3126 Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Notices 

consider, under 34 CFR 75.253, the 

extent to which a grantee has made 

‘‘substantial progress toward meeting the 

objectives in its approved application.’’ 

This consideration includes the review 

of a grantee’s progress in meeting the 

targets and projected outcomes in its 

approved application, and whether the 

grantee has expended funds in a manner 

that is consistent with its approved 

application and budget. In making a 

continuation grant, the Secretary also 

considers whether the grantee is 

operating in compliance with the 

assurances in its approved application, 

including those applicable to Federal 

civil rights laws that prohibit 

discrimination in programs or activities 

receiving Federal financial assistance 

from the Department (34 CFR 100.4, 

104.5, 106.4, 108.8, and 110.23). 

VII. Agency Contacts 

FOR FURTHER INFORMATION CONTACT: 

Trini Torres, U.S. Department of 

Education, 400 Maryland Avenue, SW., 

room 5C145, Washington, DC 20202– 

6510. Telephone: (202) 401–1445, or by 

e-mail: trinidad.torres-carrion@ed.gov or 

Itzetht Testa-Sanchez, U.S. Department 

of Education, 400 Maryland Avenue, 

SW., room 5C151, Washington, DC 

20202–6510. Telephone: (202) 401– 

1459, or by e-mail: Itzetht.testasanchez@ed.gov. 

If you use a TDD, call the FRS, toll 

free, at 1–800–877–8339. 

VIII. Other Information 

Accessible Format: Individuals with 

disabilities can obtain this document 

and a copy of the application package in 

an accessible format (e.g., Braille, large 

print, audiotape, or computer diskette) 

on request to the program contact 

person listed under FOR FURTHER

INFORMATION CONTACT in section VII of 

this notice. 

Electronic Access to This Document: 

You can view this document, as well as 

all other documents of this Department 

published in the Federal Register, in 

text or Adobe Portable Document 

Format (PDF) on the Internet at the 

following site: http://www.ed.gov/news/ 

fedregister. To use PDF you must have 

Adobe Acrobat Reader, which is 

available free at this site. 

Note: The official version of this document 

is the document published in the Federal 

Register. Free Internet access to the official 

edition of the Federal Register and the Code 

of Federal Regulations is available on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

Dated: January 13, 2011. 

Rosalinda B. Barrera, 

Assistant Deputy Secretary and Director, 

Office of English Language Acquisition, 

Language Enhancement, and Academic 

Achievement for Limited English Proficient 

Students. 

[FR Doc. 2011–1041 Filed 1–19–11; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–R03–OW–2009–0985; FRL–9254–8] 

Final Determination of the Assistant 

Administrator for Water Pursuant to 

Section 404(c) of the Clean Water Act 

Concerning the Spruce No. 1 Mine, 

Logan County, WV 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: This is a notice of EPA’s Final 

Determination pursuant to section 

404(c) of the Clean Water Act to 

withdraw the specification of 

Pigeonroost Branch, Oldhouse Branch, 

and their tributaries, within Logan 

County, West Virginia, as a disposal site 

for dredged or fill material in 

connection with construction, 

operation, and reclamation of the 

Spruce No. 1 Surface Mine, as 

authorized by DA Permit No. 

199800436–3 (Section 10: Coal River). 

This determination also prohibits the 

specification of the defined area 

constituting Pigeonroost Branch, 

Oldhouse Branch, and their tributaries 

for use as a disposal site associated with 

future surface coal mining that would be 

expected to result in a nature and scale 

of adverse chemical, physical, and 

biological effects similar to the Spruce 

No. 1 mine. EPA’s determination is 

based upon a finding that the discharge 

of dredged or fill material associated 

with the construction and operation of 

the Spruce No. 1 Mine would result in 

unacceptable adverse effects on wildlife. 

DATES: Effective Date: The effective date 

of the Final Determination is January 13, 

2011. 

