
``to provide a more accurate reflection of the objectives of Sections 
515(b)(10) and 515(b)(24) of the Act.'' Id. at 30316.
    Revised 30 CFR 816.57 (1983) reads as follows:

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

    We revised the stream buffer zone rule for underground mining at 30 
CFR 817.57 in identical fashion except for substitution of the term 
``underground mining activities'' for ``surface mining activities.''
    The National Wildlife Federation challenged this regulation as 
being inconsistent with sections 515(b)(10) and (24) of the Act, 
primarily because it deleted the biological community threshold for 
stream protection. However, the court rejected that challenge, finding 
without elaboration that the ``regulation is not in conflict with 
either section 515(b)(10) or 515(b)(24).'' In re: Permanent Surface 
Mining Regulation Litigation II--Round II, 21 ERC 1725, 1741-1742 
(D.D.C. 1984).
    The court also noted that the Secretary had properly justified the 
rule change on the grounds that the previous rule was confusing and 
difficult to apply without protecting areas of little biological 
significance. Unfortunately, the new criterion (intermittent streams) 
has proven as difficult to apply as the biological community standard 
that it replaced. The definition of ``intermittent stream'' in 30 CFR 
701.5 has two parts, separated by an ``or.'' The first part defines all 
streams with a drainage area of one square mile as intermittent. This 
part of the definition is the aspect that was litigated and upheld for 
its clarity of application. However, the second part of the definition 
includes all streams and stream segments that are below the local water 
table for part of the year and that derive at least part of their flow 
from groundwater discharge. This part of the definition has been much 
more difficult to apply in practice. In fact, some States use 
biological criteria for making that determination.
    Industry also challenged 30 CFR 817.57(a) to the extent that it 
included all underground mining activities. However, industry withdrew 
its challenge when the Secretary stipulated that the rule would apply 
only to surface lands and surface activities associated with 
underground mining. See footnote 21, id. at 1741.

D. How have the existing stream buffer zone rules been interpreted?

    Historically, we and the State regulatory authorities have applied 
the 1983 stream buffer zone rules as allowing the placement of excess 
spoil fills, refuse piles, slurry impoundments, and sedimentation ponds 
in intermittent and perennial streams. However, as discussed at length 
in the preamble to the January 7, 2004 proposed rule (69 FR 1038-1042), 
there has been considerable controversy over the proper interpretation 
of both the Clean Water Act and the 1983 rules as they apply to the 
placement of fill material in and near perennial and intermittent 
streams. Some interpretations of our 1983 rules appear to be at odds 
with the underlying provisions of SMCRA.
    We first placed our interpretation of the 1983 stream buffer zone 
rules in writing in a document entitled ``Summary Report--West Virginia 
Permit Review--Vandalia Resources, Inc. Permit No. S-2007-98.'' 
According to our annual oversight reports for West Virginia for 1999 
and 2000, that document stated that the stream buffer zone rule does 
not apply to the footprint of a fill placed in a perennial or 
intermittent stream as part of a surface coal mining operation. On June 
4, 1999, in West Virginia Highlands Conservancy v. Babbitt, Civ. No. 
1:99CV01423 (D.D.C.), the plaintiffs challenged the validity of that 
document, alleging that it constituted rulemaking in violation of the 
Administrative Procedure Act. In an order filed September 23, 1999, the 
court approved an unopposed motion to dismiss the case as moot.
    In a lawsuit filed in the U.S. District Court for the Southern 
District of West Virginia in July 1998, plaintiffs asserted that the 
stream buffer zone rule allows mining activities through or within the 
buffer zone for a perennial or intermittent stream only if the 
activities are minor incursions. They argued that the rule did not 
allow substantial segments of the stream to be buried underneath excess 
spoil fills or other mining-related structures. On October 20, 1999, 
the district court ruled in favor of the plaintiffs on this point, 
holding that the stream buffer zone rule applies to all segments of a 
stream, including those segments within the footprint of an excess 
spoil fill, not just to the stream as a whole. The court also stated 
that the construction of fills in perennial or intermittent streams is 
inconsistent with the language of 30 CFR 816.57(a)(1), which provides 
that the regulatory authority may authorize surface mining activities 
within a stream buffer zone only after finding that the proposed 
activities ``will not adversely affect the water quantity and quality 
or other environmental resources of the stream.'' See Bragg v. 
Robertson, 72 F. Supp. 2d 642, 660-663 (S.D. W. Va., 1999).
    The U.S. Court of Appeals for the Fourth Circuit ultimately 
reversed the district court on other grounds (lack of jurisdiction 
under the Eleventh Amendment to the U.S. Constitution) without reaching 
the merits of the district court's holding on the applicability of the 
stream buffer zone rule. Bragg v. West Virginia Coal Association, 248 
F.3d 275, 296 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).
    In a different case, the same district court stated that SMCRA and 
the stream buffer zone rule do not authorize disposal of overburden in 
streams: ``SMCRA contains no provision authorizing disposal of 
overburden waste in streams, a conclusion further supported by the 
buffer zone rule.'' Kentuckians for the Commonwealth, Inc. v. 
Rivenburgh, 204 F. Supp. 2d 927, 942 (S.D. W. Va. 2002).
    The U.S. Court of Appeals for the Fourth Circuit subsequently 
rejected the district court's interpretation, stating that ``SMCRA does 
not prohibit the discharge of surface coal mining excess spoil in 
waters of the United States.'' Kentuckians for the Commonwealth, Inc. 
v. Rivenburgh, 317 F.3d 425, 442 (4th Cir. 2003). The court further 
stated that ``it is beyond dispute that SMCRA recognizes the 
possibility of placing excess spoil material in waters of the United 
States even though those materials do not have a beneficial purpose.'' 
Id. at 443.
    The court explained the basis for its statements as follows:


[[Page 48896]]


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

Id. at 443.

    The preamble to the proposed rule that we published on January 7, 
2004, contains additional discussion of litigation and related matters 
arising from the 1983 stream buffer zone rules. See especially Part 
I.B.1. at 69 FR 1038-1040.

IV. Why are we proposing to revise our rules concerning excess spoil?

    The environmental impacts of fills and other structures associated 
with the disposal of excess spoil from surface coal mining operations, 
and of coal mine waste, have been the subject of controversy, largely 
because they involve the filling of substantial portions of stream 
valleys, especially in central Appalachia. This controversy has 
highlighted the need to ensure that excess spoil creation is minimized 
to the extent possible, and that, to the extent possible, excess spoil 
and coal mine waste disposal facilities are located and designed to 
minimize adverse impacts on the hydrologic balance, streams and other 
aquatic resources, fish, wildlife, and related environmental values.
    Our existing regulations pertaining to the disposal of excess spoil 
primarily focus on ensuring that fills are safe and stable. To 
complement the proposed rule changes concerning buffers for waters of 
the United States, we propose to revise our excess spoil rules by 
adding several requirements focused on environmental considerations, 
including minimization of the adverse environmental impacts of fill 
construction in waters of the United States. The proposed rule changes 
would implement, in part, the requirement at section 515(b)(24) of 
SMCRA that surface coal mining and reclamation operations be conducted 
in a manner that minimizes disturbances to, and adverse impacts on, 
fish, wildlife, and related environmental values to the extent 
possible, using the best technology currently available. Section 
515(b)(24) applies to the disposal of excess spoil both by its own 
terms and through section 515(b)(22)(I), which requires that the 
placement of excess spoil meet ``all other provisions of this Act.''
    The proposed rules (see the discussion of specific rule changes in 
Part VI of this preamble) require that surface coal mining operations 
be designed to minimize the creation of excess spoil to the extent 
possible. They also specify that the maximum cumulative design volume 
of all proposed excess spoil fills within the permit area must be no 
larger than the capacity needed to accommodate the anticipated 
cumulative volume of excess spoil that the operation will generate. 
These requirements should reduce the adverse environmental impacts of 
the operation by minimizing the amount of land and waters disturbed to 
construct excess spoil fills. The proposed rules further require that 
the permit application include an analysis of the environmental impacts 
of a reasonable range of alternatives for disposal of excess spoil, 
including variations in the number, size, location, and configuration 
of proposed fills. The analysis must consider impacts on both 
terrestrial and aquatic ecosystems. To the extent possible, the 
applicant must select the alternative with the least overall adverse 
environmental impact, including adverse impacts on water quality and 
aquatic ecosystems. The proposed rule clarifies that an alternative is 
possible if it is capable of being done after consideration of cost, 
logistics, and available technology, and that the least costly 
alternative may not be selected at the expense of environmental 
protection solely on the basis of cost. If another alternative 
considered would be more environmentally protective than the 
alternative selected by the applicant, the application must 
demonstrate, to the satisfaction of the regulatory authority, that 
implementation of the more environmentally protective alternative is 
not possible. In addition, when construction of the excess spoil fill 
would involve placement of excess spoil in waters of the United States, 
the proposed rule specifies certain factors that must be considered as 
part of the evaluation of environmental impacts to ensure adequate 
assessment of impacts on water quality and aquatic ecosystems, which 
are among the ``related environmental values'' mentioned in sections 
515(b)(24) and 516(b)(11) of SMCRA.
    We are proposing these rule changes to improve the analysis of 
permit applications and permitting decisions under SMCRA. We recognize 
that SMCRA itself does not require an analysis of alternatives. 
However, we believe that the alternatives analysis that we propose to 
require is a reasonable means of implementing sections 515(b)(24) and 
516(b)(11) of SMCRA. Those provisions of the law require that surface 
coal mining and reclamation operations be conducted in a manner that 
minimizes disturbances to, and adverse impacts on, fish, wildlife, and 
related environmental values to the extent possible, using the best 
technology currently available.
    The addition of requirements for an alternatives analysis and 
selection of the alternative with the least overall adverse 
environmental impact (to the extent possible) also may facilitate the 
coordinated processing of coal mining permit applications in accordance 
with a memorandum of understanding entitled ``Memorandum of 
Understanding among the U.S. Army Corps of Engineers, the U.S. Office 
of Surface Mining, the U.S. Environmental Protection Agency, and the 
U.S. Fish and Wildlife Service for the Purpose of Providing Concurrent 
and Coordinated Review and Processing of Surface Coal Mining 
Applications Proposing Placement of Dredged and/or Fill Material in 
Waters of the United States,'' which took effect February 8, 2005. For 
example, Nationwide Permits 21, 49, and 50, which authorize placement 
of excess spoil and coal mine waste in waters of the United States as 
part of surface coal mining operations, are predicated upon issuance of 
a SMCRA permit or participation in an integrated permitting process. 
See 72 FR 11092, 11184 and 11191, March 12, 2007. A person seeking 
authorization under one of these nationwide permits must submit a 
preconstruction notification to the U.S. Army Corps of Engineers 
(Corps). The Corps then must review the notification and issue a 
decision on whether the proposed activities lie within the scope of the 
nationwide permit or whether an individual permit is necessary under 
section 404 of the Clean Water Act. While an alternatives analysis is 
not listed as a required element of the preconstruction notification 
that must be submitted to the U.S. Army Corps of Engineers under 
Nationwide Permits 21, 49, and 50, we believe that such an analysis may 
assist the Corps in evaluating preconstruction notifications that 
involve construction

[[Page 48897]]

of an excess spoil fill, refuse pile, or slurry impoundment.
    The addition of these requirements to our rules is consistent with 
section 102(d) of SMCRA, which provides that one of the purposes of 
SMCRA is to assure that surface coal mining operations are conducted so 
as to protect the environment. In addition, the proposed additions are 
consistent with section 102(f) of SMCRA, which provides that another 
purpose of SMCRA is to strike a balance between protection of the 
environment and the Nation's need for coal as an essential energy 
source. The rule changes that we are proposing today would not prohibit 
coal production. If the creation of excess spoil as part of a surface 
coal mining operations is unavoidable, the proposed rules would not 
prevent construction of the fills needed to accommodate the excess 
spoil. Instead, the rules that we are proposing are intended to ensure 
that surface coal mining operations are planned and conducted in a 
manner that minimizes adverse environmental impacts from the 
construction of fills for the disposal of excess spoil. Section 
201(c)(2) of SMCRA, 30 U.S.C. 1211(c)(2), which directs the Secretary 
of the Interior to publish and promulgate such rules and regulations as 
may be necessary to carry out the purposes and provisions of SMCRA, 
provides additional authority for the adoption of these rule changes.
    Since the mid-1990s, the extent of excess spoil fill construction 
in central Appalachia has been controversial, especially when fills 
bury stream segments. As part of our oversight activities, we conducted 
studies in 1999 in Kentucky, Virginia, and West Virginia to determine 
how State regulatory authorities were administering SMCRA regulatory 
programs regarding restoration of approximate original contour. From 
our review of permit files and reclaimed mines, we determined that, 
typically, some of the spoil placed in excess spoil fills could have 
been retained on or returned to mined-out areas. See ``An Evaluation of 
Approximate Original Contour and Postmining Land Use in Kentucky'' 
(OSM, September 1999); ``An Evaluation of Approximate Original Contour 
Variances and Postmining Land Uses in Virginia'' (OSM, September 1999); 
and ``Final Report: An Evaluation of Approximate Original Contour and 
Postmining Land Use in West Virginia'' (OSM, May 1999).
    In many instances, we found that the permit application 
overestimated the anticipated volume of excess spoil that the operation 
would produce. In addition, fills were designed and constructed larger 
than necessary to accommodate the anticipated excess spoil, which 
resulted in the unnecessary disturbance of additional land. Kentucky, 
Virginia and West Virginia worked with us to develop enhanced guidance 
on material balance determinations, spoil management, and approximate 
original contour determinations to correct these problems to the extent 
feasible under the existing regulations. We also developed guidance for 
use under the Tennessee Federal regulatory program. In most cases, the 
regulatory authorities in those states have adopted policies based on 
that guidance for use in reviewing permit applications. Adopting 
regulations that clearly establish limits on excess spoil generation 
and fill capacity and that require an analysis of alternatives when 
selecting locations and designs for fills would reinforce the basis for 
those policies, strengthen the enforceability of decisions based on 
those policies, and provide national consistency by ensuring that 
certain basic requirements will be applied nationwide, including in 
those states that have not adopted policies. We also believe that the 
environment, the public, and the regulated community would best be 
served by the adoption of national regulations to clarify environmental 
considerations concerning the generation and disposal of excess spoil.
    We also are taking this opportunity to propose to consolidate most 
fill design and permitting requirements in the permit application 
regulations at 30 CFR 780.35 and 784.19, rather than splitting them 
between those regulations and the performance standards at 30 CFR 
816.71 and 817.71, as they are at present. In addition, we are 
proposing to revise those rules to be more consistent with plain 
language principles, to eliminate redundancies, and to remove 
inconsistencies between the performance standards and the permitting 
requirements. We invite comment on whether further changes would be 
useful or desirable in achieving these goals.

V. Why are we proposing to revise our rules concerning coal mine waste?

    As noted in the first paragraph of Part IV of this preamble, our 
reasons for proposing revisions to our coal mine waste disposal rules 
are similar to the reasons for which we are proposing changes to our 
excess spoil disposal rules. In steep-slope areas, coal mine waste 
disposal facilities are similar to excess spoil fills in that they are 
often placed in valleys containing perennial and intermittent streams 
and other waters of ecological significance. Consequently, to minimize 
the environmental impacts of those structures on fish, wildlife, and 
related environmental values to the extent possible using the best 
technology currently available, as required by sections 515(b)(24) and 
516(b)(11) of SMCRA, we are proposing to revise our coal mine waste 
disposal rules in a manner similar to the proposed changes to the 
excess spoil rules by requiring consideration of other methods of 
handling coal mine waste, an analysis of alternative locations for coal 
mine waste disposal facilities, and, to the extent possible, selection 
of the alternative with the least overall adverse environmental impact.

Additional Proposed Changes to Permitting Rules Concerning Coal Mine 
Waste

    On September 26, 1983 (48 FR 44006), we revised the definitions and 
performance standards in our regulations relating to coal mine waste to 
be more consistent with the terminology used by the Mine Safety and 
Health Administration (MSHA). As we stated at 48 FR 44009, col. 1, 
``[i]t is undesirable to have two regulatory programs for the same 
subject that contain conflicting standards or which use fundamentally 
different terminology.''
    Among other things, we adopted definitions of three new terms in 30 
CFR 701.5. ``Coal mine waste'' is defined as ``coal processing waste 
and underground development waste.'' ``Impounding structure'' is 
defined as ``a dam, embankment, or other structure used to impound 
water, slurry, or other liquid or semi-liquid material.'' ``Refuse 
pile'' is defined as ``a surface deposit of coal mine waste that does 
not impound water, slurry, or other liquid or semi-liquid material.'' 
The latter two terms are consistent with the terminology of MSHA's 
rules. ``Refuse pile'' replaces the term ``coal processing waste bank'' 
previously used in our rules, while ``impounding structure'' 
incorporates all structures that our rules previously referred to as 
coal processing waste dams or embankments.
    In concert with the new definition of coal mine waste, we revised 
our performance standards at 30 CFR 817.71-817.74 to eliminate the 
language that combined underground development waste with excess spoil 
for purposes of performance standards for underground mines. Because 
the definition of coal mine waste includes underground development 
waste, we revised our rules to specify that the disposal of underground 
development

[[Page 48898]]

waste is subject to the performance standards for refuse piles (30 CFR 
817.83) rather than the performance standards for the disposal of 
excess spoil that applied under the old rules.
    However, we did not revise our permitting requirements in a similar 
fashion at that time. We are taking this opportunity to propose to 
modify our regulations in 30 CFR parts 780 and 784 to harmonize those 
rules with the 1983 changes to the definitions and performance 
standards concerning coal mine waste. In essence, we are proposing to 
replace references to coal processing waste banks and coal processing 
waste dams and embankments with references to refuse piles and coal 
mine waste impounding structures, respectively.
    Also, because the definition of coal mine waste, as adopted on 
September 26, 1983, includes both coal processing waste and underground 
development waste, we are proposing to restructure the permitting 
regulations to take this change into account. In particular, 30 CFR 
784.19, which is currently entitled ``Underground Development Waste,'' 
even though it refers to the disposal of both underground development 
waste and excess spoil, would be retitled ``Disposal of Excess Spoil.'' 
The language of that section also would be revised to eliminate 
references to underground development waste, which would instead be 
regulated under the refuse pile provisions of revised 30 CFR 784.16, 
consistent with the 1983 changes to the performance standards. The new 
language of 30 CFR 784.19 would parallel the language of 30 CFR 780.35 
(the permit application requirements for the disposal of excess spoil 
generated by surface mining activities), which the existing rule 
incorporates by reference. Adding specific language in place of the 
cross-reference to section 780.35 would make this rule consistent with 
the pattern established in most of our other rules for surface and 
underground mines (i.e., the provisions for surface and underground 
mines are in separate parts, but are nearly identical except for cross-
references and the type of operation to which they apply). In addition, 
adding specific language in place of the cross-reference to section 
780.35 would allow the incorporation of cross-references to the 
appropriate underground mining performance standards in part 817 rather 
than having to use the existing cross-references in 30 CFR 780.35 to 
the surface mining performance standards in part 816.
    We are also proposing to delete the cross-references to 30 CFR 
77.216-1 in 30 CFR 780.25(e) and 784.16(e) because 30 CFR 77.216-1 
consists solely of signage requirements and does not include any design 
requirements. Consequently, there is no purpose in cross-referencing 30 
CFR 77.216-1 in our permitting rules. The cross-reference to 30 CFR 
77.216-2, which contains design requirements for impoundments and 
impounding structures, would remain.

VI. How are we proposing to revise our existing rules?

A. Sections 780.14 and 784.23: Operation Plan: Maps and Plans

    We propose to revise 30 CFR 780.14(b)(11) and 784.23(b)(10) by 
replacing the terms ``coal processing waste bank'' and ``coal 
processing waste dam and embankment'' with ``refuse pile'' and ``coal 
mine waste impounding structure'' to employ terminology consistent with 
the definitions and performance standards that we adopted September 26, 
1983. See Part V of this preamble for a more detailed explanation.
    In addition, we propose to replace the references to sections 
780.35(c) and 816.71(b) in existing section 780.14(c) with a reference 
to section 780.35 to be consistent with other changes that we are 
proposing to those rules, including moving the design certification 
requirement of existing section 816.71(b) to section 780.35(b). In 
similar fashion, we are proposing to delete the reference in existing 
section 784.23(c) to section 817.71(b) because we are proposing to move 
the design certification provisions of existing section 817.71(b) to 
section 784.19(b). There is no need for a replacement cross-reference 
because section 784.23(c) already cross-references section 784.19 in 
its entirety.

