This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

76227 

Vol. 79, No. 245 

Monday, December 22, 2014 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Parts 780, 784, 816, and 817 

RIN 1029–AC69 

[Docket ID: OSM–2012–0010; S1D1S 

SS08011000 SX066A00067F 134S180110; 

S2D2S SS08011000 SX066A00 33F 

13XS501520] 

Excess Spoil, Coal Mine Waste, 

Diversions, and Buffer Zones for 

Perennial and Intermittent Streams 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSMRE or OSM), are amending our 

regulations concerning stream buffer 

zones, stream-channel diversions, 

excess spoil, and coal mine waste to 

comply with an order issued by the U.S. 

District Court for the District of 

Columbia on February 20, 2014, which 

vacated the stream buffer zone rule that 

we published December 12, 2008. The 

court remanded the matter to us for 

further proceedings consistent with the 

decision. In relevant part, the 

Memorandum Decision stated that 

vacatur of the 2008 stream buffer zone 

rule resulted in reinstatement of the 

regulations in effect before the vacated 

rule took effect. Therefore, the rule that 

we are publishing today removes the 

provisions of the vacated 2008 rule and 

reinstates the corresponding regulations 

in effect before the effective date of the 

2008 rule (January 12, 2009). 

DATES: This regulation is effective 

December 22, 2014. The incorporation 

by reference of the publication listed in 

30 CFR 780.25(a)(2) and 784.16(a)(2) 

was approved by the Director of the 

Federal Register on December 22, 2014. 

FOR FURTHER INFORMATION CONTACT: John 

Trelease, Division of Regulatory 

Support, (202) 208–2783, or via email at 

jtrelease@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Why are we publishing this rule? 

II. Why are we publishing this rule as a direct 

final rule that takes effect immediately? 

I. Why are we publishing this rule? 

On December 12, 2008, we published 

a final rule that amended our 

regulations concerning stream buffer 

zones, stream-channel diversions, 

siltation structures, impoundments, 

excess spoil, and coal mine waste. See 

73 FR 75814–75885. This rule is known 

as the 2008 stream buffer zone (SBZ) 

rule or the 2008 rule. Among other 

changes, the 2008 rule revised our 

former regulations at 30 CFR 816.57 and 

817.57, related to the mining activities 

allowed to occur through perennial or 

intermittent streams, as well as on the 

surface of land within 100 feet of a 

perennial or intermittent stream. Prior 

to the 2008 rule, these two provisions 

had previously been amended on June 

30, 1983 (48 FR 30312–30329). The 

2008 rule also added requirements at 30 

CFR 780.35 and 784.19 that surface coal 

mining operations be designed to 

minimize the creation of excess spoil 

and the adverse environmental impacts 

of fills constructed to dispose of excess 

spoil and coal mine waste. 

A total of ten organizations 

challenged the validity of the 2008 SBZ 

rule in two complaints originally filed 

on December 22, 2008, and January 16, 

2009: Coal River Mountain Watch, et al. 

v. Salazar, No. 08–2212 (D.D.C.) and 

National Parks Conservation Ass’n v. 

Salazar, No. 09–115 (D.D.C.). The 

references to former Secretary of the 

Interior Ken Salazar in these case titles 

were subsequently replaced by 

references to his successor, Sally Jewell. 

On February 20, 2014, the court 

vacated the 2008 rule because ‘‘OSM’s 

determination that the revisions to the 

stream protection rule encompassed by 

the 2008 Rule would have no effect on 

threatened and endangered species or 

critical habitat was not a rational 

conclusion’’ and that, therefore, OSM’s 

failure to initiate consultation on the 

2008 rule was a violation of section 

7(a)(2) of the Endangered Species Act. 

National Parks Conservation Ass’n 

(NPCA) v. Jewell, 2014 U.S. Dist. LEXIS 

152383 at *21 (D.D.C. Feb. 20, 2014). 

The court remanded the vacated rule to 

us for further proceedings consistent 

with the decision. Id. at *35. The court’s 

decision also stated that vacatur of the 

2008 rule would result in the 

reinstatement of the rule that was in 

effect before the vacated rule took effect. 

Id. at *31. We posted the court’s 

decision on our Web site to notify the 

public of the ruling shortly after the 

order was released. The decision has not 

been appealed. 

Therefore, consistent with the 

Memorandum Decision and Order of the 

court, the rule that we are publishing 

today reinstates the corresponding 

provisions of the regulations that were 

in effect before the effective date of the 

2008 rule (January 12, 2009), including 

the 1983 version of the stream buffer 

zone rule. In addition, the rule that we 

are reinstating today updates 30 CFR 

780.25(a)(2) and 784.16(a)(2) to include 

our current physical address and a Web 

site for accessing a document [the Soil 

Conservation Service’s Technical 

Release No. 60 (210–VI–TR60, Oct. 

1985), entitled ‘‘Earth Dams and 

Reservoirs’’] that is incorporated by 

reference. The rule also reinstates 30 

CFR 780.25(a)(3), which was 

erroneously removed as part of the 

codification of the 2008 rule. 

