1036 Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 780, 816, and 817

RIN 1029–AC04

Surface Coal Mining and Reclamation 

Operations; Excess Spoil; Stream 

Buffer Zones; Diversions

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior.

ACTION: Proposed rule.

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSM), are proposing to amend our 

regulations to accomplish two basic 

goals: Minimizing the adverse 

environmental effects stemming from 

the construction of excess spoil fills; 

and clarifying the circumstances in 

which mining activities, such as the 

construction of excess spoil fills, may be 

allowed within the stream buffer zone 

(SBZ), i.e., within 100 feet of a perennial 

or intermittent stream. By these 

changes, we intend to clarify our 

program requirements and reduce the 

regulatory uncertainty concerning these 

matters. These changes will also reduce 

conflicts and improve consistency 

between regulation under the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA) and regulation under the 

Clean Water Act (CWA). 

More specifically, we intend to 

minimize the environmental effects 

from excess spoil fill construction by 

requiring that the coal operator 

demonstrate to the satisfaction of the 

regulatory authority that, to the extent 

possible, the volume of excess spoil is 

minimized; excess spoil fills associated 

with a mine are designed to be no larger 

than needed to accommodate the 

anticipated volume of excess spoil from 

that mine; alternative configurations for 

excess spoil disposal, including 

alternative sizes, numbers and locations 

of fill are considered; and the proposed 

excess spoil disposal plan minimizes, to 

the extent possible, adverse impacts to 

the prevailing hydrologic balance, fish, 

wildlife, and related environmental 

values. 

We also propose to amend the 

regulation commonly referred to as the 

SBZ rule to more closely align with its 

basis in SMCRA and our experience in 

implementing the rule. These changes 

will require the applicant to 

demonstrate, to the satisfaction of the 

regulatory authority, that the mining 

operation has been designed, to the 

extent possible, to minimize impacts on 

hydrology, fish and wildlife, and related 

environmental values and to prevent 

additional contributions of sediment to 

streams prior to allowing mining within 

100 feet of a perennial or intermittent 

stream. We intend to revise rule 

language that is evidently confusing, has 

given rise to divergent, conflicting 

interpretations, has led to litigation, and 

has raised concern over restrictions that 

are not required by SMCRA and that 

might conflict with regulations under 

the CWA. 

Finally, we propose to amend our 

stream diversion regulation to comport 

with the proposed changes to the SBZ 

rule.

DATES: Electronic or written comments:

We will accept written comments on the 

proposed rule until 5 p.m., Eastern 

Time, on March 8, 2004. 

Public hearings: Anyone wishing to 

testify at a public hearing must submit 

a request on or before 5 p.m., Eastern 

Time, on January 28, 2004. Because we 

will hold a public hearing at a particular 

location only if there is sufficient 

interest, hearing arrangements, dates 

and times, if any, will be announced in 

a subsequent Federal Register notice. 

Any disabled individual who needs 

special accommodation to attend a 

public hearing should contact the 

person listed under FOR FURTHER

INFORMATION CONTACT.

ADDRESSES: If you wish to comment, 

you may submit your comments on this 

proposed rule by one of three methods. 

You may mail or hand carry comments 

to the Office of Surface Mining 

Reclamation and Enforcement, 

Administrative Record, Room 101, 1951 

Constitution Avenue, NW., Washington, 

DC 20240, or you may send comments 

via electronic mail to 

osmrules@osmre.gov. 

If you wish to comment on the 

information collection aspects of this 

proposed rule, you may submit your 

comments to the Office of Management 

and Budget, Office of Information and 

Regulatory Affairs, Attention: Interior 

Desk Officer, via e-mail to 

oira_docket@omb.eop.gov, or via 

facsimile to 202–365–6566. 

You may submit a request for a public 

hearing orally or in writing to the 

person and address specified under FOR

FURTHER INFORMATION CONTACT. The 

address, date and time for any public 

hearing held will be announced before 

the hearing. Any disabled individual 

who requires special accommodation to 

attend a public hearing should also 

contact the person listed under FOR

FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT:

David G. Hartos, Office of Surface 

Mining Reclamation and Enforcement, 

U.S. Department of the Interior, 3 

Parkway Center, Pittsburgh, PA 15220; 

Telephone: 412–937–2909. E-mail 

address: dhartos@osmre.gov. Additional 

information concerning this rule and 

related documents may be found on our 

home page on the internet at http://

www.osmre.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. Introduction 

A. Why Is OSM Initiating Rulemaking To 

Minimize the Adverse Environmental 

Effects Stemming From the Construction 

of Excess Spoil Fills? 

B. Why Is OSM Proposing To Revise Its 

Stream Buffer Zone Regulation? 

1. Evolving SBZ Rule Controversy 

2. SBZ Regulatory Background 

C. Reference Materials 

II. Discussion of the Proposed Rules 

A. Reclamation Plan (§ 780.18(b)(3)) 

B. Disposal of Excess Spoil (§§ 780.35 and 

816.71) 

C. Stream Buffer Zones (§ 816.57/817.57) 

D. Diversion of Perennial and Intermittent 

Streams (§ 816.43(b)/817.43(b))

III. How Do I Submit Comments on the 

Proposed Rule? 

IV. Procedural Matters and Required 

Determinations 

A. Executive Order 12866—Regulatory 

Planning and Review 

B. Executive Order 13211—Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use 

C. Regulatory Flexibility Act 

D. Small Business Regulatory Enforcement 

Fairness Act 

E. Unfunded Mandates 

F. Executive Order 12630—Takings 

G. Executive Order 13132—Federalism 

H. Executive Order 12988—Civil Justice 

Reform 

I. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

J. Paperwork Reduction Act 

K. National Environmental Policy Act 

L. Clarity of this Regulation

I. Introduction 

When coal is mined by surface mining 

methods, rock and soil that overlie the 

coal must be removed and stored 

temporarily outside of the immediate 

mining area. The rock is broken as it is 

removed, and the broken rock is referred 

to as ‘‘spoil.’’ Because the broken rock 

incorporates voids and air, spoil is less 

dense than undisturbed rock; so the 

volume of spoil removed during mining 

becomes greater than the volume of rock 

that was in place prior to mining. After 

coal removal, the mine operator returns 

the spoil to the mined-out area for 

reclamation. 

The operator grades the spoil so that 

it closely resembles the pre-mining 

topography. We refer to this as returning 

Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 1037

the reclaimed mine to the approximate 

original contour, or simply AOC. Under 

certain circumstances, by obtaining the 

necessary approvals, the mine operator 

may get a waiver from the AOC 

requirement that allows the operator to 

grade the backfilled spoil to a shape 

capable of supporting an alternative 

postmining land use. 

Regardless of whether an operator 

reclaims the mine to AOC or shapes it 

to support an alternative postmining 

land use, there are situations, 

particularly in steep terrain, where the 

volume of spoil is more than sufficient 

and more than is technically feasible to 

return to the mined-out area when 

reclaiming the site. Surplus spoil 

material disposed of in locations other 

than the mined-out area, except for 

material used to blend spoil with 

surrounding terrain in achieving AOC in 

non-steep slope areas, is referred to as 

‘‘excess spoil’’.

In Appalachia, on steep terrain, the 

mine operator may place the excess 

spoil either in adjacent valleys or on 

previously mined sites. Our rules at 30 

CFR 816.71–74 provide flexibility in 

design and construction of several types 

of steep-slope fills: ‘‘valley’’, ‘‘head-ofhollow’’, and ‘‘durable rock’’. Valley 

and head-of-hollow fills are limited by 

definition in 30 CFR 701.5 to steep 

slope areas (valley side slopes of greater 

than 20 degrees or valley profile 

[stream] gradient of greater than 10 

degrees). Durable rock fills are not 

limited to steep slopes, but in practice 

have been the most common fill 

construction technique in steep slope 

areas. 

Surface coal mining activities other 

than excess spoil fills may also involve 

disturbance of stream channels. Coal 

deposits underlie many streams at 

shallow depths, and mining activities 

routinely divert and relocate a 

watercourse to remove the coal. 

Underground mining development 

involves excavating rock and soil on the 

surface to expose the coal seam and to 

provide access for people, equipment, 

and ventilation for the underground 

mining operation. This process is 

referred to as ‘‘facing up.’’ In steep 

terrain, excavated material from these 

‘‘face-up’’ areas may result in small fills 

if the excavation is limited to providing 

coal seam access, or larger fills if 

facilities such as miners’ bathhouses, 

office buildings, coal storage or coal 

preparation areas are needed. Some 

face-up fills are constructed on valley 

hillsides, and other face-up fills must be 

placed in adjacent valleys. Underground 

mining may also involve excavating 

non-coal waste rock underground. 

Because underground mining typically 

brings this waste rock material to the 

surface, the mine operator typically 

constructs fills to accommodate the 

material. 

The mine operator may have to place 

fill in small streams adjacent to the 

preparation facility or within 

embankments or impoundments, in 

order to dispose of coal waste from the 

cleaning and preparation of coal. 

Similarly, the operator of a preparation 

facility may need an impoundment in 

an adjacent stream valley for 

withdrawal of cleaning process water. In 

order to minimize sedimentation and 

comply with CWA or State effluent 

standards, an operator of a surface or 

underground coal mine may need to 

place sediment control structures or 

ponds in streams below the mine. 