ADDRESSES: U.S. Environmental 

Protection Agency, Office of Water, 

Wetlands Division, Mail Code 4502T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. EPA has 

established a docket for this action 

under Docket ID No. EPA–R03–OW– 

2009–0985. All documents in the docket 

are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information 

may not be publicly available, e.g., CBI 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the Water Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Water Docket is (202) 

566–2426. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Chris Hunter, Office of Wetlands, 

Oceans, and Watersheds; U.S. 

Environmental Protection Agency, Mail 

Code 4502T, 1200 Pennsylvania Ave., 

NW., Washington, DC 20460. Additional 

information and copies of EPA’s Final 

Determination are available at the 

following Web site: http://www.epa.gov/ 

404c/. 

SUPPLEMENTARY INFORMATION: Section 

404(c) of the CWA, 33 U.S.C. 1344(c), 

authorizes EPA to prohibit the 

specification (including the withdrawal 

of specification) of any defined area as 

a disposal site. EPA is authorized to 

restrict or deny the use of any defined 

area for specification (including the 

withdrawal of specification) as a 

disposal site, whenever it determines, 

after notice and opportunity for public 

hearing, that the discharge of such 

materials into such area will have an 

unacceptable adverse effect on 

municipal water supplies, shellfish beds 

and fishery areas (including spawning 

and breeding areas), wildlife, or 

recreational areas. 

EPA’s regulations for implementing 

section 404(c) are set forth in 40 CFR 

part 231. Four major steps in the process 

are: (1) The Regional Administrator’s 

notice to the U.S. Army Corps of 

Engineers (the Corps), the applicant or 

permittee, the property owner, and the 

State, as appropriate, of the intention to 

initiate the section 404(c) process; (2) 

the Regional Administrator’s 

publication of a Proposed Determination 

to withdraw, deny, restrict, or prohibit 

the use of the site, soliciting public 

comment and offering an opportunity 

for a public hearing; (3) the Regional 

Administrator’s recommendation to the 

Assistant Administrator for Water at 

EPA Headquarters to withdraw, deny, 

restrict, or prohibit the use of the site 

(Recommended Determination); and, (4) 

the Assistant Administrator for Water’s 

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Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Notices 3127 

1EPA’s Final Determination addresses only the 

6.6 miles of fill authorized in Pigeonroost Branch, 

Oldhouse Branch, and their tributaries. While the 

permit also authorizes construction of valley fills 

and other discharges to the Right Fork of Seng 

Camp Creek and its tributaries, EPA is not 

withdrawing specification of those waters, in part 

because some of those discharges have already 

occurred and because the stream resources in Right 

Fork of Seng Camp Creek were subject to a higher 

level of historic and ongoing human disturbance 

than those found in Pigeonroost Branch or 

Oldhouse Branch. Due to litigation and an 

agreement with environmental groups, represented 

by Ohio Valley Environmental Coalition, operations 

following the issuance of this DA Permit have been 

limited to the Seng Camp Creek watershed, and as 

part of that agreement one valley fill is partially 

constructed. 

Final Determination to affirm, modify, 

or rescind the Regional 

recommendation. 

As a result of significant new 

scientific information confirming and 

strengthening EPA’s concerns regarding 

the environmental effects of 

mountaintop mining operations, and in 

particular those operations on the scope 

and scale of the Spruce No. 1 Mine, EPA 

Region III initiated the Clean Water Act 

§ 404(c) process for the Spruce No. 1 

Mine on October 16, 2009. The Spruce 

No. 1 Mine, as authorized in 2007 by 

Department of the Army (DA) Permit 

No. 199800436–3 (Section 10: Coal 

River), is one of the largest mountaintop 

mining projects ever authorized in West 

Virginia. The DA Permit authorizes the 

Mingo Logan Coal Company to 

construct six valley fills, associated 

sedimentation structures, and other 

discharges of fill material to the Right 

Fork of Seng Camp Creek, Pigeonroost 

Branch, Oldhouse Branch, and their 

tributaries. If fully constructed, the 

project will disturb approximately 2,278 

acres (about 3.5 square miles) and bury 

approximately 7.48 miles of streams 

beneath 110 million cubic yards of 

excess spoil.1

Following initiation of the Section 

404(c) process, EPA Region III 

communicated with representatives of 

Mingo Logan (a subsidiary of Arch Coal, 

Inc.) and the Corps both in person and 

by telephone and electronic mail on 

several occasions to determine whether 

corrective action would be taken to 

address EPA Region III’s concerns. 

