[Federal Register Volume 75, Number 83 (Friday, April 30, 2010)]
[Proposed Rules]
[Pages 22723-22724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10091]


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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-AC63


Stream Protection Rule; Environmental Impact Statement

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

ACTION: Proposed rule; notice of intent to prepare an environmental 
impact statement.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), intend to prepare an environmental impact statement (EIS) under 
section 102(2)(C) of the National Environmental Policy Act of 1969 
(NEPA) to analyze the effects of potential rule revisions under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act) 
to improve protection of streams from the adverse impacts of surface 
coal mining operations. We are requesting comments for the purpose of 
determining the scope of the EIS.

DATES: To ensure consideration, we must receive your electronic or 
written comments on June 1, 2010.

ADDRESSES: You may submit comments by any of the following methods, 
although we request that you use electronic mail if possible:
     Electronic mail: Send your comments to [email protected].
     Mail, hand-delivery, or courier: Send your comments to 
Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, Room 252-SIB, 1951 Constitution Avenue, NW., Washington, DC 
20240.

FOR FURTHER INFORMATION CONTACT: John Craynon, Chief, Division of 
Regulatory Support, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Ave., NW., MS 202-SIB, Washington, DC 
20240; Telephone 202-208-2866.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Why are we planning to revise our rules?
II. What is the proposed federal action?
III. How do I submit comments?
IV. How do I request to participate as a cooperating agency?

I. Why are we planning to revise our rules?

    On December 12, 2008 (73 FR 75814-75885), we published a final rule 
modifying the circumstances under which mining activities may be 
conducted in or near perennial or intermittent streams. That rule, 
which this document refers to as the 2008 rule, took effect January 12, 
2009. A total of nine organizations challenged the validity of the rule 
in two complaints filed on December 22, 2008, and January 16, 2009 
(amended complaint filed February 17, 2009): Coal River Mountain Watch, 
et al. v. Salazar, No. 08-2212 (D.D.C.) (``Coal River'') and National 
Parks Conservation Ass'n v. Salazar, No. 09-115 (D.D.C.) (``NPCA''). 
Under the terms of a settlement agreement signed by the parties on 
March 19, 2010, we agreed to use best efforts to sign a proposed rule 
by February 28, 2011, and a final rule by June 29, 2012. We also agreed 
to consult with the Fish and Wildlife Service pursuant to the 
Endangered Species Act, as appropriate, prior to signing the final 
action. On April 2, 2010, the court granted the parties' motion to hold 
the judicial proceedings in abeyance.
    However, we had already embarked on that course following the 
change of Administrations on January 20, 2009. On June 11, 2009, the 
Secretary of the Department of the Interior, the Administrator of the 
U.S. Environmental Protection Agency (EPA), and the Acting Assistant 
Secretary of the Army (Civil Works) entered into a memorandum of 
understanding \1\ (MOU) implementing an interagency action plan 
designed to significantly reduce the harmful environmental consequences 
of surface coal mining operations in six Appalachian states, while 
ensuring that future mining remains consistent with Federal law. Among 
other things, the MOU committed us to consider revisions to key 
provisions of our rules, including the 2008 rule and approximate 
original contour requirements, to better protect the environment and 
public health from the impacts of Appalachian surface coal mining.
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    \1\ The MOU can be viewed online at http://www.osmre.gov/resources/ref/mou/ASCM061109.pdf.
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    Consequently, on November 30, 2009, we published an advance notice 
of proposed rulemaking (ANPRM) soliciting comments on ten potential 
rulemaking alternatives. See 74 FR 62664-62668. In addition, consistent 
with the MOU, we invited the public to identify other rules that we 
should revise. We also announced our intent to prepare a supplement to 
the EIS developed in connection with the 2008 rule.
    We received approximately 32,750 comments during the 30-day comment 
period that closed December 30, 2009. After evaluating those and other 
comments, we determined that development of a comprehensive stream 
protection rule (one that is much broader in scope than the 2008 rule) 
would be the most appropriate and effective method of achieving the 
goals set forth in the MOU and the ANPRM. We believe that this holistic 
approach will better protect streams and related environmental values. 
The broader scope of the stream protection rule means that we will need 
to prepare a new environmental impact statement rather than the 
supplement to the 2008 EIS that we originally intended to prepare.

