[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Notices]
[Pages 3126-3128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1013]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R03-OW-2009-0985; FRL-9254-8]


Final Determination of the Assistant Administrator for Water 
Pursuant to Section 404(c) of the Clean Water Act Concerning the Spruce 
No. 1 Mine, Logan County, WV

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: This is a notice of EPA's Final Determination pursuant to 
section 404(c) of the Clean Water Act to withdraw the specification of 
Pigeonroost Branch, Oldhouse Branch, and their tributaries, within 
Logan County, West Virginia, as a disposal site for dredged or fill 
material in connection with construction, operation, and reclamation of 
the Spruce No. 1 Surface Mine, as authorized by DA Permit No. 
199800436-3 (Section 10: Coal River). This determination also prohibits 
the specification of the defined area constituting Pigeonroost Branch, 
Oldhouse Branch, and their tributaries for use as a disposal site 
associated with future surface coal mining that would be expected to 
result in a nature and scale of adverse chemical, physical, and 
biological effects similar to the Spruce No. 1 mine. EPA's 
determination is based upon a finding that the discharge of dredged or 
fill material associated with the construction and operation of the 
Spruce No. 1 Mine would result in unacceptable adverse effects on 
wildlife.

DATES: Effective Date: The effective date of the Final Determination is 
January 13, 2011.

ADDRESSES: U.S. Environmental Protection Agency, Office of Water, 
Wetlands Division, Mail Code 4502T, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. EPA has established a docket for this action 
under Docket ID No. EPA-R03-OW-2009-0985. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Although listed 
in the index, some information may not be publicly available, e.g., CBI 
or other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
through http://www.regulations.gov or in hard copy at the Water Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: Mr. Chris Hunter, Office of Wetlands, 
Oceans, and Watersheds; U.S. Environmental Protection Agency, Mail Code 
4502T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Additional 
information and copies of EPA's Final Determination are available at 
the following Web site: http://www.epa.gov/404c/.

SUPPLEMENTARY INFORMATION: Section 404(c) of the CWA, 33 U.S.C. 
1344(c), authorizes EPA to prohibit the specification (including the 
withdrawal of specification) of any defined area as a disposal site. 
EPA is authorized to restrict or deny the use of any defined area for 
specification (including the withdrawal of specification) as a disposal 
site, whenever it determines, after notice and opportunity for public 
hearing, that the discharge of such materials into such area will have 
an unacceptable adverse effect on municipal water supplies, shellfish 
beds and fishery areas (including spawning and breeding areas), 
wildlife, or recreational areas.
    EPA's regulations for implementing section 404(c) are set forth in 
40 CFR part 231. Four major steps in the process are: (1) The Regional 
Administrator's notice to the U.S. Army Corps of Engineers (the Corps), 
the applicant or permittee, the property owner, and the State, as 
appropriate, of the intention to initiate the section 404(c) process; 
(2) the Regional Administrator's publication of a Proposed 
Determination to withdraw, deny, restrict, or prohibit the use of the 
site, soliciting public comment and offering an opportunity for a 
public hearing; (3) the Regional Administrator's recommendation to the 
Assistant Administrator for Water at EPA Headquarters to withdraw, 
deny, restrict, or prohibit the use of the site (Recommended 
Determination); and, (4) the Assistant Administrator for Water's

[[Page 3127]]