However, corrective action was not 

taken to resolve EPA’s concerns. On 

April 2, 2010, EPA Region III published 

in the Federal Register a Proposed 

Determination to prohibit, restrict, or 

deny the specification or the use for 

specification (including withdrawal of 

specification) of certain waters at the 

project site as disposal sites for the 

discharge of dredged or fill material for 

the construction of the Spruce No. 1 

Surface Mine. EPA Region III took this 

step because it believed that discharges 

authorized by DA Permit No. 

199800436–3 (Section 10: Coal River) 

would result in a significant loss of 

wildlife habitat and also cause 

significant degradation of downstream 

aquatic ecosystems and therefore could 

have unacceptable adverse effects on 

wildlife. A public hearing regarding the 

Proposed Determination was conducted 

on May 18, 2010. EPA Region III 

received more than 100 oral comments 

and more than 50,000 written comments 

both supporting and opposing its 

Proposed Determination. 

On September 24, 2010, EPA Region 

III submitted to EPA Headquarters its 

Recommended Determination that the 

specification embodied in DA Permit 

No. 199800436–3 (Section 10: Coal 

River) of Pigeonroost Branch and 

Oldhouse Branch as disposal sites for 

discharges of dredged or fill material for 

construction of the Spruce No. 1 Surface 

Mine be withdrawn. EPA Region III 

based this recommendation upon a 

conclusion that the discharges of 

dredged or fill material to Pigeonroost 

Branch and Oldhouse Branch for the 

purpose of constructing the Spruce No. 

1 Surface Mine as authorized would 

likely have unacceptable adverse effects 

on wildlife. 

The U.S. Fish and Wildlife Service 

(USFWS), in its comments on both the 

Proposed and Recommended 

Determinations, concurred with EPA 

Region III’s conclusion that the project, 

as authorized, would result in 

unacceptable adverse effects on wildlife 

and that this conclusion is supported by 

the available scientific information. 

USFWS also noted that it has 

consistently expressed concerns 

regarding the loss of headwater streams 

and adjacent riparian and terrestrial 

habitats associated with the Spruce No. 

1 Mine, as well as its likely impacts on 

downstream water quality, aquatic 

organisms, and terrestrial and aquatic 

wildlife that depend on those resources. 

Following receipt of the 

Recommended Determination, and 

consistent with EPA’s Section 404(c) 

regulations, EPA Headquarters provided 

an opportunity for the project’s 

proponents to propose corrective 

actions intended to prevent the 

unacceptable adverse environmental 

impacts presented in the Recommended 

Determination. On November 16, 2010, 

a consultation meeting was held at EPA 

Headquarters in Washington, DC to 

discuss the Region III Recommended 

Determination and potential corrective 

actions that could be undertaken to 

avoid the unacceptable adverse impacts 

that were of concern to EPA. 

Participants at the meeting included the 

EPA Assistant Administrator for Water; 

the EPA Region III Regional 

Administrator; other EPA staff; 

representatives from Arch Coal, Inc. 

(parent company of Mingo Logan) and 

their legal counsel; the United Company 

(a mineral rights owner) and their legal 

counsel; the West Virginia Department 

of Environmental Protection, and the 

District Engineer of the Corps’ 

Huntington District. At that meeting, 

and in subsequent communications, 

Arch Coal did not provide EPA with 

corrective actions that would 

meaningfully address the likely 

unacceptable adverse effects outlined in 

Region III’s Recommended 

Determination. 