B. Sections 780.25 and 784.16: Reclamation Plan: Siltation Structures, 
Impoundments, Refuse Piles, and Coal Mine Waste Impounding Structures

    We propose to revise the heading and contents of sections 780.25 
and 784.16 by replacing the terms ``coal processing waste bank'' and 
``coal processing waste dam and embankment'' with ``refuse pile'' and 
``coal mine waste impounding structure.'' With these changes, our 
permitting requirements concerning coal mine waste will employ 
terminology consistent with the definitions and performance standards 
for coal mine waste that we adopted September 26, 1983. See Part V of 
this preamble for a more detailed explanation.
    To improve clarity, we propose to remove the last sentence of 
existing paragraph (a)(2) of sections 780.25 and 784.16 and redesignate 
the remainder of that paragraph as paragraph (a)(2)(i). The last 
sentence of existing paragraph (a)(2) would be redesignated as 
paragraph (a)(2)(ii). Existing subparagraphs (a)(2)(i) through (iv) 
would be redesignated as subparagraphs (a)(2)(ii)(A) through (D). We 
propose to make these redesignations because the last sentence of 
existing paragraph (a)(2) and existing subparagraphs (i) through (iv) 
apply to all structures meeting the criteria of 30 CFR 77.216(a), while 
the remainder of existing paragraph (a)(2) applies only to those 
impoundments that meet the Class B or C criteria (now the Significant 
Hazard Class or High Hazard Class criteria, respectively) for dams in 
the U.S. Department of Agriculture publication Technical Release No. 
60, ``Earth Dams and Reservoirs.''
    We propose to revise redesignated paragraph (a)(2)(i) of these 
sections to update the incorporation by reference of U.S. Department of 
Agriculture publication ``Earth Dams and Reservoirs,'' Technical 
Release No. 60 (210-VI-TR60, October 1985), by replacing the reference 
to the October 1985 edition with a reference to the superseding July 
2005 edition. Consistent with the terminology in the newer edition, we 
propose to replace references to Class B or C dam criteria with 
references to Significant Hazard Class or High Hazard Class criteria, 
respectively. (The actual criteria remain unchanged.) The newer 
publication is not available from the National Technical Information 
Service, but is available online from the Natural Resources 
Conservation Service (the successor to the Soil Conservation Service). 
Consequently, we propose to delete the ordering information pertinent 
to the National Technical Information Service and replace it with the 
URL (Web address) at which the publication may be reviewed and from 
which it may be downloaded without charge. We also propose to update 
the address and location of our administrative record room and to 
update the URL information (Web address) for the National Archives and 
Records Administration.
    To improve clarity and consistency with other regulations, we 
propose to revise paragraph (c)(2) by replacing the term ``Mine Safety 
and Health Administration'' with a citation to 30 CFR 77.216(a), which 
contains the MSHA impoundment criteria to which paragraph (c)(2) 
refers. As revised, paragraph (c)(2) requires that plans for 
impoundments meeting MSHA criteria comply with MSHA's impoundment

[[Page 48899]]

design requirements at 30 CFR 77.216-2. We are proposing to delete the 
existing requirement that those plans also comply with 30 CFR 77.216-1. 
The deleted requirement is not germane to permit applications and plans 
because it contains signage requirements that apply only to 
impoundments that already exist or are under construction.
    We also propose to combine existing paragraph (d), which addresses 
coal processing waste banks, and existing paragraph (e), which 
addresses coal processing waste dams and embankments, into a 
substantially revised paragraph (d), and to redesignate paragraph (f) 
as paragraph (e). The last paragraph also would be revised to reflect 
plain language principles and to include classification terminology 
consistent with the 2005 edition of NRCS Technical Release No. 60, as 
discussed in the context of the proposed changes to 30 CFR 
780.25(a)(2)(i).
    Proposed paragraph (d)(1) contains new general requirements for all 
structures constructed of or impounding coal mine waste; i.e., refuse 
piles and slurry impoundments. Subparagraph (d)(1)(i)(A) provides that 
the application must identify a reasonable range of alternative 
disposal methods and alternative locations for any proposed refuse 
piles or coal mine waste impoundments and impounding structures. 
Subparagraph (d)(1)(i)(B) provides that the application must include an 
analysis of the viability and environmental impacts (both terrestrial 
and aquatic) of each alternative identified. Subparagraph (d)(1)(i)(C) 
requires that the applicant select the alternative that would have the 
least overall adverse environmental impact, including adverse impacts 
on water quality and aquatic ecosystems, to the extent possible. The 
proposed rule clarifies that an alternative is possible if it is 
capable of being done after consideration of cost, logistics, and 
available technology, and that the least costly alternative may not be 
selected at the expense of environmental protection solely on the basis 
of cost. If another alternative considered would be more 
environmentally protective than the alternative selected by the 
applicant, the application must demonstrate, to the satisfaction of the 
regulatory authority, that implementation of the more environmentally 
protective alternative is not possible.
    When construction of the proposed refuse pile or coal mine waste 
impoundment would involve placement of coal mine waste in waters of the 
United States, proposed paragraph (d)(1)(ii) requires that the analysis 
performed under paragraph (d)(1)(i)(B) include an evaluation of the 
short-term and long-term impacts of each alternative on the aquatic 
ecosystem, both individually and on a cumulative basis. The analysis 
also must consider impacts on the physical, chemical, and biological 
characteristics of downstream flows, including seasonal variations in 
temperature and volume, changes in stream turbidity or sedimentation, 
the degree to which the coal mine waste may introduce or increase 
contaminants, the effects on aquatic organisms, and the extent to which 
wildlife is dependent upon those organisms.
    In addition, if the applicant must prepare an analysis of 
alternatives for the proposed refuse pile or coal mine waste 
impoundment or impounding structure under 40 CFR 230.10, which sets 
forth requirements for individual permits for placement of fill 
material in waters of the United States under section 404 of the Clean 
Water Act, proposed paragraph (d)(1)(ii) provides that the application 
may initially include a copy of that analysis in lieu of the analysis 
of alternatives required under proposed paragraph (d)(1)(i)(B). The 
regulatory authority must then determine the extent to which the Clean 
Water Act analysis satisfies the analytical requirements of proposed 
paragraph (d)(1). When OSM is the regulatory authority, we will 
coordinate with the Corps of Engineers in conducting any necessary 
analysis of alternatives under the National Environmental Policy Act.
    The rationale for these new requirements is set forth in Parts III, 
IV, and V of this preamble. In essence, the new requirements would, in 
part, implement section 515(b)(24) of SMCRA, which provides that 
surface coal mining and reclamation operations must use the best 
technology currently available to minimize disturbances to and adverse 
impacts on fish, wildlife, and related environmental values to the 
extent possible. The new requirements would achieve this goal by 
requiring that the permit applicant demonstrate that the proposed 
operation has been designed to minimize adverse impacts on land and 
waters and that environmental factors have been taken into 
consideration when locating and designing the refuse pile or coal mine 
waste impoundment.
    We are proposing these rule changes to improve the analysis of 
permit applications and permitting decisions under SMCRA. However, the 
addition of these provisions also may facilitate achieving the 
coordinated processing of coal mining permit applications in accordance 
with a memorandum of understanding entitled ``Memorandum of 
Understanding among the U.S. Army Corps of Engineers, the U.S. Office 
of Surface Mining, the U.S. Environmental Protection Agency, and the 
U.S. Fish and Wildlife Service for the Purpose of Providing Concurrent 
and Coordinated Review and Processing of Surface Coal Mining 
Applications Proposing Placement of Dredged and/or Fill Material in 
Waters of the United States,'' which took effect February 8, 2005. For 
example, the information and analysis submitted under the proposed rule 
may assist the Corps of Engineers in its review of preconstruction 
notifications submitted under Nationwide Permits 21, 49, or 50, or, if 
an individual permit is needed under section 404 of the Clean Water 
Act, compliance with the Section 404(b)(1) Guidelines at 40 CFR part 
230 concerning placement of dredged or fill materials in waters of the 
United States.
    The provisions in the proposed rule that would allow the applicant 
to select an alternative other than the most environmentally protective 
alternative if implementation of the most environmentally protective 
alternative is not possible are consistent with paragraphs 
(b)(10)(B)(i) and (24) of section 515 of the Act, both of which require 
use of the best technology currently available to achieve the 
requirements of those sections ``to the extent possible.'' The proposed 
rule clarifies that an alternative is possible if it is capable of 
being done after consideration of cost, logistics, and available 
technology, and that the least costly alternative may not be selected 
at the expense of environmental protection solely on the basis of cost. 
See also the discussion of the meaning of ``to the extent possible'' in 
Part VI.K. of this preamble, as well as the meaning of ``best 
technology currently available'' in Part VI.L. of this preamble. We 
seek comment on whether this approach is an appropriate interpretation 
of the phrase ``to the extent possible'' in SMCRA.
    Proposed paragraph (d)(2) provides that each application for an 
operation that will generate or dispose of coal mine waste must 
describe the steps to be taken to avoid or, if avoidance is not 
possible, to minimize the adverse environmental impacts that may result 
from the construction of refuse piles and coal mine waste impoundments 
and impounding structures. This requirement applies to construction, 
maintenance, and reclamation of the alternative selected under 
paragraph (d)(1)(i)(C). It also would implement, in part, the 
sedimentation prevention requirements of sections 515(b)(10)(B)(i)

[[Page 48900]]

and 516(b)(9)(B) of SMCRA and the fish, wildlife, and related 
environmental value protection requirements of sections 515(b)(24) and 
516(b)(11) of SMCRA.
    Proposed paragraph (d)(3) is substantively identical to existing 
paragraph (d). We propose to delete the cross-reference to section 
816.84 in existing section 780.25(d) and the cross-reference to section 
817.84 in existing section 784.16(d) because proposed sections 
780.25(d)(3) and 784.16(d)(3), like existing sections 780.25(d) and 
784.16(d), pertain only to refuse piles, not to the coal mine waste 
impounding structures to which sections 816.84 and 817.84 apply.
    Proposed paragraph (d)(4) is substantively identical to existing 
paragraph (e). We propose to delete the cross-reference to section 
816.83 in existing section 780.25(e) and the cross-reference to section 
817.83 in existing section 784.16(e) because proposed sections 
780.25(d)(4) and 784.16(d)(4), like existing sections 780.25(e) and 
784.16(e), pertain only to coal mine waste impoundments and impounding 
structures, not to the refuse piles to which sections 816.83 and 817.83 
apply. In addition, we propose to delete the requirement in existing 
sections 780.25(e) and 784.16(e) that each plan for an impounding 
structure comply with 30 CFR 77.216-1, which contains MSHA requirements 
for signage for existing impoundments and impoundments under 
construction. There is no reason to retain this cross-reference because 
the referenced requirement is not relevant to preparation of plans or 
permit applications for proposed impoundments.
    Proposed paragraph (e) is substantively identical to existing 
paragraph (f). Consistent with the terminology in the July 2005 edition 
of Technical Release No. 60, we propose to replace references to Class 
B or C dam criteria with references to Significant Hazard Class or High 
Hazard Class criteria, respectively. The actual criteria remain 
unchanged.

C. Sections 780.28 and 784.28: Activities in or Adjacent to Waters of 
the United States

    Proposed sections 780.28 and 784.28 contain permitting requirements 
specific to waters of the United States, as regulated under the Clean 
Water Act, 33 U.S.C. 1311, 1362, and activities within or adjacent to 
those waters. Among other things, they would replace the existing 
stream buffer zone rules at 30 CFR 816.57(a)(1) and 817.57(a)(1), which 
provide that the regulatory authority may authorize activities on the 
surface of lands within 100 feet of a perennial or intermittent stream 
only upon finding that the activities will not cause or contribute to 
the violation of applicable State or Federal water quality standards 
and will not adversely affect the water quantity and quality or other 
environmental resources of the stream.
    Paragraph (a) of the proposed rules provides that sections 780.28 
and 784.28 apply to applications to conduct activities in waters of the 
United States or on the surface of lands near waters of the United 
States to the extent that those waters are regulated under the Clean 
Water Act. This paragraph reflects the fact that, under 30 CFR 
816.57(a) and 817.57(a), we propose to prohibit disturbance of the 
surface of lands within 100 feet of all waters of the United States, 
not just perennial and intermittent streams as under existing 30 CFR 
816.57 and 817.57. Sections 515(b)(10)(B)(i) and (24) and 516(b)(9)(B) 
and (11) of SMCRA, which form the basis for the existing stream buffer 
zone rules, are not limited to preventing or minimizing adverse impacts 
on perennial and intermittent streams. The change that we are proposing 
recognizes that waters such as lakes, ponds, and wetlands also may have 
value for fish, wildlife, and related environmental resources and that 
sedimentation and sediment-laden runoff from mine sites could degrade 
that value. However, we do not anticipate that this change in 
terminology will result in a significant expansion in the applicability 
of our rules because the vast majority of waters that may be affected 
by surface coal mining and reclamation operations are perennial and 
intermittent streams.
    If we ultimately adopt this proposal, both the SMCRA regulatory 
authority and permit applicants would no longer be able to use or rely 
upon the definitions of ``perennial stream'' and ``intermittent 
stream'' in 30 CFR 701.5 to determine when the prohibitions of 30 CFR 
816.57(a) and 817.57(a) apply. Permit applicants may request a 
jurisdictional determination from the U.S. Army Corps of Engineers 
before submitting a SMCRA permit application in situations in which 
there is a question as to whether waters within or adjacent to the 
proposed permit area are waters of the United States under the Clean 
Water Act. Similarly, we anticipate that the SMCRA regulatory authority 
would consult and coordinate with the Corps of Engineers in situations 
in which there is a question as to whether waters within or adjacent to 
the proposed permit area are waters of the United States under the 
Clean Water Act. In effect, under the proposed rule, permit applicants 
must receive a jurisdictional determination from the Corps of Engineers 
before the SMCRA permitting process can be completed if there is any 
question as to whether the proposed permit area includes or is adjacent 
to any waters that may be waters of the United States.
    We seek comment on the impact of this change on the administration 
of SMCRA regulatory programs and, whether the benefits (increased 
environmental protection and consistency with the Clean Water Act) 
outweigh any problems identified. We will carefully evaluate all 
comments received before deciding whether to adopt the rule as proposed 
or retain the scope of the existing rules, which apply to perennial and 
intermittent streams.
    We are not soliciting comment on the interpretation of the term 
``waters of the United States'' under the Clean Water Act. That issue 
lies outside the scope of this rulemaking.
    Proposed section 780.28(b) specifies that the maps prepared under 
30 CFR 779.25, 780.14 or 780.21(b)(2) must show all waters of the 
United States that are located either within the proposed permit area 
or within the adjacent area, as that term is defined at 30 CFR 701.5. 
Proposed section 784.28(b) contains identical requirements for 
underground mining operations, with the substitution of cross-
references to 30 CFR 783.25, 784.23, and 784.14(b)(2), respectively. 
Both rules also require that the maps delineate all lands within the 
proposed permit area that are within 100 feet, measured horizontally, 
of any waters of the United States. This requirement is intended to 
ensure that the maps submitted with the permit application include 
sufficient detail about waters of the United States within the proposed 
permit area and the adjacent area to determine what lands within the 
proposed permit area are potentially subject to the prohibition under 
30 CFR 816.57(a) or 817.57(a). The 100 feet must be measured from the 
ordinary high water mark of the stream or other waters of the United 
States, consistent with the Corps of Engineers' practices for 
establishing jurisdictional limits for waters of the United States. For 
wetlands without an ordinary high water mark, the 100 feet must be 
measured in a manner consistent with the Corps' practices for wetland 
delineations under the Clean Water Act. See the online version of the 
1987 ``Corps of Engineers Wetlands Delineation Manual'' (https://www.nwo.usace.army.mil/html/od-rne/87-manual.pdf), which includes

[[Page 48901]]

updates subsequent to the original January 1987 publication date.
    Paragraph (b) of proposed sections 780.28 and 784.28 establishes 
requirements for requesting a variance from the prohibition in 30 CFR 
816.57(a) and 817.57(a) on surface activities that would disturb the 
surface of lands within 100 feet, measured horizontally, of any waters 
of the United States. Under paragraph (c), the permit application must 
describe any measures that would be implemented in lieu of maintaining 
the 100-foot buffer, including the extent of any lesser buffer to be 
maintained, and explain how the proposed measures constitute the best 
technology currently available to--
    (1) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible; 
and
    (2) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible.
    Paragraph (c) would not apply to the activities listed in proposed 
30 CFR 816.57(b) and 817.57(b) because those activities are exempt from 
the prohibition in 30 CFR 816.57(a) and 817.57(a). Therefore, the 
applicant does not need a variance to conduct them in or within 100 
feet of waters of the United States. However, the applicant will need 
to make the demonstration required under proposed paragraph (e) of 30 
CFR 780.28 and 784.28 and the regulatory authority will need to make 
the findings required under that paragraph before approving a permit 
that authorizes those activities. See Part VI.I. of this preamble for a 
request for comment on whether the list of activities in proposed 30 
CFR 816.57(b) and 817.57(b) is sufficiently comprehensive to include 
all activities that inherently occur in waters of the United States or 
whether additional rules are needed to address activities that are not 
included in either paragraph (a) or (b) of those sections.
    Paragraph (d) of proposed sections 780.28 and 784.28 specifies 
that, before approving any measures proposed under paragraph (c), the 
regulatory authority must determine that the measures--
    (1) Would be no less effective in meeting the requirements of the 
regulatory program than the prohibition in 30 CFR 816.57(a) or 
817.57(a) on disturbance of the surface of lands within 100 feet of 
waters of the United States; and
    (2) Constitute the best technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or to runoff outside the permit area to the extent possible; 
and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible.
    Paragraph (e) of proposed sections 780.28 and 784.28 provides that, 
if the permit applicant proposes to conduct any surface mining 
activities (or, for underground mines, surface activities) that are not 
subject to the prohibition in 30 CFR 816.57(a) or 817.57(a), the 
application must demonstrate, and the regulatory authority must find, 
that, to the extent possible, the operation will utilize the best 
technology currently available in accordance with 30 CFR 816.41(d) and 
816.97(a) [or, for underground mines, 30 CFR 817.41(d) and 817.97(a)], 
as required by 30 CFR 780.16(b) and 780.21(h) [or, for underground 
mines, 30 CFR 784.21(b) and 784.14(g)]. The regulations at 30 CFR 
816.41(d) and 817.41(d) require, in relevant part, that mining 
operations prevent, to the extent possible using the best technology 
currently available, additional contribution of suspended solids to 
streamflow outside the permit area. They implement, in part, the 
sedimentation prevention requirements of sections 515(b)(10)(B)(i) and 
516(b)(9)(B) of SMCRA, respectively. The regulations at 30 CFR 
816.97(a) and 817.97(a) require, in relevant part, that, to the extent 
possible using the best technology currently available, mining 
operations minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values. They implement, in part, the fish and 
wildlife protection requirements of sections 515(b)(24) and 516(b)(11) 
of SMCRA, respectively. The regulations at 30 CFR 780.21(h) and 
784.14(g) require that each permit application include a hydrologic 
reclamation plan designed to implement, among other things, the 
requirements of 30 CFR 816.41(d) and 817.41(d), respectively. The 
regulations at 30 CFR 780.16(b) and 784.21(b) require that each permit 
application include a fish and wildlife protection and enhancement plan 
designed to implement the requirements of 30 CFR 816.97(a) and 
817.97(a), respectively.
    Paragraph (f) of proposed sections 780.28 and 784.28 summarizes the 
relationship between SMCRA permitting actions and Clean Water Act 
requirements. Paragraph (f)(1) provides that every permit application 
must identify the authorizations that the applicant anticipates will be 
needed under sections 401, 402, and 404 of the Clean Water Act, 33 
U.S.C. 1341, 1342, and 1344, and describe the steps that the permit 
applicant has taken or will take to procure those authorizations. This 
provision would in part implement section 508(a)(9) of SMCRA, which 
requires that each permit application include ``the steps to be taken 
to comply with applicable air and water quality laws and regulations * 
* *.'' It also is intended to facilitate coordination of permitting 
activities under SMCRA and the Clean Water Act.
    Paragraph (f)(2) of proposed sections 780.28 and 784.28 specifies 
that, if the permit application meets all applicable requirements of 
subchapter G (the permitting regulations), the regulatory authority 
will process the permit application and may issue the permit before the 
applicant obtains all necessary authorizations under the Clean Water 
Act, 33 U.S.C. 1251 et seq. This arrangement may facilitate the Corps 
of Engineers review of any preconstruction notification submitted by 
the permit applicant with respect to any proposed placement of fill 
material in waters of the United States. Nationwide Permits 21, 49, and 
50, as issued by the Corps, apply only if the SMCRA permit has already 
been issued or if the application is being processed as part of an 
integrated permit processing procedure. See 72 FR 11092, 11184, and 
11191, March 12, 2007.
    For informational purposes, proposed paragraph (f)(2) also provides 
that the permittee may not initiate any activities for which Clean 
Water Act authorization or certification is required until that 
authorization or certification is obtained. We seek comment on whether 
this provision should remain informational or whether we should revise 
our rules to require inclusion of this provision as a SMCRA permit 
condition, which would mean that the prohibition on initiation of 
activities before obtaining all necessary Clean Water Act 
authorizations and certifications would be independently enforceable 
under SMCRA.
    Proposed 30 CFR 780.28(c) and (d) and 784.28(c) and (d) would 
replace the requirement in existing 30 CFR 816.57(a) and 817.57(a) that 
the regulatory authority make the finding specified in paragraph (a)(1) 
of those rules before authorizing activities that would disturb the 
surface of lands within 100 feet of a perennial or intermittent stream. 
The rationale for this change appears in Part III of this preamble and 
in the following discussion of how the proposed rule changes would 
better implement the statutory provisions underlying the existing 
stream buffer zone rules.
    The first SMCRA provision underlying the existing stream buffer 
zone rules is section 515(b)(10)(B)(i),

[[Page 48902]]

which, in context, provides that the performance standards adopted 
under SMCRA must require that surface coal mining and reclamation 
operations--

    (10) minimize the disturbances to the prevailing hydrologic 
balance at the mine-site and in associated offsite areas and to the 
quality and quantity of water in surface and ground water systems 
both during and after surface coal mining operations and during 
reclamation by--
    (A) * * *
    (B)(i) conducting surface coal mining operations so as to 
prevent, to the extent possible using the best technology currently 
available, additional contributions of suspended solids to 
streamflow, or runoff outside the permit area, but in no event shall 
contributions be in excess of requirements set by applicable State 
or Federal law.
* * * * *

    The second provision, section 515(b)(24), requires that surface 
coal mining and reclamation operations be conducted in a manner that--

to the extent possible using the best technology currently 
available, minimize[s] disturbances and adverse impacts of the 
operation on fish, wildlife, and related environmental values, and 
achieve[s] enhancement of such resources where practicable.