Because of such mining necessities, 

SMCRA and the implementing 

regulations on protecting the hydrologic 

balance and on other subjects, recognize 

that certain stream impacts may be 

necessary during coal mining. However, 

such impacts must be carefully and 

thoughtfully evaluated, planned for, and 

minimized to assure the environment is 

protected during and after mining. See

SMCRA sections 102(d) and 507(b). The 

rule proposal described below is 

consistent with this approach. It would 

clarify and supplement existing 

requirements and require a permit 

applicant to provide relevant 

information and analysis concerning 

mine planning and design to minimize 

environmental impacts. 

A. Why Is OSM Initiating Rulemaking 

To Minimize the Adverse Environmental 

Effects Stemming From the Construction 

of Excess Spoil Fills? 

Section 201(c)(2) of SMCRA, 30 

U.S.C. 1211(c)(2), directs the Secretary 

of the Interior (the Secretary), acting 

through OSM, to publish and 

promulgate such rules and regulations 

as may be necessary to carry out the 

purposes and provisions of SMCRA. 

Section 501(b) of SMCRA, 30 U.S.C. 

1251(b), directs the Secretary to 

‘‘promulgate and publish in the Federal 

Register regulations covering a 

permanent regulatory procedure for 

surface coal mining and reclamation 

operations performance standards.’’ The 

implementing OSM regulations are 

codified at 30 CFR Chapter VII. 

Since the early 1970’s, large-scale 

surface mining has become a more 

prevalent means of coal extraction in 

the central Appalachian coalfields. Most 

surface coal mining in the mountainous 

terrain of central Appalachian coalfields 

unavoidably generates excess spoil. This 

excess spoil is often placed in the upper 

reaches of valleys adjacent to the mine. 

In the Appalachian coalfields, even the 

upper reaches of valleys may contain 

stream channels or watercourses with 

continual (perennial) or intermittent 

flow. For example, the United States 

Geologic Survey studied a sample of 

streams in West Virginia and found that, 

on average, perennial streams may begin 

in watersheds of 40.8 acres and 

intermittent streams in watersheds of 

14.5 acres. [Paybins, 2003, p.1 (citations 

in this preamble to the reference 

materials listed at I.C. of the preamble, 

are set out in brackets)]. 

An OSM inventory of fills in the 

central Appalachian coalfields (eastern 

Kentucky, Tennessee, southwestern 

Virginia and southern West Virginia) 

identified about 5700 excess spoil fills 

constructed between 1985 and 2001. 

[U.S. Environmental Protection Agency 

(USEPA), 2003, p. III. K–15] Spoil from 

these fills covered approximately 1.2 

percent of the small streams (724 of the 

estimated 59,000 miles of streams) in 

the inventory region. [Ibid, p. III. K–47] 

OSM has estimated that, without 

changes in production or mining 

technology, excess spoil fills may 

potentially impact an additional 724 

stream miles in the next seventeen 

years. [Ibid, p. IV. B–2].

As the population and the cumulative 

surface extent of surface mines and 

excess spoil fills have increased, so have 

the concerns regarding the adverse 

environmental effects from the 

construction of excess spoil fills. In the 

summer of 1998, the West Virginia 

Highlands Conservancy—an 

environmental organization—and 

several citizens filed suit in Federal 

court against the West Virginia Division 

of Environmental Protection (WVDEP) 

alleging that the State was not 

administering its SMCRA-based coal 

regulatory program in compliance with 

State requirements. Bragg v. Robertson

(Bragg), Civ. No. 2:98–0636 (S.D.W. Va.). 

In addition to suing the WVDEP, the 

plaintiffs in Bragg sued the U.S. Army 

Corps of Engineers (USCOE) concerning 

its implementation of CWA Section 404 

in the permitting of excess spoil fills. 

Among other issues, plaintiffs argued 

that the USCOE should have been 

individually permitting excess spoil fills 

rather than issuing authorizations under 

its nationwide permits (NWP) process. 

Coal mining activities affecting ‘‘waters 

of the United States’’ are subject to 

applicable requirements of CWA 

Section 404. The USCOE is the primary 

Federal authority responsible for issuing 

Section 404 permits, which may be 

either NWP or individual permits (IP). 

The USCOE uses the NWP process for 

coal mining activities that have less 

than a minimal impact on aquatic 

1038 Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 

1The December 23, 1998, settlement agreement 

between the plaintiffs and the defendants in Bragg

led to the initiation of the EIS. Paragraph 21 of that 

agreement states: ‘‘* * * Nothing in this Settlement 

Agreement shall be construed to limit or modify the 

Federal Agencies’ discretion to alter, amend, or 

revise from time to time any actions taken by them 

pursuant to this Settlement Agreement or to 

promulgate superseding regulations.’’

resources—both individually and 

cumulatively. 

In December 1998, the parties reached 

an agreement, which addressed all 

outstanding counts directed at the 

USCOE in Bragg. Pursuant to the 

settlement agreement, in February 1999 

OSM, the U.S. Fish and Wildlife Service 

(USFWS), USEPA, USCOE, and WVDEP 

initiated preparation of a draft 

programmatic environmental impact 

statement (EIS) under the National 

Environmental Policy Act (NEPA). 

The agencies designed the EIS to 

consider developing agency policies, 

guidance, and coordinated agency 

decision-making processes to minimize 

the adverse effects stemming from 

mountaintop mining/valley fills in the 

Appalachian coalfields. The agencies 

released the draft EIS for public 

comment on May 29, 2003. 

While work towards finalizing that 

EIS continues, we recognized the need 

to revise and clarify our national rules 

to address environmental effects from 

the construction of excess spoil fills.1

We are moving forward with this rule to 

expeditiously address concerns 

regarding the construction of excess 

spoil fills and regulatory uncertainty 

regarding our stream buffer zone 

regulations.

As part of our oversight activities and 

separate from the EIS, we conducted 

studies in Kentucky, Virginia and West 

Virginia to determine how the 

regulatory authorities were 

administering SMCRA programs 

regarding AOC and postmining land use 

requirements. [USDOI–OSM, May 1999; 

USDOI–OSM, September 1999; USDOI–

OSM, May 2000] When we examined 

permit files and reclaimed mines, we 

found it difficult to distinguish between 

the reclamation configuration of mines 

that were not to be reclaimed to AOC 

and the reclamation configuration of 

mines that were to be reclaimed to AOC. 

There were no clear differences in the 

number and size of the excess spoil fills, 

although we anticipated that non-AOC 

mines would typically have larger or 

more numerous fills. We determined 

that typically, coal mine operators could 

have retained more spoil on mined-out 

areas under applicable AOC 

requirements than they were actually 

retaining. 

We also found that, in many 

instances, coal mine operators were 

overestimating the anticipated volume 

of excess spoil. As a result, we 

concluded that coal companies were 

designing fills larger than necessary to 

accommodate the anticipated excess 

spoil. Where fills are larger than needed, 

more land outside the coal extraction 

area is disturbed than is necessary. We 

attributed these problems, in part, to 

inadequate regulatory guidance. 

Therefore, we recommended that each 

regulatory authority work with us to 

develop enhanced guidance on material 

balance determinations, spoil 

management, and AOC. Kentucky, 

Virginia and West Virginia have 

developed such guidance; we also 

developed such guidance for the 

Tennessee Federal program. We 

continue to review the implementation 

and effectiveness of this guidance. 

Most excess spoil is attributed to 

surface mining in the steep terrain of the 

central Appalachian coalfields, and we 

commend Kentucky, Virginia and West 

Virginia for their improvements in 

addressing AOC and the volume of 

excess spoil. However, we believe there 

is also a need to revise the national 

regulations concerning excess spoil 

placement, because surface mining 

throughout the country may generate 

excess spoil. Our existing regulations 

pertaining to excess spoil fill 

construction are primarily focused on 

ensuring that fills are safe and stable. 

However, these regulations, with minor 

exceptions, do not explicitly address 

how the applicants must demonstrate 

consideration and minimization of the 

environmental effects of fill 

construction. 

Existing regulatory requirements 

primarily address the need to ensure 

that excess spoil fills are not subject to 

erosion, are stable, and do not cause 

landslides or washouts. However, 

SMCRA section 515(b)(22)(I) requires 

that operators place all excess spoil 

material so that all other provisions of 

SMCRA are met. Under this 

requirement, hydrologic balance, water 

quality, revegetation, and other 

performance standards must be 

addressed in excess spoil design and 

construction plans. 

Accounting for the volume of excess 

spoil material is standard engineering 

practice in mine design, and is clearly 

envisioned by section 515(b)(3) of 

SMCRA. Concerning thick overburden, 

this section requires the operator to 

demonstrate that, due to volumetric 

expansion of the overburden and other 

spoil and waste material, more than 

sufficient material is available to 

reclaim the site to AOC. In response to 

a comment on the proposed rule 

adopted in 1983 on thick overburden 

performance standards, at 30 CFR 

816.105, we stated:

In a thick-overburden situation the 

operator must meet all of the performance 

standards of the rules except that the 

operator, after achieving AOC, may exceed 

the AOC requirement. The amount of excess 

overburden is a site-specific condition and 

easily documented. Therefore, each permit 

application requesting consideration under 

this section should be evaluated by the 

regulatory authority.

48 FR 23365, (May 24, 1983.)

For all of the above reasons, we 

believe that national rulemaking is 

needed to make explicit the 

requirements that the volume of excess 

spoil be minimized by returning as 

much mine spoil to the mined out area 

as possible, and that excess spoil fills be 

designed and constructed to minimize 

the adverse effects to the hydrologic 

balance, fish, wildlife, and other 

environmental resources. 