We are reinstating 30 CFR 

817.46(b)(3) as it existed prior to 

adoption of the 2008 rule, which 

redesignated it as paragraph (b)(2). 

Redesignated paragraph (b)(2) was 

erroneously removed during 

codification of a subsequent technical 

rulemaking in 2010 (75 FR 60272, Sept. 

29, 2010). 

Finally, as noted above, as a result of 

the court’s decision in NPCA v. Jewell, 

the vacatur of the 2008 rule resulted in 

the reinstatement of the rule that was in 

effect before the vacated rule took effect. 

This reinstatement includes 30 CFR 

816.46(b)(2) and 817.46(b)(2), which 

were removed by the 2008 rule. 

However, prior to the publication of the 

2008 rule, these paragraphs were 

suspended effective December 22, 1986, 

because those paragraphs were struck 

down upon judicial review. See In re: 

Permanent Surface Mining Regulation 

Litigation II, Round III, 620 F. Supp. 

1519, 1566–1568 (D.D.C. July 15, 1985) 

and 51 FR 41961 (Nov. 20, 1986). In this 

final rule, we are adding a sentence to 

the end of paragraph (b)(2) in both 30 

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76228 Federal Register / Vol. 79, No. 245 / Monday, December 22, 2014 / Rules and Regulations 

CFR 816.46 and 817.46 acknowledging 

the suspension. 

II. Why are we publishing this rule as 

a direct final rule that takes effect 

immediately? 

We are publishing this rule as a direct 

final rule without prior notice and 

opportunity for public comment 

because this rule is necessary to reflect 

the court order vacating the 2008 rule, 

which resulted in reinstatement of the 

regulations in effect before the effective 

date of the 2008 rule. See NPCA v. 

Jewell, 2014 U.S. Dist. LEXIS 152383 at 

*31 (D.D.C. Feb. 20, 2014). The court’s 

order was issued on February 20, 2014. 

Section 553 of the Administrative 

Procedure Act requires that agencies 

provide notice and opportunity for 

comment on all rules, except ‘‘when the 

agency for good cause finds (and 

incorporates the finding and a brief 

statement of reasons therefor in the 

rules issued) that notice and public 

comment are impracticable, 

unnecessary, or contrary to the public 

interest.’’ 5 U.S.C. 553(b)(B). In this 

case, we have determined that notice 

and opportunity for public comment are 

unnecessary because, in NPCA v. Jewell, 

the court has already vacated the 2008 

rule and stated what rules replaced the 

vacated provisions. In this rulemaking, 

we are merely making changes to the 

CFR text to conform to the court’s order 

and are not exercising any discretionary 

authority. Therefore, public comment 

would not be useful in determining the 

content of this final rule. 

Section 553(d) of the Administrative 

Procedure Act also provides that 

agencies must publish a final rule ‘‘not 

less than 30 days before its effective 

date, except . . . as otherwise provided 

by the agency for good cause found and 

published with the rule.’’ 5 U.S.C. 

553(d). For the reasons just discussed, 

we have determined we have good 

cause for waiver of the 30-day delay in 

the effective date of the rule after 

publication. 

List of Subjects 

30 CFR Part 780 

Incorporation by reference, Reporting 

and recordkeeping requirements, 

Surface mining. 

30 CFR Part 784 

Incorporation by reference, Reporting 

and recordkeeping requirements, 

Underground mining. 

30 CFR Part 816 

Environmental protection, Reporting 

and recordkeeping requirements, 

Surface mining. 

30 CFR Part 817 

Environmental protection, Reporting 

and recordkeeping requirements, 

Underground mining. 

Dated: December 13, 2014. 

Janice M. Schneider, 

Assistant Secretary—Land and Minerals 

Management. 

Accordingly, the Department is 

amending 30 CFR parts 780, 784, 816 

and 817 as set forth below. 

PART 780—SURFACE MINING PERMIT 

APPLICATIONS—MINIMUM 

REQUIREMENT 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. The part heading is revised to read 

as set forth above. 

■ 3. 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– 

0036. The information will be used by 

the regulatory authority to determine 

whether the applicant can comply with 

the applicable performance and 

environmental standards in Public Law 

95–87. Response is required to obtain a 

benefit. 

(b) Public Reporting burden for this 

information is estimated to average 28 

hours per response, 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., Room 203, Washington, DC 20240; 

and the Office of Management and 

Budget, Paperwork Reduction Project 

1029–0036, Washington, DC 20503. 

■ 4. Amend § 780.14 by revising 

paragraphs (b)(11) and (c) to read as 

follows: 

§ 780.14 Operation plan: Maps and plans. 

* * * * * 

(b) * * * 

(11) Location of each sedimentation 

pond, permanent water impoundment, 

coal processing waste bank, and coal 

processing waste dam and embankment, 

in accordance with 30 CFR 780.25, and 

fill area for the disposal of excess spoil 

in accordance 30 CFR 780.35. 