    The common thread in both provisions is the requirement for use of 
the best technology currently available to achieve the requirements of 
those provisions to the extent possible.
    The existing stream buffer zone rules at 30 CFR 816.57 and 817.57 
manifest an assumption that maintenance of an undisturbed 100-foot 
buffer around perennial and intermittent streams is the best technology 
currently available to achieve the sediment control and fish and 
wildlife protection requirements of sections 515(b)(10)(B)(i) and (24) 
with respect to those streams. However, that specificity is 
inconsistent with the concept of best technology currently available, 
which is inherently flexible, as discussed below. Appropriate measures 
may vary from site to site and may change over time in concert with 
advances in technology and scientific knowledge.
    Therefore, we propose to revise our rules to allow the regulatory 
authority to modify the prohibition on disturbances to the surface of 
land within 100 feet of waters of the United States. That modification 
would apply in situations in which the applicant proposes (and the 
regulatory authority approves) alternative methods of implementing the 
requirement to use the best technology currently available to the 
extent possible. Under proposed 30 CFR 780.28(c) and (d) and 784.28(c) 
and (d), the regulatory authority may approve a lesser buffer, or the 
use of a technique that does not involve the maintenance of any buffer, 
whenever the permit applicant demonstrates that a lesser buffer or the 
use of alternative mining or reclamation techniques would constitute 
the best technology currently available to (1) prevent the contribution 
of additional suspended solids to streamflow or runoff outside the 
permit area to the extent possible, and (2) minimize disturbances to 
and adverse impacts on fish, wildlife, and related environmental values 
to the extent possible. The latter two requirements correspond to the 
two statutory requirements that have historically been described as the 
basis for the existing stream buffer zone rules and their predecessors. 
Under the proposed rules, the regulatory authority also would have to 
first find that the proposed techniques would be no less effective in 
meeting the requirements of the regulatory program than the prohibition 
in 30 CFR 816.57(a) or 817.57(a) on activities that would disturb the 
surface of lands within 100 feet of waters of the United States.
    Our proposed approach also is consistent with the definition of 
``best technology currently available'' at 30 CFR 701.5. In relevant 
part, the definition provides that, ``[w]ithin the constraints of the 
permanent program, the regulatory authority shall have the discretion 
to determine the best technology currently available on a case-by-case 
basis, as authorized by the Act and this chapter.''
    In concert with this change, we propose to remove the provision in 
existing 30 CFR 816.57(a)(1) and 817.57(a)(1) that specifies that, 
before authorizing an activity closer than 100 feet to a perennial or 
intermittent stream, the regulatory authority must find that the 
activity will not cause or contribute to the violation of applicable 
State or Federal water quality standards and will not adversely affect 
the water quantity and quality or other environmental resources of the 
stream. That requirement has no direct counterpart in either section 
515(b)(10)(B)(i) or section 515(b)(24) of SMCRA, which, as previously 
discussed, are the two provisions of SMCRA that form the basis for the 
buffer zone rules.
    We acknowledge that the introductory language of sections 
515(b)(10) and 516(b)(9) of SMCRA provides that performance standards 
for surface coal mining operations must include a requirement for the 
minimization of disturbances to the quality and quantity (or, in the 
case of section 516(b)(9), just the quantity) of water in surface and 
ground water systems. However, that language does not stand alone as an 
independent requirement. Instead, when read in its entirety, section 
515(b)(10) provides that the requirement for minimization of 
disturbances to water quality and quantity must be achieved by 
implementation of the measures and techniques described in 
subparagraphs (A) through (F) of section 515(b)(10). Similarly, section 
516(b)(9) provides that the requirement for minimization of 
disturbances to water quantity must be achieved by implementation of 
subparagraphs (A) and (B) of section 516(b)(9).
    In addition, sections 515(b)(10)(B)(i) and 516(b)(9)(B) refer only 
to the prevention of additional contributions of suspended solids. 
While those paragraphs provide that contributions of suspended solids 
to streamflow must not be in excess of requirements set by applicable 
State or Federal law, they do not mention any other water quality 
parameter. Therefore, that provision by itself does not authorize the 
required finding in existing 30 CFR 816.57(a)(1) and 817.57(a)(1) that 
we propose to remove. Furthermore, the SMCRA regulatory authority is 
not necessarily in the best position to determine whether a proposed 
activity will cause or contribute to a violation of applicable State or 
Federal water quality standards for any parameter. Those standards and 
parameters are established and implemented under the authority of the 
Clean Water Act (33 U.S.C. 1251 et seq.), not SMCRA, and are sometimes 
administered by an agency other than the SMCRA regulatory authority. 
Under 30 CFR 780.18(b)(9) and 784.13(b)(9), the SMCRA permit 
application must include a description of the steps to be taken to 
comply with the requirements of the Clean Air Act (42 U.S.C. 7401 et 
seq.), the Clean Water Act (33 U.S.C.1251 et seq.), and other 
applicable air and water quality laws and regulations, but there is no 
requirement that the SMCRA regulatory authority pass judgment on the 
adequacy of that description or on the adequacy of the steps that the 
applicant proposes to take.
    In addition, the absolute nature of the ``will not adversely 
affect'' language of existing 30 CFR 816.57(a)(1) and 817.57(a)(1) is 
inconsistent with paragraphs (b)(10)(B)(i) and (24) of section 515 of 
the Act, both of which provide that surface coal mining operations must 
be conducted to meet the requirements of those paragraphs ``to the 
extent possible'' using the ``best technology currently available.'' 
The appropriate standard under section 515(b)(24) is minimization of 
adverse

[[Page 48903]]

impacts on fish, wildlife, and related environmental values, not 
absolute avoidance of all adverse effects.
    As discussed more fully in Part III.C. of this preamble, the 
preamble to the existing stream buffer zone rules (``the 1983 
preamble'') recognizes that the protection afforded by those rules need 
not be absolute. It acknowledges that some adverse impacts on hydrology 
and fish, wildlife, and related environmental values are unavoidable 
because of the nature of surface coal mining operations. Furthermore, 
the 1983 preamble states that ``OSM recognizes that some surface mining 
activities can be conducted within 100 feet of a perennial or an 
intermittent stream without causing significant adverse impacts on the 
hydrologic balance and related environmental values,'' thus implying 
that some adverse impacts would occur. 48 FR 30313, col. 1, June 30, 
1983, emphasis added. Similarly, ``final Sec.  816.57 is intended to 
protect significant biological values in streams.'' Id., col. 3, 
emphasis added. And, with respect to stream diversions, the 1983 
preamble specifies that--

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

Id. at 30315, col. 1, emphasis added.

    Our proposed removal of the requirement in existing 30 CFR 
816.57(a)(1) and 817.57(a)(1) for a finding concerning applicable State 
or Federal water quality standards would not authorize activities that 
would constitute or result in a violation of State or Federal water 
quality standards. Section 702(a)(2) of SMCRA provides that nothing in 
SMCRA may be construed as superseding, amending, modifying, or 
repealing the Clean Water Act, its implementing regulations, State laws 
enacted pursuant to the Clean Water Act, or other Federal laws relating 
to preservation of water quality. In addition, our regulations at 30 
CFR 816.42 and 817.42 require that discharges of water from disturbed 
areas ``be made in compliance with all applicable State and Federal 
water quality laws and regulations.'' We seek comment on whether we 
should amend 30 CFR 816.42 and 817.42, which currently address only 
discharges of water, to include a paragraph specifying, for 
informational purposes, that discharges of dredged or fill materials in 
waters of the United States must comply with all applicable State and 
Federal requirements.

D. Section 780.35: Disposal of Excess Spoil From Surface Mines

    For the reasons discussed in Part IV of this preamble, we propose 
to revise 30 CFR 780.35 by adding several new requirements (in 
paragraphs (a)(1) through (4)) for permit applications for operations 
that propose to generate excess spoil. First, under proposed paragraph 
(a)(1), each application for an operation that would generate excess 
spoil must include a demonstration, prepared to the satisfaction of the 
regulatory authority, that the operation has been designed to minimize 
the volume of excess spoil to the extent possible, thus ensuring that 
as much spoil as possible is returned to the mined-out area. The 
demonstration must take into consideration applicable regulations 
concerning restoration of the approximate original contour, safety, 
stability, and environmental protection and the needs of the proposed 
postmining land use. Some or all of those factors may limit the amount 
of spoil that can be returned to the mined-out area, especially the 
requirements related to safety, stability, and postmining land use. 
Also, if the regulatory authority does not approve the proposed 
postmining land use, the applicant and the regulatory authority will 
need to revisit the demonstration to determine whether it must be 
revised to reflect the needs and attributes of the postmining land use 
that is finally approved.
    Second, proposed paragraph (a)(2) requires that the application 
include a demonstration that the designed maximum cumulative volume of 
all proposed excess spoil fills within the permit area is no larger 
than the capacity needed to accommodate the anticipated cumulative 
volume of excess spoil that the operation will generate.
    The goal of both requirements is to minimize fill footprints and 
thus minimize disturbances of forest, streams, and riparian vegetation, 
consistent with the requirement in sections 515(b)(24) and 516(b)(11) 
of SMCRA to minimize disturbances of and adverse impacts to fish, 
wildlife, and related environmental values to the extent possible using 
the best technology currently available.
    Third, proposed paragraph (a)(3)(i) provides that each application 
must include a description of all excess spoil disposal alternatives 
considered and an analysis of the environmental impacts of those 
alternatives. The analysis must consider impacts to both terrestrial 
and aquatic ecosystems. The alternatives must vary with respect to the 
number, size, location, and configuration of proposed fills to ensure 
consideration of a reasonable range of alternatives and potential 
environmental impacts. For example, depending on the topography and 
geology of the area, the analysis could compare the impacts of 
constructing a few large excess spoil fills versus a greater number of 
small fills. In addition, the quality of the receiving waters must be 
taken into consideration in that it may be environmentally preferable 
to concentrate fills and their impacts in watersheds with the lowest 
water quality, to the extent that it is possible to do so.
    When the disposal method would involve placement of excess spoil in 
waters of the United States, proposed paragraph (a)(3)(ii) requires 
that the analysis performed under paragraph (a)(3)(i) include an 
evaluation of the short-term and long-term impacts of each alternative 
on the aquatic ecosystem, both individually and on a cumulative basis. 
The analysis must consider impacts on the physical, chemical, and 
biological characteristics of downstream flows, including seasonal 
variations in temperature and volume, changes in stream turbidity or 
sedimentation, the degree to which the excess spoil may introduce or 
increase contaminants, the effects on aquatic organisms, and the extent 
to which wildlife is dependent upon those organisms.
    Proposed paragraph (a)(3)(ii) also provides that, if the applicant 
must prepare an analysis of alternatives for the proposed excess spoil 
fill under 40 CFR 230.10, which sets forth requirements for individual 
permits for placement of fill material in waters of the United States 
under section 404 of the Clean Water Act, 33 U.S.C. 1344, the 
application may initially include a copy of that analysis in lieu of 
the analysis of alternatives required under proposed paragraph (a)(3). 
The regulatory authority then must determine the extent to which the 
Clean Water Act analysis satisfies the requirement for an analysis of 
alternatives under paragraph (a)(3). When OSM is the regulatory 
authority, we will coordinate with the Corps of Engineers in conducting 
any necessary analysis of alternatives under the National Environmental 
Policy Act.
    Proposed paragraph (a)(3)(iii) specifies that, to the extent 
possible, the applicant must select the alternative that would have the 
least overall adverse environmental impact, including adverse impacts 
on water quality and aquatic ecosystems. If another alternative 
considered would be more environmentally protective than

[[Page 48904]]

the alternative selected by the applicant, the application must 
demonstrate, to the satisfaction of the regulatory authority, that 
implementation of the more environmentally protective alternative is 
not possible. The rule clarifies that an alternative is possible if it 
is capable of being done after consideration of cost, logistics, and 
available technology, and that the least costly alternative may not be 
selected at the expense of environmental protection solely on the basis 
of cost.
    The alternative selected need not necessarily be the one with the 
least adverse impact to aquatic ecosystems. Under 40 CFR 230.10(a), 
which is part of the Clean Water Act Section 404(b)(1) Guidelines, no 
discharge of dredged or fill material may be permitted if there is a 
practicable alternative to the proposed discharge that would have less 
adverse impact to the aquatic ecosystem, ``so long as the alternative 
does not have other significant adverse environmental consequences.'' 
In other words, if the alternative with the least adverse impact to the 
aquatic ecosystem has other significant adverse environmental impacts, 
the Clean Water Act rules allow selection of a different alternative.
    Parts III and IV of this preamble explain how the requirements that 
we are proposing in paragraph (a)(3) are consistent with SMCRA. In 
essence, the new requirements would, in part, implement sections 
515(b)(24) and 516(b)(11) of SMCRA, which provide that surface coal 
mining and reclamation operations must use the best technology 
currently available to minimize disturbances to and adverse impacts on 
fish, wildlife, and related environmental values to the extent 
possible. The new requirements would achieve this goal by requiring 
that the permit applicant take environmental factors into consideration 
when locating and designing excess spoil fills and by requiring that 
the permit applicant demonstrate that the proposed operation has been 
designed using the best technology currently available to minimize 
adverse environmental impacts to land and waters and related 
environmental values to the extent possible. The phrase ``to the extent 
possible,'' which appears in the statutory provisions underlying these 
proposed rules, connotes an element of both economic and technological 
feasibility, although we do not interpret that phrase as authorizing 
selection of the least expensive alternative at the expense of 
environmental protection solely on the basis of cost. See Parts VI.K. 
and VI.L. of this preamble for further discussion of the meaning of 
``to the extent possible'' and ``best technology currently available,'' 
respectively. We seek comment on whether this approach is an 
appropriate interpretation of the phrase ``to the extent possible'' in 
sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), and 516(b)(11) of 
SMCRA.
    We are proposing these rule changes to improve the analysis of 
permit applications and permitting decisions under SMCRA. However, 
these changes also may facilitate achieving the coordinated processing 
of coal mining permit applications in accordance with a memorandum of 
understanding entitled ``Memorandum of Understanding among the U.S. 
Army Corps of Engineers, the U.S. Office of Surface Mining, the U.S. 
Environmental Protection Agency, and the U.S. Fish and Wildlife Service 
for the Purpose of Providing Concurrent and Coordinated Review and 
Processing of Surface Coal Mining Applications Proposing Placement of 
Dredged and/or Fill Material in Waters of the United States,'' which 
took effect February 8, 2005. For example, the information and analysis 
that the permit applicant must submit under the proposed rule may 
assist the Corps of Engineers in its review of preconstruction 
notifications submitted under Nationwide Permits 21, 49, or 50, or, if 
an individual permit is needed under section 404 of the Clean Water 
Act, compliance with the Section 404(b)(1) Guidelines at 40 CFR part 
230 concerning placement of dredged or fill materials in waters of the 
United States.
    Fourth, proposed paragraph (a)(4) provides that each application 
must include a description of the steps that the permit applicant 
proposes to take to avoid adverse environmental impacts that may result 
from the construction of fills or, if avoidance is not possible, to 
minimize those impacts. This requirement applies to construction, 
maintenance, and reclamation of the alternative selected under proposed 
paragraph (a)(3). It also would implement, in part, the sedimentation 
prevention requirements of sections 515(b)(10)(B)(i) and 516(b)(9)(B) 
of SMCRA and the fish, wildlife, and related environmental value 
protection requirements of sections 515(b)(24) and 516(b)(11) of SMCRA. 
We anticipate that the steps mentioned in proposed paragraph (a)(4) 
would include provisions in the operation plan to require that, when 
consistent with prudent engineering practice and applicable regulatory 
requirements, excess spoil placement begin at the highest elevation of 
the planned fill and proceed down the valley to the toe of the fill, 
thus minimizing both impacts to waters of the United States and the 
area affected in the event that the full design capacity of the fill is 
not needed because of changes in mining plans or other reasons. We seek 
comment on whether this approach should be incorporated into the rule 
language.
    We also propose to substantially reorganize and revise 30 CFR 
780.35 for clarity and to incorporate permitting requirements that are 
currently found in 30 CFR 816.71, which contains the performance 
standards for excess spoil disposal.
    Proposed paragraph (a)(5) requires that each application for an 
operation that proposes to generate excess spoil include maps and 
cross-section drawings showing the location of all proposed disposal 
sites and structures. It also requires that fills be located on the 
most moderately sloping and naturally stable areas available, unless 
the regulatory authority approves a different location based upon the 
alternatives analysis under proposed paragraph (a)(3) or other factors, 
taking into account other requirements of the Act and regulations. When 
possible, fills must be placed upon or above a natural terrace, bench, 
or berm if that location would provide additional stability and prevent 
mass movement.
    The requirement for maps and cross-section drawings currently 
appears in the first sentence of existing 30 CFR 780.35(a), while the 
fill location requirements in proposed paragraph (a)(5) are currently 
found in existing 30 CFR 816.71(c). We believe that those location 
requirements are more logically included as part of the planning and 
design requirements in the permitting regulations rather than as part 
of the performance standards. In addition, we propose to modify the 
requirement in the existing rule that fills be located on the most 
moderately sloping and naturally stable areas available. The proposed 
rule allows the regulatory authority to approve different locations, 
based upon the analysis of alternatives required under proposed 
paragraph (a)(3) and other relevant factors. This change is needed to 
ensure that the analysis of alternatives and consideration of 
environmental impacts are a meaningful part of the site selection 
process. The proposed change is consistent with section 515(b)(22)(E) 
of SMCRA, which requires that excess spoil be placed ``upon the most 
moderate slope among those upon which, in the judgment of the 
regulatory authority, the spoil could be placed in compliance with all 
the requirements of the Act.'' One of the requirements of the Act is 
the provision in section 515(b)(24) specifying that surface coal mining 
and reclamation operations must

[[Page 48905]]

be conducted so as to minimize disturbances to and adverse impacts on 
fish, wildlife, and related environmental values to the extent 
possible, using the best technology currently available. Implementation 
of that requirement may entail placement of spoil on slopes other than 
the most moderate ones available.
    Proposed paragraph (a)(6) requires that an application for an 
operation that would generate excess spoil include detailed design 
plans for each excess spoil disposal structure, prepared in accordance 
with the requirements of sections 780.35 and 816.71 through 816.74. 
These requirements correspond to the first sentence of existing section 
780.35(a), with the addition of a cross-reference to section 780.35 in 
recognition of the proposed revisions to that section. The first 
sentence of existing section 780.35(a) also includes a requirement for 
appropriate maps and cross-section drawings, which we propose to move 
to section 780.35(a)(5). Proposed paragraph (a)(6) also includes a 
requirement to design the fill and appurtenant structures using current 
prudent engineering practices and any additional design criteria 
established by the regulatory authority. This requirement is not new. 
It currently appears in the first sentence of existing 30 CFR 
816.71(b)(1). We propose to move it to 30 CFR 780.35(a)(6) because it 
is a design requirement, not a performance standard.
    Proposed paragraph (a)(7) requires that the application include the 
results of a geotechnical investigation of each proposed excess spoil 
disposal site, with the exception of those sites at which spoil will be 
placed only on a pre-existing bench under 30 CFR 816.74. This 
requirement currently appears in existing section 780.35(b). The 
proposed rule retains the existing requirements for the contents of the 
geotechnical investigation. Currently located at 30 CFR 780.35(b)(1) 
through (5), these requirements appear as 30 CFR 780.35(a)(7)(i) 
through (v) in the proposed rule. We also propose to shift the 
requirement to conduct sufficient foundation investigations from 
existing 30 CFR 816.71(d)(1) to 30 CFR 780.35(a)(7). This shift is 
consistent with our effort to consolidate design requirements in the 
permitting rules rather than splitting them between the permitting 
rules and the performance standards. The foundation investigation is an 
element of the geotechnical investigation.
    Proposed paragraph (a)(8) requires that each application include 
plans for the construction, operation, maintenance, and reclamation of 
all excess spoil disposal structures (fills) in accordance with the 
requirements of 30 CFR 816.71-816.74. This requirement corresponds to a 
similar provision in existing 30 CFR 780.35(a). However, the existing 
rule requires plans for the ``removal, if appropriate, of the site and 
structures.'' Because excess spoil fills are permanent, it is not 
appropriate to include plans for their removal in the application. 
Consequently, we propose to replace the requirement for plans for 
removal of the fills with a requirement for plans for their 
reclamation, which would consist of final site preparation and 
revegetation consistent with the approved postmining land use.
    Proposed paragraph (a)(9) combines overlapping requirements of 
existing 30 CFR 780.35(c) and 816.71(d)(2) concerning application and 
design requirements for keyway cuts or rock-toe buttresses. We are not 
proposing any substantive changes.
    Proposed paragraph (b) requires that the application include a 
certification by a qualified registered professional engineer 
experienced in the design of earth and rock fills that the design of 
all fills and appurtenant structures meets the requirements of 30 CFR 
780.35. This requirement currently appears in the second sentence of 
existing 30 CFR 816.71(b)(1). We propose to move it to section 780.35 
consistent with our effort to consolidate design requirements in the 
permitting rules rather than splitting them between the permitting 
rules and the performance standards. We are not proposing any 
substantive changes to this provision.

E. Section 784.19: Disposal of Excess Spoil From Underground Mines

    Existing 30 CFR 784.19 applies the same fill construction 
requirements to both underground development waste and excess spoil. 
However, on September 26, 1983 (48 FR 44006), we adopted rules that 
classify underground development waste as coal mine waste, which means 
that fills constructed of underground development waste must adhere to 
the requirements for refuse piles instead of those applicable to excess 
spoil fills. Consequently, we propose to revise section 784.19 to apply 
only to the disposal of excess spoil, consistent with the revised 
definitions and performance standards that we adopted on September 26, 
1983. For the same reason, we propose to replace the current section 
title, ``Underground Development Waste,'' with ``Disposal of Excess 
Spoil.'' We also propose to eliminate all references to underground 
development waste because that waste would instead be regulated under 
the refuse pile provisions of revised section 784.16, consistent with 
the 1983 rule changes to the definitions and performance standards 
relating to coal mine waste.
    The new language of section 784.19 is identical to the language of 
proposed 30 CFR 780.35, which establishes permit application 
requirements for the disposal of excess spoil generated by surface 
mining activities, except that cross-references to the surface mining 
performance standards in part 816 are replaced by cross-references to 
the underground mining performance standards in part 817. In that 
respect, the proposed rule is similar to existing section 784.19, which 
incorporates the requirements of section 780.35 by cross-reference.

F. Sections 816.11 and 817.11: Signs and Markers

    Existing 30 CFR 816.57(b) and 817.57(b) require that the operator 
mark buffer zones for perennial and intermittent streams. However, that 
requirement also appears in 30 CFR 816.11(e) and 817.11(e). We believe 
that this requirement is more logically placed in sections 816.11 and 
817.11, because the title for those sections identifies them as 
pertaining to signs and markers. Therefore, we propose to consolidate 
our buffer zone marking requirements in sections 816.11(e) and 
817.11(e). We also propose to revise those paragraphs to be consistent 
with other proposed changes to the existing stream buffer zone rules. 
As revised, proposed section 816.11(e) provides that the boundaries of 
any buffer to be maintained between surface mining activities and 
waters of the United States in accordance with 30 CFR 780.28 and 
816.57(a) must be clearly marked to avoid disturbance by surface mining 
activities. Similarly, proposed section 817.11(e) provides that the 
boundaries of any buffer to be maintained between surface activities 
and waters of the United States in accordance with 30 CFR 784.28 and 
817.57(a) must be clearly marked to avoid disturbance by surface 
operations and facilities resulting from or in connection with an 
underground mine. We are not proposing any substantive changes to 
sections 816.11(e) and 817.11(e).