Final Determination to affirm, modify, or rescind the Regional 
recommendation.
    As a result of significant new scientific information confirming 
and strengthening EPA's concerns regarding the environmental effects of 
mountaintop mining operations, and in particular those operations on 
the scope and scale of the Spruce No. 1 Mine, EPA Region III initiated 
the Clean Water Act Sec.  404(c) process for the Spruce No. 1 Mine on 
October 16, 2009. The Spruce No. 1 Mine, as authorized in 2007 by 
Department of the Army (DA) Permit No. 199800436-3 (Section 10: Coal 
River), is one of the largest mountaintop mining projects ever 
authorized in West Virginia. The DA Permit authorizes the Mingo Logan 
Coal Company to construct six valley fills, associated sedimentation 
structures, and other discharges of fill material to the Right Fork of 
Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch, and their 
tributaries. If fully constructed, the project will disturb 
approximately 2,278 acres (about 3.5 square miles) and bury 
approximately 7.48 miles of streams beneath 110 million cubic yards of 
excess spoil.\1\
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    \1\ EPA's Final Determination addresses only the 6.6 miles of 
fill authorized in Pigeonroost Branch, Oldhouse Branch, and their 
tributaries. While the permit also authorizes construction of valley 
fills and other discharges to the Right Fork of Seng Camp Creek and 
its tributaries, EPA is not withdrawing specification of those 
waters, in part because some of those discharges have already 
occurred and because the stream resources in Right Fork of Seng Camp 
Creek were subject to a higher level of historic and ongoing human 
disturbance than those found in Pigeonroost Branch or Oldhouse 
Branch. Due to litigation and an agreement with environmental 
groups, represented by Ohio Valley Environmental Coalition, 
operations following the issuance of this DA Permit have been 
limited to the Seng Camp Creek watershed, and as part of that 
agreement one valley fill is partially constructed.
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    Following initiation of the Section 404(c) process, EPA Region III 
communicated with representatives of Mingo Logan (a subsidiary of Arch 
Coal, Inc.) and the Corps both in person and by telephone and 
electronic mail on several occasions to determine whether corrective 
action would be taken to address EPA Region III's concerns. However, 
corrective action was not taken to resolve EPA's concerns. On April 2, 
2010, EPA Region III published in the Federal Register a Proposed 
Determination to prohibit, restrict, or deny the specification or the 
use for specification (including withdrawal of specification) of 
certain waters at the project site as disposal sites for the discharge 
of dredged or fill material for the construction of the Spruce No. 1 
Surface Mine. EPA Region III took this step because it believed that 
discharges authorized by DA Permit No. 199800436-3 (Section 10: Coal 
River) would result in a significant loss of wildlife habitat and also 
cause significant degradation of downstream aquatic ecosystems and 
therefore could have unacceptable adverse effects on wildlife. A public 
hearing regarding the Proposed Determination was conducted on May 18, 
2010. EPA Region III received more than 100 oral comments and more than 
50,000 written comments both supporting and opposing its Proposed 
Determination.
    On September 24, 2010, EPA Region III submitted to EPA Headquarters 
its Recommended Determination that the specification embodied in DA 
Permit No. 199800436-3 (Section 10: Coal River) of Pigeonroost Branch 
and Oldhouse Branch as disposal sites for discharges of dredged or fill 
material for construction of the Spruce No. 1 Surface Mine be 
withdrawn. EPA Region III based this recommendation upon a conclusion 
that the discharges of dredged or fill material to Pigeonroost Branch 
and Oldhouse Branch for the purpose of constructing the Spruce No. 1 
Surface Mine as authorized would likely have unacceptable adverse 
effects on wildlife.
    The U.S. Fish and Wildlife Service (USFWS), in its comments on both 
the Proposed and Recommended Determinations, concurred with EPA Region 
III's conclusion that the project, as authorized, would result in 
unacceptable adverse effects on wildlife and that this conclusion is 
supported by the available scientific information. USFWS also noted 
that it has consistently expressed concerns regarding the loss of 
headwater streams and adjacent riparian and terrestrial habitats 
associated with the Spruce No. 1 Mine, as well as its likely impacts on 
downstream water quality, aquatic organisms, and terrestrial and 
aquatic wildlife that depend on those resources.
    Following receipt of the Recommended Determination, and consistent 
with EPA's Section 404(c) regulations, EPA Headquarters provided an 
opportunity for the project's proponents to propose corrective actions 
intended to prevent the unacceptable adverse environmental impacts 
presented in the Recommended Determination. On November 16, 2010, a 
consultation meeting was held at EPA Headquarters in Washington, DC to 
discuss the Region III Recommended Determination and potential 
corrective actions that could be undertaken to avoid the unacceptable 
adverse impacts that were of concern to EPA. Participants at the 
meeting included the EPA Assistant Administrator for Water; the EPA 
Region III Regional Administrator; other EPA staff; representatives 
from Arch Coal, Inc. (parent company of Mingo Logan) and their legal 
counsel; the United Company (a mineral rights owner) and their legal 
counsel; the West Virginia Department of Environmental Protection, and 
the District Engineer of the Corps' Huntington District. At that 
meeting, and in subsequent communications, Arch Coal did not provide 
EPA with corrective actions that would meaningfully address the likely 
unacceptable adverse effects outlined in Region III's Recommended 
Determination.
    Following review of the public comments received, existing and 
recently developed scientific data, and EPA Region III's Recommended 
Determination, EPA has concluded that the discharge of dredged or fill 
material to Pigeonroost Branch and Oldhouse Branch, in connection with 
the construction of valley fills and sedimentation ponds, as authorized 
by DA Permit No. 199800436-3 (Section 10: Coal River), will result in 
unacceptable adverse effects on wildlife. The administrative record 
developed in this case fully supports the conclusion that the Spruce 
No. 1 Surface Mine will have unacceptable adverse effects to wildlife, 
due to the filling of Pigeonroost Branch, Oldhouse Branch, and their 
tributaries. In addition, the administrative record demonstrates that 
the Spruce No. 1 Surface Mine will have unacceptable adverse effects on 
wildlife downstream of the project site as a result of increased 
pollution that the project will contribute to downstream waters.
    EPA has determined that unacceptable adverse impacts to Pigeonroost 
Branch, Oldhouse Branch, and their tributaries will occur through the 
direct burial of 6.6 miles of high-quality stream habitat, including 
all wildlife in this watershed that utilize these streams for all or 
part of their life cycles (e.g., macroinvertebrate, salamander, fish, 
and water-dependent bird populations). Pigeonroost Branch, Oldhouse 
Branch, and their tributaries contain diverse and high-quality wildlife 
communities that are consistent with the ecological richness of high-
quality Appalachian headwater stream systems. With their adjacent 
riparian areas, these streams provide important habitat for 84 taxa of 
macroinvertebrates, up to 46 species of amphibians and reptiles, 4 
species of crayfish, and 5 species of fish, as well as birds, bats, and 
other mammals. As some of the last remaining high quality,