(c) Except as provided in 

§§ 780.25(a)(2), 780.25(a)(3), 780.35(a), 

816.71(b), 816.73(c), 816.74(c) and 

816.81(c) of this chapter, cross sections, 

maps and plans required under 

paragraphs (b)(4), (5), (6), (10) and (11) 

of this section shall be prepared by, or 

under the direction of, and certified by 

a qualified registered professional 

engineer, a professional geologist, or in 

any State which authorizes land 

surveyors to prepare and certify such 

cross sections, maps and plans, a 

qualified, registered, professional, land 

surveyor, with assistance from experts 

in related fields such as landscape 

architecture. 

■ 5. Amend § 780.25 as follows: 

■ a. Revise the section heading, 

paragraph (a) introductory text, 

paragraph (a)(1) introductory text, and 

paragraph (a)(2); 

■ b. Add paragraph (a)(3); 

■ c. Revise paragraph (c)(2) and remove 

paragraph (c)(4); 

■ d. Revise paragraph (d); and 

■ e. Add paragraphs (e) and (f). 

The revisions and additions read as 

follows: 

§ 780.25 Reclamation plan: Siltation 

structures, impoundments, banks, dams, 

and embankments. 

(a) General. Each application shall 

include a general plan and a detailed 

design plan for each proposed siltation 

structure, water impoundment, and coal 

processing waste bank, dam, or 

embankment within the proposed 

permit area. 

(1) Each general plan shall— 

* * * * * 

(2) Impoundments meeting the Class 

B or C criteria for dams in the U.S. 

Department of Agriculture, Soil 

Conservation Service Technical Release 

No. 60 (210–VI–TR60, Oct. 1985), 

‘‘Earth Dams and Reservoirs,’’ Technical 

Release No. 60 (TR–60) shall comply 

with the requirements of this section for 

structures that meet or exceed the size 

of other criteria of the Mine Safety and 

Health Administration (MSHA). The 

technical release is hereby incorporated 

by reference. This incorporation by 

reference was approved by the Director 

of the Federal Register in accordance 

with 5 U.S.C. 552(a) and 1 CFR part 51. 

TR–60 may be viewed and downloaded 

from OSM’s Web site at http://

www.osmre.gov/programs/TDT/

damsafety.shtm. It also is available for 

inspection at the OSM Headquarters 

Office, Office of Surface Mining 

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Federal Register / Vol. 79, No. 245 / Monday, December 22, 2014 / Rules and Regulations 76229 

Reclamation and Enforcement, 

Administrative Record, Room 252, 1951 

Constitution Ave. NW., Washington, DC 

or at the National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/

federal_register/code_of_federal_

regulations/ibr_locations.html. Each 

detailed design plan for a structure that 

meets or exceeds the size or other 

criteria of MSHA, § 77.216(a) of this 

chapter shall: 

(i) Be prepared by, or under the 

direction of, and certified by a qualified 

registered professional engineer with 

assistance from experts in related fields 

such as geology, land surveying, and 

landscape architecture; 

(ii) Include any geotechnical 

investigation, design, and construction 

requirements for the structure; 

(iii) Describe the operation and 

maintenance requirements for each 

structure; and 

(iv) Describe the timetable and plans 

to remove each structure, if appropriate. 

(3) Each detailed design plan for 

structures not included in paragraph 

(a)(2) of this section shall: 

(i) Be prepared by, or under the 

direction of, and certified by a qualified, 

registered, professional engineer, or in 

any State which authorizes land 

surveyors to prepare and certify such 

plans, a qualified, registered, 

professional land surveyor, except that 

all coal processing waste dams and 

embankments covered by §§ 816.81– 

816.84 of this chapter shall be certified 

by a qualified, registered, professional 

engineer; 

(ii) Include any design and 

construction requirements for the 

structure, including any required 

geotechnical information; 

(iii) Describe the operation and 

maintenance requirements for each 

structure; and 

(iv) Describe the timetable and plans 

to remove each structure, if appropriate. 

* * * * * 

(c) * * * 

(2) Each plan for an impoundment 

meeting the size or other criteria of the 

Mine Safety and Health Administration 

shall comply with the requirements of 

§§ 77.216–1 and 77.216–2 of this title. 

The plan required to be submitted to the 

District Manager of MSHA under 

§ 77.216 of this title shall be submitted 

to the regulatory authority as part of the 

permit application in accordance with 

paragraph (a) of this section. 

* * * * * 

(d) Coal processing waste banks. Coal 

processing waste banks shall be 

designed to comply with the 

requirements of 30 CFR 816.81–816.84. 

(e) Coal processing waste dams and 

embankments. Coal processing waste 

dams and embankments shall be 

designed to comply with the 

requirements of 30 CFR 816.81–816.84. 

Each plan shall comply with the 

requirements of the Mine Safety and 

Health Administration, 30 CFR 77.216– 

1 and 77.216–2, and shall contain the 

results of a geotechnical investigation of 

the proposed dam or embankment 

foundation area, to determine the 

structural competence of the foundation 

which will support the proposed dam or 

embankment structure and the 

impounded material. The geotechnical 

investigation shall be planned and 

supervised by an engineer or 

engineering geologist, according to the 

following: 

(1) The number, location, and depth 

of borings and test pits shall be 

determined using current prudent 

engineering practice for the size of the 

dam or embankment, quantity of 

material to be impounded, and 

subsurface conditions. 