B. Why Is OSM Proposing To Revise Its 

Stream Buffer Zone Regulation? 

There is no provision in SMCRA 

requiring establishment or protection of 

stream buffer zones. We adopted the 

concept of a ‘‘buffer zone’’ around 

intermittent and perennial streams as a 

means ‘‘to protect stream channels from 

abnormal erosion’’ from nearby upslope 

mining activities. 42 FR 62652 

(December 13,1977). 

1. Evolving Stream Buffer Zone Rule 

Controversy 

The current Federal SBZ rule has 

been in effect since June 30, 1983. State 

regulatory programs include similar 

requirements. These SBZ requirements 

were implemented for nearly twenty 

years before the Bragg lawsuit was filed 

in July 1998. The issues and allegations 

raised in Bragg indicate that there 

remains considerable misunderstanding 

regarding the meaning of the SBZ 

regulation at 30 CFR 816.57, particularly 

as it applies to the placement of excess 

spoil fills within and near intermittent 

and perennial streams. 

In addition to the concerns expressed 

in Bragg about USCOE administration of 

CWA section 404, the plaintiffs alleged 

that WVDEP violated the West Virginia 

stream buffer zone rule (38 C.S.R. 2–

5.2(a)) by approving applications for 

surface mining permits that disturb 

stream buffer zones, even though the 

permitted activities could not satisfy the 

applicable criteria for a variance. 

Plaintiffs argued that the Director of 

WVDEP may grant a variance for surface 

mining activities closer than 100 feet to, 

or through, an intermittent or perennial 

stream only if he finds that such 

activities ‘‘will not adversely affect the 

Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 1039

normal flow or gradient of the stream, 

adversely affect fish migration or related 

environmental values, materially 

damage the water quantity or quality of 

the stream and will not cause or 

contribute to violations of applicable 

State or Federal water quality 

standards,’’ under 38 C.S.R. 2–5.2(a). 

Plaintiffs argued that the State’s SBZ 

rule allows surface mining activities 

‘‘closer to, or through’’ land within 100 

feet of an intermittent or perennial 

stream only if the activities are minor 

incursions, but not if the activities 

would bury substantial portions of the 

stream. Plaintiff’s December 30, 1998, 

Amended Complaint for Declaratory 

and Injunctive Relief at 21, filed in 

Bragg supra. 

The plaintiffs also argued that valley 

fills (excess spoil fills) violate the SBZ 

requirements because such fills bury 

and destroy substantial portions of 

intermittent or perennial streams. 

Plaintiffs contended that, by their very 

nature, such fills adversely affect the 

normal flow or gradient of the stream, 

adversely affect fish migration and 

related environmental values, materially 

damage the water quantity and quality 

of the stream, and cause or contribute to 

violations of applicable State water 

quality standards in the segment of the 

stream actually filled. Id. at 21–22. 

In reply to plaintiffs’ allegations in 

Bragg, WVDEP agreed that streams 

should be protected, but stated that the 

language of the West Virginia SBZ rule 

refers not just to the ‘‘footprint’’ of the 

fill, but to the entire stream segment. 

WVDEP stated that the plaintiffs are 

‘‘myopic’’ to think that OSM, in 

promulgating the SBZ rules, was 

speaking of particular stream segments. 

WVDEP asserted that the SBZ 

protections apply to a stream’s entirety, 

so that one part of a stream, usually the 

headwaters and upper reaches, may be 

filled as long as stream quantity and 

quality are not adversely affected 

downstream. We were aware that this 

had been the State’s interpretation for a 

number of years, and we had not taken 

issue with it. 

In August 1999, USEPA, USCOE, 

OSM, and WVDEP signed a 

memorandum of understanding (MOU) 

to clarify the application of the SBZ 

regulations to the placement of excess 

spoil fills in waters of the United States. 

The agencies agreed that the CWA 

section 404(b)(1) Guidelines (40 CFR 

Part 230), promulgated by USEPA and 

used by USCOE in administering the 

CWA section 404 program, contain 

requirements comparable to the SBZ 

regulations. For example, the Guidelines 

require, among other things, that a 

discharge shall not be authorized if it 

will cause or contribute to a violation of 

State water quality standards or result in 

significant degradation of waters of the 

U.S. (40 CFR 230.10(b) and (c)). The 

MOU states that OSM and WVDEP 

believe that, if a proposed fill is 

consistent with the requirements of the 

CWA section 404(b)(1) Guidelines and 

applicable requirements for State 

certification under CWA section 401, 

the proposed mining operation has 

satisfied the requirements for a buffer 

zone waiver under SMCRA and WVDEP 

regulations. 

On October 20, 1999, Judge Haden 

issued a decision in Bragg concerning 

WVDEP implementation of the State 

SBZ rule (38 C.S.R. 2–5.2(a)). Judge 

Haden rejected WVDEP’s interpretation 

that the State SBZ rule applies to the 

stream as a whole, as opposed to a 

particular stream segment. He said that 

such an interpretation leads to an 

absurd result that miles of stream could 

be filled and deeply covered with rock 

and dirt, but, if some stretch of water 

downstream of the fill remains 

undiminished and unsullied, the stream 

has been protected. He went on to say 

that State and Federal SBZ regulations 

clearly contemplate protecting stream 

segments.

The October 20, 1999, decision in 

Bragg also commented on the August 

1999 MOU addressing compliance with 

SBZ waiver requirements. Judge Haden 

concluded that compliance with the 

CWA 404(b)(1) Guidelines is not 

sufficient to satisfy the SBZ waiver 

requirements, because the Guidelines 

are more lenient and less protective 

than the SBZ rule. He explained that the 

Guidelines require that there be no 

‘‘significant degradation’’ of waters of 

the United States; whereas, the SBZ rule 

requires that the fill ‘‘will not adversely 

affect’’ certain environmental values. 

Judge Haden concluded that the August 

1999 MOU must be rejected as 

inconsistent with the statutes it 

interpreted. Accordingly, he held that 

the MOU is without force or effect on 

SBZ requirements. 

The district court granted summary 

judgment for the plaintiffs on the SBZ 

issues, and held that the Director of 

WVDEP has a non-discretionary duty 

under the buffer zone rule to deny 

variances for valley fills in intermittent 

and perennial streams because they 

necessarily adversely affect stream flow, 

stream gradient, fish migration, related 

environmental values, water quality and 

quantity, and because they violate State 

and Federal water quality standards. He 

also granted the plaintiffs’ motion to 

permanently enjoin the Director of 

WVDEP from further violations of the 

non-discretionary duties discussed 

above and from approving any further 

surface mining permits under current 

law that would authorize placement of 

excess spoil in intermittent and 

perennial streams for the purpose of 

waste disposal. 

On October 21, 1999, the Director of 

WVDEP issued an order that no new fill 

permits would be issued, and no 

existing fills or permitted fills could be 

advanced. The coal industry and labor 

officials expressed considerable concern 

about the Bragg decision and the 

WVDEP Director’s order, because coal 

mining necessitates stream disturbance. 

WVDEP and USCOE appealed Judge 

Haden’s October 1999 decision and 

order, and were granted a temporary 

stay of the order pending a decision by 

the Court of Appeals for the Fourth 

Circuit. October 29, 1999, Memorandum 

Opinion and Order Granting Stay at 5, 

Bragg supra.

The U.S. Department of Justice (DOJ) 

filed a brief on behalf of Federal 

Appellants in the Bragg appeal, which 

asserted:

The district court also correctly granted 

summary judgment on Count 3, holding that 

the burial of substantial portions of 

intermittent or perennial streams in valley 

fills causes adverse environmental impact in 

the filled stream segments and therefore 

cannot be authorized consistent with the 

stream buffer zone rule. The uncontested 

evidence demonstrates that the burial of 

substantial portions of intermittent or 

perennial streams causes adverse 

environmental effects to the filled stream 

segments, as such fill eliminates all aquatic 

life that inhabited those segments.

April 17, 2000, Brief for the Federal 

Appellants at 25, filed in Bragg v. 

Robertson, C.A. No. 99–2683. 

However, DOJ qualified the 

Government’s endorsement of the 

district court’s remedy:

By prohibiting the placement of any excess 

spoil in intermittent or perennial streams, the 

district court stripped WVDEP of authority to 

approve much more modest spoil disposal 

activities than those challenged by Bragg. 

The district court’s injunction prohibits even 

minor spoil disposal activities that do not 

involve the filling of stream segments. 

Indeed, the district court’s injunction would 

prohibit the placement of even de minimis

amounts of excess spoil, such as a single rock 

or handful of dirt, in any intermittent or 

perennial stream. Neither the law nor the 

evidence presented to the district court 

mandates the conclusion that such spoil 

disposal inevitably causes adverse 

environmental effects.

Id. at 45. 

OSM was not a party to the Bragg

litigation, and the narrow interpretation 

of the SBZ rule set out in the DOJ brief 

is not consistent with our historic 

interpretation of SMCRA rules. We are 

1040 Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 

2Positions taken by agencies in briefs submitted 

in litigation are ‘‘entitled to respect * * * to the 

extent that [they] * * * have the ‘power to 

persuade,’ ’’ but are not normally entitled to the 

judicial deference given to validly promulgated 

agency regulations. Chevron USA Inc. v. Natural 

Resources Defense Council, Inc., 46 U.S. 837 (1984). 

See Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 365 

(4th Cir. 2000) (quoting Christensen v. Harris Co., 

529 U.S. 576, 587 (2000)). Similarly, documents 

such as opinion letters and policy statements from 

federal officials are not entitled to the degree of 

deference accorded to adopted rules. Id. Agency 

positions in such documents have at most, limited 

effect as statements of agency policy or 

interpretation. This is particularly so if the agency 

subsequently re-evaluates a matter. See also 

Appalachian Power Co. v. Train, 620 F.2d 1040, 

1045–6 (4th Cir. 1980).

3The initial regulations defined ‘‘Intermittent or 

perennial streams’’ to mean ‘‘a stream or part of a 

stream that flows continuously during all 

(perennial) or for at least one month (intermittent) 

of a calendar year as a result of ground-water 

discharge or surface runoff.’’ 42 FR 62678 

(December 13, 1977)

aware of no instance in which OSM has 

interpreted the SBZ rule to prohibit 

mining activities, including excess fill 

construction, within 100 feet of 

intermittent and perennial streams. In 

fact, in the preamble of the 1983 SBZ 

rule, we recognized that mining would 

directly impact many small streams, 

especially in Appalachia, but that the 

SBZ rule, along with other 

requirements, provides the basis for 

minimizing those impacts. 48 FR 30313 

(June 30, 1983). 

Nonetheless, because of the DOJ brief, 

on April 17, 2000, the Solicitor of the 

Department of the Interior and the 

acting Director of OSM sent a letter to 

the Director of WVDEP informing 

WVDEP that the August 1999 MOU does 

not represent the Federal government’s 

current interpretation of the SBZ rule. 

The letter stated that the Department 

had reconsidered its position and no 

longer felt compliance with CWA 

404(b)(1) guidelines and CWA 401 

certification equated to compliance with 

the SBZ requirements. 

On May 22, 2000, the acting Director 

of OSM sent letters to the regulatory 

authorities in Kentucky, Virginia and 

West Virginia. The letters stated that 

OSM would develop guidance to 

explain that findings made in applying 

the CWA section 404(b)(1) Guidelines 

cannot be used as a substitute for the 

finding required to grant a SBZ waiver 

for the disposal of excess spoil in 

intermittent or perennial streams. The 

letter further advised that the guidance 

would state that the SBZ waiver finding 

must be applied to each segment of an 

intermittent or perennial stream in 

which fill will be placed.

The acting Director of OSM went on 

to say in the May 22, 2000, letter:

Pending completion and issuance of that 

guidance, we believe that permitting 

decisions regarding whether an activity is 

entitled to a waiver of the buffer zone 

requirement must be made on a case-by-case 

basis, as a part of the stream buffer zone 

analysis for activities impacting either an 

intermittent or a perennial stream. This 

analysis must consider all factors identified 

in the approved SMCRA program for granting 

the waiver, including the SBZ regulation 

found at 30 CFR 816.57.

Neither the brief filed on April 17, 

2000, nor the May 22, 2000, letter from 

the acting Director of OSM to certain 

regulatory authorities precludes us from 

reconsidering those interpretations 

based on the entire record before us, 

including subsequent developments in 

Bragg and related litigation, and other 

relevant information and analysis.2

On April 24, 2001, the Court of 

Appeals for the Fourth Circuit 

overturned the district court’s October 

20, 1999, decision in Bragg. The court 

of appeals said that, under the 11th 

Amendment to the U.S. Constitution, 

the district court did not have 

jurisdiction to hear the case concerning 

the State’s SBZ rule, because of the 

State’s sovereign immunity. The 

appellate decision did not address the 

merits of the plaintiffs’ or Federal 

government’s arguments regarding 

interpretation of the SBZ rule. (Bragg v. 

Robertson, 248 F.3d 275 (4th Cir. 2001). 

In two later opinions, Judge Haden 

again addressed the relationship 

between the SBZ regulation and the 

CWA in Kentuckians for the 

Commonwealth, Inc. v. Rivenburgh, 

reported at 204 F.Supp. 2d 927 and 206 

F. Supp. 2d 782 (S.D. W. Va. 2002). 

Although neither the SBZ regulations 

nor SMCRA were at issue in the case, 

Judge Haden concluded that:

In SMCRA, when Congress dealt 

specifically with surface coal mining 

overburden, it reinforced its plan that fills 

were appropriate where, and only where, 

they were justified by some constructive end 

use and purpose served by the fill itself. 

Otherwise, such overburden is just waste, to 

be returned to the mine site to recreate the 

AOC of the landscape mined. SMCRA 

contains no provisions authorizing disposal 

of overburden waste in streams, a conclusion 

further supported by the stream buffer zone 

rule.

204 F. Supp. 942. 

These opinions were appealed. The 

Court of Appeals for the Fourth Circuit 

rejected the district court’s comments 

on the SBZ rule, noting that:

[R]egardless of whether the fill has a 

beneficial purpose, 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 appeals court further stated:

Indeed, 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. 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. 

1265(b)(22)(D). In addition, section 

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. 

1265(b)(24). It is clear that SMCRA 

anticipates the possibility that excess spoil 

material could and would be placed in 

waters of the United States, and the fact 

cannot be juxtaposed with section 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. 

In light of all the questions and 

concerns that have been raised 

concerning SBZ requirements, we are 

proposing amendments to the SBZ rule 

to clarify the circumstances in which 

mining activities such as the 

construction of excess spoil fills may be 

allowed within the SBZ. 

2. SBZ Regulatory Background 

As previously explained, there are no 

provisions in SMCRA requiring 

establishment or protection of a stream 

buffer zone. We adopted the concept of 

a ‘‘buffer zone’’ around intermittent and 

perennial streams 3 as a means ‘‘to 

protect stream channels from abnormal 

erosion’’ from nearby upslope mining 

activities. 42 FR 62652 (December 13, 

1977) The initial program regulations 

establishing the SBZ requirements 

provide:

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 § 715.12.

30 CFR 715.17(d)(3). 

The 1977 regulation, which is still in 

effect, does not specify the conditions 

under which the regulatory authority 

could waive the SBZ requirement. We 

confirmed in the preamble to the 1977 

rule that, ‘‘if operations can be 

conducted within 100 feet of a stream in

Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 1041

an environmentally acceptable manner, 

they may be approved.’’ 42 FR 62652 

(December 13, 1977). 

We published our permanent program 

regulations in the Federal Register on 

March 13, 1979. Those regulations 

retained a revised SBZ concept as a 

means to implement various SMCRA 

provisions, in particular, sections 

515(b)(10) and 515(b)(24). 44 FR 15176 

(March 13, 1979). Section 515(b)(10) 

requires that mining operations 

‘‘minimize the disturbances to the 

prevailing hydrologic balance at the 

mine-site and in associated offsite areas’

by, among other things, preventing, to 

the extent possible, additional 

contributions of suspended solids to 

stream flow or runoff outside of the 

permit area. Section 515(b)(24) requires 

operations to ‘‘minimize disturbances 

and adverse impacts of the operation on 

fish, wildlife, and related environmental 

values.’’

We explained in the preamble to the 

1979 final rule: ‘‘Buffer zones are 

required to protect streams from adverse 

effects of sedimentation and from gross 

disturbance of stream channels.’’ 44 FR 

15176 (March 13, 1979) The bulk of the 

discussion in that preamble focused on 

protecting streams from sedimentation. 

Id. We stated that the SBZ rule ‘‘protects 

stream channels, but contemplates that 

the regulatory authority may allow 

surface mining activities to be 

conducted within’’ the SBZ. ‘‘Thus, if 

operations can be conducted within 100 

feet of a stream in an environmentally 

acceptable manner, they may be 

approved.’’ Id.

The 1979 SBZ rule specified 

conditions under which the regulatory 

authority could grant an exemption to 

the SBZ restriction. The permanent 

program rule also replaced the term 

‘‘intermittent stream’’ with ‘‘stream with 

a biological community.’’ The 1979 

permanent program rule provided that, 

in order to grant an exemption from the 

SBZ restriction, the regulatory authority 

had to find:

(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.

30 CFR 816.57(a). 

It is important to note that the second 

finding required for granting an SBZ 

waiver requires the regulatory authority 

to evaluate effects on water quantity and 

quality, not at the location of the mining 

activity, but within 100 feet of the 

activity. This concept was not expressly 

retained in the 1983 version of the SBZ 

rule. However, the 1983 rule language 

does not preclude OSM’s practice since 

1979 of not requiring evaluation of 

effects on the segment of stream directly 

affected by surface mining activities. 

Instead, when acting on waivers for the 

buffer zone, OSM has required an 

evaluation of the effects anticipated 

within the stream section within 100 

feet downstream of the surface mining 

activities, and outside the area affected 

by surface mining activities.

On March 30, 1982, our current SBZ 

regulations were published in the 

Federal Register as proposed rules. 47 

FR 13466. We published the final 

regulations over a year later on June 30, 

1983. (48 FR 30327). In the preamble to 

the proposed rule in March 1982, we 

stated that the 1979 regulations had to 

be changed because they had proved 

excessive and too confusing to 

implement. 47 FR 13467. This 

characterization primarily stemmed 

from the 1979 rule’s reference to 

protecting ‘‘streams with a biological 

community,’’ but was also based on the 

agency’s recognition that the condition 

for granting an exemption to the SBZ 

restriction—to restore the original 

stream channel—was too impractical. 

Id.

The 1983 amendments reinstated use 

of the term ‘‘intermittent stream’’ in 

place of ‘‘streams with a biological 

community.’’ The amended regulation 

also changed the conditions for 

authorizing an exemption to the SBZ 

restriction, to require 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 § 816.43.