G. Sections 816.43 and 817.43: Diversions

    Existing 30 CFR 816.43(b)(1) and 817.43(b)(1) provide that the 
regulatory authority may approve diversion of perennial and 
intermittent streams within the permit area after making the finding 
relating to stream buffer zones that the diversion will not adversely 
affect the water quantity and quality and

[[Page 48906]]

related environmental resources of the stream. The referenced finding 
is the second part of the finding in existing 30 CFR 816.57(a)(1) and 
817.57(a)(1).
    We propose to replace this finding with a provision that is more 
consistent with the underlying provisions of SMCRA. Specifically, 
sections 515(b)(10), 515(b)(24), 516(b)(9), and 516(b)(11) of SMCRA do 
not establish a ``will not adversely affect'' standard. Section 
515(b)(10) requires that surface coal mining and reclamation operations 
be conducted to ``minimize the disturbances to the prevailing 
hydrologic balance at the mine site and in associated offsite areas and 
to the quality and quantity of water in surface and ground water 
systems both during and after surface coal mining operations and during 
reclamation.'' Section 516(b)(9), which pertains to underground coal 
mining operations, contains similar language with the exception that it 
does not mention water quality. Sections 515(b)(24) and 516(b)(11) 
require that surface coal mining and reclamation operations be 
conducted to ``minimize disturbances and adverse impacts of the 
operation on fish, wildlife, and related environmental values'' ``to 
the extent possible using the best technology currently available.'' As 
demonstrated by these quotes, SMCRA establishes a minimization standard 
rather than an absolute ``will not adversely affect'' standard with 
respect to disturbance of the hydrologic balance and adverse impacts on 
fish, wildlife, and related environmental values.
    Consequently, we propose to revise paragraph (b) of 30 CFR 
816.43(b)(1) and 817.43(b)(1) to provide that the regulatory authority 
may approve the diversion of perennial and intermittent streams within 
the permit area if the diversion is located, designed, constructed, and 
maintained using the best technology currently available to minimize 
adverse impacts to fish, wildlife, and related environmental values to 
the extent possible. This provision is consistent with sections 
515(b)(24) and 516(b)(11) of SMCRA. Nothing in this proposed rule 
should be construed as superseding the performance standards for the 
protection of fish, wildlife, and related environmental values in 30 
CFR 816.97 and 817.97 or the related permitting requirements at 30 CFR 
780.16 and 784.21.
    No counterpart to sections 515(b)(10) or 516(b)(9) is necessary 
because paragraph (a)(1) of 30 CFR 816.43 and 817.43, which applies to 
diversions of all types, including stream-channel diversions, already 
provides that ``[a]ll diversions shall be designed to minimize adverse 
impacts to the hydrologic balance within the permit and adjacent 
areas.'' Furthermore, paragraph (a)(2)(iii) requires that all 
diversions be designed, located, constructed, maintained, and used to 
prevent, to the extent possible, using the best technology currently 
available, additional contributions of suspended solids to streamflow 
outside the permit area.'' The language of that paragraph closely 
resembles the language of sections 515(b)(10)(B)(i) and 516(b)(9)(B) of 
the Act, which are two of the statutory provisions underlying the 
existing stream buffer zone rules.
    The last sentence of existing paragraph (a)(3) of 30 CFR 816.43 and 
817.43 pertains only to stream-channel diversions. Therefore, we 
propose to move that sentence to paragraph (b) of sections 816.43 and 
817.43 because those sections contain all other performance standards 
that pertain only to stream-channel diversions. We propose to insert 
the sentence as paragraph (b)(4) of sections 816.43 and 817.43 and to 
redesignate existing paragraph (b)(4) as paragraph (b)(5).
    The last sentence in paragraph (a)(3) of the existing rules 
requires that a permanent stream-channel diversion or a stream channel 
reclaimed after the removal of a temporary diversion be designed and 
constructed so as to restore or approximate the premining 
characteristics of the original stream channel, including the natural 
riparian vegetation, to promote the recovery and enhancement of the 
aquatic habitat. In new paragraph (b)(4), we propose to revise that 
sentence to specify that a permanent stream-channel diversion or a 
stream channel reclaimed after the removal of a temporary diversion 
must be designed and constructed using natural channel design 
techniques so as to restore or approximate the premining 
characteristics of the original stream channel, including the natural 
riparian vegetation and the natural hydrological characteristics of the 
original stream, to promote the recovery and enhancement of the aquatic 
habitat and to minimize adverse alteration of stream channels on and 
off the site, including channel deepening or enlargement, to the extent 
possible.
    The new language concerning natural channel design and adverse 
alteration of stream channels would reinforce and clarify the meaning 
of the existing requirement to restore or approximate the premining 
characteristics of the original stream. The goals of natural channel 
design include creating a stream channel that will maintain the 
equilibrium of a natural stream, neither downcutting (degrading) nor 
filling in (aggrading). A natural channel is not stable in the sense 
that a concrete, trapezoidal channel is stable. Depending on the stream 
type, a natural channel may meander, eroding and depositing sediment at 
natural rates as part of its dynamic equilibrium. The channel must pass 
the water and sediment that it receives downstream, and the channel 
must maintain a connection to the stream's floodplain. The new 
provisions are consistent with sections 515(b)(24) and 516(b)(11) of 
SMCRA, which require use of the best technology currently available to 
minimize adverse impacts to fish, wildlife, and other environmental 
values to the extent possible.
    We seek comment on whether the proposed revisions to 30 CFR 
816.43(b) and 817.43(b) are sufficient to meet the requirements of 
SMCRA, or whether we should also revise our permitting rules to include 
a requirement for submission of alternatives and an analysis of the 
environmental impacts of each alternative whenever the applicant 
proposes to mine through waters of the United States or divert 
perennial or intermittent streams. The requirements would be similar to 
the corresponding requirements for excess spoil fills and coal mine 
waste disposal facilities in proposed 30 CFR 780.25(d)(1) and 
780.35(a)(3) for surface mines or 784.16(d)(1) and 784.19(a)(3) for 
underground mines. We anticipate that alternatives would vary with 
respect to the number of stream segments diverted, the length of 
segments diverted, diversion design, construction technique, location 
of the diversion, and whether the diversion is temporary or permanent. 
We invite comment on whether these alternatives are consistent with 
SMCRA and whether there are other alternatives that should be 
considered.
    Finally, we propose to redesignate existing paragraph (b)(4) of 
sections 816.43 and 817.43 as paragraph (b)(5) and revise that 
paragraph to require that a qualified registered professional engineer 
certify the design and construction of all stream-channel restorations. 
The existing rule applies that requirement only to diversions of 
perennial and intermittent streams. We are proposing the additional 
requirement because stream-channel restorations are equally significant 
in terms of stability and environmental concerns; i.e., reconstructed 
stream channels should be safe and stable and should approximate 
premining conditions regardless of whether the channel is a diversion 
or a restoration of the original channel.

[[Page 48907]]

H. Sections 816.46 and 817.46: Siltation Structures

    Paragraph (b)(2) of existing 30 CFR 816.46 and 817.46 requires that 
all surface drainage from the disturbed area be passed through a 
siltation structure before leaving the permit area. In essence, that 
paragraph prescribes siltation structures (sedimentation ponds and 
other treatment facilities with point-source discharges) as the best 
technology currently available for sediment control. However, existing 
paragraph (b)(2) was struck down upon judicial review because the court 
found that the preamble to the rulemaking in which it was adopted did 
not articulate a sufficient basis for the rule under the Administrative 
Procedure Act. The court stated that the preamble did not adequately 
discuss the benefits and drawbacks of siltation structures and 
alternative sediment control methods and did not enable the court ``to 
discern the path taken by [the Secretary] in responding to commenters' 
concerns'' that siltation structures in the West are not the best 
technology currently available. See In re: Permanent Surface Mining 
Regulation Litigation II, Round III, 620 F. Supp. 1519, 1566-1568 
(D.D.C. July 15, 1985).
    On November 20, 1986 (51 FR 41961), we suspended the rules struck 
down by the court. To avoid any confusion that may result from the 
continuing publication of those rules in the Code of Federal 
Regulations, we are proposing to remove paragraph (b)(2) of 30 CFR 
816.46 and 817.46 and redesignate the remaining paragraphs of those 
sections accordingly. This action would supersede the 1986 suspension 
of paragraph (b)(2) of those regulations. Sections 816.45 and 817.45, 
which remain unchanged by this rule, set forth various measures and 
techniques that may constitute the best technology currently available 
for sediment control, although applicants and regulatory authorities 
are not limited to those measures and techniques.

I. Sections 816.57 and 817.57: Activities in or Adjacent to Waters of 
the United States

1. General Description of Proposed Changes
    We propose to extensively revise and reorganize 30 CFR 816.57 and 
817.57 for the reasons discussed in Parts III and VI.C. of this 
preamble and further explained below. The existing stream buffer zone 
rules at 30 CFR 816.57(a) and 817.57(a) contain both permitting 
requirements and performance standards. The rules that we are proposing 
today would separate the two for clarity and consistency. Revised 
sections 816.57 and 817.57 would include only performance standards. As 
discussed in Part VI.C. of this preamble, we propose to extensively 
revise the permitting elements of the existing stream buffer zone rules 
and move them to new sections 780.28 and 784.28.
    We propose to delete the provision in existing 30 CFR 816.57(a)(2) 
and 817.57(a)(2) that requires the regulatory authority to make a 
finding that any proposed temporary or permanent stream-channel 
diversion will comply with 30 CFR 816.43 or 817.43. We find this 
provision to be unnecessary because the obligation to comply with the 
stream-channel diversion requirements of section 816.43 or 817.43 is 
independent of any cross-reference in section 816.57(a)(2) or 
817.57(a)(2).
    We also propose to delete existing paragraph (b) of sections 816.57 
and 817.57, which provides that the area not to be disturbed must be 
designated as a buffer zone and marked as specified in 30 CFR 816.11 or 
817.11. This deletion is not a substantive change because the 
requirement to mark the area to be left undisturbed also appears in 30 
CFR 816.11(e) and 817.11(e), which we are proposing to revise for 
clarity and consistency as discussed in Part VI.F. of this preamble. 
Some commenters have requested that the language proposed for deletion 
be retained because it functions as a de facto definition of ``buffer 
zone.'' We do not see the need to do so in view of the reduced usage of 
the term ``buffer zone'' in the revised rules and the fact that the 
term ``buffer'' has a commonly understood meaning for which no 
regulatory definition is needed because the rules do not use the term 
in any manner that would deviate from the dictionary definition. 
However, we seek comment on whether a formal regulatory definition of 
buffer or buffer zone would be useful.
    We propose to revise 30 CFR 780.28, 784.28, 816.57, and 817.57 to 
apply to all waters of the United States, not just to perennial and 
intermittent streams as in existing 30 CFR 816.57 and 817.57. We are 
proposing this change because waters other than perennial and 
intermittent streams may be of significant value to fish and wildlife 
and thus should be protected in accordance with the requirements of 
sections 515(b)(24) and 516(b)(11) of SMCRA. The proposed change also 
better harmonizes the SMCRA regulatory program with regulatory programs 
under the Clean Water Act, especially the section 404 regulatory 
program, which governs placement of dredged and fill materials into 
waters of the United States. For further discussion of this change, 
please refer to Part VI.C. of this preamble.
2. Proposed Paragraph (a)
    We propose to revise paragraph (a) of 30 CFR 816.57 and 817.57 to 
specify that the permittee or operator may not conduct surface 
activities that would disturb the surface of land within 100 feet, 
measured horizontally, of waters of the United States unless the permit 
authorizes the disturbance under section 780.28 or 784.28 or unless the 
activities are allowed under proposed 30 CFR 816.57(b) or 30 CFR 
816.57(b). We propose to retain the 100-foot buffer requirement in 
paragraph (a) of the existing rules, but all other provisions of 
existing paragraph (a) would be modified, deleted, or moved to 30 CFR 
780.28 and 784.28 (see Part VI.C. of this preamble).
3. Proposed Paragraph (b)
    Proposed paragraph (b) provides that the prohibition in paragraph 
(a) does not apply to the following activities:
    (1) Mining through waters of the United States;
    (2) Placement of bridge abutments, culverts, or other structures in 
or near waters of the United States to facilitate crossing of those 
waters;
    (3) Construction of sedimentation pond embankments in waters of the 
United States; and
    (4) Construction of excess spoil fills and coal mine waste disposal 
facilities in waters of the United States.
    Proposed paragraph (b) also specifies, for purposes of clarity, 
that persons conducting the activities listed in paragraphs (b)(1) 
through (4) must comply with all other applicable requirements of the 
regulatory program. Paragraph (b)(1) further emphasizes that mining 
through waters of the United States must comply with the requirements 
of 30 CFR 816.43(b) or 817.43(b) if the mining involves the temporary 
or permanent diversion of a perennial or intermittent stream. Paragraph 
(b)(2) emphasizes that the placement of bridge abutments, culverts, or 
other structures to facilitate the crossing of waters of the United 
States must comply with the road design, construction, and maintenance 
requirements of 30 CFR 816.150 and 816.151 or, for railroad spurs, with 
the support facility requirements of 30 CFR 816.181. For underground 
mining operations, the appropriate cross-references are 30 CFR 817.150, 
817.151, and 817.181, respectively. Paragraph (b)(3) emphasizes that 
construction of sedimentation pond embankments in waters of the United 
States must comply with the requirements of 30 CFR

[[Page 48908]]

816.45(a) or 817.45(a). Paragraph (b)(4) emphasizes that excess spoil 
fills must comply with the requirements of 30 CFR 816.71(a) and (f) or 
817.71(a) and (f). It also provides a reminder that coal mine waste 
disposal facilities must comply with the pertinent requirements of 30 
CFR 816.81(a), 816.83(a), and 816.84, or, for underground mining 
operations, 30 CFR 817.81(a), 817.83(a), and 817.84, respectively.
    Specifying the activities to which the prohibition on disturbance 
does not apply should reduce the confusion that has sometimes arisen 
regarding implementation of the existing stream buffer zone rules (see 
Part III.C. of this preamble). We intend that the list of activities in 
paragraph (b) include, among other things, the universe of activities 
that inherently involve placement of fill material into waters of the 
United States as part of surface coal mining and reclamation 
operations. We invite comment on whether the list meets this goal and, 
if not, how any other activities that involve placement of fill 
material into waters of the United States as part of surface coal 
mining and reclamation operations should be regulated under SMCRA with 
respect to this rule. Paragraph (a) applies to all activities within 
100 feet of waters of the United States except to the extent that those 
activities also appear in paragraph (b). Paragraph (b) is intended to 
include all activities that inherently occur in waters of the United 
States, as well as some that inherently occur near those waters. We 
seek comment on whether additional rules are needed to address 
activities that may not included in either paragraph (a) or (b).
    Not all coal mining operations involve placement of fill material 
in waters of the United States or disturbance of the surface of lands 
within 100 feet of those waters. However, the nature of surface coal 
mining and reclamation operations and the topography of the areas 
within which those operations occur, as discussed in part below and in 
Part II of this preamble, mean that many operations will affect waters 
of the United States and adjacent areas. In general, there are five 
classes of activities that may take place in or near waters of the 
United States as part of surface coal mining and reclamation 
operations:
    (1) Activities adjacent to, but not in, waters of the United 
States. Common examples of those activities include spoil and topsoil 
storage and the construction or use of roads or buildings.
    (2) Mining through streams and other waters of the United States, 
with the original stream being either temporarily or permanently 
diverted in accordance with 30 CFR 816.43 or 817.43.
    (3) Placement of bridge abutments, culverts, or other structures in 
or near waters of the United States to facilitate crossing those 
waters.
    (4) Construction of sedimentation pond embankments in waters of the 
United States. These embankments usually provide temporary sediment 
control. They must be removed unless the regulatory authority approves 
their retention as permanent impoundments as part of the postmining 
land use.
    (5) Activities that permanently fill portions of a stream channel 
or other waters of the United States; i.e., construction of excess 
spoil fills or coal mine waste disposal facilities in waters of the 
United States.
    Neither SMCRA nor the Clean Water Act precludes any of the 
activities listed above, provided the activities comply with all 
applicable requirements of those laws and their implementing 
regulations. Part III.A. of this preamble explains the extent to which 
either SMCRA or its legislative history contemplates the activities 
listed above. Specifically, section 515(b)(22)(D) mentions the 
construction of excess spoil fills in areas containing natural 
watercourses, springs, and wet-weather seeps. In addition, the 
legislative history of SMCRA indicates that Congress anticipated the 
continued construction of coal mine waste impoundments in streams. As 
discussed in Part III.C. of this preamble, Congress, in developing the 
legislation that ultimately became SMCRA, specifically considered and 
rejected inclusion of an absolute prohibition on disturbance of land 
within 100 feet of certain waters of the United States. While we 
subsequently adopted stream buffer zone rules as part of our 
regulations implementing SMCRA, those rules did not operate as an 
absolute prohibition on disturbance of the buffer zone. In addition, as 
discussed in Part III.D. of this preamble, we and the states have 
historically interpreted the existing stream buffer zone rules as 
allowing placement of fill material in waters of the United States, 
subject to approval of that placement under the Clean Water Act. The 
rules that we are proposing today would remove any lingering ambiguity 
regarding this interpretation.
    The existing stream buffer zone rules effectively prescribe 
maintenance of a 100-foot undisturbed zone between mining activities 
and streams as the best technology currently available to fulfill the 
sediment control and fish and wildlife protection requirements of 
sections 515(b)(10)(B)(i), 515(b)(24), 516(b)(9)(B), and 516(b)(11) of 
SMCRA. However, the concept of a buffer zone as the best technology 
currently available is best suited to activities in the first category 
because those activities do not require disturbance of the streambed or 
other waters or immediately adjacent lands. By contrast, all activities 
in the other four categories necessarily occur within or immediately 
adjacent to the streambed or other waters, which means that an 
undisturbed buffer between those activities and the stream or other 
waters inherently cannot be maintained. Consequently, paragraphs (b)(1) 
through (4) of proposed 30 CFR 816.57 and 817.57 exempt those four 
categories of activities from the prohibition in paragraph (a) on 
disturbance of the buffer zone.
    Instead, proposed 30 CFR 780.28(d) and 784.28(d) provide that the 
permit applicant must demonstrate (and the regulatory authority must 
find) that other measures and techniques will meet the requirement to 
use the best technology currently available to prevent offsite 
sedimentation and to minimize adverse impacts to fish, wildlife, and 
related environmental values. Paragraph (c) of proposed 30 CFR 816.57 
and 817.57 also includes provisions reiterating that the permittee must 
comply with all other permitting requirements and performance standards 
relating to implementation of the statutory requirements underlying 
this proposed rule and the existing stream buffer zone rules.
    SMCRA does not specifically contemplate every activity listed in 
paragraphs (b)(1) through (4) of the proposed rules. However, as 
previously noted, those activities are sometimes necessary for the 
conduct of certain surface coal mining operations. In those situations, 
the purpose of SMCRA as expressed in section 102(f) must be taken into 
consideration. That paragraph specifies that one of the purposes of 
SMCRA is to--

(f) assure that the coal supply essential to the Nation's energy 
requirements, and to its economic and social well-being is provided 
and strike a balance between protection of the environment and 
agricultural productivity and the Nation's need for coal as an 
essential source of energy.

    Under section 201(c)(2), we have the authority to publish ``such 
rules and regulations as may be necessary to carry out the purposes and 
provisions of this Act.''
    Proposed paragraph (b) of 30 CFR 816.57 and 817.57 is intended to 
strike the balance to which section 102(f) refers. First, it 
facilitates energy production by providing an exception from the 
prohibition on conducting

[[Page 48909]]

activities that would disturb the surface of lands within 100 feet of 
waters of the United States. Second, it facilitates environmental 
protection by limiting the exception to those activities that are 
essential to the conduct of surface coal mining operations and by 
requiring that operations availing themselves of the exception adopt 
other measures to comply with the sedimentation control and fish and 
wildlife protection requirements of SMCRA.
    The preceding paragraphs set forth the basis and purpose of 
proposed paragraph (b). We are providing additional descriptions and 
discussion of each proposed exception below. To the extent that the 
discussion identifies selected other SMCRA regulatory requirements that 
apply to those activities or structures, the listing of applicable 
regulatory requirements is by no means exhaustive.
Proposed Paragraph (b)(1): Mining Through Waters of the United States
    Mining through waters of the United States is an activity that we 
propose to categorize as exempt from the prohibition on disturbance of 
the surface of lands within 100 feet of waters of the United States 
because it is not possible to maintain an undisturbed buffer around the 
original waters when mining through a stream or other waters of the 
United States. The permittee must comply with the requirements of 30 
CFR 816.43(b) or 817.43(b) if the mining involves the permanent or 
temporary diversion of a perennial or intermittent stream. Part VI.G. 
of this preamble explains how we propose to revise 30 CFR 816.43 and 
817.43 to incorporate provisions corresponding to those of existing 30 
CFR 816.57(a)(1) and 817.57(a)(1) and how those provisions, as revised, 
in combination with existing provisions of 30 CFR 816.43 and 817.43, 
better reflect the statutory provisions underlying the existing stream 
buffer zone rules.
Proposed Paragraph (b)(2): Structures for Crossing Waters of the United 
States
    Our existing regulations at 30 CFR 816.151(d)(6) and 817.151(d)(6) 
contain standards governing the types of structures that primary mine 
roads may use to cross perennial and intermittent streams. Any low-
water crossings must be designed, constructed and maintained to prevent 
erosion of the structure or the streambed and additional contributions 
of suspended solids to streamflow. Sections 816.151(c)(2) and 
817.151(c)(2) prohibit the use of stream fords for primary roads unless 
they are approved by the regulatory authority as temporary routes 
during road construction. All mine access and haul roads, whether 
primary or not, must comply with 30 CFR 816.150(b) or 817.150(b). Those 
regulations include language similar to the sedimentation control and 
fish and wildlife protection requirements of sections 515(b)(10)(B)(i), 
515(b)(24), 516(b)(9)(B), and 516(b)(11) of SMCRA.
    Also, under our existing regulations, support facilities, which may 
include railroads, must comply with 30 CFR 816.181 and 817.181. 
Paragraph (b) of 30 CFR 816.181 and 817.181 includes language similar 
to the sedimentation control and fish and wildlife protection 
requirements of sections 515(b)(10)(B)(i), 516(b)(9)(B), 515(b)(24), 
and 516(b)(11) of SMCRA.
Proposed paragraph (b)(3): Sedimentation pond embankments in waters of 
the United States
    Both the 1979 and 1983 versions of our permanent regulatory program 
regulations prohibit the placement of sedimentation ponds in perennial 
streams unless approved by the regulatory authority. See 30 CFR 
816.46(a)(2) (1979) and 816.46(c)(1)(ii) (1983). However, the preamble 
to the 1979 rules explains that construction of sedimentation ponds in 
streams typically is a necessity in steep-slope mining conditions:

    Sedimentation ponds must be constructed prior to any disturbance 
of the area to be drained into the pond and as near as possible to 
the area to be disturbed. [Citation omitted.] Generally, such 
structures should be located out of perennial streams to facilitate 
the clearing, removal and abandonment of the pond. Further, locating 
ponds out of perennial streams avoids the potential that flooding 
will wash away the pond. However, under design conditions, ponds may 
be constructed in perennial streams without harm to public safety or 
the environment. Therefore, the final regulations authorize the 
regulatory authority to approve construction of ponds in perennial 
streams on a site-specific basis to take into account topographic 
factors. [Citation omitted.]
* * * * *
    Commenters suggested allowing construction of sedimentation 
ponds in intermittent and perennial streams. Because of the 
physical, topographic, or geographical constraints in steep-slope 
mining areas, the valley floor is often the only possible location 
for a sediment pond. Since the valleys are steep and quite narrow, 
dams must be high and must be continuous across the entire valley in 
order to secure the necessary storage.
* * * * *
    The Office recognizes that mining and other forms of 
construction are presently undertaken in very small perennial 
streams. Many Soil Conservation Service (SCS) [now the Natural 
Resources Conservation Service] structures are also located in 
perennial streams. Accordingly, OSM believes these cases require 
thorough examination. Therefore, the regulations have been modified 
to permit construction of sedimentation ponds in perennial streams 
only with approval by the regulatory authority.