(2) The character of the overburden 

and bedrock, the proposed abutment 

sites, and any adverse geotechnical 

conditions which may affect the 

particular dam, embankment, or 

reservoir site shall be considered. 

(3) All springs, seepage, and ground 

water flow observed or anticipated 

during wet periods in the area of the 

proposed dam or embankment shall be 

identified on each plan. 

(4) Consideration shall be given to the 

possibility of mudflows, rock-debris 

falls, or other landslides into the dam, 

embankment, or impounded material. 

(f) If the structure meets the Class B 

or C criteria for dams in TR–60 or meets 

the size or other criteria of § 77.216(a) of 

this chapter, each plan under 

paragraphs (b), (c), and (e) of this 

section shall include a stability analysis 

of the structure. The stability analysis 

shall include, but not be limited to, 

strength parameters, pore pressures, and 

long-term seepage conditions. The plan 

shall also contain a description of each 

engineering design assumption and 

calculation with a discussion of each 

alternative considered in selecting the 

specific design parameters and 

construction methods. 

§ 780.28 [Removed] 

■ 6. Remove § 780.28. 

■ 7. Revise § 780.35 to read as follows: 

§ 780.35 Disposal of excess spoil. 

(a) 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. These plans shall 

describe the geotechnical investigation, 

design, construction, operation, 

maintenance, and removal, if 

appropriate, of the site and structures. 

(b) Except for the disposal of excess 

spoil on pre existing benches, each 

application shall contain the results of 

a geotechnical investigation of the 

proposed disposal site, including the 

following: 

(1) The character of bedrock and any 

adverse geologic conditions in the 

disposal area, 

(2) A survey identifying all springs, 

seepage, and ground water flow 

observed or anticipated during wet 

periods in the area of the disposal site; 

(3) A survey of the potential effects of 

subsidence of the subsurface strata due 

to past and future mining operations; 

(4) A technical description of the rock 

materials to be utilized in the 

construction of those disposal structures 

containing rock chimney cores or 

underlain by a rock drainage blanket; 

and 

(5) A stability analysis including, but 

not limited to, strength parameters, pore 

pressures and long-term seepage 

conditions. These data shall be 

accompanied by a description of all 

engineering design assumptions and 

calculations and the alternatives 

considered in selecting the specific 

design specifications and methods. 

(c) If, under 30 CFR 816.71(d), rocktoe buttresses or key-way cuts are 

required, the application shall include 

the following: 

(1) The number, location, and depth 

of borings or test pits which shall be 

determined with respect to the size of 

the spoil disposal structure and 

subsurface conditions; and 

(2) Engineering specifications utilized 

to design the rock-toe buttress or keyway cuts which shall be determined in 

accordance with paragraph (b)(5) of this 

section. 

PART 784—UNDERGROUND MINING 

PERMIT APPLICATIONS–MINIMUM 

REQUIREMENTS FOR RECLAMATION 

AND OPERATION PLAN 

■ 8. The authority citation for part 784 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. and 16 

U.S.C. 470 et seq. 

■ 9. Section 784.10 is revised to read as 

follows: 

§ 784.10 Information collection. 

(a) The collections of information 

contained in Part 784 have been 

approved by Office of Management and 

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76230 Federal Register / Vol. 79, No. 245 / Monday, December 22, 2014 / Rules and Regulations 

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

assigned clearance number 1029–0039. 

The information will be used to meet 

the requirements of 30 U.S.C. 1211(b), 

1251, 1257, 1258, 1266, and 1309a. The 

obligation to respond is required to 

obtain a benefit. 

(b) Public reporting burden for this 

information is estimated to average 513 

hours per response, including the time 

for reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. 

■ 10. Amend § 784.16 as follows: 

■ a. Revise the section heading, 

paragraph (a) introductory text, 

paragraph (a)(1) introductory text, and 

paragraph (a)(2); 

■ b. Revise paragraph (c)(2) and remove 

paragraph (c)(4); 

■ c. Revise paragraph (d); and 

■ d. Add paragraphs (e) and (f). 

The revisions and additions read as 

follows: 

§ 784.16 Reclamation plan: Siltation 

structures, impoundments, banks, dams, 

and embankments. 

(a) General. Each application shall 

include a general plan and a detailed 

design plan for each proposed siltation 

structure, water impoundment, and coal 

processing waste bank, dam, or 

embankment within the proposed 

permit area. 

(1) Each general plan shall— 

* * * * * 

(2) Impoundments meeting the Class 

B or C criteria for dams in the U.S. 

Department of Agriculture, Soil 

Conservation Service Technical Release 

No. 60 (210–VI–TR60, Oct. 1985), 

‘‘Earth Dams and Reservoirs,’’ Technical 

Release No. 60 (TR–60) shall comply 

with the requirements of this section for 

structures that meet or exceed the size 

or other criteria of the Mine Safety and 

Health Administration (MSHA). The 

technical release is hereby incorporated 

by reference. This incorporation by 

reference was approved by the Director 

of the Federal Register in accordance 

with 5 U.S.C. 552(a) and 1 CFR part 51. 