We reaffirmed the basic purpose of 

the SBZ rule in the preamble to the June 

30, 1983, amendments: to protect 

streams from sedimentation and from 

gross disturbances of the stream 

channel. We said that SBZs are effective 

means, in conjunction with sediment 

ponds and other measures, to prevent 

excessive sedimentation of streams by 

runoff from disturbed surface areas. We 

also said that the new rules recognize 

that intermittent and perennial streams 

have environmental resource values 

worthy of protection under section 

515(b)(24) of SMCRA. 48 FR 30312 

(June 30, 1983). 

Several commenters recommended 

that a new phrase in the March 1982 

proposed rule ‘‘as determined by State 

or Federal water quality standards’’ be 

deleted or clarified. To address the 

commenters’ concerns and to eliminate 

regulatory uncertainty, we adopted the 

phrase ‘‘will not cause or contribute to 

violation of applicable State or Federal 

water quality standards.’’ We explained 

that operators would be required to 

comply with all ‘‘non-Act requirements 

for water’’ protection under proposed 

hydrologic balance protection 

regulations at § 816.41 (§ 816.41 was 

proposed in the Federal Register on 

June 25, 1982 (47 FR 27712) and 

finalized on September 26, 1983 (48 FR 

43956)). While the language of § 816.41 

does not specifically state that 

‘‘operators will be required to comply 

with all non-Act requirements for 

water,’’ it does provide that mining and 

reclamation activities must be 

conducted to minimize pollution and 

changes in flow, disturbance to the 

hydrologic balance on site, and to 

prevent material damage off site. Even 

without this advisory language, an 

operator must comply with all 

applicable local, State, and Federal 

permits and other requirements for 

water quality. 

In the preamble to the 1983 final rule, 

our response to a comment indirectly 

elaborated on the requirement that 

SMCRA mining operations ‘‘will not 

adversely affect the water quantity and 

quality or other environmental 

resources of the stream.’’ We implicitly 

recognized that this condition does not 

require that ‘‘no adverse’’ effects occur, 

but rather requires that these effects be 

minimized, when we stated:

Alteration of streams may have adverse 

aquatic and ecological impacts on both 

diverted stream reaches and other 

downstream areas. However, final § 816.57(a) 

will minimize these impacts* * *

48 FR 30315 (June 30, 1983). 

Finally, in response to a comment on 

the 1983 SBZ rule, we explained that 

the clause ‘‘will not adversely affect 

* * * related environmental resources’’

was added to the conditions for a SBZ 

exemption to more accurately reflect the 

objectives of sections 515(b)(10) and 

(24) of SMCRA. 48 FR 30316 (June 30, 

1983). 

The January 1983 final environmental 

statement ‘‘OSM–EIS–1: Supplement’’

provided the NEPA support for the 1983 

SBZ rule. The following excerpt 

illustrates our recognition that some 

small streams would be impacted by 

mining under the revised SBZ rule:

The draft final regulations on the stream 

buffer zone (section 816.57) would provide 

essentially the same protection to water 

quality of streams as the current regulations. 

The draft final regulations, however, would 

provide protection to perennial and 

intermittent streams, whereas, the current 

regulations protect perennial streams and 

streams with a biological community. The 

1042 Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 

current definition of ‘‘intermittent stream’’

(section 701.5) does not include streams 

draining less than 1 square mile. Those 

streams would not be protected by the buffer 

zone where they would have been protected 

before. Many such streams are found in the 

Appalachian coal region and support 

biological communities or serve as fish 

spawning areas. In most cases, impact of 

mining on those streams would be temporary 

because of the requirement to design and 

construct permanent diversions or stream 

channels to restore or approximate the 

premining characteristics of the original 

stream channel and natural riparian 

vegetation (draft final section 816.41(f)). In 

some cases, such as small headwater 

drainages, the original stream channel might 

not be restored. Where this happens, the 

disruption of the stream channel could 

potentially alter the hydrologic balance 

downstream, with subsequent impacts on 

fish. Requirements to protect the hydrologic 

balance would tend to limit this, and such 

impacts are not considered significant.

(OSM, 1983, p. IV–37). 

In the 1983 EIS, we went on to 

discuss the impacts of more 

environmentally protective alternatives 

to the 1983 SBZ rule:

OSM could eliminate the exemption from 

the general stream buffer zone requirements 

(section 816.57), and all mining would be 

prohibited within 100 feet of any perennial 

or intermittent stream. Although this would 

provide maximum protection to streams, the 

potential impacts on coal recovery could be 

significant in those areas with large coal 

reserves and extensive water resources. 

OSM could redefine ‘‘intermittent stream’’

in current section 701.5.

This definition is not being revised under 

the preferred alternative. A broader 

definition of intermittent stream consistent 

with that of the Army Corps of Engineers’

definition would allow regulatory authorities 

to protect smaller streams (those draining 

less than 1 square mile) with buffer zones 

where necessary. This would mitigate the 

potential impacts identified for the draft final 

regulations on stream buffer zones.

(Ibid, p. IV–83). 

These paragraphs further illustrate 

that we did not intend the SBZ rule as 

an absolute prohibition of mining in the 

buffer zone. It also shows that we did 

not anticipate regulatory authorities to 

apply the SBZ to watercourses in small 

watersheds (less than 1 square mile). 

The 1983 SBZ rule was challenged in 

U.S. District Court, District of Columbia, 

by both the coal industry and the 

National Wildlife Federation and 

successfully defended by OSM. In re: 

Permanent Surface Mining Regulation 

Litigation II, No. 79–1144 [21 ERC 1741–

1742] (October 1, 1984). 

C. Reference Materials

Paybins, Katherine S., Flow Origin, Drainage 

Area, and Hydrologic Characteristics for 

Headwater Streams in Mountaintop CoalMining Region of Southern West Virginia, 

Water Resources Investigations Report 02–

4300, U.S. Geological Survey. 2003. 

Office of Surface Mining Reclamation and 

Enforcement, Permanent Regulatory 

Program Implementing Section 501(b) of 

the Surface Mining Control and 

Reclamation Act of 1977, Final 

Environmental Statement OSM–EIS–1, 

January 1979. 

Office of Surface Mining Reclamation and 

Enforcement, Proposed Revisions to the 

Permanent Program Regulations 

Implementing Section 501(b) of the Surface 

Mining Control and Reclamation Act of 

1977, Volume 1: Analysis—Revised text 

and responses to comments, Final 

Environmental Statement OSM—EIS–1: 

Supplement, January 1983. 

U.S. Department of the Interior, Office of 

Surface Mining, ‘‘An Evaluation of 

Approximate Original Contour and Postmining Landuse in Kentucky’’ USOSM 

Oversight Report, September 1999. 

U.S. Department of the Interior, Office of 

Surface Mining, ‘‘An Evaluation of 

Approximate Original Contour Variances 

and Postmining Land Uses in Virginia’’

USOSM Oversight Report, September 1999. 

U.S. Department of the Interior, Office of 

Surface Mining, ‘‘Final Report: An 

Evaluation of Approximate Original 

Contour and Postmining Land Use in West 

Virginia.’’ USOSM Oversight Report, May 

1999. 

U.S. Environmental Protection Agency, 

Mountaintop Mining/Valley Fills in 

Appalachia Draft Programmatic 

Environmental Impact Statement, EPA 9–

03–R–00013, EPA Region 3, June 2003.

II. Discussion of the Proposed Rules 

For convenience, where the 

discussion concerns the SBZ regulation 

at 30 CFR 816.57 (surface mining) and 

30 CFR 817.57 (underground mining), or 

the regulation pertaining to diversions 

at 30 CFR 816.43 (surface mining) and 

30 CFR 817.43 (underground mining), 

these sections are cited together in the 

heading as §§ 816.[ ]/817.[ ], but in most 

cases only part 816 is referenced in the 

text. The changes to permitting 

requirements in part 780 and the 

performance standards in § 816.71 

would apply only to surface mines, and 

corresponding changes to the 

regulations for underground mines are 

not being proposed. We decided not to 

propose changes to the excess spoil 

regulations applicable to underground 

mining because the current regulations 

in this regard are satisfactorily working, 

and the size and number of excess spoil 

fills associated with underground 

mining are small. 

A. Reclamation Plan (§ 780.18(b)(3)) 

Section 780.18(b)(3) requires a permit 

application to contain a plan for 

backfilling, soil stabilization, 

compacting and grading, with contour 

or cross-section maps that show the 

anticipated final surface configuration 

of the proposed permit area, in 

accordance with the applicable 

performance standards. Authority for 

this section stems from SMCRA sections 

507(b)(14), 508(a)(5) and (10), 515(b)(3) 

through (6), (8), (10), (11), (13), (17), and 

(22). 

In essence, § 780.18(b)(3) requires that 

the application show how all spoil and 

soil from the mine site will be managed. 

While excess spoil is not specifically 

discussed, it would certainly be integral 

to, and encompassed by, this plan. 

Because of the growing concerns 

regarding the volume of excess spoil 

and the size of excess spoil fills, we 

propose to amend this regulation to 

require the applicant to include 

sufficient supporting information in the 

plan to demonstrate, to the satisfaction 

of the regulatory authority, that the 

applicant has taken necessary steps to 

avoid the generation of excess spoil and 

has minimized the volume of excess 

spoil to the maximum extent possible. 

Minimizing the volume of excess spoil 

is fundamentally important to ensure 

that adverse environmental effects 

stemming from the construction of 

excess spoil fills are minimized. 