Following review of the public 

comments received, existing and 

recently developed scientific data, and 

EPA Region III’s Recommended 

Determination, EPA has concluded that 

the discharge of dredged or fill material 

to Pigeonroost Branch and Oldhouse 

Branch, in connection with the 

construction of valley fills and 

sedimentation ponds, as authorized by 

DA Permit No. 199800436–3 (Section 

10: Coal River), will result in 

unacceptable adverse effects on wildlife. 

The administrative record developed in 

this case fully supports the conclusion 

that the Spruce No. 1 Surface Mine will 

have unacceptable adverse effects to 

wildlife, due to the filling of Pigeonroost 

Branch, Oldhouse Branch, and their 

tributaries. In addition, the 

administrative record demonstrates that 

the Spruce No. 1 Surface Mine will have 

unacceptable adverse effects on wildlife 

downstream of the project site as a 

result of increased pollution that the 

project will contribute to downstream 

waters. 

EPA has determined that 

unacceptable adverse impacts to 

Pigeonroost Branch, Oldhouse Branch, 

and their tributaries will occur through 

the direct burial of 6.6 miles of highquality stream habitat, including all 

wildlife in this watershed that utilize 

these streams for all or part of their life 

cycles (e.g., macroinvertebrate, 

salamander, fish, and water-dependent 

bird populations). Pigeonroost Branch, 

Oldhouse Branch, and their tributaries 

contain diverse and high-quality 

wildlife communities that are consistent 

with the ecological richness of highquality Appalachian headwater stream 

systems. With their adjacent riparian 

areas, these streams provide important 

habitat for 84 taxa of 

macroinvertebrates, up to 46 species of 

amphibians and reptiles, 4 species of 

crayfish, and 5 species of fish, as well 

as birds, bats, and other mammals. As 

some of the last remaining high quality, 

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3128 Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Notices 

least-disturbed headwater stream habitat 

within the sub-basin, these streams not 

only support resident wildlife, but also 

provide ecosystem functions for 

downstream waters, serve as refugia for 

aquatic life and potential sources for 

recolonizing nearby waters, and 

ultimately serve to maintain the aquatic 

ecosystem integrity in the sub-basin and 

the rich animal diversity in the 

ecoregion. 

Burial of Pigeonroost Branch, 

Oldhouse Branch, and their tributaries 

will also result in unacceptable adverse 

effects on wildlife downstream through 

the removal of functions performed by 

the buried streams and by 

transformation of the buried areas into 

pollution sources that will contribute 

contaminants to downstream waters. 

Based on recent peer-reviewed 

literature, as well as available data from 

adjacent mine sites and from the active 

portion of the Spruce No. 1 Mine, EPA 

has concluded that the full construction 

of the Spruce No. 1 Mine will transform 

these headwater streams from highquality habitat into sources of pollutants 

(particularly total dissolved solids and 

selenium) that will travel downstream 

and adversely impact the wildlife 

communities that utilize these 

downstream waters. Increased pollutant 

levels will lead to loss of 

macroinvertebrate communities and 

population shifts to more pollutiontolerant taxa, specifically the extirpation 

of ecologically important 

macroinvertebrates. Through the loss of 

stream macroinvertebrate communities, 

there will be, in turn, substantial effects 

on fish, amphibian, and bird 

populations that rely on these 

communities as a food source. 

Furthermore, the increased loading of 

pollutants to downstream receiving 

waters will increase the potential for 

harmful golden algal blooms, while 

increased selenium exposure will result 

in impaired salamander populations 

and adverse effects to the reproduction 

of fish and bird species, thus harming 

the ability of these local populations to 

rebound. The loss of macroinvertebrate 

prey populations, increased risk of 

harmful golden algal blooms, and 

additional exposure to selenium will 

have an unacceptable adverse effect on 

the 26 fish species found in Spruce Fork 

(the receiving stream for Pigeonroost 

Branch and Oldhouse Branch), and will 

also have an unacceptable adverse effect 

on amphibians, reptiles, crayfish, and 

bird species that depend on downstream 

waters for food or habitat. 