TR–60 may be viewed or downloaded 

from OSM’s Web site at http://

www.osmre.gov/programs/TDT/

damsafety.shtm. It also is available for 

inspection at the OSM Headquarters 

Office, Office of Surface Mining 

Reclamation and Enforcement, 

Administrative Record, Room 252, 1951 

Constitution Ave. NW., Washington, DC 

or at the National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/

federal_register/code_of_federal_

regulations/ibr_locations.html. Each 

detailed design plan for a structure that 

meets or exceeds the size or other 

criteria of MSHA, § 77.216(a) of this 

chapter shall: 

(i) Be prepared by, or under the 

direction of, and certified by a qualified 

registered professional engineer with 

assistance from experts in related fields 

such as geology, land surveying, and 

landscape architecture; 

(ii) Include any geotechnical 

investigation, design, and construction 

requirements for the structure; 

(iii) Describe the operation and 

maintenance requirements for each 

structure; and 

(iv) Describe the timetable and plans 

to remove each structure, if appropriate. 

* * * * * 

(c) * * * 

(2) Each plan for an impoundment 

meeting the size of other criteria of the 

Mine Safety and Health Administration 

shall comply with the requirements of 

§§ 77.216–1 and 77.216–2 of this title. 

The plan required to be submitted to the 

District Manager of MSHA under 

§ 77.216 of this title shall be submitted 

to the regulatory authority as part of the 

permit application in accordance with 

paragraph (a) of this section. 

* * * * * 

(d) Coal processing waste banks. Coal 

processing waste banks shall be 

designed to comply with the 

requirements of 30 CFR 817.81 through 

817.84. 

(e) Coal processing waste dams and 

embankments. Coal processing waste 

dams and embankments shall be 

designed to comply with the 

requirements of 30 CFR 817.81 through 

817.84. Each plan shall comply with the 

requirements of the Mine Safety and 

Health Administration, 30 CFR 77.216– 

1 and 77.216–2, and shall contain the 

results of a geotechnical investigation of 

the proposed dam or embankment 

foundation area, to determine the 

structural competence of the foundation 

which will support the proposed dam or 

embankment structure and the 

impounded material. The geotechnical 

investigation shall be planned and 

supervised by an engineer or 

engineering geologist, according to the 

following: 

(1) The number, location, and depth 

of borings and test pits shall be 

determined using current prudent 

engineering practice for the size of the 

dam or embankment, quantity of 

material to be impounded, and 

subsurface conditions. 

(2) The character of the overburden 

and bedrock, the proposed abutment 

sites, and any adverse geotechnical 

conditions which may affect the 

particular dam, embankment, or 

reservoir site shall be considered. 

(3) All springs, seepage, and ground 

water flow observed or anticipated 

during wet periods in the area of the 

proposed dam or embankment shall be 

identified on each plan. 

(4) Consideration shall be given to the 

possibility of mudflows, rock-debris 

falls, or other landslides into the dam, 

embankment, or impounded material. 

(f) If the structure meets the Class B 

or C criteria for dams in TR–60 or meets 

the size or other criteria of § 77.216(a) of 

this chapter, each plan under 

paragraphs (b), (c), and (e) of this 

section shall include a stability analysis 

of the structure. The stability analysis 

shall include, but not be limited to, 

strength parameters, pore pressures, and 

long-term seepage conditions. The plan 

shall also contain a description of each 

engineering design assumption and 

calculation with a discussion of each 

alternative considered in selecting the 

specific design parameters and 

construction methods. 

■ 11. Revise § 784.19 to read as follows: 

§ 784.19 Underground development waste. 

Each plan shall contain descriptions, 

including appropriate maps and cross 

section drawings of the proposed 

disposal methods and sites for placing 

underground development waste and 

excess spoil generated at surface areas 

affected by surface operations and 

facilities, according to 30 CFR 817.71 

through 817.74. Each plan shall describe 

the geotechnical investigation, design, 

construction, operation, maintenance 

and removal, if appropriate, of the 

structures and be prepared according to 

30 CFR 780.35. 

■ 12. Amend § 784.23 by revising 

paragraphs (b)(10) and (c) to read as 

follows: 

§ 784.23 Operation plan: Maps and plans. 

* * * * * 

(b) * * * 

(10) Location of each sedimentation 

pond, permanent water impoundment, 

coal processing waste bank, and coal 

processing waste dam and embankment, 

in accordance with 30 CFR 784.16 and 

disposal areas for underground 

development waste and excess spoil, in 

accordance with 30 CFR 784.19; 

* * * * * 

(c) Except as provided in 

§§ 784.16(a)(2), 784.16(a)(3), 784.19, 

817.71(b), 817.73(c), 817.74(c) and 

817.81(c) of this chapter, cross sections, 

maps and plans required under 

paragraphs (b)(4), (5), (6), (10) and (11) 

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Federal Register / Vol. 79, No. 245 / Monday, December 22, 2014 / Rules and Regulations 76231 

of this section shall be prepared by, or 

under the direction of, and certified by 

a qualified, registered, professional 

engineer, a professional geologist, or in 

any State which authorizes land 

surveyors to prepare and certify such 

cross sections, maps and plans, a 

qualified, registered, professional, land 

surveyor, with assistance from experts 

in related fields such as landscape 

architecture. 