B. Disposal of Excess Spoil (§§ 780.35 

and 816.71) 

Section 780.35 requires the operator 

provide necessary plans describing the 

sites and structures to be used in the 

disposal of excess spoil. Section 

780.35(a) states:

Each application shall contain 

descriptions, including appropriate maps and 

cross section drawings, of the proposed 

disposal site and design of the spoil disposal 

structures according to 30 CFR 816.71–

816.74. * * *

The authority for § 780.35 is sections 

102, 210, 501, 503, 507, 508, 510, and 

515 of SMCRA. Principally, this section 

establishes the overall requirements for 

a plan for handling excess spoil in 

compliance with the performance 

standards at section 515(b)(22) of 

SMCRA. Section 816.71 establishes the 

general performance standards to 

implement section 515(b)(22).

We propose to further strengthen 

regulations at § 780.35 and § 816.71 to 

more explicitly address the direct 

impacts associated with excess spoil fill 

construction. In § 780.35, we propose 

requiring that each permit application 

(for which excess spoil is anticipated) 

contain alternative analyses of the 

environmental impacts of constructing 

fills in different locations and under 

different configurations, with different 

sizes and numbers of fills to 

accommodate the excess spoil. OSM 

anticipates that this analysis will

Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 1043

address the baseline information 

collected as part of the permitting 

process, such as fish, wildlife, stream 

quality, vegetative cover, and other 

information, in order to make an 

informed, science-based decision as to 

where excess spoil material should be 

placed to result in the least 

environmental impact. For example, a 

permit applicant might evaluate 

available alternatives such as placing a 

fill in either a relatively pristine stream 

or a degraded stream. If all other factors 

were equal, we would expect that the 

stream with higher water quality would 

be protected. Similarly, we would 

expect to see an analysis of the 

environmental impacts of each 

alternative, based on the available 

baseline information typically collected 

as part of the SMCRA and/or CWA 

section 404 application process. The 

analysis would discuss how the impacts 

of the alternatives would vary; for 

example, the impacts of constructing 

fewer large excess spoil fills, compared 

to the impacts of constructing many 

small fills. 

In § 816.71, we propose to add a 

requirement in subsection (c)(2) to 

ensure that fills are located so as to 

minimize, to the extent possible, 

adverse impacts to the prevailing 

hydrologic balance, fish, wildlife, and 

related environmental values (after 

considering alternative fill locations, 

sizes, and numbers). In addition, 

§ 816.71 would be revised to add a 

required demonstration that cumulative 

volume of fill for an operation is no 

larger than necessary to accommodate 

the cumulative volume of excess spoil 

from the operation. The purpose of this 

latter change is to make it clear that 

operators should not design excess spoil 

fills to be inordinately oversized, and to 

require operators to minimize the area 

disturbed by spoil fill, in relation to the 

volume of excess spoil disposed. As the 

operator decreases the size of the fill 

footprint, the operator will reduce the 

extent to which fills cover stream 

reaches. Decreasing the fill footprint 

will also reduce the area of forest and 

riparian vegetation disturbed. 

C. Stream Buffer Zones (§§ 816.57/

817.57) 

In order to reduce the regulatory 

uncertainty regarding the interpretation 

of our SBZ requirements, we propose to 

revise the language that has led to 

varying interpretations. The proposed 

language aligns more closely with the 

statutory basis for the SBZ rule. The 

existing SBZ rule for surface mining 

activities is found at 30 CFR 816.57. The 

SBZ rule for underground mining is 

found at 30 CFR 817.57. We are 

proposing essentially the same changes 

for both regulations. The SBZ rule for 

surface mining activities provides:

30 CFR 816.57 Hydrologic balance: Stream 

buffer zones. 

(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 § 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 § 816.11.

We propose to revise the language of 

paragraph (a)(1) above by requiring two 

findings by the regulatory authority that 

would be conditions for granting an SBZ 

waiver. The first finding would be that 

the surface mining activities will 

‘‘prevent, to the extent possible using 

best technology currently available 

(BTCA), additional contributions of 

suspended solids to the stream section 

within 100 feet downstream of the 

surface mining activity, and outside of 

the area of the surface mining activity.’’

We believe that the first condition 

comports with a principal goal of the 

SBZ rule that has been stated 

throughout the history of the rule: to 

protect streams outside of the mining 

permit area from sedimentation. The 

change would align with the 

requirement of SMCRA section 

515(b)(10)(B)(i) that the operation: 

‘‘prevent, to the extent possible using 

the best technology currently available, 

additional contributions of suspended 

solids to stream flow, or runoff outside 

the permit area.’’ This change would 

also make the SBZ rule more consistent 

with other SMCRA regulations, as well 

as with the CWA. For example, the 

proposed language would be more 

consistent with 30 CFR 816.41(a), which 

states:

All surface mining and reclamation 

activities shall be conducted to minimize 

disturbance to the hydrologic balance within 

the permit and adjacent areas, to prevent 

material damage to the hydrologic balance 

outside of the permit area * * *

Further, the proposed change would 

not affect, but would eliminate 

redundancy with, the requirements of 

30 CFR 816.42, which would continue 

to apply to surface mining activities. 

Section 816.42 requires that:

Discharges of water from areas disturbed 

by surface mining activities shall be made in 

compliance with applicable State and 

Federal water quality laws and regulations 

and with effluent limitations for coal mining 

promulgated by the U.S. Environmental 

Protection Agency set forth in 40 CFR 434.

The change would have no effect on 

a mining operator’s obligation to comply 

with other statutes, such as the CWA. 

The proposed change is intended to 

avoid the possibility that the SBZ rule 

could be misinterpreted to supersede 

the CWA by prohibiting an activity 

because of water quality standards that 

would otherwise be authorized under 

the CWA. Thus, the proposed rule 

would also be consistent with section 

702 of SMCRA (30 U.S.C. 1292), which 

requires that nothing in SMCRA ‘‘shall 

be construed as superseding, amending, 

modifying, or repealing’’ the CWA or 

‘‘any rule or regulation promulgated 

thereunder.’’

The second condition would require a 

regulatory authority finding that the 

surface mining activities will 

‘‘minimize, to the extent possible using 

BTCA, disturbances and adverse 

impacts on fish, wildlife, and other 

related environmental values.’’ This 

change more closely aligns with SMCRA 

section 515(b)(24), which provides:

[T]o the extent possible using the best 

technology currently available, minimize 

disturbances and adverse impacts of the 

operation on fish, wildlife and related 

environmental values * * *

It is virtually impossible to conduct 

mining activities within 100 feet of an 

intermittent or perennial stream without 

causing some adverse impacts, even if 

those impacts are very small. We believe 

SMCRA recognizes that an absolute 

standard of ‘‘no adverse impacts’’ is 

unattainable. This is reflected in the fact 

that SMCRA in most cases requires the 

mining operation to minimize, rather 

than completely prevent, adverse 

environmental impacts. We invite 

comment on this position. 

The history of the rule shows that we 

recognized some adverse impacts would 

occur at the site of the mining activity 

in the stream buffer zone. For example, 

in the analyses of the projected impacts 

associated with the 1983 rule, we 

assumed that streams occurring in small 

watersheds (less than 1 square mile) 

might be adversely impacted by mining, 

even though we knew that many of 

these streams would be likely to come 

within the definition of ‘‘intermittent’’

or ‘‘perennial’’ streams. Therefore, in 

this proposed rule, rather than 

prohibiting any adverse impacts, we 

would require that these impacts be 

minimized to the extent possible using 

the best technology currently available, 

1044 Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 

and that operators prevent additional 

contributions of suspended solids to the 

stream section within 100 feet 

downstream of the mining activity, and 

outside the area affected by surface 

mining activities. We believe that 

making these two requirements for 

findings explicit in the rule would 

provide necessary safeguards for 

streams consistent with the original 

intent of SMCRA. 

The Federal 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-bycase basis, as authorized by the Act and this 

chapter.

We would expect that the regulatory 

authority would authorize a waiver of 

the SBZ requirements only if 

information and analysis in the permit 

application record demonstrates to the 

satisfaction of the regulatory authority 

that (1) the proposed volume of excess 

spoil would be minimized, (2) proposed 

excess spoil fills associated with a mine 

would be no larger than needed to 

accommodate the volume of spoil from 

the mine, and (3) alternative fill 

locations, sizes, and numbers have been 

analyzed and the proposed excess spoil 

disposal plan incorporates the 

alternatives that cause the least 

environmental harm. Further, we would 

expect that the regulatory authority, in 

performing these reviews and making 

findings, would consider all 

applications of BTCA that would 

minimize adverse impacts, consistent 

with the definition of BTCA at 30 CFR 

701.5. This type of analysis 

complements the ‘‘no practical 

alternative’’ requirements for CWA 

section 404 applicants. 

Although it was vacated on 

procedural grounds, the opinion 

rendered by the district court in Bragg

clearly viewed the SBZ requirements as 

applying restrictions more stringent 

than those of the CWA section 404 

program. However, in part because of 

the references to CWA in section 702 of 

SMCRA mentioned above, we believe it 

is appropriate to limit SBZ restrictions 

on placement of fills in streams when 

those fills are also expressly regulated 

and authorized under section 404 of the 

CWA. The proposed rule also takes into 

consideration the 1980 decision of the 

District of Columbia Circuit Court of 

Appeals which held that any variances 

and exemptions under the Federal 

Water Pollution Control Act (now 

referred to as the CWA) that are 

applicable to surface coal mining 

operations are substantive elements 

rather than ‘‘gaps’’ in CWA authority. 