44 FR 15159-60, March 13, 1979.

    In short, sedimentation ponds must be constructed where there is 
sufficient storage capacity, which, in narrow valleys lacking natural 
terraces, usually means in the stream.
    A letter dated March 1, 2006, from Benjamin Grumbles, Assistant 
Administrator of the Environmental Protection Agency, to John Paul 
Woodley, Assistant Secretary of the Army (Civil Works), confirms that 
this practice also is acceptable under the Clean Water Act for surface 
coal mining operations in the Appalachian Mountains. It further states 
that, under the Clean Water Act, the stream segment between the mining 
activity (the toe of the fill, in the situation addressed by the 
letter) and the sedimentation pond will be considered part of the 
treatment system, not waters of the United States. The sedimentation 
pond must be constructed as close to the toe of the fill as practicable 
to minimize temporary adverse environmental impacts associated with 
construction and operation of the waste treatment system. As a 
condition of approval, the Corps also requires that the stream segment 
be restored as soon as the mining operation is completed and the pond 
is no longer needed for treatment purposes. At that time, the stream 
segment will once again be classified as waters of the United States. 
However, under SMCRA, the pond may be retained as a permanent 
impoundment if approved by the regulatory authority in accordance with 
the criteria in 30 CFR 816.49(b) or 817.49(b).
    We believe that the existing rules at 30 CFR 816.46(c)(1)(ii) and 
817.46(c)(1)(ii), can be applied in a manner consistent with the March 
1, 2006, letter from the Environmental Protection Agency discussed 
above. In particular, 30 CFR 816.46(c)(1)(ii) and 817.46(c)(1)(ii) 
require that all sedimentation ponds be placed as near as possible to 
the disturbed area that they serve. We interpret this provision as 
meaning that sedimentation ponds collecting runoff from excess spoil 
fills must be constructed as close to the toe of the fill as possible. 
We also believe that application of the existing rules in this manner 
will properly implement the intent of Congress in enacting SMCRA, as 
expressed in section 102(f) of the Act, which provides that one of

[[Page 48910]]

the purposes of the Act is to strike a balance between energy 
production and environmental protection. However, we seek comment on 
whether it would be appropriate or helpful to revise those rules by 
replacing the term ``perennial streams'' with ``waters of the United 
States'' or whether we should more clearly specify the conditions under 
which the regulatory authority may approve placement of sedimentation 
ponds in perennial streams or other waters of the United States.
Proposed Paragraph (b)(4): Construction of Excess Spoil Fills and Coal 
Mine Waste Disposal Facilities in Waters of the United States
    Part III of this preamble explains the rationale for this 
exemption. As discussed in Parts IV, VI.B., VI.D., VI.E., and VI.J., we 
are proposing to revise our rules to require that, to the extent 
possible using the best technology currently available, operations be 
designed and constructed to minimize both the creation of excess spoil 
and the adverse environmental impacts that may result from excess spoil 
and coal mine waste disposal facilities. Proposed 30 CFR 780.35(a) and 
784.19(a) require the applicant to demonstrate to the satisfaction of 
the regulatory authority that the operation has been designed to 
minimize the generation of excess spoil to the extent possible, taking 
into consideration applicable regulations concerning approximate 
original contour restoration, safety, stability, and environmental 
protection and the needs of the proposed postmining land use. Under the 
proposed rules, the applicant also must demonstrate that the designed 
maximum cumulative volume of all excess spoil fills proposed for the 
operation is no larger than needed to accommodate the anticipated 
volume of excess spoil that the operation will generate. In addition, 
the proposed rules require that the applicant analyze the environmental 
impacts of a reasonable range of alternatives for excess spoil disposal 
facilities, including varying the size, number, configuration, and 
location of fills. The applicant must select the alternative with the 
least overall adverse environmental impact or demonstrate, to the 
satisfaction of the regulatory authority, why implementation of that 
alternative is not possible.
    With respect to coal mine waste, proposed 30 CFR 780.25(d) and 
784.16(d) require that the applicant consider and evaluate the 
viability and environmental impacts of a reasonable range of disposal 
methods and alternative locations for refuse piles and coal mine waste 
impoundments. The applicant must select the alternative with the fewest 
overall adverse environmental impacts or demonstrate, to the 
satisfaction of the regulatory authority, why implementation of that 
alternative is not possible.
4. Proposed Paragraph (c)
    Proposed paragraph (c) of 30 CFR 816.57 provides that the 
activities listed in paragraph (b); i.e., activities exempt from the 
prohibition on disturbance of the surface of lands within 100 feet of 
waters of the United States, must comply with paragraphs (b)(10)(B)(i) 
and (b)(24) of section 515 of the Act and the regulations implementing 
those provisions of the Act. Those regulations include the requirement 
in 30 CFR 816.41(d)(1) that surface mining activities be conducted 
according to the plan approved under 30 CFR 780.21(h) and that earth 
materials, ground-water discharges, and runoff be handled in a manner 
that prevents, to the extent possible using the best technology 
currently available, additional contributions of suspended solids to 
streamflow outside the permit area; and otherwise prevents water 
pollution. They also include the requirement in 30 CFR 816.45(a) that 
appropriate sediment control measures be designed, constructed, and 
maintained using the best technology currently available to prevent, to 
the extent possible, additional contributions of sediment to streamflow 
or to runoff outside the permit area. And they include the requirement 
in 30 CFR 816.97(a) that the operator must, to the extent possible 
using the best technology currently available, minimize disturbances 
and adverse impacts on fish and wildlife and related environmental 
values and achieve enhancement of those resources where practicable. 
Proposed paragraph (c) of 30 CFR 817.57 includes virtually identical 
requirements with the exception that it refers to paragraphs (b)(9) and 
(11) of section 516 of SMCRA in place of the references to section 515, 
and it replaces references to the surface mining regulations in parts 
780 and 816 with references to the corresponding underground mining 
regulations in parts 784 and 817.
    Proposed paragraph (c) does not impose any new requirements. We are 
including it to reiterate for informational purposes that an activity 
that is exempt from the prohibition on disturbance of the surface of 
lands within 100 feet of waters of the United States is not exempt from 
other requirements of the regulatory program.
5. Proposed Paragraph (d)
    Proposed paragraph (d) of 30 CFR 816.57 and 817.57 provides that a 
permittee may not initiate any activities under paragraph (b); i.e., 
activities exempt from the prohibition on disturbance of the surface of 
lands within 100 feet of waters of the United States, until the 
permittee obtains all necessary certifications and authorizations under 
sections 401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 
1342, and 1344. As with proposed paragraph (c), proposed paragraph (d) 
does not impose any new requirements. We are including it as a reminder 
that, under paragraphs (a) and (a)(2) of section 702 of SMCRA, nothing 
in SMCRA (and, by extension, regulations adopted under SMCRA) may be 
construed as superseding, amending, modifying, or repealing the Clean 
Water Act or any state or federal rules adopted under the Clean Water 
Act.
    As discussed in Part VI.C. of this preamble, we seek comment on 
whether a similar provision in proposed 30 CFR 780.28(f) and 784.28(f) 
should remain informational or whether we should revise our rules to 
require inclusion of this provision as a SMCRA permit condition, which 
would mean that the prohibition on initiation of activities before 
obtaining all necessary Clean Water Act authorizations and 
certifications would be independently enforceable under SMCRA.

J. Sections 816.71 and 817.71: General Requirements for Disposal of 
Excess Spoil

    We propose to revise paragraph (a) of 30 CFR 816.71 and 817.71 by 
adding subparagraph (a)(4) to implement, in part, the requirements of 
sections 515(b)(24) and 516(b)(11) of the Act. Sections 515(b)(24) and 
516(b)(11) require that surface coal mining and reclamation operations 
be conducted to ``minimize disturbances and adverse impacts of the 
operation on fish, wildlife, and related environmental values'' ``to 
the extent possible using the best technology currently available.'' 
The new subparagraph requires that excess spoil be placed in designated 
disposal areas within the permit area in a controlled manner to 
minimize disturbances to and adverse impacts on fish, wildlife, and 
related environmental values to the extent possible using the best 
technology currently available. We seek comment on whether the addition 
of this performance standard would be a meaningful addition to our 
rules or whether its requirements are effectively subsumed within the 
permitting requirements in proposed 30 CFR

[[Page 48911]]

780.35 and 784.19 and the provisions of proposed 30 CFR 816.71(c) and 
817.71(c).
    We are not proposing any changes to subparagraph (a)(1) of existing 
30 CFR 816.71 and 817.71. That subparagraph is the counterpart to 
sections 515(b)(10) and 516(b)(9) of SMCRA, which require in relevant 
part that surface coal mining and reclamation operations be conducted 
to minimize disturbances to the prevailing hydrologic balance at the 
minesite and in associated offsite areas.
    As previously discussed in Parts VI.D. and VI.E. of this preamble, 
we propose to move paragraphs (b)(1) (design certification), (c) 
(location), and (d)(1) (foundation investigations) of existing 30 CFR 
816.71 and 817.71 to 30 CFR 780.35 and 784.19 as part of our effort to 
place provisions that are solely design considerations and requirements 
in our permitting regulations rather than in the performance standards. 
We also propose to delete the last sentence of paragraph (d)(2) of 
existing 30 CFR 816.71 and 817.71, which requires a stability analysis 
for rock toe buttresses and keyway cuts, because it duplicates 
requirements included in both existing and proposed 30 CFR 780.35 and 
784.19. Consequently, proposed 30 CFR 816.71(d) and 817.71(d) would 
consist only of the first sentence of existing paragraph (d)(2); i.e., 
it would require that keyway cuts or rock-toe buttresses be constructed 
to ensure fill stability when the slope in the disposal area exceeds 
either 2.8h:1v (36 percent) or any lesser slope designated by the 
regulatory authority based on local conditions.
    We propose to redesignate paragraph (b)(2) of existing 30 CFR 
816.71 and 817.71 as paragraph (b) of those sections and to expand its 
provisions to require that the fill not only be designed to attain a 
minimum static safety factor of 1.5 as the existing rules require, but 
that the fill actually be constructed to attain that safety factor. 
This change is consistent with section 515(b)(22)(A) of the Act, which 
requires that all excess spoil be placed in a way that ensures mass 
stability and prevents mass movement.
    We propose to add a new paragraph (c) to 30 CFR 816.71 and 817.71 
to require that the permittee construct the fill in accordance with the 
design and plans submitted under 30 CFR 780.35 or 784.19 and approved 
as part of the permit. This provision would emphasize that fills must 
be built on the sites selected under section 780.35 or 784.19 in a 
manner consistent with the designs submitted under those sections and 
approved as part of the permit.
    Finally, we propose to remove 30 CFR 817.71(k), which provides that 
spoil resulting from face-up operations for underground coal mine 
development may be placed at drift entries as part of a cut-and-fill 
structure if that structure is less than 400 feet in length and is 
designed in accordance with 30 CFR 817.71. We propose to remove this 
paragraph because most spoil excavated as part of face-up operations 
and used to construct a mine bench is not excess spoil. As defined in 
30 CFR 701.5, excess spoil consists of spoil material disposed of in a 
location outside the mined-out area, but it does not include spoil 
needed to achieve restoration of the approximate original contour. In 
most cases, spoil used to construct the bench for an underground mine 
will later be used to reclaim the face-up area when the underground 
mine is finished. That is, the bench will be regraded to cover the mine 
entry and eliminate any highwall once mining is completed and the bench 
is no longer needed for mine offices, parking lots, equipment storage, 
conveyor belts, and other mining-related purposes. Consequently, this 
paragraph of the regulations does not belong in a section devoted to 
disposal of excess spoil.
    We are not proposing to move these requirements to another part of 
our rules because we do not find it necessary to impose the design 
requirements for excess spoil fills (which are permanent structures) on 
temporary spoil storage structures and support facilities, such as the 
benches to which 30 CFR 817.71(k) applies. Nor do we find it necessary 
or appropriate to limit these benches to 400 feet in length. Bench 
length and configuration are more appropriately determined by 
operational, topographic, geologic, and other site-specific 
considerations. However, the regulatory authority has the right to 
impose design and construction requirements on a case-by-case basis 
when it determines that those requirements are a necessary prerequisite 
to making the permit application approval findings specified in 30 CFR 
773.15. We seek comment on (1) whether this approach is adequate to 
accomplish the purposes and requirements of SMCRA, (2) whether we 
should codify the preceding sentence concerning the right of the 
regulatory authority to impose requirements, or (3) whether more 
specific rules are needed or appropriate.

K. What does the phrase ``to the extent possible'' mean in these rules?

    The requirements of sections 515(b)(10)(B)(i), 515(b)(24), 
516(b)(9)(B), and 516(b)(11) of SMCRA apply ``to the extent possible.'' 
Most of the rules that we are proposing today include similar language 
because they are based upon those provisions of the Act. Given the wide 
array of circumstances to which these requirements apply and the 
paucity of legislative history, we have elected not to propose a 
definition of the phrase ``to the extent possible'' as part of this 
rulemaking (although, as discussed below, we propose to clarify that in 
the context of the analysis of alternatives for excess spoil fills, 
refuse piles, and coal mine waste impoundments, the term requires 
consideration of cost, logistics, and technology). Instead, we and the 
State regulatory authorities will continue to determine the meaning of 
that phrase on a case-by-case basis in a manner consistent with section 
102(f) of SMCRA. That section of the Act provides that one of the 
purposes of SMCRA is to ``assure that the coal supply essential to the 
Nation's energy requirements and to its economic and social well-being 
is provided and strike a balance between protection of the environment 
and agricultural productivity and the Nation's need for coal as an 
essential source of energy.''
    In addition, section 515(b)(1) of SMCRA requires that surface coal 
mining operations be conducted ``so as to maximize the utilization and 
conservation of the solid fuel resource being recovered so that 
reaffecting the land in the future through surface coal mining can be 
minimized.'' We believe that the ``to the extent possible'' clause in 
paragraphs (b)(10)(B)(i) and (24) of section 515 of SMCRA serves in 
part to allow balancing the environmental protection requirements of 
those paragraphs with the maximum coal recovery performance standard in 
section 515(b)(1).
    Nothing in this discussion should be construed as meaning that the 
regulatory authority may approve use of a less environmentally 
protective technique or alternative solely because an applicant pleads 
poverty or argues that use of a less environmentally damaging technique 
or alternative would be more costly. To do so would be inconsistent 
with both the language and purpose of sections 515(b)(10)(B)(i), 
515(b)(24), 516(b)(9)(B), and 516(b)(11) of SMCRA, all of which also 
require use of the ``best technology currently available.'' 
Specifically, those provisions of the Act specify that their 
requirements must be achieved ``to the extent possible using the best 
technology currently available.'' Persons considering a potential coal 
mining operation may include the costs of adopting particular 
technologies as one factor in determining what is possible

[[Page 48912]]

although they may not reject an environmentally protective alternative 
solely on the basis of cost. Similarly, as part of its responsibility 
to balance coal production with environmental protection, the 
regulatory authority should not rely solely upon cost considerations in 
determining the meaning of ``to the extent possible.''
    Proposed 30 CFR 780.25(d)(1), 780.35(a)(3), 780.16(d)(1), and 
784.19(a)(3), require that permit applicants conduct an analysis of 
alternatives for excess spoil fills and coal mine waste disposal 
structures. Those rules provide that, to the extent possible, permit 
applicants must select the alternative that would have the least 
overall adverse environmental impact. The interpretation of 
``possible'' required under those proposed rules is similar to the way 
that the term ``practicable'' is applied under 40 CFR 230.10(a)(2) for 
purposes of section 404 of the Clean Water Act. That is, the proposed 
rules state that an alternative is possible if it is capable of being 
done after consideration of cost, logistics, and available technology. 
The rules further clarify that the least costly alternative may not be 
selected under this standard at the expense of environmental protection 
solely on the basis of cost. We recognize that the proposed 
clarification is subjective and we invite comment on whether it could 
or should be made more objective.
    On January 7, 2004, 69 FR 1036, 1047, we proposed to adopt a 
similar phrase (``to the maximum extent possible'') as part of 30 CFR 
780.18(b)(3). Several commenters suggested that we replace ``possible'' 
with ``practicable'' or ``technologically and economically feasible.'' 
Other commenters stated that the proposed language was too vague, but 
they did not provide suggested replacement language.
    In this proposed rule, we are not proposing any of the previous 
commenters' suggestions for several reasons. First, ``possible'' is the 
term used in the pertinent sections of SMCRA. Therefore, it is the term 
that should be used in the regulations implementing those sections of 
the Act. Second, the replacement language suggested by several 
commenters is no less vague or more specific than ``possible.'' 
However, we acknowledge that a more specific approach might be 
desirable and we welcome additional suggestions on how we could define 
the phrase ``to the extent possible.''
    We also received a comment suggesting that, to reduce ambiguity, we 
propose to incorporate 40 CFR 230.70 through 230.75 (part of the Clean 
Water Act Section 404(b)(1) Guidelines) as part of our rules. Our 
review indicates that 40 CFR 230.70 through 230.75 would have 
relatively little relevance to surface coal mining and reclamation 
operations, but we invite comment on whether incorporation of those 
Clean Water Act rules would be appropriate.

L. What does the phrase ``best technology currently available'' mean in 
these rules?

    Our 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 are not proposing to revise that definition. It is a definition 
that clearly embraces a wide range of activities, including those that 
may not be in routine use, if the regulatory authority determines they 
are currently available and will work. As such, it is sufficiently 
flexible to include new techniques developed over time that were not 
contemplated or in use at the time the definition was promulgated. 
Similarly, it is sufficiently flexible to include techniques that are 
not contemplated or in use today. Consequently, we cannot state with 
specificity what measures would constitute the best technology 
currently available in all situations.
    Our regulations at 30 CFR 816.45 and 817.45 address sediment 
control measures and requirements for all surface coal mining and 
reclamation operations. Paragraph (a)(1) of those sections reiterates 
the requirements of sections 515(b)(10)(B)(i) and 516(b)(9)(B) of SMCRA 
concerning prevention of additional contributions of suspended solids 
to streamflow or runoff outside the permit area. Paragraph (b) of those 
rules lists various measures that may be employed to accomplish the 
sediment control requirements of paragraph (a).
    At one time, paragraph (b)(2) of 30 CFR 816.46 and 817.46 
prescribed siltation structures (sedimentation ponds and other 
treatment facilities with point-source discharges) as the best 
technology currently available for sediment control. However, that 
paragraph was struck down upon judicial review because the court found 
that we did not articulate a sufficient basis for the rule under the 
Administrative Procedure Act. In particular, the court held that the 
preamble to the rulemaking did not adequately discuss the benefits and 
drawbacks of siltation structures and alternative sediment control 
methods and did not enable the court ``to discern the path taken by 
[the Secretary] in responding to commenters'' concerns'' that siltation 
structures in the West are not the best technology currently available. 
See In re: Permanent Surface Mining Regulation Litigation II, Round 
III, 620 F. Supp. 1519, 1566-1568 (D.D.C. July 15, 1985). Consequently, 
on November 20, 1986 (51 FR 41961), we suspended the regulations that 
the court struck down.
    On November 13, 1990 (55 FR 47430-47435), we proposed to revise 30 
CFR 816.45, 817.45, 816.46(b)(2), and 817.46(b)(2) to reestablish 
siltation structures as the best technology currently available for 
sediment control on surface coal mining and reclamation operations in 
areas receiving more than 26 inches of average annual precipitation. 
Regulatory authorities in areas with less than that amount of 
precipitation would have been able to specify alternative sediment 
control measures as the best technology currently available through the 
program amendment process. Most commenters opposed that approach and we 
never adopted the proposed rule, in part because it could have 
inhibited the development and implementation of new and innovative 
practices to control sediment. We decided that the regulatory authority 
should retain the discretion to determine what sediment control 
practices constitute the best technology currently available. Our 
decision not to adopt the 1990 proposed rule meant that the 1986 
suspension remained in place. As part of this proposed rule, we are 
proposing to remove the suspended rules to minimize the potential for 
confusion on the part of persons reading the Code of Federal 
Regulations.
    In addition to the definition of best technology currently 
available in 30 CFR 701.5 and the sediment control

[[Page 48913]]

regulations at 30 CFR 816.45 and 817.45 discussed above, the 
legislative history of section 515(b)(15)(B)(i) of SMCRA provides some 
guidance as to what measures Congress considered to be the best 
technology currently available at that time to control sedimentation 
from minesites:

    Similarly, technology exists to prevent increased sediment loads 
resulting from mining from reaching streams outside the permit area. 
Sediment or siltation control systems are generally designed on a 
mine-by-mine basis which could involve several drainage areas or on 
a small-drainage-area basis which may serve several mines. There are 
a number of different measures that when applied singly or in 
combination can remove virtually all sediment or silt resulting from 
the mining operation. A range of individual siltation control 
measures includes: erosion and sediment control structures, chemical 
soil stabilizers, mulches, mulch blankets, and special control 
practices such as adjusting the timing and sequencing of earth 
movement, pumping drainage, and establishing vegetative filter 
strips.

H.R. Rep. No. 95-218 at 114 (April 22, 1977).

