[Federal Register Volume 75, Number 83 (Friday, April 30, 2010)]
[Proposed Rules]
[Pages 22723-22724]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-10091]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 sra-eis@osmre.gov.
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.
---------------------------------------------------------------------------
\1\ The MOU can be viewed online at http://www.osmre.gov/resources/ref/mou/ASCM061109.pdf.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\2\ See the document entitled ``Acid Mine Drainage Policy'' at
http://www.osmre.gov/guidance/significant_guidance.shtm.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\3\ See http://ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagencymemofactors.html.
---------------------------------------------------------------------------
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