Therefore, the 1980 decision held that 

OSM may not alter those requirements 

by adopting more stringent provisions 

for surface coal mining operations. We 

invite comment on whether the 

proposed amendments to 30 CFR 816.57 

and 817.57 are consistent with the 

requirement in section 702 concerning 

the interpretation of SMCRA relative to 

CWA.

D. Diversion of Perennial and 

Intermittent Streams. (§§ 816.43(b) / 

817.43(b)) 

The current version of the regulation 

concerning the diversion of perennial 

and intermittent streams at 

§ 816.43(b)(1) refers to the findings that 

the regulatory authority is required to 

make under the SBZ regulations:

Diversion of perennial and intermittent 

streams within the permit area may be 

approved by the regulatory authority after 

making the finding relating to the stream 

buffer zones that the diversion will not 

adversely affect the water quantity and 

quality and related environmental resources 

of the stream.

To comport with the proposed SBZ 

regulation and to eliminate redundancy, 

we propose to revise the above language 

by striking the words ‘‘that the diversion 

will not adversely affect the water 

quantity and quality and related 

environmental resources of the stream.’’

As noted above, other provisions of 

SMCRA and the implementing 

regulations address impacts of the 

mining operation on water quality and 

quantity. 

III. How Do I Submit Comments on the 

Proposed Rule? 

Electronic or Written Comments: If 

you submit written comments, they 

should be specific, confined to issues 

pertinent to the proposed rule, and 

explain the reason for any 

recommended change(s). We appreciate 

any and all comments, but those most 

useful and likely to influence decisions 

on a final rule will be those that either 

involve personal experience or include 

citations to and analyses of SMCRA, its 

legislative history, its implementing 

regulations, case law, other pertinent 

State or Federal laws or regulations, 

technical literature, or other relevant 

publications. 

Except for comments provided in an 

electronic format, you should submit 

three copies of your comments if 

practicable. We will not consider 

anonymous comments. Comments 

received after the close of the comment 

period (see DATES) or at locations other 

than those listed above (see ADDRESSES) 

will not be considered or included in 

the Administrative Record. 

Availability of Comments: Our 

practice is to make comments, including 

names and home addresses of 

respondents, available for public review 

during regular business hours at the 

OSM Administrative Record Room (see 

ADDRESSES). Individual respondents 

may request that we withhold their 

home address from the rulemaking 

record. We will honor this request to the 

extent allowable by law. There also may 

be circumstances in which we would 

withhold from the rulemaking record a 

respondent’s identity, to the extent 

allowed by law. If you wish us to 

withhold your name and/or address, 

you must state this prominently at the 

beginning of your comment.

We will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Public hearings: We will hold a public 

hearing on the proposed rule upon 

request only. The time, date, and 

address for any hearing will be 

announced in the Federal Register at 

least 7 days prior to the hearing. 

Any person interested in participating 

in a hearing should inform Mr. David G. 

Hartos (see FOR FURTHER INFORMATION

CONTACT), either orally or in writing by 

5 p.m., Eastern time, on January 28, 

2004. If no one has contacted Mr. Hartos 

to express an interest in participating in 

a hearing by that date, a hearing will not 

be held. If only one person expresses an 

interest, a public meeting rather than a 

hearing may be held, with the results 

included in the Administrative Record. 

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 

Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 1045

been scheduled to speak and wish to do 

so, you will be allowed to speak after 

those who have been scheduled. 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: If there is only limited 

interest in a hearing at a particular 

location, a public meeting, rather than a 

public hearing, may be held. Persons 

wishing to meet with us to discuss the 

proposed rule may request a meeting by 

contacting the person listed under FOR

FURTHER INFORMATION CONTACT. All 

meetings will be open to the public and, 

if possible, notice of the meetings will 

be posted at the appropriate locations 

listed under ADDRESSES. A written 

summary of each public meeting will be 

made a part of the administrative record 

of this rulemaking. 

IV. Procedural Matters and Required 

Determinations 

A. Executive Order 12866—Regulatory 

Planning and Review 

This proposed rule is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866 for the following 

reasons: 

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. As previously stated, the 

revisions contained in the rule are 

intended to clarify existing 

requirements to: (1) Minimize the 

adverse environmental effects stemming 

from the construction of excess spoil 

fills; and (2) reduce regulatory 

uncertainty concerning the 

circumstances in which mining 

activities, such as the construction of 

excess spoil fills, may be allowed within 

100 feet of a perennial or intermittent 

stream. 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 on 

some primacy States. It is estimated that 

the total annual increase for operators 

would be approximately $240,500, and 

for the primacy States the total annual 

increase is estimated at approximately 

$24,200. These increases are due to the 

requirement to document the analyses 

and findings required by these 

regulatory changes. The estimated 

increase in costs will likely only 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 of the regulatory agencies in 

the Appalachian coalfields have 

implemented policies to minimize the 

volume of excess spoil, no significant 

additional costs of implementing these 

regulatory changes are anticipated other 

than those required to document the 

strengthened requirements to consider 

all alternative excess spoil construction 

and disposal sites. This rule would not 

create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency. 

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. 

d. This rule would clarify existing 

regulatory requirements and does not 

raise novel legal or policy issues arising 

from legal mandates, Presidential 

priorities, or the principles set forth in 

the Executive Order. 

B. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not considered a 

significant energy action under 

Executive Order 13211. The revisions 

contained in this 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 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 

previously stated, the revisions are not 

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 rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule, for the reasons stated above: 

a. Would not have an annual effect on 

the economy of $100 million or more. 

b. Would not cause a major increase 

in costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

c. Would not 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 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 

In accordance with Executive Order 

12630, the rule would not have 

significant takings implications. 

G. Executive Order 13132—Federalism 

In accordance with Executive Order 

13132, the rule would not have 

significant Federalism implications to 

warrant the preparation of a Federalism 

Assessment for the reasons discussed 

above.

H. Executive Order 12988—Civil Justice 

Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule would not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. 

I. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on Federally 

recognized Indian Tribes and have 

determined that the proposed revisions 

pertaining to excess spoil and the 

stream buffer zone would not have 

substantial direct effects on the 

relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

1046 Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 

responsibilities between the Federal 

Government and Indian Tribes. 

J. Paperwork Reduction Act 

In accordance with 44 U.S.C. 3507(d), 

OSM has submitted the information 

collection and record keeping 

requirements of 30 CFR parts 780, 816 

and 817 to the Office of Management 

and Budget (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–xxx1. 

Summary: Permit application 

requirements in sections 507(b), 508(a), 

510(b), 515(b) and (d), and 522 of Public 

Law 95–87 require the applicant to 

submit the operations and reclamation 

plan for coal mining activities. 

Information collection is needed to 

determine whether the mining and 

reclamation plan will achieve the 

reclamation and environmental 

protections pursuant to the Surface 

Mining Control and Reclamation Act. 

Without this information, Federal and 

State regulatory authorities cannot 

review and approve permit application 

requests. 

Bureau Form Number: None. 

Frequency of Collection: Once. 

Description of Respondents:

Applicants for surface coal mine 

permits. 

Total Annual Responses: 477. 

Total Annual Burden Hours: 231,671. 

Non-labor Cost Burden: $2,125,220. 

30 CFR Parts 816 and 817 

Title: Permanent Program 

Performance Standards—Surface and 

Underground Mining Activities.

OMB Control Number: 1029–xxx2. 

Summary: Sections 515 and 516 of the 

Surface Mining Control and 

Reclamation Act of 1977 provide that 

permittees conducting surface coal 

mining operations shall meet all 

applicable performance standards of the 

Act. The information collected is used 

by the regulatory authority in 

monitoring and inspecting 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: Surface 

coal mining operators. 

Total Annual Responses: 186,341. 

Total Annual Burden Hours: 871,140. 

Non-labor Cost Burden: $315,000. 

Comments are invited on: 

(a) Whether the proposed collection of 

information is necessary for the proper 

performance of OSM and State 

regulatory authorities, including 

whether the information will have 

practical utility; 

(b) The accuracy of OSM’s 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; and 

(d) Ways to minimize the burden of 

collection on the respondents. 

Under the Paperwork Reduction Act, 

OSM 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 

requesting the information has a 

currently valid OMB control (clearance) 

number. These numbers appear in 

sections 780.10, 816.10, and 817.10 of 

30 CFR parts 780, 816, and 817, 

respectively. To obtain a copy of OSM’s 

information collection clearance 

requests, explanatory information, and 

related forms, contact John A. Trelease 

at (202) 208–2783 or by e-mail at 

jtreleas@osmre.gov.

By law, OMB must respond to OSM 

within 60 days of publication of this 

proposed rule, but 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 February 

6, 2004, to the Office of Management 

and Budget, Office of Information and 

Regulatory Affairs, Attention: Interior 

Desk Officer, via e-mail to 

oira_docket@omb.eop.gov, or via 

facsimile to (202) 395–6566. Also, 

please send a copy of your comments to 

John A. Trelease, Office of Surface 

Mining Reclamation and Enforcement, 

1951 Constitution Ave., NW., Room 

210–SIB, Washington, DC 20240, or 

electronically to jtreleas@osmre.gov.