§ 784.28 [Removed] 

■ 13. Remove § 784.28. 

PART 816—PERMANENT PROGRAM 

PERFORMANCE STANDARDS— 

SURFACE MINING ACTIVITIES 

■ 14. The authority citation for part 816 

is revised to read as follows: 

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

115 of Pub. L. 98–146. 

■ 15. 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– 

0047. 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 1 

hour per response, 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., Room 203, Washington, DC 20240; 

and the Office of Management and 

Budget, Paperwork Reduction Project 

(1029–0047), Washington, DC 20503. 

■ 16. In § 816.11, revise paragraph (e) to 

read as follows: 

§ 816.11 Signs and markers. 

* * * * * 

(e) Buffer zone markers. Buffer zones 

shall be marked along their boundaries 

as required under § 816.57. 

* * * * * 

■ 17. Amend § 816.43 as follows: 

■ a. Revise paragraph (a)(3); 

■ b. Remove paragraph (a)(4) and 

redesignate paragraph (a)(5) as 

paragraph (a)(4); 

■ c. Revise paragraphs (b)(1) and (b)(4); 

and 

■ d. Remove paragraph (b)(5). 

The revisions will read as follows: 

§ 816.43 Diversions. 

(a) * * * 

(3) Temporary diversions shall be 

removed promptly when no longer 

needed to achieve the purpose for 

which they were authorized. The land 

disturbed by the removal process shall 

be restored in accordance with this part. 

Before diversions are removed, 

downstream water-treatment facilities 

previously protected by the diversion 

shall be modified or removed, as 

necessary, to prevent overtopping or 

failure of the facilities. This requirement 

shall not relieve the operator from 

maintaining water-treatment facilities as 

otherwise required. A permanent 

diversion or a stream channel reclaimed 

after the removal of a temporary 

diversion shall be designed and 

constructed so as to restore or 

approximate the premining 

characteristics of the original stream 

channel including the natural riparian 

vegetation to promote the recovery and 

the enhancement of the aquatic habitat. 

* * * * * 

(b) * * * 

(1) Diversion of perennial and 

intermittent streams within the permit 

area may be approved by the regulatory 

authority after making the finding 

relating to stream buffer zones that the 

diversion will not adversely affect the 

water quantity and quality and related 

environmental resources of the stream. 

* * * * * 

(4) The design and construction of all 

stream channel diversions of perennial 

and intermittent streams shall be 

certified by a qualified registered 

professional engineer as meeting the 

performance standards of this part and 

any design criteria set by the regulatory 

authority. 

* * * * * 

■ 18. Amend § 816.46 by redesignating 

paragraphs (b)(2) through (b)(5) as 

paragraphs (b)(3) through (b)(6), 

respectively, and by adding a new 

paragraph (b)(2) to read as follows: 

§ 816.46 Hydrologic balance: Siltation 

structures. 

* * * * * 

(b) * * * 

(2) All surface drainage from the 

disturbed area shall be passed through 

a siltation structure before leaving the 

permit area, except as provided in 

paragraph (b)(5) or (e) of this section. 

The requirements of this paragraph are 

suspended effective December 22, 1986, 

per court order. 

* * * * * 

■ 19. Revise § 816.57 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 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. 

■ 20. In § 816.71, revise paragraphs (a) 

through (d) to read as follows: 

§ 816.71 Disposal of excess spoil: General 

requirements. 

(a) General. Excess spoil shall be 

placed in designated disposal areas 

within the permit area, in a controlled 

manner to— 

(1) Minimize the adverse effects of 

leachate and surface water runoff from 

the fill on surface and ground waters; 

(2) Ensure mass stability and prevent 

mass movement during and after 

construction; and 

(3) Ensure that the final fill is suitable 

for reclamation and revegetation 

compatible with the natural 

surroundings and the approved 

postmining land use. 

(b) Design certification. (1) The fill 

and appurtenant structures shall be 

designed using current, prudent 

engineering practices and shall meet 

any design criteria established by the 

regulatory authority. A qualified 

registered professional engineer 

experienced in the design of earth and 

rock fills shall certify the design of the 

fill and appurtenant structures. 

(2) The fill shall be designed to attain 

a minimum long-term static safety factor 

of 1.5. The foundation and abutments of 

the fill must be stable under all 

conditions of construction. 

(c) Location. The disposal area shall 

be located on the most moderately 

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76232 Federal Register / Vol. 79, No. 245 / Monday, December 22, 2014 / Rules and Regulations 

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. 

(d) Foundation. (1) Sufficient 

foundation investigations, as well as any 

necessary laboratory testing of 

foundation material, shall be performed 

in order to determine the design 

requirements for foundation stability. 

The analyses of foundation conditions 

shall take into consideration the effect 

of underground mine workings, if any, 

upon the stability of the fill and 

appurtenant structures. 