II. What is the proposed federal action?

    The proposed Federal action consists of revisions to various 
provisions of our rules to improve protection of streams from the 
impacts of surface coal mining operations nationwide. We do not believe 
that it would be fair, appropriate, or scientifically valid to apply 
the new protections only in central Appalachia, as some commenters on 
the ANPRM advocated. Streams are ecologically significant regardless of 
the region in which they are located. Principal elements of the 
proposed action include--
     Adding more extensive and more specific permit application 
requirements concerning baseline data on hydrology, geology, and 
aquatic biology; the determination of the probable hydrologic 
consequences of mining; and the hydrologic reclamation plan; as well as 
more specific requirements for the cumulative hydrologic impact 
assessment.
     Defining the term ``material damage to the hydrologic 
balance outside the permit area.'' This term is critically important 
because, under section 510(b)(3) of SMCRA, the regulatory authority may 
not approve a permit application unless the proposed operation has been 
designed to prevent material damage to the hydrologic balance outside 
the permit area. This term includes streams downstream of the mining 
operation.
     Revising the regulations governing mining activities in or 
near streams, including mining through streams.

[[Page 22724]]

     Adding more extensive and more specific monitoring 
requirements for surface water, groundwater, and aquatic biota during 
mining and reclamation.
     Establishing corrective action thresholds based on 
monitoring results.
     Revising the backfilling and grading rules, excess spoil 
rules, and approximate original contour restoration requirements to 
incorporate landform restoration principles and reduce discharges of 
total dissolved solids.
     Limiting variances and exceptions from approximate 
original contour restoration requirements.
     Requiring reforestation of previously wooded areas.
     Requiring that the regulatory authority coordinate the 
SMCRA permitting process with Clean Water Act permitting activities to 
the extent practicable.
     Codifying the financial assurance provisions of OSM's 
March 31, 1997, policy statement \2\ on correcting, preventing, and 
controlling acid/toxic mine drainage and clarifying that those 
provisions apply to all long-term discharges of pollutants, not just 
pollutants for which effluent limitations exist.
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    \2\ See the document entitled ``Acid Mine Drainage Policy'' at 
http://www.osmre.gov/guidance/significant_guidance.shtm.
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     Updating the definitions of perennial, intermittent, and 
ephemeral streams.
    We are in the process of developing alternatives for the proposed 
Federal action. Comments received in response to this notice will 
assist us in that process.
    We will prepare a draft EIS after we complete the initial stages of 
scoping and identify which rulemaking alternatives will be analyzed in 
detail. Following release of the draft EIS, we anticipate publishing a 
notice of proposed rulemaking, unless we select an alternative that 
makes rulemaking unnecessary.

III. How do I submit comments?

    Consistent with 43 CFR 46.235, we invite all interested persons, 
organizations, and agencies to provide comments, suggestions, and any 
other information relevant to the scope of the EIS, the scope of the 
proposed Federal action, potential alternatives for the proposed 
Federal action, and studies and impacts that the EIS should address. 
See ADDRESSES for the methods by which we will accept comments. We do 
not anticipate conducting any meetings dedicated to scoping.
    Before including your address, phone number, e-mail address, 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. Comments that we receive after the close of the comment 
period (see DATES) or sent to an address other than those listed in 
ADDRESSES may not be considered.
    If you previously submitted comments in response to the ANPR, you 
do not need to resubmit them. We will consider all ANPR comments as 
part of this EIS scoping process.

IV. How do I request to participate as a cooperating agency?

    Consistent with 43 CFR 46.225, we, the lead agency, invite eligible 
Federal, state, tribal, and local governmental entities to indicate 
whether they have an interest in being a cooperating agency in the 
preparation of the EIS. Qualified entities are those with jurisdiction 
by law, as defined in 40 CFR 1508.15, or special expertise, as defined 
in 40 CFR 1508.26. Potential cooperating agencies should consider their 
authority and capacity to assume the responsibilities of a cooperating 
agency and make the necessary resources available in a timely manner, 
as discussed in the document entitled ``Factors for Determining 
Cooperating Agency Status,'' \3\ which is Attachment 1 to the Council 
on Environmental Quality's January 30, 2002, Memorandum for the Heads 
of Federal Agencies: Cooperating Agencies in Implementing the 
Procedural Requirements of the National Environmental Policy Act. We 
will not be able to provide financial assistance to cooperating 
agencies.
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    \3\ See http://ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagencymemofactors.html.
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    If you have an interest in participating as a cooperating agency, 
please contact the person listed in FOR FURTHER INFORMATION CONTACT and 
identify those aspects of the EIS process in which you are interested 
in participating. The regulations at 43 CFR 46.230 and Items 4 through 
6 in the document discussed in the preceding paragraph list the 
activities in which cooperating agencies may wish to participate.

    Dated: April 16, 2010.
Sterling Rideout,
Assistant Director, Program Support.
[FR Doc. 2010-10091 Filed 4-29-10; 8:45 am]
BILLING CODE 4310-05-P