    Furthermore, in Directive TSR-3, ``Sediment Control Using the Best 
Technology Currently Available,'' dated November 2, 1987, we state that 
we anticipate ``that in most cases sedimentation ponds or some other 
siltation structure will be BTCA [the best technology currently 
available]'' for sedimentation control. Finally, the preamble to the 
1990 proposed rule lists numerous literature resources concerning the 
best technology currently available for sedimentation control. See the 
footnotes at 55 FR 47431-47433, November 13, 1990. The preamble notes 
that ``[t]he effectiveness of specific practices may be restricted to 
specific areas and be dependent upon variables such as geomorphology, 
hydrology, climate and engineering design.'' Id. at 47342, col. 1.
    As previously noted, SMCRA does not limit use of the term ``best 
technology currently available'' to the sediment control requirements 
of sections 515(b)(10)(B)(i) and 516(b)(9)(B). Sections 515(b)(24) and 
516(b)(11) of SMCRA also require use of the best technology currently 
available to minimize disturbances and adverse impacts on fish, 
wildlife, and related environmental values. Sections 515(b)(24) and 
516(b)(11) are primarily implemented by 30 CFR 816.97 and 817.97, which 
reiterate and expand upon the statutory requirement to use the best 
technology currently available to protect and enhance (where 
practicable) fish, wildlife, and related environmental values. Like the 
other regulations discussed in this part of the preamble, those 
requirements and the related permitting requirements at 30 CFR 780.16 
and 784.21 apply to all aspects of surface coal mining and reclamation 
operations, including those activities that would not be subject to the 
prohibition on disturbance of the surface of lands within 100 feet of 
waters of the United States under our proposed revisions to 30 CFR 
816.57 and 817.57.
    The preamble to 30 CFR 816.97(a) and 817.97(a) states that those 
rules ``allow an operator to consult any technical authorities on 
conservation methods to assure their compliance with the statutory 
requirement for use of the best technology currently available.'' 48 FR 
30317, June 30, 1983. We anticipate that State and Federal fish and 
wildlife, land management, and conservation agencies will be a useful 
resource in assisting the permittee and the regulatory authority in 
determining the best technology currently available under 30 CFR 
780.16, 784.21, 816.97(a), and 817.97(a). For example, the Bureau of 
Land Management within the U.S. Department of the Interior has 
developed best management practices relating to stream crossings (see 
http://www.blm.gov/wo/st/en/prog/energy/oil_and_gas/best_management_practices/technical_information.html) and the Utah 
Division of Oil, Gas and Mining has published ``The Practical Guide to 
Reclamation in Utah'' (see https://fs.ogm.utah.gov/PUB/MINES/Coal_Related/RecMan/Reclamation_Manual.pdf). Chapter 2 of the latter 
document discusses stream restoration and streambank bioengineering.
    Other measures that might constitute best technology currently 
available for both sedimentation control and minimization of adverse 
impacts to fish, wildlife, and related environmental values include 
analysis of alternatives during the mine planning process; mining and 
reclamation techniques, and facility construction and operational 
considerations. In some cases, the best technology currently available 
may consist primarily of minimizing the amount of land and waters 
affected. We anticipate that the analysis of alternatives and site 
selection requirements of 30 CFR 780.25(d), 784.16(d), 780.35(a), and 
784.19(a) would be the primary means of demonstrating use of the best 
technology currently available for disposal of excess spoil and coal 
mine waste, although construction methodology and mining and 
reclamation techniques also may be significant, as discussed in Part 
VI.D. of this preamble with respect to proposed 30 CFR 780.35(a)(4), 
for example.

VII. Are we considering any alternatives to this proposed rule?

    Yes. The draft environmental impact statement for this proposed 
rule includes an analysis of five rulemaking alternatives, which are 
summarized below. The proposed rule that we are publishing today 
reflects Alternative 1, which is our preferred alternative. However, we 
invite comment on whether we should adopt all or part of the other 
alternatives or variants thereof in lieu of all or part of the proposed 
rule.

A. No Action Alternative

    Under this alternative, we would not adopt any new or revised 
rules. The current regulations applicable to excess spoil generation, 
coal mine waste disposal, fill construction, and stream buffer zones 
would remain unchanged.

B. Alternative 1: Preferred Alternative

    This is the alternative that we are proposing to adopt in this 
proposed rule. In short, under this alternative, we would revise our 
rules to--
     Require the permit applicant to demonstrate that the 
operation has been designed to minimize the volume of excess spoil to 
the extent possible.
     Require that excess spoil fills be designed and 
constructed to be no larger than needed to accommodate the anticipated 
volume of excess spoil that the proposed operation will generate.
     Require that permit applicants for operations that would 
generate excess spoil develop various alternative excess spoil disposal 
plans in which the size, numbers, configuration, and locations of the 
fills vary; submit an analysis of the environmental impacts of those 
alternatives; and select the alternative with the least overall adverse 
environmental impact or demonstrate to the satisfaction of the 
regulatory authority why implementation of that alternative is not 
possible.
     Require that excess spoil fills be constructed in 
accordance with the plans approved in the permit and in a manner that 
minimizes disturbances to and adverse impacts on fish, wildlife, and 
related environmental values to the extent possible, using the best 
technology currently available.
     Require that permit applicants for operations that would 
include coal mine waste disposal structures identify alternative 
disposal methods and alternative locations for any disposal structures; 
analyze the viability and environmental impacts of each alternative; 
and select the alternative

[[Page 48914]]

with the least overall adverse environmental impact or demonstrate to 
the satisfaction of the regulatory authority why implementation of that 
alternative is not possible.
     Revise the stream buffer zone rules to apply to all waters 
of the United States and modify the permit application requirements 
accordingly; identify those activities that are not subject to the 
prohibition on conducting mining and reclamation activities on the 
surface of lands within 100 feet of waters of the United States; 
consolidate and revise requirements for stream-channel diversions in 30 
CFR 816.43 and 817.43, and replace the existing findings regarding 
stream water quantity and quality and State and Federal water quality 
standards with language that better correlates with the underlying 
provisions of SMCRA (paragraphs (b)(10)(B)(i) and (24) of section 515 
and paragraphs (b)(9)(B) and (11) of section 516).
    At the suggestion of one of the agencies with which we consulted in 
developing our proposed rule, we also seek comment on a variant of this 
alternative, which, like the proposed rule, would revise the buffer 
zone rule to apply to all waters of the United States, not just to 
perennial and intermittent streams. Like the proposed rule, it would 
eliminate paragraph (a)(2) of existing 30 CFR 816.57 and 817.57, which 
contains a requirement for a finding that stream-channel diversions 
will comply with 30 CFR 816.43 or 817.43. This finding is unnecessary 
because the referenced rules already apply to all diversions, not just 
to stream-channel diversions. Also, as in the proposed rule, paragraph 
(b) of existing 30 CFR 816.57 and 817.57, which requires that buffer 
zones be marked, would be deleted and merged with our other signs and 
markers requirements at 30 CFR 816.11(e) and 817.11(e).
    However, the variant otherwise would retain much of the existing 
stream buffer zone rule language at 30 CFR 816.57(a) and 817.57(a), 
with several modifications. The first modification would revise 
paragraph (a)(1), which currently requires that the regulatory 
authority find that the ``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,'' by inserting 
the clause ``as indicated by issuance of a certification under section 
401 of the Clean Water Act or a permit under section 402 or 404 of the 
Clean Water Act'' after ``State or Federal water quality standards,'' 
by replacing the phrase ``adversely affect'' with ``significantly 
degrade,'' and by replacing the phrase ``of the stream'' with ``of the 
waters outside the permit area.'' In addition, this variant would add a 
new finding that would require minimization of disturbances and adverse 
impacts on fish, wildlife, and other related environmental values of 
the waters to the extent possible using the best technology currently 
available.
    Under the variant, the revised rule at 30 CFR 816.57 would read as 
follows:

    (a) Except as provided in paragraph (b) of this section, no land 
within 100 feet of waters of the United States may be disturbed by 
surface mining activities.
    (b) The regulatory authority may specifically authorize surface 
mining activities closer to, or through, waters of the United States 
only upon finding that those activities--
    (1) Would not cause or contribute to the violation of applicable 
State or Federal water quality standards, as indicated by issuance 
of a certification under section 401 of the Clean Water Act or a 
permit under section 402 or 404 of the Clean Water Act;
    (2) Would not significantly degrade the water quantity or 
quality or other environmental resources of the waters outside the 
permit area; and
    (3) Would minimize disturbances and adverse impacts on fish, 
wildlife, and other related environmental values of the waters to 
the extent possible using the best technology currently available.

    Apart from its expansion to include all waters of the United 
States, this variant would largely preserve the status quo in terms of 
application of the existing stream buffer zone rules. The revised rule 
language would be more consistent than the existing rule language with 
the historical application of the 1983 stream buffer zone rules and 
related appellate court decisions, which we discussed earlier in Part 
III.D. of this preamble. The change from ``adversely affect'' to 
``significantly degrade'' would replace language of uncertain 
provenance with language similar to that found in the regulations at 40 
CFR 230.10(c) implementing section 404 of the Clean Water Act, which 
pertains to placement of dredged or fill materials in waters of the 
United States. The proposed new finding in paragraph (a)(3) would 
reiterate the requirements of section 515(b)(24) of SMCRA.
    This variant would include numerous references to Clean Water Act-
related procedures and terminology. It would not as closely reflect the 
language and requirements of the underlying provisions of SMCRA as 
would the proposed rule. We seek comment on the benefits and drawbacks 
of this variant as contrasted with the buffer zone rule changes that we 
are proposing. In particular, we invite comment on the extent to which 
our rules can or should incorporate broad references to Clean Water Act 
requirements and use Clean Water Act terminology in place of SMCRA 
terminology. We also invite comment on whether and how our preferred 
alternative and this variant differ in terms of impact on the ability 
of proposed surface coal mining and reclamation operations to qualify 
for a nationwide permit under section 404 of the Clean Water Act.

C. Alternative 2: January 7, 2004, Proposed Rule

    Under this alternative, we would revise our regulations in a manner 
similar to that set forth in our January 7, 2004, proposed rule (69 FR 
1036). In essence, the changes to our excess spoil regulations would be 
generally analogous to the changes described in Alternative 1, but we 
would not make similar changes to our coal mine waste disposal rules. 
With respect to the stream buffer zone rules, we would retain the 
prohibition on disturbance of land within 100 feet of a perennial or 
intermittent stream, but alter the findings that the regulatory 
authority must make before granting a variance to this requirement. The 
revised rule would replace the Clean Water Act-oriented findings in the 
existing rule with a requirement that the regulatory authority find in 
writing that the activities will, to the extent possible, use the best 
technology currently available to prevent additional contributions of 
suspended solids to the section of stream within 100 feet downstream of 
the mining activities, and outside the area affected by mining 
activities; and minimize disturbances and adverse impacts on fish, 
wildlife, and other related environmental values of the stream.
    Under this alternative, the revised rule would apply to all 
activities. Persons seeking to conduct surface mining activities (or, 
for underground mines, surface activities) on the surface of lands 
within the buffer of protected waters would have to seek and obtain a 
variance from the regulatory authority in all cases. There would be no 
categorical exceptions for certain activities as there are under 
Alternative 1.

D. Alternative 3: Change Only the Excess Spoil Regulations

    Under this alternative, we would revise our excess spoil 
regulations as described in Alternative 1. We would not revise our coal 
mine waste disposal

[[Page 48915]]

rules or the stream buffer zone regulations.

E. Alternative 4: Change Only the Stream Buffer Zone Regulations

    Under this alternative, we would revise our stream buffer zone 
regulations as described in Alternative 1. We would not revise our 
excess spoil or coal mine waste disposal regulations.

VIII. How do I submit comments on the proposed rule?

General Guidance

    We will review and consider all comments that we receive, but the 
most helpful comments and the ones most likely to influence the final 
rule are those that include citations to and analyses of SMCRA, its 
legislative history, its implementing regulations, case law, other 
pertinent Federal laws or regulations, technical literature, or other 
relevant publications or that involve personal experience. Your 
comments should reference a specific portion of the proposed rule or 
preamble, be confined to issues pertinent to the proposed rule, explain 
the reason for any recommended change or objection, and include 
supporting data when appropriate.
    Please include the rule identification number ``RIN 1029-AC04'' at 
the beginning of all written comments. We will log all comments that 
are received prior to the close of the comment period into the docket 
for this rulemaking; however, we cannot ensure that comments received 
after the close of the comment period (see DATES) or at locations other 
than those listed above (see ADDRESSES) will be included in the docket 
for this rulemaking or considered in the development of a final rule.

Public Availability of Comments

    Before including your address, phone number, or other personal 
identifying information in your comment, you should be aware that your 
entire comment--including your personal identifying information--may be 
made publicly available at any time. While you can ask us in your 
comment to withhold your personal identifying information from public 
review, we cannot guarantee that we will be able to do so.

Public Hearings

    We will hold a public hearing on the proposed rule only if we 
receive a request to do so from more than one person. We will announce 
the time, date, and address for any hearing in the Federal Register at 
least 7 days before the hearing.
    If you wish to testify at a hearing please contact the person 
listed in FOR FURTHER INFORMATION CONTACT, either orally or in writing, 
by 4:30 p.m., Eastern time, on September 24, 2007. If no one expresses 
an interest in testifying at a hearing by that date, we will not hold a 
hearing. If only one person expresses an interest, we will hold a 
public meeting rather than a hearing. We will place a summary of the 
public meeting in the docket for this rulemaking.
    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 been scheduled to speak but wish to do so, you will be 
allowed to testify after the scheduled speakers. 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: We may hold a public meeting in place of a public 
hearing if there is only limited interest in a hearing. If you wish to 
meet with us to discuss the proposed rule, you may request a meeting by 
contacting the person listed under FOR FURTHER INFORMATION CONTACT. All 
meetings will be open to the public and, if appropriate, we will post 
notice of the meetings. We will include a written summary of the 
meeting in the docket for this rulemaking.

IX. Procedural Matters and Required Determinations

A. Executive Order 12866--Regulatory Planning and Review

    This proposed rule is considered a ``significant regulatory 
action'' under Executive Order 12866 and is subject to review by the 
Office of Management and Budget (OMB) because it may raise novel legal 
or policy issues, as discussed in the preamble.
    With respect to other determinations required under Executive Order 
12866--
    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. The revisions contained in the rule are intended to (1) 
minimize the adverse environmental impacts stemming from the 
construction of excess spoil fills and coal mine waste impoundments and 
fills, and (2) clarify the circumstances in which the prohibition in 
the buffer zone rule applies. 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 primacy states. We 
preliminarily estimate that the total annual cost increase for 
operators would be approximately $240,500, while the total annual cost 
increase for primacy states would be approximately $24,200. These 
increases are a result of the requirement to document the analyses and 
findings required by the revised rules. The cost increases will 
principally 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 regulatory authorities in the Appalachian coalfields have 
implemented policies to minimize the volume of excess spoil disposed of 
outside the mined-out area, we expect no significant additional costs 
of implementing these regulatory changes other than those associated 
with the alternatives analysis required for the disposal of excess 
spoil and coal mine waste. Because of the preliminary nature of this 
assessment, the agency will conduct a more comprehensive analysis to 
assess the effect of this rule for the final rule stage. We request 
comments, specifically studies or data, that would inform the agency on 
the effects of this rule.
    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.

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

    This proposed rule is not considered a significant energy action 
under Executive Order 13211. The revisions contained in this proposed 
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 proposed 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

[[Page 48916]]

previously stated, the revisions would not be 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 proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. For the reasons 
stated above, the proposed rule would not--
    a. Have an annual effect on the economy of $100 million or more.
    b. Cause a major increase in costs or prices for consumers, 
individual industries, Federal, state, or local government agencies, or 
geographic regions.
    c. 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 proposed 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

    Because of the nature of the rules that would be revised, the 
proposed rule would not have significant takings implications.

G. Executive Order 13132--Federalism

    For the reasons discussed above, the proposed rule would not have 
significant federalism implications. Consequently, there is no need to 
prepare a federalism assessment.

H. Executive Order 12988--Civil Justice Reform

    The Office of the Solicitor for the Department of the Interior has 
determined that this proposed rule would not unduly burden the judicial 
system and that it meets the requirements of sections 3(a) and 3(b)(2) 
of the Executive Order.

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

    We have evaluated the potential effects of this proposed rule on 
federally recognized Indian tribes and have determined that its 
provisions would not have substantial direct effects on the 
relationship between the Federal Government and Indian tribes or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes.

J. Paperwork Reduction Act

    In accordance with 44 U.S.C. 3507(d), we have submitted the 
information collection and recordkeeping requirements of 30 CFR parts 
780, 784, 816, and 817 to OMB for review and approval.
30 CFR Part 780
    Title: Surface Mining Permit Applications--Minimum Requirements for 
Reclamation and Operation Plan.
    OMB Control Number: 1029-0036.
    Summary: Sections 507 and 508 of the Act contain permit application 
requirements for surface coal mining activities, including a 
requirement that the application include an operation and reclamation 
plan. The regulatory authority uses this information to determine 
whether the proposed surface coal mining operation will achieve the 
environmental protection requirements of the Act and regulatory 
program. Without this information, OSM and state regulatory authorities 
could not approve permit applications for surface coal mines and 
related facilities.
    Bureau Form Number: None.
    Frequency of Collection: Once.
    Description of Respondents: Applicants for surface coal mining 
permits and state regulatory authorities.
    Total Annual Respondents: 232 applicants and 24 state regulatory 
authorities.
    Total Annual Burden Hours: 168,871.
    Non-Labor Cost Burden: $2,424,900.
30 CFR Part 784
    Title: Underground Mining Permit Applications--Minimum Requirements 
for Reclamation and Operation Plan.
    OMB Control Number: 1029-0039.
    Summary: Among other things, section 516(d) of SMCRA, 30 U.S.C. 
1266(d), in effect requires applicants for permits for underground coal 
mines to prepare and submit an operation and reclamation plan for coal 
mining activities as part of the application. The regulatory authority 
uses this information to determine whether the plan will achieve the 
reclamation and environmental protection requirements of the Act and 
regulatory program. Without this information, OSM and state regulatory 
authorities could not approve permit applications for underground coal 
mines and related facilities.
    Bureau Form Number: None.
    Frequency of Collection: Once.
    Description of Respondents: Applicants for underground coal mine 
permits and state regulatory authorities.
    Total Annual Respondents: 62 applicants and 24 state regulatory 
authorities.
    Total Annual Burden Hours: 21,761.
    Non-Labor Cost Burden: $612,106.
30 CFR Parts 816 and 817
    Title: Permanent Program Performance Standards--Surface and 
Underground Mining Activities.
    OMB Control Number: 1029-0047.
    Summary: Sections 515 and 516 of the Surface Mining Control and 
Reclamation Act of 1977 provides that permittees conducting coal mining 
and reclamation operations shall meet all applicable performance 
standards of the regulatory program approved under the Act. The 
information collected is used by the regulatory authority in monitoring 
and inspecting surface 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: Coal mine operators, permittees, permit 
applicants, and state regulatory authorities.
    Total Annual Respondents: 4,764 permittees and 24 state regulatory 
authorities.
    Total Annual Burden Hours: 1,039,351.
    Non-Labor Cost Burden: $371,046.
    Comments are invited on:
    (a) Whether the proposed collection of information is necessary for 
SMCRA regulatory authorities to implement their responsibilities, 
including whether the information will have practical utility.
    (b) The accuracy of our 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.
    (d) Ways to minimize the burden of collection on the respondents.
    Under the Paperwork Reduction Act, we 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

[[Page 48917]]

requesting the information has a currently valid OMB control 
(clearance) number. These numbers appear in sections 780.10, 784.10, 
816.10, and 817.10 of 30 CFR parts 780, 784, 816, and 817, 
respectively. To obtain a copy of our information collection clearance 
requests, contact John A. Trelease at (202) 208-2783 or by e-mail at 
[email protected].
    By law, OMB must respond to us within 60 days of publication of 
this proposed rule, but it 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 September 24, 
2007 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, 
send a copy of your comments to John A. Trelease, Office of Surface 
Mining Reclamation and Enforcement, 1951 Constitution Ave., NW., Room 
202 SIB, Washington, DC 20240, or electronically to 
[email protected]. You may still send comments on the proposed 
rulemaking to us until 4:30 p.m., Eastern time, on October 23, 2007.

K. National Environmental Policy Act

    We have prepared a draft environmental impact statement (DEIS) for 
the proposed rule in accordance with the National Environmental Policy 
Act. You may review the DEIS for this proposed rule online at http://www.regulations.gov. At that internet address, the document is listed 
under ``Office of Surface Mining Reclamation and Enforcement.'' A 
notice announcing the availabiltiy of the DEIS was published in this 
edition of the Federal Register. That notice also lists OSM offices and 
public libraries in Kentucky, Tennessee, Virginia, and West Virginia 
where you may review the DEIS. We will complete a final environmental 
impact statement and make a finding on the significance of any 
potential impacts before we publish a 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.  780.14 Operation plan: Maps and plans.'')?
    (5) Is the description of the proposed rule in the SUPPLEMENTARY 
INFORMATION part 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 Information and 
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 recordkeeping requirements, Surface mining.

30 CFR Part 784

    Reporting and recordkeeping requirements, Underground mining.

30 CFR Part 816

    Environmental protection, Reporting and recordkeeping requirements, 
Surface mining.

30 CFR Part 817

    Environmental protection, Reporting and recordkeeping requirements, 
Underground mining.

    Dated: August 3, 2007.
C. Stephen Allred,
Assistant Secretary, Land and Minerals Management.

    For the reasons set forth in the preamble, the Department proposes 
to amend 30 CFR parts 780, 784, 816, and 817 as set forth below.

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. The part heading is revised to read as set forth above.
    3. Section 780.10 is revised to read as follows:


Sec.  780.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements 
of this part and assigned clearance number 1029-0036. Sections 507 and 
508 of SMCRA contain permit application requirements for surface coal 
mining activities, including a requirement that the application include 
an operation and reclamation plan. The regulatory authority uses this 
information to determine whether the proposed surface coal mining 
operation will achieve the environmental protection requirements of the 
Act and regulatory program. Without this information OSM and state 
regulatory authorities could not approve permit applications for 
surface coal mines and related facilities. Persons intending to conduct 
such operations must respond to obtain a benefit. A Federal agency may 
not conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.
    4. Amend Sec.  780.14 by revising paragraphs (b)(11) and (c) to 
read as follows:


Sec.  780.14  Operation plan: Maps and plans.

* * * * *
    (b) * * *
    (11) Locations of each siltation structure, permanent water 
impoundment, refuse pile, and coal mine waste impoundment for which 
plans are required by Sec.  780.25 of this part, and the location of 
each fill for the disposal of excess spoil for which plans are required 
under Sec.  780.35 of this part.
    (c) Except as provided in Sec. Sec.  780.25(a)(2), 780.25(a)(3), 
780.35, 816.73(c), 816.74(c), and 816.81(c) of this chapter, cross-
sections, maps, and plans required under paragraphs (b)(4), (5), (6), 
(10), and (11) of this section must be prepared by, or under the 
direction of, and certified by a qualified registered professional 
engineer, a professional geologist, or, in any state that authorizes 
land surveyors to prepare and certify cross-sections, maps, and plans, 
a qualified, registered, professional land surveyor, with assistance 
from experts in related fields such as landscape architecture.
    5. Amend Sec.  780.25 as follows:
    A. Revise the section heading, paragraph (a) introductory text, 
paragraph (a)(1) introductory text, and paragraph (a)(2);
    B. In paragraph (c)(2), remove the words ``the size or other 
criteria of the

[[Page 48918]]

Mine Safety and Health Administration'' and add in their place the 
words ``the criteria in Sec.  77.216(a) of this title'', and remove the 
citation ``Sec. Sec.  77.216-1 and 77.216-2'' and add in its place 
``Sec.  77.216-2'';
    C. Revise paragraph (d);
    D. Remove paragraph (e), redesignate paragraph (f) as paragraph 
(e), and revise paragraph (e).
    The revisions to paragraphs (a), (d), and (e) read as follows:


Sec.  780.25  Reclamation plan: Siltation structures, impoundments, and 
refuse piles.