(2) Where the slope in the disposal 

area is in excess of 2.8h:1v (36 percent), 

or such lesser slope as may be 

designated by the regulatory authority 

based on local conditions, keyway cuts 

(excavations to stable bedrock) or rock 

toe buttresses shall be constructed to 

ensure stability of the fill. Where the toe 

of the spoil rests on a downslope, 

stability analyses shall be performed in 

accordance with § 780.35(c) of this 

chapter to determine the size of rock toe 

buttresses and keyway cuts. 

* * * * * 

PART 817—PERMANENT PROGRAM 

PERFORMACNE STANDARDS— 

UNDERGROUND MINING ACTIVITIES 

■ 21. The authority citation for part 817 

continues to read as follows: 

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

■ 22. 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 1029–0048. 

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. This 

information will be used by the 

regulatory authority 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 4 

hours per response, including the time 

for reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. 

■ 23. In § 817.11, revise paragraph (e) to 

read as follows: 

§ 817.11 Signs and markers. 

* * * * * 

(e) Buffer zone markers. Buffer zones 

required by § 817.57 shall be clearly 

marked to prevent disturbance by 

surface operations and facilities. 

* * * * * 

■ 24. Amend § 817.43 as follows: 

■ a. Revise paragraph (a)(3); 

■ b. Remove paragraph (a)(4) and 

redesignate paragraph (a)(5) as 

paragraph (a)(4); 

■ c. Revise paragraphs (b)(1) and (b)(4); 

and 

■ d. Remove paragraph (b)(5). 

The revisions will read as follows: 

§ 817.43 Diversions. 

(a) * * * 

(3) Temporary diversions shall be 

removed promptly when no longer 

needed to achieve the purpose for 

which they were authorized. The land 

disturbed by the removal process shall 

be restored in accordance with this part. 

Before diversions are removed, 

downstream water-treatment facilities 

previously protected by the diversion 

shall be modified or removed, as 

necessary, to prevent overtopping or 

failure of the facilities. This requirement 

shall not relieve the operator from 

maintaining water-treatment facilities as 

otherwise required. A permanent 

diversion or a stream channel reclaimed 

after the removal of a temporary 

diversion shall be designed and 

constructed so as to restore or 

approximate the premining 

characteristics of the original stream 

channel including the natural riparian 

vegetation to promote the recovery and 

the enhancement of the aquatic habitat. 

* * * * * 

(b) * * * 

(1) Diversion of perennial and 

intermittent streams within the permit 

area may be approved by the regulatory 

authority after making the finding 

relating to stream buffer zones called for 

in 30 CFR 817.57 that the diversions 

will not adversely affect the water 

quantity and quality and related 

environmental resources of the stream. 

* * * * * 

(4) The design and construction of all 

stream channel diversions of perennial 

and intermittent streams shall be 

certified by a qualified registered 

professional engineer as meeting the 

performance standards of this part and 

any design criteria set by the regulatory 

authority. 

* * * * * 

■ 25. Amend § 817.46 by redesignating 

paragraphs (b)(2) through (b)(5) as 

paragraphs (b)(4) through (b)(7), 

respectively, and by adding new 

paragraphs (b)(2) and (b)(3) to read as 

follows. 

§ 817.46 Hydrologic balance: Siltation 

structures. 

* * * * * 

(b) * * * 

(2) All surface drainage from the 

disturbed area shall be passed through 

a siltation structure before leaving the 

permit area, except as provided in 

paragraph (b)(5) or (e) of this section. 

The requirements of this paragraph are 

suspended effective December 22, 1986, 

per court order. 

(3) Siltation structures for an area 

shall be constructed before beginning 

any underground mining activities in 

that area, and upon construction shall 

be certified by a qualified registered 

professional engineer, or, in any State 

which authorizes land surveyors to 

prepare and certify plans in accordance 

with § 784.16(a) of this chapter, a 

qualified registered professional land 

surveyor, to be constructed as designed 

and as approved in the reclamation 

plan. 

* * * * * 

■ 26. Revise § 817.57 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 underground mining 

activities closer to, or through, such a 

stream. The regulatory authority may 

authorize such activities only upon 

finding that— 

(1) Underground 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 § 817.43. 

(b) The area not to be disturbed shall 

be designated as a buffer zone, and the 

operator shall mark it as specified in 

§ 817.11. 

■ 27. In § 817.71, revise paragraphs (a) 

through (d) and add a new paragraph (k) 

to read as follows: 

§ 817.71 Disposal of excess spoil: General 

requirements. 

(a) General. Excess spoil shall be 

placed in designated disposal areas 

within the permit area, in a controlled 

manner to— 

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Federal Register / Vol. 79, No. 245 / Monday, December 22, 2014 / Rules and Regulations 76233 

(1) Minimize the adverse effects of 

leachate and surface water runoff from 

the fill on surface and ground waters; 

(2) Ensure mass stability and prevent 

mass movement during and after 

construction; and 

(3) Ensure that the final fill is suitable 

for reclamation and revegetation 

compatible with the natural 

surroundings and the approved 

postmining land use. 

(b) Design certification. (1) The fill 

and appurtenant structures shall be 

designed using current, prudent 

engineering practices and shall meet 

any design criteria established by the 

regulatory authority. A qualified 

registered professional engineer 

experienced in the design of earth and 

rock fills shall certify the design of the 

fill and appurtenant structures. 