K. National Environmental Policy Act 

We have prepared a draft 

environmental assessment (EA) of the 

proposed rule in accordance with the 

National Environmental Policy Act of 

1969 and have made a tentative 

determination that this rule will not 

significantly affect the quality of the 

human environment. It is anticipated 

that a finding of no significant impact 

(FONSI) will be made for the final rule 

in accordance with Departmental 

procedures under NEPA. The EA is on 

file in our administrative record at the 

address specified previously (see

ADDRESSES). The EA will be completed 

and a finding made on the significance 

of any resulting impacts before we 

publish the 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 ‘‘§ ’’and a numbered 

heading; for example, § 780.18 

Reclamation Plan: General 

Requirements. (5) Is the description of 

the proposed rule in the SUPPLEMENTARY

INFORMATION section 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 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: Exsec@ios.doi.gov.

List of Subjects 

30 CFR Part 780 

Reporting and record keeping 

requirements, Mines, Surface mining, 

Reclamation, Excess Spoil. 

30 CFR Part 816 

Environmental protection, Reporting 

and record keeping requirements, 

Mines, Surface mining, Reclamation, 

Excess spoil, Diversions, Stream buffer 

zone. 

30 CFR Part 817 

Environmental protection, Reporting 

and record keeping requirements, 

Mines, Underground mining, 

Reclamation, Excess spoil, Diversions, 

Stream buffer zone.

Dated: December 19, 2003. 

Patricia E. Morrison, 

Acting Assistant Secretary, Land and 

Minerals Management.

Accordingly, we propose revising 30 

CFR parts 780, 816, and 817 as set forth 

below.

Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 1047

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. Section 780.10 is revised to read as 

follows:

§ 780.10 Information collection. 

(a) The collections of information 

contained in Part 780 have been 

approved by the Office of Management 

and Budget under 44 U.S.C. 3501 et seq.

and assigned clearance number 1029–

xxx1. Permit application requirements 

in sections 507(b), 508(a), 510(b), 515(b) 

and (d), and 522 of the Surface Mining 

Control and Reclamation Act (Pub. L. 

95–87) require the applicant to submit 

the operations and reclamation plan for 

coal mining activities. Information 

collection is needed to determine 

whether the mining and reclamation 

plan will achieve required reclamation 

and environmental protection. Without 

this information, Federal and State 

regulatory authorities cannot review and 

approve permit application requests. 

(b) Public Reporting Burden for this 

information is estimated to average 29 

hours per response and non-labor costs 

of $8,855.00, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. Send comments 

regarding this burden estimate or any 

other aspect of this collection of 

information, including suggestions for 

reducing the burden, to the Information 

Collection Clearance Officer, Office of 

Surface Mining Reclamation and 

Enforcement, 1951 Constitution Ave., 

NW., SIB 210, Washington, DC 20240. 

Please refer to OMB Control Number 

1029–xxx1 in any correspondence. 

3. In § 780.18 revise paragraph (b)(3) 

to read as follows:

§ 780.18 Reclamation plan: General 

requirements.

* * * * *

(b) * * * 

(3) A plan for backfilling, soil 

stabilization, compacting, and grading, 

with contour maps or cross sections that 

show the anticipated final surface 

configuration of the proposed permit 

area, in accordance with 30 CFR 

816.102 through 816.107. If excess spoil 

is anticipated, the plan must 

demonstrate to the satisfaction of the 

regulatory authority that the volume of 

excess spoil will be minimized to the 

maximum extent possible;

* * * * *

4. In § 780.35, redesignate paragraphs 

(b) and (c) as paragraphs (c) and (d) and 

add new paragraph (b) to read as 

follows:

§ 780.35 Disposal of excess spoil.

* * * * *

(b) Each application shall also 

describe the steps to be taken to 

minimize the adverse environmental 

effects stemming from the construction 

of excess spoil fills, and provide 

analyses of the environmental impacts 

of alternative disposal plans to 

accommodate the volume of excess 

spoil in which the configurations of 

fills, including fill location, number and 

size, vary.

* * * * *

PART 816—PERMANENT PROGRAM 

PERFORMANCE STANDARDS—

SURFACE MINING ACTIVITIES 

5. The authority citation for Part 816 

continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.; and sec 

115 of Pub. L. 98–146.

6. Section 816.10 is revised to read as 

follows:

§ 816.10 Information collection. 

(a) The collections of information 

contained in Part 816 have been 

approved by the Office of Management 

and Budget under 44 U.S.C. 3501 et seq.

and assigned clearance number 1029–

xxx2. The information will be used by 

the regulatory authority to monitor and 

inspect surface coal mining activities to 

ensure that they are in compliance with 

the Surface Mining Control and 

Reclamation Act. Response is required 

to obtain a benefit. 

(b) Public Reporting Burden for this 

information is estimated to average 10 

hours per response and non-labor costs 

of $70.00, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. Send comments 

regarding this burden estimate or any 

other aspect of this collection of 

information, including suggestions for 

reducing the burden, to the Information 

Collection Clearance Officer, Office of 

Surface Mining Reclamation and 

Enforcement, 1951 Constitution Ave., 

NW., SIB 210, Washington, DC 20240. 

Please refer to OMB Control Number 

1029–xxx2 in any correspondence. 

7. In § 816.43, revise paragraph (b)(1) 

to read as follows:

§ 816.43 Diversions

* * * * *

(b) * * *

(1) The regulatory authority may 

approve the diversion of perennial and 

intermittent streams within the permit 

area after making the finding required 

by § 816.57 of this chapter.

* * * * *

8. In § 816.57, redesignate paragraphs 

(a)(2) and (b) as (b) and (c), respectively 

and revise paragraph (a) to read as 

follows:

§ 816.57 Hydrologic balance: Stream 

buffer zones. 

(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 such 

activities closer to or through the 

stream. The regulatory authority may 

authorize such activities only upon 

finding that the activities will, to the 

extent possible, using the best 

technology currently available—

(1) Prevent additional contributions of 

suspended solids to the stream section 

within 100 feet downstream of the 

surface mining activities, and outside of 

the area affected by surface mining 

activities; and 

(2) Minimize disturbances and 

adverse impacts on fish, wildlife, and 

other related environmental values of 

the stream.

* * * * *

9. In § 816.71 revise paragraphs (a)(2), 

(a)(3) and (c) and add paragraph (a)(4) 

to read as follows:

§ 816.71 Disposal of excess spoil; General 

requirements.

* * * * *

(a) * * * 

(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) Ensure that the cumulative volume 

of excess spoil fills is no larger than 

necessary to accommodate the 

cumulative excess spoil volume 

generated.

* * * * *

(c) Location. (1) The disposal area 

shall be located on the most moderately 

sloping and naturally stable areas 

available, as approved by the regulatory 

authority, and shall be placed, where 

possible, upon or above a natural 

terrace, bench, or berm, if such 

placement provides additional stability 

and prevents mass movement; and

1048 Federal Register / Vol. 69, No. 4 / Wednesday, January 7, 2004 / Proposed Rules 

(2) After considering alternative fill 

locations and size fills, fills must also be 

located so as to minimize, to the extent 

possible, adverse impacts on the 

prevailing hydrologic balance, fish, 

wildlife, and related environmental 

values.

* * * * *

PART 817—PERMANENT PROGRAM 

PERFORMANCE STANDARDS—

UNDERGROUND MINING ACTIVITIES 

10. The authority citation for Part 817 

continues to read as follows:

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

11. Section 817.10 is revised to read 

as follows:

§ 817.10 Information collection. 

(a) The collections of information 

contained in part 817 have been 

approved by Office of Management and 

Budget under 44 U.S.C. 3501 et seq. and 

assigned clearance number 1029–xxx2. 

The information will be used to meet 

the requirements of 30 U.S.C. 1211, 

1251, 1266, and 1309a, which provide, 

among other things, that permittees 

conducting underground coal mining 

operations will meet the applicable 

performance standards of the Act. The 

regulatory authority will use this 

information in monitoring and 

inspecting underground mining 

activities. The obligation to respond is 

required to obtain a benefit. 

(b) Public reporting burden for this 

information is estimated to average 10 

hours per response and non-labor costs 

of $70.00, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. Send comments 

regarding this burden estimate or any 

other aspect of this collection of 

information, including suggestions for 

reducing the burden, to the Information 

Collection Clearance Officer, Office of 

Surface Mining Reclamation and 

Enforcement, 1951 Constitution Ave., 

NW., SIB 210, Washington, DC 20240. 

Please refer to OMB Control Number 

1029–xxx2 in any correspondence. 

12. In § 817.43, revise paragraph (b)(1) 

to read as follows:

§ 817.43 Diversions.

* * * * *

(b) * * * 

(1) The regulatory authority may 

approve the diversion of perennial and 

intermittent streams within the permit 

area after making the finding required 

by § 817.57 of this chapter.

* * * * *

13. In § 817.57 redesignate paragraphs 

(a)(2) and (b) as (b) and (c), respectively, 

and revise paragraph (a) to read as 

follows:

§ 817.57 Hydrologic balance: Stream 

buffer zones. 

(a) No land within 100 feet of a 

perennial stream or an intermittent 

stream shall be disturbed by 

underground mining activities, unless 

the regulatory authority specifically 

authorizes such activities closer to or 

through, such a stream. The regulatory 

authority may authorize such activities 

only upon finding that the activities 

will, to the extent possible, using the 

best technology currently available—

(1) Prevent additional contributions of 

suspended solids to the stream section 

within 100 feet downstream of the 

underground mining activities, and 

outside the area affected by the 

underground mining activities; and 

(2) Minimize disturbances and 

adverse impacts on fish, wildlife, and 

other related environmental values of 

the stream.

* * * * *

[FR Doc. 04–266 Filed 1–6–04; 8:45 am] 

BILLING CODE 4310–05–P