[[Page 3128]]

least-disturbed headwater stream habitat within the sub-basin, these 
streams not only support resident wildlife, but also provide ecosystem 
functions for downstream waters, serve as refugia for aquatic life and 
potential sources for recolonizing nearby waters, and ultimately serve 
to maintain the aquatic ecosystem integrity in the sub-basin and the 
rich animal diversity in the ecoregion.
    Burial of Pigeonroost Branch, Oldhouse Branch, and their 
tributaries will also result in unacceptable adverse effects on 
wildlife downstream through the removal of functions performed by the 
buried streams and by transformation of the buried areas into pollution 
sources that will contribute contaminants to downstream waters. Based 
on recent peer-reviewed literature, as well as available data from 
adjacent mine sites and from the active portion of the Spruce No. 1 
Mine, EPA has concluded that the full construction of the Spruce No. 1 
Mine will transform these headwater streams from high-quality habitat 
into sources of pollutants (particularly total dissolved solids and 
selenium) that will travel downstream and adversely impact the wildlife 
communities that utilize these downstream waters. Increased pollutant 
levels will lead to loss of macroinvertebrate communities and 
population shifts to more pollution-tolerant taxa, specifically the 
extirpation of ecologically important macroinvertebrates. Through the 
loss of stream macroinvertebrate communities, there will be, in turn, 
substantial effects on fish, amphibian, and bird populations that rely 
on these communities as a food source.
    Furthermore, the increased loading of pollutants to downstream 
receiving waters will increase the potential for harmful golden algal 
blooms, while increased selenium exposure will result in impaired 
salamander populations and adverse effects to the reproduction of fish 
and bird species, thus harming the ability of these local populations 
to rebound. The loss of macroinvertebrate prey populations, increased 
risk of harmful golden algal blooms, and additional exposure to 
selenium will have an unacceptable adverse effect on the 26 fish 
species found in Spruce Fork (the receiving stream for Pigeonroost 
Branch and Oldhouse Branch), and will also have an unacceptable adverse 
effect on amphibians, reptiles, crayfish, and bird species that depend 
on downstream waters for food or habitat.
    Furthermore, these adverse impacts do not comply with the 
requirements of the Clean Water Act (CWA) and EPA's implementing 
regulations under section 404(b)(1). EPA has determined that the Spruce 
No. 1 Surface Mine fails to adequately evaluate less environmentally 
damaging alternatives, will cause or contribute to significant 
degradation of waters of the United States (especially when considered 
in the context of the significant cumulative losses and impairment of 
streams across the Central Appalachian ecoregion), and lacks 
compensatory mitigation to adequately offset the impacts to Pigeonroost 
Branch and Oldhouse Branch. These failures to comply with the 
Guidelines serve to strengthen EPA's judgment about the unacceptability 
of the significant adverse impacts that will occur.
    Based on these findings and pursuant to section 404(c) of the CWA, 
EPA's Final Determination withdraws the specification of Pigeonroost 
Branch, Oldhouse Branch, and their tributaries, as described in DA 
Permit No. 199800436-3 (Section 10: Coal River), as a disposal site for 
the discharge of dredged or fill material for the purpose of 
construction, operation, and reclamation of the Spruce No. 1 Surface 
Mine. This Final Determination also prohibits the specification of the 
defined area constituting Pigeonroost Branch, Oldhouse Branch, and 
their tributaries for use as a disposal site associated with future 
surface coal mining that would be expected to result in a nature and 
scale of adverse chemical, physical, and biological effects similar to 
the Spruce No. 1 mine. This Final Determination does not affect 
discharges to Seng Camp Creek as authorized in DA Permit No. 
19980043603 (Section 10: Coal River) associated with the Spruce No.1 
Surface Mine.
    EPA continues to work effectively with the Corps, the mining 
industry, and the public to evaluate proposed Appalachian surface coal 
mining projects and to enable permitting of environmentally responsible 
mining projects that authorize continued coal production while 
preventing unacceptable adverse effects on wildlife.

    Dated: January 13, 2011.
Peter S. Silva,
Assistant Administrator, Office of Water.
[FR Doc. 2011-1013 Filed 1-18-11; 8:45 am]
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