    (a) General. Each application must include a general plan and a 
detailed design plan for each proposed siltation structure, 
impoundment, and refuse pile within the proposed permit area.
    (1) Each general plan must--
* * * * *
    (2)(i) Impoundments meeting the criteria for Significant Hazard 
Class or High Hazard Class (formerly Class B or C) dams in ``Earth Dams 
and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, July 2005), 
published by the U.S. Department of Agriculture, Natural Resources 
Conservation Service, must comply with the requirements of this section 
for structures that meet the criteria in Sec.  77.216(a) of this title. 
Technical Release No.60 (TR-60) is hereby incorporated by reference. 
The Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
review and download the incorporated document from the Natural 
Resources Conservation Service's Web site at http://www.info.usda.gov/scripts/lpsiis.dll/TR/TR_210_60.htm. You may inspect a copy of this 
document as part of the docket that we, the Office of Surface Mining 
Reclamation and Enforcement, maintain at 1951 Constitution Avenue, NW., 
Washington, DC 20240. You also may inspect a copy of this document at 
the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030 or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (ii) Each detailed design plan for a structure that meets the 
criteria in Sec.  77.216(a) of this title must--
    (A) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (B) Include any geotechnical investigation, design, and 
construction requirements for the structure;
    (C) Describe the operation and maintenance requirements for each 
structure; and
    (D) Describe the timetable and plans to remove each structure, if 
appropriate.
* * * * *
    (d) Coal mine waste impoundments and refuse piles--(1) Analysis of 
alternatives and environmental impacts. (i) If you, the permit 
applicant, propose to generate or dispose of coal mine waste as part of 
your operation, you must--
    (A) Identify a reasonable range of alternative disposal methods and 
alternative locations for any proposed refuse piles or coal mine waste 
impoundments.
    (B) Include an analysis of the viability and environmental impacts 
of each alternative identified. You must consider impacts on both 
terrestrial and aquatic ecosystems.
    (C) To the extent possible, select the alternative with the least 
overall adverse environmental impact, including adverse impacts on 
water quality and aquatic ecosystems. An alternative is possible if it 
is capable of being done after consideration of cost, logistics, and 
available technology. This provision does not authorize selection of 
the least costly alternative at the expense of environmental protection 
solely on the basis of cost. If you propose to select an alternative 
other than the one that provides the most environmental protection, you 
must demonstrate, to the satisfaction of the regulatory authority, why 
implementation of the more environmentally protective alternative is 
not possible.
    (ii) For every alternative under paragraph (d)(1)(i)(A) of this 
section that would involve placement of coal mine waste in waters of 
the United States, the analysis required under paragraph (d)(1)(i)(B) 
of this section must include an evaluation of the short-term and long-
term impacts on the aquatic ecosystem, both individually and on a 
cumulative basis. In evaluating alternatives subject to this paragraph, 
you must consider impacts on the physical, chemical, and biological 
characteristics of downstream flows, including seasonal variations in 
temperature and volume, changes in stream turbidity or sedimentation, 
the degree to which the coal mine waste may introduce or increase 
contaminants, the effects on aquatic organisms, and the extent to which 
wildlife is dependent upon those organisms. If you have prepared an 
analysis of alternatives for the proposed impoundment or refuse pile 
under 40 CFR 230.10, you may initially include a copy of that analysis 
in lieu of the analysis of alternatives required under paragraph 
(d)(1)(i)(B) of this section. The regulatory authority will determine 
the extent to which that analysis satisfies the requirements of 
paragraph (d)(1) of this section.
    (2) Avoidance and minimization of adverse environmental impacts. 
Describe the steps that you will take to avoid the adverse 
environmental impacts that may result from the construction of refuse 
piles or coal mine waste impoundments or, if avoidance is not possible, 
the steps that you will take to minimize those impacts.
    (3) Design requirements for refuse piles. Refuse piles must be 
designed to comply with the requirements of Sec. Sec.  816.81 and 
816.83 of this chapter.
    (4) Design requirements for impoundments and impounding structures. 
(i) Impounding structures constructed of or intended to impound coal 
mine waste must be designed to comply with the requirements of 
Sec. Sec.  816.81 and 816.84 of this chapter.
    (ii) The plan for each structure that meets the criteria of Sec.  
77.216(a) of this title must comply with the requirements of Sec.  
77.216-2 of this title.
    (iii) Each plan for a coal mine waste impoundment must contain the 
results of a geotechnical investigation to determine the structural 
competence of the foundation that will support the proposed impounding 
structure and the impounded material. An engineer or engineering 
geologist must plan and supervise the geotechnical investigation. In 
planning the investigation, the engineer or geologist must--
    (A) Determine the number, location, and depth of borings and test 
pits using current prudent engineering practice for the size of the 
impoundment and the impounding structure, the quantity of material to 
be impounded, and subsurface conditions.
    (B) Consider the character of the overburden and bedrock, the 
proposed abutment sites for the impounding structure, and any adverse 
geotechnical conditions that may affect the particular impoundment.
    (C) Identify all springs, seepage, and groundwater flow observed or 
anticipated during wet periods in the area of the proposed impoundment.
    (D) Consider the possibility of mudflows, rock-debris falls, or 
other landslides into the impoundment or impounded material.
    (e) If the structure meets the Significant Hazard Class or High 
Hazard Class criteria for dams in TR-60 or

[[Page 48919]]

meets the criteria of Sec.  77.216(a) of this title, each plan under 
paragraphs (b), (c), and (d) of this section must include a stability 
analysis of the structure. The stability analysis must include, but not 
be limited to, strength parameters, pore pressures, and long-term 
seepage conditions. The plan also must contain a description of each 
engineering design assumption and calculation with a discussion of each 
alternative considered in selecting the specific design parameters and 
construction methods.
    6. Add Sec.  780.28 to read as follows:


Sec.  780.28  Activities in or adjacent to waters of the United States.

    (a) Applicability. This section applies to applications to conduct 
activities in waters of the United States or on the surface of lands 
within 100 feet of waters of the United States to the extent that those 
waters are regulated under the Clean Water Act, 33 U.S.C. 1311, 1362.
    (b) Mapping requirements. Maps prepared under Sec. Sec.  779.25, 
780.14, or 780.21(b)(2) of this chapter must identify and delineate 
all--
    (1) Waters of the United States within the proposed permit area.
    (2) Waters of the United States within the adjacent area, as that 
term is defined in Sec.  701.5 of this chapter.
    (3) Lands within the proposed permit area that lie within 100 feet, 
measured horizontally, of any waters of the United States.
    (c) Application requirements for variance from prohibition on 
disturbance. If you propose to conduct an activity that is subject to 
the prohibition of Sec.  816.57(a) of this chapter on the surface of 
any lands delineated under paragraph (b)(3) of this section, your 
application must describe any measures that you propose to implement in 
lieu of maintaining a 100-foot undisturbed buffer between surface 
mining activities and waters of the United States, including the extent 
of any lesser buffer that you propose to maintain between surface 
mining activities and waters of the United States, and explain how the 
proposed measures constitute the best technology currently available 
to--
    (1) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible; 
and
    (2) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible.
    (d) Approval requirements for variance from prohibition on 
disturbance. Before approving any measures proposed under paragraph (c) 
of this section, the regulatory authority must determine that those 
measures--
    (1) Would be no less effective in meeting the requirements of the 
regulatory program than the prohibition in Sec.  816.57(a) of this 
chapter on disturbance of the surface of lands within 100 feet of 
waters of the United States; and
    (2) Constitute the best technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible; 
and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible.
    (e) Requirements for activities not subject to prohibition on 
disturbance. For activities not subject to the prohibition in Sec.  
816.57(a) of this chapter, if you propose to conduct any surface mining 
activities in waters of the United States or that would disturb the 
surface of lands within 100 feet of waters of the United States, your 
application must demonstrate, and the regulatory authority must find, 
that, to the extent possible, you will utilize the best technology 
currently available in accordance with Sec. Sec.  816.41(d) and 
816.97(a) of this chapter, as required by Sec. Sec.  780.16(b) and 
780.21(h) of this part.
    (f) Relationship to the Clean Water Act. (1) In all cases, your 
application must identify the authorizations and certifications that 
you anticipate will be needed under sections 401, 402, and 404 of the 
Clean Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps 
that you have taken or will take to procure those authorizations and 
certifications.
    (2) The regulatory authority will process your application and may 
issue the permit before you obtain all necessary authorizations and 
certifications under the Clean Water Act, 33 U.S.C. 1251 et seq., 
provided your application meets all applicable requirements of 
subchapter G of this chapter. However, you may not initiate any 
activities for which Clean Water Act authorization or certification is 
required until you obtain all necessary authorizations and 
certifications.
    7. Revise Sec.  780.35 to read as follows:


Sec.  780.35  Disposal of excess spoil.

    (a) If you, the permit applicant, propose to generate excess spoil 
as part of your operation, your application must include the following 
items--
    (1) Demonstration of minimization of excess spoil. A demonstration, 
prepared to the satisfaction of the regulatory authority, that the 
operation has been designed to minimize, to the extent possible, the 
volume of excess spoil that the operation will generate, thus ensuring 
that spoil is returned to the mined-out area to the extent possible, 
taking into consideration applicable regulations concerning restoration 
of the approximate original contour, safety, stability, and 
environmental protection and the needs of the proposed postmining land 
use.
    (2) Capacity demonstration. A demonstration that the designed 
maximum cumulative volume of all proposed excess spoil fills within the 
permit area is no larger than the capacity needed to accommodate the 
anticipated cumulative volume of excess spoil that the operation will 
generate, as approved by the regulatory authority under paragraph 
(a)(1) of this section.
    (3) Analysis of alternatives and environmental impacts. (i) A 
description of all alternatives considered for disposal of the amount 
of excess spoil determined under paragraphs (a)(1) and (2) of this 
section and an analysis of the environmental impacts of those 
alternatives. You must consider impacts on both terrestrial and aquatic 
ecosystems. The alternatives must vary with respect to the number, 
size, location, and configuration of proposed fills to ensure 
consideration of a reasonable range of alternatives and potential 
environmental impacts.
    (ii) For every alternative under paragraph (a)(3)(i) of this 
section that would involve placement of excess spoil in waters of the 
United States, the analysis required under that paragraph must include 
an evaluation of the short-term and long-term impacts on the aquatic 
ecosystem, both individually and on a cumulative basis. In evaluating 
alternatives subject to this paragraph, you must consider impacts on 
the physical, chemical, and biological characteristics of downstream 
flows, including seasonal variations in temperature and volume, changes 
in stream turbidity or sedimentation, the degree to which the excess 
spoil may introduce or increase contaminants, the effects on aquatic 
organisms, and the extent to which wildlife is dependent upon those 
organisms. If you have prepared an analysis of alternatives under 40 
CFR 230.10, you may initially submit a copy of that analysis with your 
application in lieu of the analysis of alternatives required by 
paragraph (a)(3)(i) of this section. The regulatory authority will 
determine the extent to which that analysis satisfies the analytical 
requirements of paragraph (a)(3)(i) of this section.

[[Page 48920]]

    (iii) To the extent possible, you must select the alternative with 
the least overall adverse environmental impact, including adverse 
impacts on water quality and aquatic ecosystems. An alternative is 
possible if it is capable of being done after consideration of cost, 
logistics, and available technology. This provision does not authorize 
selection of the least costly alternative at the expense of 
environmental protection solely on the basis of cost. If another 
alternative considered under paragraph (a)(3)(i) of this section would 
be more environmentally protective than the alternative you selected, 
you must demonstrate, to the satisfaction of the regulatory authority, 
that implementation of the more environmentally protective alternative 
is not possible.
    (4) Avoidance and minimization of adverse environmental impacts. A 
description of the steps that you will take to avoid the adverse 
environmental impacts that may result from the construction of fills 
or, if avoidance is not possible, the steps that you will take to 
minimize those impacts.
    (5) Location. Maps and cross-section drawings showing the location 
of all proposed disposal sites and structures. You must locate fills on 
the most moderately sloping and naturally stable areas available, 
unless the regulatory authority approves a different location based 
upon the alternatives analysis under paragraph (a)(3) of this section 
or other factors, taking into account other requirements of the Act and 
this chapter. When possible, you must place fills upon or above a 
natural terrace, bench, or berm if that location would provide 
additional stability and prevent mass movement.
    (6) Design plans. Detailed design plans for each structure, 
prepared in accordance with the requirements of this section and 
Sec. Sec.  816.71 through 816.74 of this chapter. You must design the 
fill and appurtenant structures using current prudent engineering 
practices and any additional design criteria established by the 
regulatory authority.
    (7) Geotechnical investigation. The results of a geotechnical 
investigation of each proposed disposal site, with the exception of 
those sites at which spoil will be placed only on a pre-existing bench 
under Sec.  816.74 of this chapter. You must conduct sufficient 
foundation investigations, as well as any necessary laboratory testing 
of foundation material, to determine the design requirements for 
foundation stability for each site. The analyses of foundation 
conditions must take into consideration the effect of underground mine 
workings, if any, upon the stability of the fill and appurtenant 
structures. The information submitted must include--
    (i) The character of the bedrock and any adverse geologic 
conditions in the proposed disposal area.
    (ii) A survey identifying all springs, seepage, and groundwater 
flow observed or anticipated during wet periods in the area of the 
proposed disposal site.
    (iii) A survey of the potential effects of subsidence of subsurface 
strata as a result of past and future mining operations.
    (iv) A technical description of the rock materials to be utilized 
in the construction of disposal structures containing rock chimney 
cores or underlain by a rock drainage blanket.
    (v) A stability analysis including, but not limited to, strength 
parameters, pore pressures, and long-term seepage conditions. This 
analysis must be accompanied by a description of all engineering design 
assumptions and calculations and the alternatives considered in 
selecting the design specifications and methods.
    (8) Operation and reclamation plans. Plans for the construction, 
operation, maintenance, and reclamation of all excess spoil disposal 
structures in accordance with the requirements of Sec. Sec.  816.71 
through 816.74 of this chapter.
    (9) Additional requirements for keyway cuts or rock-toe buttresses. 
If keyway cuts or rock-toe buttresses are required under Sec.  
816.71(d) of this chapter, the number, location, and depth of borings 
or test pits, which must be determined according to the size of the 
spoil disposal structure and subsurface conditions. You also must 
provide the engineering specifications used to design the keyway cuts 
or rock-toe buttresses. Those specifications must be based upon the 
stability analysis required under paragraph (a)(7)(v) of this section.
    (b) Design certification. A qualified registered professional 
engineer experienced in the design of earth and rock fills must certify 
that the design of all fills and appurtenant structures meets the 
requirements of this section.

PART 784--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM 
REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN

    8. The authority citation for part 784 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.

    9. Section 784.10 is revised to read as follows:


Sec.  784.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements 
of this part and assigned clearance number 1029-0039. Collection of 
this information is required under section 516(d) of SMCRA, which in 
effect requires applicants for permits for underground coal mines to 
prepare and submit an operation and reclamation plan for coal mining 
activities as part of the application. The regulatory authority uses 
this information to determine whether the plan will achieve the 
reclamation and environmental protection requirements of the Act and 
regulatory program. Without this information, OSM and state regulatory 
authorities could not approve permit applications for underground coal 
mines and related facilities. Persons intending to conduct such 
operations must respond to obtain a benefit. A Federal agency may not 
conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.
    10. Amend Sec.  784.16 as follows:
    A. Revise the section heading, paragraph (a) introductory text, 
paragraph (a)(1) introductory text, and paragraph (a)(2);
    B. In paragraph (c)(2), remove the words ``the size or other 
criteria of the Mine Safety and Health Administration'' and add in 
their place the words ``the criteria in Sec.  77.216(a) of this 
title'', and remove the citation ``Sec. Sec.  77.216-1 and 77.216-2'' 
and add in its place ``Sec.  77.216-2'';
    C. Revise paragraph (d);
    D. Remove paragraph (e), redesignate paragraph (f) as paragraph 
(e), and revise paragraph (e).
    The revisions read as follows:


Sec.  784.16  Reclamation plan: Siltation structures, impoundments, and 
refuse piles.

    (a) General. Each application must include a general plan and a 
detailed design plan for each proposed siltation structure, 
impoundment, and refuse pile within the proposed permit area.
    (1) Each general plan must--
* * * * *
    (2)(i) Impoundments meeting the criteria for Significant Hazard 
Class or High Hazard Class (formerly Class B or C) dams in ``Earth Dams 
and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, July 2005), 
published by the U.S. Department of Agriculture, Natural Resources 
Conservation Service, must comply with the requirements of this section 
for structures that meet the

[[Page 48921]]

criteria in Sec.  77.216(a) of this title. Technical Release No. 60 
(TR-60) is hereby incorporated by reference. The Director of the 
Federal Register approves this incorporation by reference in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. You may review and download the 
incorporated document from the Natural Resources Conservation Service's 
Web site at http://www.info.usda.gov/scripts/lpsiis.dll/TR/TR_210_60.htm. You may inspect a copy of this document as part of the docket 
that we, the Office of Surface Mining Reclamation and Enforcement, 
maintain at 1951 Constitution Avenue, NW., Washington, DC 20240. You 
also may inspect a copy of this document at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030 or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (ii) Each detailed design plan for a structure that meets the 
criteria in Sec.  77.216(a) of this title must--
    (A) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (B) Include any geotechnical investigation, design, and 
construction requirements for the structure;
    (C) Describe the operation and maintenance requirements for each 
structure; and
    (D) Describe the timetable and plans to remove each structure, if 
appropriate.
* * * * *
    (d) Coal mine waste impoundments and refuse piles--(1) Analysis of 
alternatives and environmental impacts. (i) If you, the permit 
applicant, propose to generate or dispose of coal mine waste as part of 
your operation, you must--
    (A) Identify a reasonable range of alternative disposal methods and 
alternative locations for any proposed refuse piles or coal mine waste 
impoundments.
    (B) Include an analysis of the viability and environmental impacts 
of each alternative identified. You must consider impacts on both 
terrestrial and aquatic ecosystems.
    (C) To the extent possible, select the alternative with the least 
overall adverse environmental impact, including adverse impacts on 
water quality and aquatic ecosystems. An alternative is possible if it 
is capable of being done after consideration of cost, logistics, and 
available technology. This provision does not authorize selection of 
the least costly alternative at the expense of environmental protection 
solely on the basis of cost. If you propose to select an alternative 
other than the one that provides the most environmental protection, you 
must demonstrate, to the satisfaction of the regulatory authority, why 
implementation of the more environmentally protective alternative is 
not possible.
    (ii) For every alternative under paragraph (d)(1)(i)(A) of this 
section that would involve placement of coal mine waste in waters of 
the United States, the analysis required under paragraph (d)(1)(i)(B) 
of this section must include an evaluation of the short-term and long-
term impacts on the aquatic ecosystem, both individually and on a 
cumulative basis. In evaluating alternatives subject to this paragraph, 
you must consider impacts on the physical, chemical, and biological 
characteristics of downstream flows, including seasonal variations in 
temperature and volume, changes in stream turbidity or sedimentation, 
the degree to which the coal mine waste may introduce or increase 
contaminants, the effects on aquatic organisms, and the extent to which 
wildlife is dependent upon those organisms. If you have prepared an 
analysis of alternatives for the proposed impoundment or refuse pile 
under 40 CFR 230.10, you may initially include a copy of that analysis 
in lieu of the analysis of alternatives required under paragraph 
(d)(1)(i)(B) of this section. The regulatory authority will determine 
the extent to which that analysis satisfies the requirements of 
paragraph (d)(1) of this section.
    (2) Avoidance and minimization of adverse environmental impacts. 
Describe the steps that you will take to avoid the adverse 
environmental impacts that may result from the construction of refuse 
piles or coal mine waste impoundments or, if avoidance is not possible, 
the steps that you will take to minimize those impacts.
    (3) Design requirements for refuse piles. Refuse piles must be 
designed to comply with the requirements of Sec. Sec.  817.81 and 
817.83 of this chapter.
    (4) Design requirements for impoundments and impounding structures. 
(i) Impounding structures constructed of or intended to impound coal 
mine waste must be designed to comply with the requirements of 
Sec. Sec.  817.81 and 817.84 of this chapter.
    (ii) The plan for each structure that meets the criteria of Sec.  
77.216(a) of this title must comply with the requirements of Sec.  
77.216-2 of this title.
    (iii) Each plan for a coal mine waste impoundment must contain the 
results of a geotechnical investigation to determine the structural 
competence of the foundation that will support the proposed impounding 
structure and the impounded material. An engineer or engineering 
geologist must plan and supervise the geotechnical investigation. In 
planning the investigation, the engineer or geologist must--
    (A) Determine the number, location, and depth of borings and test 
pits using current prudent engineering practice for the size of the 
impoundment and the impounding structure, the quantity of material to 
be impounded, and subsurface conditions.
    (B) Consider the character of the overburden and bedrock, the 
proposed abutment sites for the impounding structure, and any adverse 
geotechnical conditions that may affect the particular impoundment.
    (C) Identify all springs, seepage, and groundwater flow observed or 
anticipated during wet periods in the area of the proposed impoundment.
    (D) Consider the possibility of mudflows, rock-debris falls, or 
other landslides into the impoundment or impounded material.
    (e) If the structure meets the Significant Hazard Class or High 
Hazard Class criteria for dams in TR-60 or meets the criteria of Sec.  
77.216(a) of this chapter, each plan under paragraphs (b), (c), and (d) 
of this section must include a stability analysis of the structure. The 
stability analysis must include, but not be limited to, strength 
parameters, pore pressures, and long-term seepage conditions. The plan 
also must contain a description of each engineering design assumption 
and calculation with a discussion of each alternative considered in 
selecting the specific design parameters and construction methods.
    11. Revise Sec.  784.19 to read as follows:


Sec.  784.19  Disposal of excess spoil.