Furthermore, these adverse impacts 

do not comply with the requirements of 

the Clean Water Act (CWA) and EPA’s 

implementing regulations under section 

404(b)(1). EPA has determined that the 

Spruce No. 1 Surface Mine fails to 

adequately evaluate less 

environmentally damaging alternatives, 

will cause or contribute to significant 

degradation of waters of the United 

States (especially when considered in 

the context of the significant cumulative 

losses and impairment of streams across 

the Central Appalachian ecoregion), and 

lacks compensatory mitigation to 

adequately offset the impacts to 

Pigeonroost Branch and Oldhouse 

Branch. These failures to comply with 

the Guidelines serve to strengthen EPA’s 

judgment about the unacceptability of 

the significant adverse impacts that will 

occur. 

Based on these findings and pursuant 

to section 404(c) of the CWA, EPA’s 

Final Determination withdraws the 

specification of Pigeonroost Branch, 

Oldhouse Branch, and their tributaries, 

as described in DA Permit No. 

199800436–3 (Section 10: Coal River), 

as a disposal site for the discharge of 

dredged or fill material for the purpose 

of construction, operation, and 

reclamation of the Spruce No. 1 Surface 

Mine. This Final Determination also 

prohibits the specification of the 

defined area constituting Pigeonroost 

Branch, Oldhouse Branch, and their 

tributaries for use as a disposal site 

associated with future surface coal 

mining that would be expected to result 

in a nature and scale of adverse 

chemical, physical, and biological 

effects similar to the Spruce No. 1 mine. 

This Final Determination does not affect 

discharges to Seng Camp Creek as 

authorized in DA Permit No. 

19980043603 (Section 10: Coal River) 

associated with the Spruce No.1 Surface 

Mine. 

EPA continues to work effectively 

with the Corps, the mining industry, 

and the public to evaluate proposed 

Appalachian surface coal mining 

projects and to enable permitting of 

environmentally responsible mining 

projects that authorize continued coal 

production while preventing 

unacceptable adverse effects on wildlife. 

Dated: January 13, 2011. 

Peter S. Silva, 

Assistant Administrator, Office of Water. 

[FR Doc. 2011–1013 Filed 1–18–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9254–2 ] 

Intent to Grant Patent License 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Intent to Grant CoExclusive Patent License. 

SUMMARY: Pursuant to 35 U.S.C. 207 

(Patents) and 37 CFR part 404 (U.S. 

Government patent licensing 

regulations), EPA hereby gives notice of 

its intent to grant a co-exclusive, 

royalty-bearing, revocable license to 

practice the inventions described and 

claimed in the U.S. patents and patent 

applications listed at the end of this 

message, and all corresponding patents 

issued throughout the world, and all 

reexamined patents and reissued 

patents granted in connection with such 

patent applications, to Oakland 

Technology, LLC of Farmington Hills, 

Michigan. 

The inventions pertain to hybrid 

vehicle technology, particularly 

hydraulic hybrid drive systems, 

methods, and components. The 

proposed license will contain 

appropriate terms, limitations, and 

conditions negotiated in accordance 

with 35 U.S.C. 209 and 37 CFR 404.5 

and 404.7 of the U.S. Government 

patent licensing regulations. EPA will 

finalize terms and conditions and grant 

the license unless, within 15 days from 

the date of this notice, EPA receives, at 

the address below, written objections to 

the grant, together with supporting 

documentation. The documentation 

from objecting parties having an interest 

in practicing the inventions listed in the 

patents and patent applications below 

should include an application for a 

nonexclusive license with the 

information set forth in 37 CFR 404.8. 

The EPA Patent Attorney and other EPA 

officials will review all written 

responses and then make 

recommendations on a final decision to 

the Director or Deputy Director of the 

Office of Transportation and Air 

Quality, who have been delegated the 

authority to issue patent licenses under 

EPA Delegation 1–55. 

The proposed license will apply to 

the following patents and patent 

applications: 

Method or Vehicle Licensed Inventions 

Patent No. Title Date issued 

5,495,912 ........... Hybrid Powertrain Vehicle ......................................................................................... March 5, 1996. 

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