(2) The fill shall be designed to attain 

a minimum long-term static safety factor 

of 1.5. The foundation and abutments of 

the fill must be stable under all 

conditions of construction. 

(c) Location. 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. 

(d) Foundation. (1) Sufficient 

foundation investigations, as well as any 

necessary laboratory testing of 

foundation material, shall be performed 

in order to determine the design 

requirements for foundation stability. 

The analyses of foundation conditions 

shall take into consideration the effect 

of underground mine workings, if any, 

upon the stability of the fill and 

appurtenant structures. 

(2) When the slope in the disposal 

area is in excess of 2.8h:lv (36 percent), 

or such lesser slope as may be 

designated by the regulatory authority 

based on local conditions, keyway cuts 

(excavations to stable bedrock) or rock 

toe buttresses shall be constructed to 

ensure stability of the fill. Where the toe 

of the spoil rests on a downslope, 

stability analyses shall be performed in 

accordance with § 784.19 of this chapter 

to determine the size of rock toe 

buttresses and keyway cuts. 

* * * * * 

(k) Face-up operations. Spoil resulting 

from face-up operations for 

underground coal mine development 

may be placed at drift entries as part of 

a cut and fill structure, if the structure 

is less than 400 feet in horizontal length, 

and designed in accordance with 

§ 817.71. 

[FR Doc. 2014–29864 Filed 12–19–14; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2014–1032] 

RIN 1625–AA00 

Safety Zone, Elizabeth River; 

Portsmouth, VA 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary Final Rule. 

SUMMARY: The Coast Guard is 

establishing a safety zone on the 

navigable waters of the Elizabeth River 

in Portsmouth, VA for 10 periods of 48 

hours beginning at midnight on 

February 18, February 23, February 26, 

March 3, March 9, April 20, April 23, 

April 27, April 30, and May 11, 2015. 

This action will restrict vessel traffic 

movement in the designated area during 

construction of the new Midtown 

Tunnel. This action is necessary to 

protect the life and property of the 

maritime public due to the number of 

work vessels in the designated area and 

their lack of maneuverability while 

engaged in construction operations. 

DATES: This rule is effective from 

December 22, 2014 through May 11, 

2015, and will be enforced for 10 

periods of 48 hours in length, beginning 

at midnight on February 18, February 

23, February 26, March 3, March 9, 

April 20, April 23, April 27, April 30, 

and May 11, 2015. 

ADDRESSES: Documents mentioned in 

this preamble are part of docket [USCG– 

2014–1032]. To view documents 

mentioned in this preamble as being 

available in the docket, go to http:// 

www.regulations.gov, type the docket 

number in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rulemaking. You may also visit the 

Docket Management Facility in Room 

W12–140 on the ground floor of the 

Department of Transportation West 

Building, 1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email LCDR Gregory Knoll, Waterways 

Management Division Chief, Sector 

Hampton Roads, Coast Guard; telephone 

(757) 668–5580, email 

HamptonRoadsWaterway@uscg.mil. If 

you have questions on viewing or 

submitting material to the docket, call 

Cheryl Collins, Program Manager, 

Docket Operations, telephone (202) 

366–9826. 

SUPPLEMENTARY INFORMATION: 

Table of Acronyms 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of Proposed Rulemaking 

A. Regulatory History and Information 

SKW Constructors are building a 

second span for the Midtown Tunnel 

between Portsmouth and Norfolk, VA 

and will be conducting operations that 

require closures of the federal channel 

beginning in February 2015. A Notice of 

Proposed Rulemaking (NPRM) was 

published on August 25, 2014 in the 

Federal Register (79 FR 50571). 

The Coast Guard received one 

comment on the NPRM, which is 

addressed below in Section C. No 

request for a public meeting was 

received, and no meeting was held. 

The original Temporary Final Rule, 

docket number [USCG–2014–0693] was 

published on November 12, 2014 in the 

Federal Register (79 FR 67063). Due to 

unforeseen construction delays, the 

channel closure dates had to be shifted 

back, prompting the issuance of the 

instant Temporary Final Rule. 

B. Basis and Purpose 

The legal basis for the rule is the 

Coast Guard’s authority to establish 

regulated navigation areas and other 

limited access areas: 33 U.S.C. 1231; 46 

U.S.C. Chapter 701, 3306, 3703; 50 

U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 

6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 

2064; Department of Homeland Security 

Delegation No. 0170.1. 

Due to increased vehicle traffic in the 

Hampton Roads area, SKW 

Constructors, in concert with Elizabeth 

River Crossings and the Virginia 

Department of Transportation, is 

constructing a second tunnel parallel to 

the existing Midtown Tunnel between 

Portsmouth and Norfolk, VA. The 

construction will involve submerging 

elements of the new Midtown Tunnel. 

The presence of working vessels and the 

inability to maneuver submerged 

equipment necessitate closures of the 

federal channel. The closures will be in 

effect for 10 48-hour periods to allow 

SKW Constructors to install the 

segments of the tunnel that overlap the 

federal channel. 

The Coast Guard is establishing a 

safety zone in the portion of the 

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