    (a) If you, the permit applicant, propose to generate excess spoil 
as part of your operation, your application must include the following 
items--
    (1) Demonstration of minimization of excess spoil. A demonstration, 
prepared to the satisfaction of the regulatory authority, that the 
operation has been designed to minimize, to the extent possible, the 
volume of excess spoil that the operation will generate, thus ensuring 
that spoil is returned to the mined-out area to the extent possible, 
taking into consideration applicable regulations concerning restoration 
of the approximate original contour, safety, stability, and 
environmental protection

[[Page 48922]]

and the needs of the proposed postmining land use.
    (2) Capacity demonstration. A demonstration that the designed 
maximum cumulative volume of all proposed excess spoil fills within the 
permit area is no larger than the capacity needed to accommodate the 
anticipated cumulative volume of excess spoil that the operation will 
generate, as approved by the regulatory authority under paragraph 
(a)(1) of this section.
    (3) Analysis of alternatives and environmental impacts. (i) A 
description of all alternatives considered for disposal of the amount 
of excess spoil determined under paragraphs (a)(1) and (2) of this 
section and an analysis of the environmental impacts of those 
alternatives. You must consider impacts on both the terrestrial and 
aquatic ecosystems. The alternatives must vary with respect to the 
number, size, location, and configuration of proposed fills to ensure 
consideration of a reasonable range of alternatives and potential 
environmental impacts.
    (ii) For every alternative under paragraph (a)(3)(i) of this 
section that would involve placement of excess spoil in waters of the 
United States, the analysis required under that paragraph must include 
an evaluation of the short-term and long-term impacts on the aquatic 
ecosystem, both individually and on a cumulative basis. In evaluating 
alternatives subject to this paragraph, you must consider impacts on 
the physical, chemical, and biological characteristics of downstream 
flows, including seasonal variations in temperature and volume, changes 
in stream turbidity or sedimentation, the degree to which the excess 
spoil may introduce or increase contaminants, the effects on aquatic 
organisms, and the extent to which wildlife is dependent upon those 
organisms. If you have prepared an analysis of alternatives under 40 
CFR 230.10, you may initially submit a copy of that analysis with your 
application in lieu of the analysis of alternatives required by 
paragraph (a)(3)(i) of this section. The regulatory authority will 
determine the extent to which that analysis satisfies the analytical 
requirements of paragraph (a)(3)(i) of this section.
    (iii) To the extent possible, you must select the alternative with 
the least overall adverse environmental impact, including adverse 
impacts on water quality and aquatic ecosystems. An alternative is 
possible if it is capable of being done after consideration of cost, 
logistics, and available technology. This provision does not authorize 
selection of the least costly alternative at the expense of 
environmental protection solely on the basis of cost. If another 
alternative considered under paragraph (a)(3)(i) of this section would 
be more environmentally protective than the alternative you selected, 
you must demonstrate, to the satisfaction of the regulatory authority, 
that implementation of the more environmentally protective alternative 
is not possible.
    (4) Avoidance and minimization of adverse environmental impacts. A 
description of the steps that you will take to avoid the adverse 
environmental impacts that may result from the construction of fills 
or, if avoidance is not possible, the steps that you will take to 
minimize those impacts.
    (5) Location. Maps and cross-section drawings showing the location 
of all proposed disposal sites and structures. You must locate fills on 
the most moderately sloping and naturally stable areas available, 
unless the regulatory authority approves a different location based 
upon the alternatives analysis under paragraph (a)(3) of this section 
or other factors, taking into account other requirements of the Act and 
this chapter. When possible, you must place fills upon or above a 
natural terrace, bench, or berm if that location would provide 
additional stability and prevent mass movement.
    (6) Design plans. Detailed design plans for each structure, 
prepared in accordance with the requirements of this section and 
Sec. Sec.  817.71 through 817.74 of this chapter. You must design the 
fill and appurtenant structures using current prudent engineering 
practices and any additional design criteria established by the 
regulatory authority.
    (7) Geotechnical investigation. The results of a geotechnical 
investigation of each proposed disposal site, with the exception of 
those sites at which spoil will be placed only on a pre-existing bench 
under Sec.  817.74 of this chapter. You must conduct sufficient 
foundation investigations, as well as any necessary laboratory testing 
of foundation material, to determine the design requirements for 
foundation stability for each site. The analyses of foundation 
conditions must take into consideration the effect of underground mine 
workings, if any, upon the stability of the fill and appurtenant 
structures. The information submitted must include--
    (i) The character of the bedrock and any adverse geologic 
conditions in the proposed disposal area.
    (ii) A survey identifying all springs, seepage, and groundwater 
flow observed or anticipated during wet periods in the area of the 
proposed disposal site.
    (iii) A survey of the potential effects of subsidence of subsurface 
strata as a result of past and future mining operations.
    (iv) A technical description of the rock materials to be utilized 
in the construction of disposal structures containing rock chimney 
cores or underlain by a rock drainage blanket.
    (v) A stability analysis including, but not limited to, strength 
parameters, pore pressures, and long-term seepage conditions. This 
analysis must be accompanied by a description of all engineering design 
assumptions and calculations and the alternatives considered in 
selecting the design specifications and methods.
    (8) Operation and reclamation plans. Plans for the construction, 
operation, maintenance, and reclamation of all excess spoil disposal 
structures in accordance with the requirements of Sec. Sec.  817.71 
through 817.74 of this chapter.
    (9) Additional requirements for keyway cuts or rock-toe buttresses. 
If keyway cuts or rock-toe buttresses are required under Sec.  
817.71(d) of this chapter, the number, location, and depth of borings 
or test pits, which must be determined according to the size of the 
spoil disposal structure and subsurface conditions. You also must 
provide the engineering specifications used to design the keyway cuts 
or rock-toe buttresses. Those specifications must be based upon the 
stability analysis required under paragraph (a)(7)(v) of this section.
    (b) Design certification. A qualified registered professional 
engineer experienced in the design of earth and rock fills must certify 
that the design of all fills and appurtenant structures meets the 
requirements of this section.
    12. Amend Sec.  784.23 by removing ``817.71(b),'' in paragraph (c) 
and revising paragraph (b)(10) to read as follows:


Sec.  784.23  Operation plan: Maps and plans.

* * * * *
    (b) * * *
    (10) Locations of each siltation structure, permanent water 
impoundment, refuse pile, and coal mine waste impoundment for which 
plans are required by Sec.  784.16 of this part, and the location of 
each fill for the disposal of excess spoil for which plans are required 
under Sec.  784.19 of this part.
* * * * *
    13. Add Sec.  784.28 to read as follows:


Sec.  784.28  Activities in or adjacent to waters of the United States.

    (a) Applicability. This section applies to applications to conduct 
activities in

[[Page 48923]]

waters of the United States or on the surface of lands within 100 feet 
of waters of the United States to the extent that those waters are 
regulated under the Clean Water Act, 33 U.S.C. 1311, 1362.
    (b) Mapping requirements. Maps prepared under Sec. Sec.  783.25, 
784.14(b)(2), or 784.23 of this chapter must identify and delineate 
all--
    (1) Waters of the United States within the proposed permit area.
    (2) Waters of the United States within the adjacent area, as that 
term is defined in Sec.  701.5 of this chapter.
    (3) Lands within the proposed permit area that lie within 100 feet, 
measured horizontally, of any waters of the United States.
    (c) Application requirements for variance from prohibition on 
disturbance. If you propose to conduct an activity that is subject to 
the prohibition of Sec.  817.57(a) of this chapter on the surface of 
any lands delineated under paragraph (b)(3) of this section, your 
application must describe any measures that you propose to implement in 
lieu of maintaining a 100-foot undisturbed buffer between surface 
activities and waters of the United States, including the extent of any 
lesser buffer that you propose to maintain between surface activities 
and waters of the United States, and explain how the proposed measures 
constitute the best technology currently available to--
    (1) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible; 
and
    (2) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible.
    (d) Approval requirements for variance from prohibition on 
disturbance. Before approving any measures proposed under paragraph (c) 
of this section, the regulatory authority must determine that those 
measures--
    (1) Would be no less effective in meeting the requirements of the 
regulatory program than the prohibition in Sec.  817.57(a) of this 
chapter on disturbance of the surface of lands within 100 feet of 
waters of the United States; and
    (2) Constitute the best technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible; 
and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible.
    (e) Requirements for activities not subject to prohibition on 
disturbance. For activities not subject to the prohibition in Sec.  
817.57(a) of this chapter, if you propose to conduct any surface 
activities in waters of the United States or that would disturb the 
surface of lands within 100 feet of waters of the United States, your 
application must demonstrate, and the regulatory authority must find, 
that, to the extent possible, you will utilize the best technology 
currently available in accordance with Sec. Sec.  817.41(d) and 
817.97(a) of this chapter, as required by Sec. Sec.  784.14(g) and 
784.21(b) of this part.
    (f) Relationship to the Clean Water Act. (1) In all cases, your 
application must identify the authorizations and certifications that 
you anticipate will be needed under sections 401, 402, and 404 of the 
Clean Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps 
that you have taken or will take to procure those authorizations and 
certifications.
    (2) The regulatory authority will process your application and may 
issue the permit before you obtain all necessary authorizations and 
certifications under the Clean Water Act, 33 U.S.C. 1251 et seq., 
provided your application meets all applicable requirements of 
subchapter G of this chapter. However, you may not initiate any 
activities for which Clean Water Act authorization or certification is 
required until you obtain all necessary authorizations and 
certifications.

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

    14. The authority citation for part 816 is revised to read as 
follows:

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

    15. Section 816.10 is revised to read as follows:


Sec.  816.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements 
of this part and assigned clearance number 1029-0047. Collection of 
this information is required under section 515 of SMCRA, which provides 
that permittees conducting surface coal mining and reclamation 
operations must meet all applicable performance standards of the 
regulatory program approved under the Act. The regulatory authority 
uses the information collected to ensure that surface mining activities 
are conducted in compliance with the requirements of the applicable 
regulatory program. Persons intending to conduct such operations must 
respond to obtain a benefit. A Federal agency may not conduct or 
sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.
    16. In Sec.  816.11, revise paragraph (e) to read as follows:


Sec.  816.11  Signs and markers.

* * * * *
    (e) Buffer markers. The boundaries of any buffer to be maintained 
between surface mining activities and waters of the United States in 
accordance with Sec. Sec.  780.28 and 816.57 of this chapter must be 
clearly marked to avoid disturbance by surface mining activities.
* * * * *
    17. In Sec.  816.43, revise paragraphs (a)(3), (b)(1), and (b)(4); 
and add paragraph (b)(5) to read as follows:


Sec.  816.43  Diversions.

    (a) * * *
    (3) You, the permittee or operator, must--
    (i) Promptly remove temporary diversions when no longer needed to 
achieve the purpose for which they were authorized.
    (ii) Restore the land disturbed by the removal process in 
accordance with this part.
    (iii) Before removing diversions, modify or remove downstream 
water-treatment facilities previously protected by the diversion as 
necessary to prevent overtopping or failure of the facilities.
    (iv) Maintain water-treatment facilities as otherwise required.
* * * * *
    (b) * * *
    (1) The regulatory authority may approve the diversion of perennial 
or intermittent streams within the permit area if the diversion is 
located, designed, constructed, and maintained using the best 
technology currently available to minimize adverse impacts to fish, 
wildlife, and related environmental values to the extent possible.
* * * * *
    (4) A permanent stream-channel diversion or a stream channel 
reclaimed after the removal of a temporary diversion must be designed 
and constructed using natural channel design techniques so as to 
restore or approximate the premining characteristics of the original 
stream channel, including the natural riparian vegetation and the 
natural hydrological characteristics of the original stream, to promote 
the recovery and enhancement of the aquatic habitat and to minimize

[[Page 48924]]

adverse alteration of stream channels on and off the site, including 
channel deepening or enlargement, to the extent possible.
    (5) A qualified registered professional engineer must certify the 
design and construction of all diversions of perennial and intermittent 
streams and all stream restorations as meeting the design and 
construction requirements of this section and any design criteria set 
by the regulatory authority.
* * * * *


Sec.  816.46  [Amended]

    18. In Sec.  816.46, remove paragraph (b)(2) and redesignate 
paragraphs (b)(3) through (b)(6) as (b)(2) through (b)(5), 
respectively.
    19. Revise Sec.  816.57 to read as follows:


Sec.  816.57  Hydrologic balance: Activities in or adjacent to waters 
of the United States.

    (a) Prohibition. You, the permittee or operator, may not conduct 
surface mining activities that would disturb the surface of land within 
100 feet, measured horizontally, of waters of the United States, 
unless--
    (1) The permit authorizes you to do so under Sec.  780.28 of this 
chapter; or
    (2) The provisions of paragraph (b) of this section apply to those 
activities.
    (b) Exceptions. The prohibition in paragraph (a) of this section 
does not apply to the following surface mining activities--
    (1) Mining through waters of the United States. You must comply 
with all other applicable requirements of the regulatory program, 
including the requirements of Sec.  816.43(b) of this part if the 
mining involves the permanent or temporary diversion of a perennial or 
intermittent stream.
    (2) Placement of bridge abutments, culverts, or other structures in 
or near waters of the United States to facilitate crossing of those 
waters. You must comply with all other applicable requirements of the 
regulatory program, including the requirements of Sec. Sec.  816.150, 
816.151, and 816.181 of this part, as appropriate.
    (3) Construction of sedimentation pond embankments in waters of the 
United States. You must comply with all other applicable requirements 
of the regulatory program, including the requirements of Sec.  
816.45(a) of this part.
    (4) Construction of excess spoil fills and coal mine waste disposal 
facilities in waters of the United States. You must comply with all 
other applicable requirements of the regulatory program, including the 
requirements of Sec. Sec.  816.71(a) and (f) of this part for excess 
spoil fills and the requirements of Sec. Sec.  816.81(a), 816.83(a), 
and 816.84 of this part for coal mine waste disposal facilities.
    (c) Additional clarifications. The activities listed in paragraph 
(b) of this section must comply with paragraphs (b)(10)(B)(i) and 
(b)(24) of section 515 of the Act and the regulations implementing 
those provisions of the Act, including--
    (1) The requirement in Sec.  816.41(d)(1) of this part that surface 
mining activities be conducted according to the plan approved under 
Sec.  780.21(h) of this chapter and that earth materials, ground-water 
discharges, and runoff be handled in a manner that prevents, to the 
extent possible using the best technology currently available, 
additional contribution of suspended solids to streamflow outside the 
permit area; and otherwise prevents water pollution.
    (2) The requirement in Sec.  816.45(a) that appropriate sediment 
control measures be designed, constructed, and maintained using the 
best technology currently available to prevent, to the extent possible, 
additional contributions of sediment to streamflow or to runoff outside 
the permit area.
    (3) The requirement in Sec.  816.97(a) of this part that the 
operator must, to the extent possible using the best technology 
currently available, minimize disturbances and adverse impacts on fish 
and wildlife and related environmental values and achieve enhancement 
of those resources where practicable.
    (d) Clean Water Act requirements. You may not initiate any 
activities under paragraph (b) of this section until you obtain all 
necessary certifications and authorizations under sections 401, 402, 
and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and 1344.
    20. In Sec.  816.71, revise paragraphs (a) through (d) to read as 
follows:


Sec.  816.71  Disposal of excess spoil: General requirements.

    (a) General. You, the permittee or operator, must place excess 
spoil in designated disposal areas within the permit area in a 
controlled manner to--
    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on surface and ground waters;
    (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) Minimize disturbances to and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, using the best 
technology currently available.
    (b) Static safety factor. The fill must be designed and constructed 
to attain a minimum long-term static safety factor of 1.5. The 
foundation and abutments of the fill must be stable under all 
conditions of construction.
    (c) Compliance with permit. You, the permittee or operator, must 
construct the fill in accordance with the design and plans submitted 
under Sec.  780.35 of this chapter and approved as part of the permit.
    (d) Special requirement for steep-slope conditions. When the slope 
in the disposal area exceeds 2.8h:1v (36 percent), or any lesser slope 
designated by the regulatory authority based on local conditions, you, 
the permittee or operator, must construct keyway cuts (excavations to 
stable bedrock) or rock-toe buttresses to ensure fill stability.
* * * * *

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

    21. The authority citation for part 817 continues to read as 
follows:

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

    22. Section 817.10 is revised to read as follows:


Sec.  817.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements 
of this part and assigned clearance number 1029-0047. Collection of 
this information is required under section 516 of SMCRA, which provides 
that permittees conducting underground coal mining operations must meet 
all applicable performance standards of the regulatory program approved 
under the Act. The regulatory authority uses the information collected 
to ensure that underground mining activities are conducted in 
compliance with the requirements of the applicable regulatory program. 
Persons intending to conduct such operations must respond to obtain a 
benefit. A Federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.
    23. In Sec.  817.11, revise paragraph (e) to read as follows:


Sec.  817.11  Signs and markers.

* * * * *
    (e) Buffer zone markers. The boundaries of any buffer to be

[[Page 48925]]

maintained between surface activities and waters of the United States 
in accordance with Sec. Sec.  784.28 and 817.57 of this chapter must be 
clearly marked to avoid disturbance by surface operations and 
facilities.
* * * * *
    24. In Sec.  817.43, revise paragraphs (a)(3), (b)(1), and (b)(4); 
and add paragraph (b)(5) to read as follows:


Sec.  817.43  Diversions.

    (a) * * *
    (3) You, the permittee or operator, must--
    (i) Promptly remove temporary diversions when no longer needed to 
achieve the purpose for which they were authorized.
    (ii) Restore the land disturbed by the removal process in 
accordance with this part.
    (iii) Before diversions are removed, modify or remove downstream 
water-treatment facilities previously protected by the diversion as 
necessary to prevent overtopping or failure of the facilities.
    (iv) Maintain water-treatment facilities as otherwise required.
* * * * *
    (b) * * *
    (1) The regulatory authority may approve the diversion of perennial 
or intermittent streams within the permit area if the diversion is 
located, designed, constructed, and maintained using the best 
technology currently available to minimize adverse impacts to fish, 
wildlife, and related environmental values to the extent possible.
* * * * *
    (4) A permanent stream-channel diversion or a stream channel 
reclaimed after the removal of a temporary diversion must be designed 
and constructed using natural channel design techniques so as to 
restore or approximate the premining characteristics of the original 
stream channel, including the natural riparian vegetation and the 
natural hydrological characteristics of the original stream, to promote 
the recovery and enhancement of the aquatic habitat and to minimize 
adverse alteration of stream channels on and off the site, including 
channel deepening or enlargement, to the extent possible.
    (5) A qualified registered professional engineer must certify the 
design and construction of all diversions of perennial and intermittent 
streams and all stream restorations as meeting the design and 
construction requirements of this section and any design criteria set 
by the regulatory authority.
* * * * *


Sec.  817.46  [Amended]

    25. In Sec.  817.46, remove paragraph (b)(2) and redesignate 
paragraphs (b)(3) through (b)(7) as (b)(2) through (b)(6), 
respectively.
    26. Revise Sec.  817.57 to read as follows:


Sec.  817.57  Hydrologic balance: Activities in or adjacent to waters 
of the United States.

    (a) Prohibition. You, the permittee or operator, may not conduct 
surface activities that would disturb the surface of land within 100 
feet, measured horizontally, of waters of the United States, unless--
    (1) The permit authorizes you to do so under Sec.  784.28 of this 
chapter; or
    (2) The provisions of paragraph (b) of this section apply to those 
activities.
    (b) Exceptions. The prohibition in paragraph (a) of this section 
does not apply to the following surface activities--
    (1) Mining through waters of the United States. You must comply 
with all other applicable requirements of the regulatory program, 
including the requirements of Sec.  817.43(b) of this part if the 
mining involves the permanent or temporary diversion of a perennial or 
intermittent stream.
    (2) Placement of bridge abutments, culverts, or other structures in 
or near waters of the United States to facilitate crossing of those 
waters. You must comply with all other applicable requirements of the 
regulatory program, including the requirements of Sec. Sec.  817.150, 
817.151, and 817.181 of this part, as appropriate.
    (3) Construction of sedimentation pond embankments in waters of the 
United States. You must comply with all other applicable requirements 
of the regulatory program, including the requirements of Sec.  
817.45(a) of this part.
    (4) Construction of excess spoil fills and coal mine waste disposal 
facilities in waters of the United States. You must comply with all 
other applicable requirements of the regulatory program, including the 
requirements of Sec. Sec.  817.71(a) and (f) of this part for excess 
spoil fills and the requirements of Sec. Sec.  817.81(a), 817.83(a), 
and 817.84 of this part for coal mine waste disposal facilities.
    (c) Additional clarifications. The activities listed in paragraph 
(b) of this section must comply with paragraphs (b)(9)(B) and (b)(11) 
of section 516 of the Act and the regulations implementing those 
provisions of the Act, including--
    (1) The requirement in Sec.  817.41(d)(1) of this part that surface 
activities be conducted according to the plan approved under Sec.  
784.14(g) of this chapter and that earth materials, ground-water 
discharges, and runoff be handled in a manner that prevents, to the 
extent possible using the best technology currently available, 
additional contribution of suspended solids to streamflow outside the 
permit area; and otherwise prevents water pollution.
    (2) The requirement in Sec.  817.45(a) that appropriate sediment 
control measures be designed, constructed, and maintained using the 
best technology currently available to prevent, to the extent possible, 
additional contributions of sediment to streamflow or to runoff outside 
the permit area.
    (3) The requirement in Sec.  817.97(a) of this part that the 
operator must, to the extent possible using the best technology 
currently available, minimize disturbances and adverse impacts on fish 
and wildlife and related environmental values and achieve enhancement 
of those resources where practicable.
    (d) Clean Water Act requirements. You may not initiate any 
activities under paragraph (b) of this section until you obtain all 
necessary certifications and authorizations under sections 401, 402, 
and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and 1344.
    27. In Sec.  817.71, remove paragraph (k) and revise paragraphs (a) 
through (d) to read as follows:


Sec.  817.71  Disposal of excess spoil: General requirements.

    (a) General. You, the permittee or operator, must place excess 
spoil in designated disposal areas within the permit area in a 
controlled manner to--
    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on surface and ground waters;
    (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) Minimize disturbances to and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, using the best 
technology currently available.
    (b) Static safety factor. The fill must be designed and constructed 
to attain a minimum long-term static safety factor of 1.5. The 
foundation and abutments of the fill must be stable under all 
conditions of construction.
    (c) Compliance with permit. You, the permittee or operator, must 
construct the fill in accordance with the design and plans submitted 
under Sec.  784.19 of this chapter and approved as part of the permit.

[[Page 48926]]

    (d) Special requirement for steep-slope conditions. When the slope 
in the disposal area exceeds 2.8h:1v (36 percent), or any lesser slope 
designated by the regulatory authority based on local conditions, you, 
the permittee or operator, must construct keyway cuts (excavations to 
stable bedrock) or rock-toe buttresses to ensure fill stability.
* * * * *
[FR Doc. E7-16629 Filed 8-23-07; 8:45 am]
BILLING CODE 4310-05-P