The Commonwealth of Virginia's Department of Mines, Minerals and Energy
(DMME) offers the following comments regarding the Department of the
Interior, Office of Surface Mining Reclamation and Enforcement's
proposed rule to 30 CFR Parts 780, 784, 816, and 817 excess spoil, coal
mine waste, and buffers for waters of the United States as published in
the Federal Register on August 24, 2007 (Vol. 72, No. 164, pages
48890-48926).

Our comments will reference the relevant Federal Register page numbers.

Page 48894 -- III. D. stream buffer zone rules interpretation

> Virginia believes that the stream buffer zone should be interpreted as
> in the past where it applied to the areas below the ponds, fills, and
> mined areas. The Congressional legislative history supports this view.
> The following is an excerpt from a dialogue between Senators Baker and
> Jackson, during the 1973 Senate debate on an earlier version of the
> Surface Mining Control and reclamation Act (SMCRA), which illustrates
> the understanding shared by that body that mountaintop removal
> operations would not only be permissible under the new legislation,
> but that the excess spoil disposal areas would be quite large in
> scale:
>
>   
>
> 119 Cong. Rec. S33299, 33314 (daily ed. October 9, 1973) (statements
> of Sen. Baker and Sen. Jackson)
>
> \"*Mr. BAKER. Mr. President, the last question I have to put, so that
> we may look this squarely in the face, is this: Would the
> distinguished chairman of the committee say certainly that what we are
> doing is sanctioning mountain top mining to the extent where whole
> mountains may be stripped down to ground level, and the storage of
> millions of tons of overburden may be placed in the hollows, creating
> hundreds of thousands of acres of new flat land, and that if we are
> going to adopt this variance which I intend to support, we should do
> it with our eyes wide open to the fact that whole mountains may
> disappear from the landscape?*
>
> *Mr. JACKSON. The answer is, yes, of course ..*..\"
>
> As can be seen from this debate, Congress truly understood that
> mountaintop removal mining would result in the tops of mountains being
> removed and huge valley fills being placed in valleys where streams
> existed. Congress did not bar the placement of excess spoil into the
> streams. This debate and the enactment of SMCRA took place after the
> passage of the Clean Water Act (CWA), so Congress was fully aware of
> what they were enacting and that streams would be impacted by mining
> operations.

Page 48899 --VI. (B) - 780.25(d)(1)

> The proposed alternative analysis creates a problem. Trying to balance
> fill minimization (location) and environmental impacts will be
> extremely difficult. The best location to place fill material to
> minimize the fill footprint will not likely be the best
> environmentally. There is no guidance on how this will be determined,
> which will likely lead to second guessing from commenting agencies and
> advocacy groups opposed to the mining operations.

Page 48900 -- C. - 780.28 and 784.28 (a) revise to include all waters of
the U.S.

Adding lakes, ponds, and wetlands is probably not much of a change to
what Virginia's Division of Mined Land Reclamation (DMLR) already
considers for these areas. The biggest impact would be jurisdictional
water issues with the Army Corps of Engineers (Corps), the Virginia
Dept. of Environmental Quality (DEQ), and the federal Environmental
Protection Agency (EPA), as well as the use of the new phrase "waters of
the United States." This proposed change replaces an established and
effective regulatory term with no real benefit gained; Virginia
recommends that this regulation be left unchanged.

Page 48901 - 780.28 and 784.28 (f)(2)

This should remain informational; noncompliance should be enforced under
the CWA. There must be recognition of the interplay between the Corps
and the respective state EPA agencies. In Virginia, if the Corps issues
a Nationwide General Permit (NWP21), the DEQ waives the requirement for
a DEQ permit. If the Corps, for whatever reason, does not issue the
NWP21, then the DEQ would require a permit. Virginia conditions the
permits whereby a permittee must obtain the necessary Corps and DEQ
permits; thus allowing the Corps and DEQ to use their discretion in
determining the proper permit (if any) that they will require the
applicant to obtain. At the time that the permittee submits an
application to the state regulatory agency, the permittee may not have a
final determination from the Corps or DEQ as to what permits will be
required from those agencies.

Page 48903 - D -- 780.35 (a)(1-3)

In Virginia many permittees place excess spoil on existing abandoned
mined land (AML) benches, thus eliminating AML benches and highwalls.
Often permits are issued without any valley fills at all. There should
be no alternative demonstration required for excess spoil placed on AML
benches to reclaim the bench and highwalls. This should be deemed to
meet the required demonstration.

Page 48904 -- 780.35 (a)(4)

> It must be realized that this will require considerably more resources
> to be expended by both the regulatory authority (whether it be the
> primacy state or OSM) and the permit applicant to implement these new
> requirements. At the very least, excess spoil placed on AML benches
> should be deemed to meet the required demonstration of minimizing
> adverse environmental impacts.

Page 48904 -- 780.35 (a)(5)

It must be noted that the regulatory authority may approve different
locations through assessment of alternatives by applicant.

Page 48906 -- 816.43 and 817.43

The Corps and the DEQ do not require an alternative analysis for
alternative stream restoration designs and the environmental impacts of
each. This is beyond the requirements of both the SMCRA and the CWA.
Virginia accepts stream restorations designs and mitigation plans
approved by the Corps and/or DEQ. These designs require the use of
natural stream components as outlined in this proposed rule. Reviewing
multiple stream designs would be a significant burden on the State and
would subject the application to second-guessing by opponents of a mine
permit application.

Page 48907 -- 816.57 and 817.57

> This also needs to take into consideration the jurisdictional water
> issues with Corps, DEQ, etc.
>
> This could possibly be one of the more beneficial changes. Hopefully,
> this may reduce confusion by specifying activities that are allowable
> within stream buffer zones (activities where the prohibition does not
> apply).

Page 48910 -- 816.57(b) and 817.57(b)

> It is critical that this be clarified. At times it would be
> environmentally sound for the sediment ponds to be placed in the
> streams.
>
> Virginia already does this by including a terms of issuance to require
> these permits to be obtained. DMLR and DEQ have both issued
> enforcement actions for this situation. DMLR issues a violation for a
> permit condition, while DEQ takes CWA enforcement action. The
> permittee is also subject to federal enforcement action through the US
> EPA.
>
> **Page 48911 -- K "to the extent possible"**
>
> The regulatory authority should continue to determine on case-by-case
> basis.
>
> **Page 48912 -- K "to the extent possible"**
>
> This could lead to cases of double jeopardy. If the state coal
> regulatory authority issued CWA violations and the state CWA agency
> (i.e., DEQ in Virginia) issued CWA violations, one violation would be
> subject to being overturned. If included in the rules and the CWA
> violation was not written to allow the state CWA agency to write the
> violation, in order to get more stringent enforcement, the state could
> be subject to challenge through ten day notices or appeals of agency
> decisions not to write violations based on citizen complaints. This
> could result in unnecessary expenditure of time and resources by the
> state in defending its actions.